[1997] 2 F.C. 247
T-1961-95
Sahar Elguindi (Applicant)
v.
Canada (Minister of Health) and Director of Bureau of Drug Surveillance (Respondents)
Indexed as: Elguindi v. Canada (Minister of Health) (T.D.)
Trial Division, Muldoon J.—Toronto, July 9; Ottawa, December 5, 1996.
Administrative law — Judicial review — Certiorari — Application to set aside decision of Director, Bureau of Drug Surveillance to issue notices to Ontario College of Pharmacists, members prohibiting their dispensing narcotic drugs upon applicant’s order — Serious shortages in employer’s narcotic inventory for period when applicant pharmacist responsible — No reasonable apprehension of bias — Finding of breach of Narcotic Control Regulations, ss. 50(d), (e) necessary to determine whether Minister should exercise discretion to issue notice, not pre-judgment — Merely decision to proceed made within administrative framework — Director’s decision relied upon documents not previously disclosed — Breach of procedural fairness — Matter should be returned to Director unless outcome inevitable — Question whether applicant could have made meaningful submissions had documents been disclosed — Given unaccountable losses for which applicant responsible, outcome inevitable, Director’s decision justified.
Health and Welfare — Control of narcotics — Pharmacists — Application to set aside decision of Director, Bureau of Drug Surveillance to issue notices to Ontario College of Pharmacists, members prohibiting them from dispensing narcotic drugs upon applicant’s order — Serious shortages in employer’s narcotic inventory during period applicant pharmacist responsible — Narcotic Control Regulations imposing almost strict liability on pharmacists to control narcotic inventory — Applicant not providing satisfactory explanation for shortages — Based on evidence 8000 narcotic tablets missing, Director not making patently reviewable error in deciding to notify College, narcotics dealers.
This was an application to set aside the decision of the Director, Bureau of Drug Surveillance to send notices to the Ontario College of Pharmacists and its members and licensed narcotics dealers prohibiting them from dispensing narcotic drugs upon any order of the applicant. The Minister of Health had delegated the authority to issue prohibition notices to the Director General, Drugs Directorate, to whom the respondent Director reported. The applicant is a pharmacist. After she was removed from her duties as pharmacy manager with Meditrust, her employer identified several shortages in its narcotic inventory, and so advised the Drug Control Unit (DCU) which conducted its own audit. The applicant was subsequently advised by letter dated April 18, 1995 of the shortages and an explanation was requested. By way of reply, the applicant did not deny the shortages, but indicated a lack of control over narcotic drugs at Meditrust, and pointed to a number of problems at Meditrust. She did not offer an explanation for the shortages. On June 12, 1995 the respondent Director wrote to the applicant stating that the Bureau had determined that she had violated Narcotic Control Regulations, paragraphs 50(d) and (e) and section 30 and requested submissions within 15 days. Again the applicant’s reply did not explain the missing narcotics, but provided excuses for not being able properly to control the narcotics for which she was responsible. The applicant’s lawyer then made submissions by letter as to problems with the audit, problems with Meditrust’s system for storing and dispensing narcotics, and alleging that Meditrust was trying to blame the applicant for the narcotic losses. On August 23, 1993 the Director wrote to the applicant informing her that he was considering invoking the Minister’s authority to give notice to pharmacists and licensed narcotics dealers not to sell any narcotic drugs to the applicant and allowed 14 days for representations. The Director’s decision to issue notices was issued on January 4, 1996. Included with the decision were several documents which were apparently relied upon, but which had not been previously disclosed to the applicant.
The issues were (1) whether there was a reasonable apprehension of bias; (2) whether the Director made his decision without regard to the evidence before him; and (3) whether there was a breach of natural justice because the Director had not disclosed all of the documents considered prior to making his decision, and that he had entertained submissions ex parte without disclosing them to the applicant.
Held, the application should be dismissed.
(1) There was no reasonable apprehension of bias. The applicant was put on notice by the April 18, 1995 letter that there was a shortage of narcotics during the period for which she was responsible. She made submissions in her defence. The Director in his June 12, 1995 letter found a breach of Regulations, paragraphs 50(d) and (e). This conclusion was necessary to determine whether the Minister should exercise his discretion to issue notice under paragraphs 47(b) and 48(b). This decision to ascertain whether the circumstances warranted the exercise of his discretion, did not amount to pre-judgment: the letter did not indicate that the Director viewed that the matter should proceed towards notification. This stage of the proceedings was no more than a decision to proceed to the decision stage and was made purely within the administrative framework.
(2) The Director did not make a reviewable error. It was incumbent upon the applicant to show that the Director made a patently unreasonable finding of fact or law. The Regulations impose an almost strict liability on pharmacists to control their narcotics inventories. The question was not how the drugs went missing, but how properly protected narcotics went missing. No satisfactory explanation was given to the Director. This was a factual determination made by the Director on the basis of the material before him. As the evidence showed some 8000 narcotic tablets missing, the Director did not make a patently unreasonable error in deciding that the applicant should be held responsible for the shortages. The legal decision made by the Director to issue notice pursuant to the Regulations, was based on this factual finding and was rationally supported by it.
(3) The full-blown rights of natural justice did not need to be afforded in this case, as this procedure was on the lower end of the spectrum, viz. it was the exercise of ministerial discretion. No oral hearing is stipulated in the Act, nor was one requested. Ample notice was given and the applicant knew the substance of the allegations and evidence against her. But the requirement for disclosure, intimately related to the ability to advance one’s case, exists even at the lower end of the spectrum. Without full disclosure the applicant may be unable to present her case effectively. The actual content of the evidence is not relevant. Because there had been a breach of procedural fairness, the respondent had to prove beyond a reasonable doubt that the non-disclosure of the documents to the applicant made no difference to the outcome. Whenever there is a breach of natural justice or procedural fairness, the matter must be returned to the tribunal for re-determination. This principle was somewhat tempered by Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board wherein the Supreme Court of Canada withheld a remedy because the outcome was “inevitable”, but this exception should be narrowly construed. Even had the documents been disclosed so that the applicant could have made submissions thereon, it would not have changed the outcome; the decision was about missing narcotic drugs during her tenure as head pharmacist at Meditrust. The record and submissions showed no reasonable doubt that the applicant would not have been able to challenge the audit successfully. It was not shown that the entire audit was redolent with flaws.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4).
Food and Drugs Act, R.S.C., 1985, c. F-27.
Narcotic Control Act, R.S.C., 1985, c. N-1.
Narcotic Control Regulations, C.R.C., c. 1041, ss. 30 (as am. by SOR/85-588, s. 8), 47(b), 48(b), 50(d) (as am. idem, s. 19), (e) (as am. idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
MacLean Hunter Ltd. and Deputy M.N.R. (Customs and Excise) (1988), 15 C.E.R. 340; [1988] 1 C.T.C. 174; 88 DTC 6096; 87 N.R. 195 (F.C.A.); Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560; (1989), 57 D.L.R. (4th) 663; [1989] 3 W.W.R. 289; 36 Admin. L.R. 72; 7 Imm. L.R. (2d) 253; 93 N.R. 81; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; (1990), 69 D.L.R. (4th) 489; [1990] 3 W.W.R. 289; 83 Sask. R. 81; 43 Admin. L.R. 157; 30 C.C.E.L. 237; 90 CLLC 14,010; 106 N.R. 17; Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643; (1985), 24 D.L.R. (4th) 44; [1986] 1 W.W.R. 577; 69 B.C.L.R. 255; 16 Admin. L.R. 233; 23 C.C.C. (3d) 118; 49 C.R. (3d) 35; 63 N.R. 353; Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105; (1980), 110 D.L.R. (3d) 311; [1980] 3 W.W.R. 125; 18 B.C.L.R. 124; 31 N.R. 214; Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879; (1989), 62 D.L.R. (4th) 385; 100 N.R. 241; Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202; (1994), 115 Nfld. & P.E.I.R. 334; 111 D.L.R. (4th) 1; 360 A.P.R. 334; 163 N.R. 27.
CONSIDERED:
Yassine v. Canada (Minister of Employment & Immigration) (1994), 27 Imm. L.R. (2d) 135; 172 N.R. 308 (F.C.A.).
REFERRED TO:
Beauchamp v. Hockin (1989), 30 F.T.R. 318 (F.C.T.D.); Richardson (James) & Sons Ltd. v. M.N.R., [1981] 2 W.W.R. 357 (Man. Q.B.); Reza v. Canada, [1994] 2 S.C.R. 394; (1994), 116 D.L.R. (4th) 61; 22 Admin. L.R. (2d) 79; 21 C.R.R. (2d) 236; 24 Imm. L.R. (2d) 117; 167 N.R. 282; 72 O.A.C. 348; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; (1994), 114 D.L.R. (4th) 385; [1994] 7 W.W.R. 1; 22 Admin. L.R. (2d) 1; 46 B.C.A.C. 1; 92 B.C.L.R. (2d) 145; 14 B.L.R. (2d) 217; 4 C.C.L.S. 117; 168 N.R. 321; 75 W.A.C. 1; Cashin v. Canadian Broadcasting Corporation, [1988] 3 F.C. 494 (1988), 20 C.C.E.L. 203; 9 C.H.R.R. D/5343; 88 CLLC 17,019; 86 N.R. 24 (C.A.); Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (1986), 18 Admin. L.R. 243; 66 N.R. 8 (C.A.); Budge v. Workers’ Compensation Board (Alta.) (1985), 66 A.R. 13; [1987] 1 W.W.R. 83; 42 Alta. L.R. (2d) 26 (C.A.).
AUTHORS CITED
Wade, H. W. R. Administrative Law, 6th ed. Oxford: Clarendon Press, 1988.
APPLICATION to set aside the decision of the Director, Bureau of Drug Surveillance to issue notices to the Ontario College of Pharmacists, its members and licensed narcotics dealers prohibiting them from dispensing narcotic drugs upon any order of the applicant. Application dismissed.
COUNSEL:
Harvey S. Stone and Peter P. Chang for applicant.
Roger Lafrenière for respondents.
SOLICITORS:
Borden & Elliott, Toronto, and Peter P. Chang, Willowdale, Ontario for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order rendered in English by
Muldoon J.: This is an application for an order setting aside the decision of Mr. Bruce Rowsell, Director of the Bureau of Drug Surveillance (Bureau), made January 4, 1996, which notified the applicant, Ms. Sahar Elguindi, that notices were being sent to the Ontario College of Pharmacists (College) and to its members and licensed narcotics dealers prohibiting them from dispensing narcotic drugs from any order of applicant. There is currently an interlocutory injunction preventing the Director and the College from issuing the notices pending the outcome of this judicial review.
The respondent, the Minister of Health, has delegated his authority to issue prohibition notices under the Narcotic Control Act, R.S.C., 1985, c. N-1 and Narcotic Control Regulations, C.R.C., c. 1041, to the Assistant Deputy Minister, the Director General, Drugs Directorate and the Director, Bureau of Dangerous Drugs, Drugs Directorate. The respondent Director of the Bureau of Drug Surveillance is the head of the Bureau. The Bureau enforces the Regulations and is part of the Drugs Directorate, which in turn is part of the Health Protection Branch, which is part of the Department. The Director reports to the Director General, Drugs Directorate who in turn reports to an assistant deputy minister, who reports to a deputy minister. The Director, Mr. Rowsell, made the impugned decision to issue notices.
Ms. Elguindi is a pharmacist and has both a Bachelor of Science (Pharmacy, 1988) and Master of Science (Pharmacy, 1990) degree from the University of Toronto. After graduation from pharmacy school, the applicant owned a small retail pharmacy, Seaway Pharmacy, until August, 1993. She was enrolled full-time in the Doctorate of Pharmacy (D.Pharm) program at the University of Toronto from June to December, 1992.
During the period she was in the D.Pharm program, the Drug Control Unit (DCU) audited the narcotic inventory at Seaway Pharmacy and discovered that 789 Oxycocet and 422 Oxycodan tablets could not be accounted for (applicant’s application record (AAR), Volume 3, at page 431). As noted above, the applicant was attending school full-time and was able to attend the pharmacy for only 10-15 hours a week. During this time, eight pharmacists were working at the pharmacy, either in a temporary full-time or part-time capacity. Apparently two of these pharmacists had been caught stealing pharmaceuticals by their former employers (AAR, Volume 3, at page 434). The applicant took immediate steps to regain her lost control of the situation, and did so to the interim satisfaction of the DCU (AAR, Volume 3, at page 435). In August, 1993, Ms. Elguindi swears, she sold Seaway Pharmacy.
Ms. Elguindi began employment as a pharmacist with Meditrust Pharmacy in February, 1994. Meditrust is a mail-order-only pharmacy and operates on a large scale. It fills between 400-1000 prescriptions a day. This is about six to eight times the daily output of a regular dispensary. The applicant was the pharmacy manager of Meditrust from March 25, 1994 to November 1, 1994, according to the applicant’s affidavit (AAR, Volume 1, at page 11), or November 3, according to college records (AAR, Volume 3, at page 426) which note that it was to this date the applicant had signing authority for narcotics. Her employment with Meditrust ended on March 9, 1995.
Just before the applicant’s tenure as pharmacy manager, but while she was an employee at Meditrust, the managing pharmacist, Mr. Steve Yuen, reported the loss of 700 Percocet tablets. The loss was reported to an inspector of the DCU, Aron Wolfson, by telephone on March 3, 1994 (AAR, Volume 3, at page 427) and confirmed in writing on June 14, 1994 (AAR, Volume 3, at page 438). No further action was taken by the Bureau. (Through this matter, the conduct of the Bureau has appeared to be far less than optimal and efficient. Its efforts seem to have been stretched too thinly. Mr. Wolfson, in paragraph 18 of his affidavit sworn February 13, 1996, attributes at least one shortcoming, tardy response, to “budgetary constraints, limited resources and other priorities”.)
The applicant also swore in her affidavit that Meditrust had an endemic theft problem: not only had these narcotics gone missing, but during the time that she worked at Meditrust, money, a laptop computer, a television set, and three desktop computers went missing. A private investigator was hired to combat the theft problem (AAR, Volume 1, at pages 11-12).
On two occasions while Ms. Elguindi was the pharmacy manager, she met with the college to discuss questionable pharmacy practices at Meditrust. In early May, 1994 the applicant met with Tina Langlois, counsel for the College, and Mr. Robert Pritchard and discussed unprofessional practices. On November 2, 1994 the applicant met with Ms. Langlois to discuss the transfer of the head pharmacist position to a non-pharmacist manager (AAR, Volume 1, at pages 68-69).
The applicant was removed from her duties as pharmacy manager on November 1 or 2, 1994 (AAR, Volume 1, at page 100). From the fourth to the seventh of November Meditrust counted the narcotic inventory. Some 1000 Oxycocet, 500 Oxycodan, 200 Percocet and 200 Percodan capsules were missing (AAR, Volume 1, at page 27). On November 9, 1994, Mr. Neil Donald, the Vice-President for Meditrust’s pharmacy operations in Ontario, and the applicant sent a letter to the DCU advising them of the shortage. This letter assured the DCU that regular inventory counts would be taken, a log system for access would be established and a security camera would be installed (AAR, Volume 1, at page 27).
The DCU audited Meditrust’s narcotics inventory between March 7 and 9, 1995. The audit was conducted by inspectors, Aron Wolfson and Aaron Lueng. Of the twelve audited drugs, the Narcotic/Controlled Drug Loss/Theft Report revealed the following shortages for eight accounts: 1968 Demerol 50 mg tablets; 111 ml of suspensed Demerol; 712 capsules of Fiorinal c1/2, 4461 Oxycet tablets, (recalling that 700 were reported missing previously); 2163 Oxycodan tablets; 1000 (resolved at 200) Percocet tablets; 800 Percodan tablets and 200 MS Contin 200 mg tablets (AAR, Volume 4, at page 816). The investigation also discovered that Ms. Elguindi did not enter three shipments of narcotics in the N/CD register as required by section 30 [as am. by SOR/85-588, s. 8] of the Narcotic Control Regulations, C.R.C., c. 1041 (Regulations). Mr. Wolfson discovered this by obtaining copies of the invoices signed by the applicant from Medis, Meditrust’s narcotic drug supplier (AAR, Volume 3, at page 429; Volume 1, at page 31).
On March 13, 1995, the applicant was dismissed by Meditrust as a result of corporate restructuring.
On April 18, 1995, Mr. Jean-Marc Charron, Chief of the Drug and Environmental Health Inspection Division for Ontario, sent the applicant a letter advising her of the shortages the investigation discovered. The shortages noted above were adjusted for the period that the applicant had signing authority for narcotics, from March 23, 1994 to November 3, 1994. They are: 3925 Oxycocet tablets; 2063 Oxycodan tablets; 200 Percocet tablets; 200 Percodan tablets; 654 Fiorinal c1/2 tablets, a shortage which the Court discounts; 1256 Demerol 50 mg tablets; and 200 Contin 200 mg tablets (AAR, Volume 1, at page 30). The investigation found that there were no discrepancies from November 4, 1994 to March 6, 1995. On the same day Mr. Charron sent a copy of this letter to the Registrar, Ontario College of Pharmacists, with a cover indicating that the DCU (AAR, Volume 2, at page 334) was requesting an explanation from the applicant. The relevant portion of the letter to the applicant (AAR, Volume 1, at pages 30-31) reads, thus:
The Regulations to the Narcotic Control Act and the Food and Drugs Act specify that a pharmacist must be able to account for all of the narcotic and controlled drugs under his or her control. When a pharmacist is unable to do so, the law provides the authority for the Minister to withdraw the pharmacist’s privileges with respect to the purchase and handling of these substances.
It was also noted that not all narcotic and controlled drug receipts had been entered in the designated N/CD Register, in violation of regulations 30 and G.03.001 of the NCA and FDA respectively. Three of these shipments, signed for by yourself according to copies provided to us by Medis, contained drugs identified in the above described losses.
Before contemplating further action, you are being asked to acknowledge receipt of this letter indicating that its contents have been read and understood. You should also provide an explanation or comment on these shortages.
The applicant replied by letter on April 24, 1995 when, for longer than one month, she was no longer employed by Meditrust (AAR, Volume 3, at page 444). The letter did not deny the existence of any shortages. The letter indicates a lack of control over narcotic drugs at Meditrust. The applicant pointed to a number of problems that Meditrust had. It is also apparent from the letter that she and the Vice-President of Systems for Meditrust, Ajay Majithia, did an informal audit of Percocet, Percodan, Oxycodan and Oxycet. Majithia is also a pharmacist. The letter was an attempt to justify her actions. To her mind Meditrust was playing fast and loose with the narcotics regulations and she attempted to bring some order to the situation. The letter noted incidents of theft of money and non-pharmaceutical property and an employee being fired for mailing herself a large quantity of Prozac. It was the applicant’s opinion that it was impossible for the pharmacy manager, her position, to have the same level of control as one could have in a regular dispensary because the volume the pharmacy handled was too high. As well, the applicant mentioned incidents of theft of narcotic drugs after they were delivered via mail. The letter did not offer an explanation for the losses of some 8508 narcotics tablets. Oddly, there are two different copies of the letter in existence, the one noted above sent to Mr. Charron, and the one the applicant attached in her affidavit, found at Volume 1, at page 32. There are discrepancies between the two letters. The inconsistencies have little impact on the outcome of the case. Given the profound concern which the applicant evinced for the matters she described, and her own professional standing, it is a great wonder that she did not call in the DCU and quit her employment with Meditrust long before November, 1994.
Mr. Charron replied to the applicant by letter of May 26, 1995 (AAR, Volume 1, at page 35). The thrust of the letter is that the applicant’s comments did not “address themselves adequately in explaining the dramatic losses that occurred at Meditrust” (AAR, Volume 1, at page 35). The letter notes that, if anything, the audit results would be in the applicant’s favour because it presumed a starting inventory of zero on March 23, 1994. Mr. Charron indicated that mailing narcotics was not prohibited by law and that any theft of the drugs after they left the pharmacy was irrelevant. Further, the allegations of theft were not linked to the missing narcotics, and “the erosion of these [preventatory] provisions over a period of time because of resource constraints is not an adequate excuse” (AAR, Volume 1, at page 35). The letter closes (AAR, Volume 1, at page 36):
As for your perception that in your work history you have “never had a problem”, you might want to recall your experience as the owner of Seaway Pharmacy . An audit conducted by one of our Inspectors in January 1993 found significant unexplained losses of Oxycocet and Oxycodan. That experience should have fully sensitized you to the need for complete key control and restricting as far as possible the handling of N/CD material to pharmacists only.
Was it unfair of the Chief of the Drug & Environment Health Inspection Division?
On June 7, 1995, Ms. Anne Sztuke-Fournier, then the acting head of the Prescription Assessment Section of the Bureau, composed a draft letter for the Director’s signature to the applicant and to the College, and sent it to the Director and to Legal Services (AAR, Volume 2, at pages 251-252). The draft letter to the College advised the College of the problem and was to attach the correspondence between the Bureau and Ms. Elguindi. The letter to the applicant states that the Bureau had determined that she had violated paragraphs 50(d) [as am. by SOR/85-588, s. 19] and (e) [as am. idem] and section 30 of the Regulations. The letter advised Ms. Elguindi that formal consultation with the College was going to be initiated and that she had the opportunity to make submissions to the Bureau within 15 days of receipt of the letter. This letter was approved by Mr. Mario Simard at Legal Services on June 12, 1995 (AAR, Volume 2, at page 349) and was sent to the applicant, with Mr. Rowsell’s signature, on that same date (AAR, Volume 1, at page 41). The letter to the College, with a copy of the letter to Ms. Elguindi, was also sent that day (AAR, Volume 2, at page 127).
On June 15, 1995, Ms. Elguindi replied to Mr. Rowsell’s letter. Her letter essentially reiterated the content of her April 24, 1995 letter to Mr. Charron. Again no explanation for missing narcotics was given, apart from the thievery of technicians. The letter contested the findings of the Bureau and provided excuses for not being able properly to control the narcotics she was responsible for, in the Seaway as well as the Meditrust situation (AAR, Volume 1, at pages 37-39). Ms. Elguindi seems to have been a star-crossed pharmacist, with narcotics frequently disappearing all around her.
The applicant retained a solicitor, Mr. Peter Chang, who requested a time extension for representations to be made to the Director on July 6, 1995 (AAR, Volume 1, at page 42). The next day he requested a copy of the March 7 to 9 inspection report (AAR, Volume 1, at page 43). The applicant was allowed an extension until July 31, 1995.
On July 31, 1995, Mr. Chang made submissions by letter to Director Rowsell (AAR, Volume 1, at page 50). The submissions touched three major areas: problems with the audit, problems with Meditrust’s system for storing and dispensing narcotics and that Meditrust was trying to blame Ms. Elguindi for the narcotic losses. With respect to the audit, which is most important in terms of this case, Mr. Chang pointed to apparent discrepancies between the November 8, 1994 inventory and the investigators’ numbers. He suggested two reasons, non-exclusive, for the difference. The first was that “Meditrust had withheld crucial data from the audit. thus creating an impression that large quantities of drugs were missing” (AAR, Volume 1, at page 51).
The second is that Meditrust’s records could not be relied on, because it relied on Meditrust’s documentation, which the applicant submitted was insufficient. Regarding Meditrust’s system for storage of narcotic drugs, Mr. Chang noted that the applicant was susceptible to manipulation from Meditrust. Essentially, the applicant tried to the best of her ability to convince the Meditrust management to comply with the Narcotic Control Act and the Food and Drugs Act [R.S.C., 1985, c. F-27]. Her recommendations were continually frustrated (AAR, Volume 1, at page 54). Yet she did not resign. It is interesting to note that Meditrust promised to indemnify her for the costs of any disciplinary action taken by the College and the six-month salary if her licence was suspended or revoked (AAR, Volume 1, at page 61). This did not include professional misconduct.
Mr. Chang’s third submission was that there were three possible reasons why Meditrust wanted to lay the blame on the applicant. The first was to cover up its own inefficiency and lack of security. The second was that Meditrust did not want to pay Ms. Elguindi the six-month salary that they had agreed to. The third was that the Meditrust management held a particular animosity to the applicant (AAR, Volume 1, at page 56).
On August 15, 1995, the College replied to the course of action (AAR, Volume 2, at page 128) proposed in the June 12, 1995 letter and the further correspondence of July 10, 1995 (AAR, Volume 1, at page 49). The letter indicated that the College had no objection to the Bureau issuing notices to pharmacists and licensed narcotics dealers. On August 23, 1995 the Director sent a letter (AAR, Volume 1, at page 65) to Mr. Chang advising him that he had commenced formal consultation with the College and was considering invoking the authority of the Minister to give notice to pharmacists and licensed narcotics dealers in Ontario not to sell any narcotic drugs to the applicant. The letter allowed the applicant 14 days to make representations to the Director.
On September 19, 1995 the applicant filed the originating notice of motion for this judicial review which included a request for an interlocutory injunction against the Director to prohibit notice to pharmacists or licensed narcotics dealers. The injunction and an order that the Director retract any notices issued was adjourned sine die by Justice Wetston on September 20, 1995. Further representations were made by the applicant’s solicitor on November 1, 1995 (AAR, Volume 2, at page 392).
The Director’s decision to issue notices was issued on January 4, 1996. It reads in part (AAR, Volume 4, at pages 831-835):
The Bureau holds Elguindi responsible for losses that occurred between March 23, 1994 to November 3, 1994. The period of December 8, 1993, to March 23, 1994 was excluded and the inspectors conducted their audit by assuming a zero inventory, thereby giving Ms. Elguindi the benefit of the doubt and placing the results in the best possible light. The drug inventory is computed as a difference between the drugs purchased less those sold, less drugs still in inventory.
You will find enclosed a copy of the inspector’s comments, dated October 10, 1995, as well as copies of invoices (items missed in purchase records) obtained directly from the licenced dealer, Medis Health and Pharmaceutical Services Inc., …. No evidence was found indicating that Meditrust’s records were inaccurate.
…
You indicated that evidence of theft existed at Meditrust. However, there is no mention of the nature and quantities of drugs involved.
…
If a pharmacist chooses to work in an unsuitable environment, he or she becomes responsible for his or her actions. The Ontario College of Pharmacists … would most certainly have been interested to know that there was a violation in procedures at Meditrust. There is no indication that Ms. Elguindi has made any efforts to appraise them of the situation.
…
It is determined that Sahar Elguindi has not provided any evidence to account for the shortages of narcotic drugs …. Hence, it has been determined that Sahar Elguindi has violated paragraph 50(d) and (e) and 30 of the Narcotic Control Regulations.
…
I have reviewed all the evidence and come to the conclusion that Ms. Elguindi has violated sections 50(d) and (e) and 30 of the Narcotic Control Regulations.
…
In view of all the circumstances of this case, I am therefore informing you of my decision, on behalf of the Minister of National Health and Welfare, to give notice to pharmacists in Ontario and licensed dealers that they may not supply any medication with a narcotic drug content, pursuant to Ms. Sahar K. Elguindi’s orders. These notices will be issued on January 30, 1996.
These notices can be revoked when the following circumstances occur:
(a) A pharmacist and the appropriate licensing authority of the province in which the pharmacist is registered and entitled to practice have made a written request to the Minister that the Minister revoke the notices given by the Minister; and
(b) One year has elapsed since the notices referred to above were given by the Minister.
In keeping with the longstanding policy of this bureau to maintain a close liaison with all provincial licensing authorities, we are providing the Ontario College of Pharmacists with a copy of this correspondence.
Included with the decision were several documents which were apparently relied on but which had not been previously disclosed. These included copies of the Medis purchase records (Medis being the narcotic dealer), the Medis monthly sales reports and letters from the DCU, dated January 27, 1993 and February 2, 1993 to the applicant regarding the Seaway incident. The cross-examination of Ms. Sztuke-Fournier also revealed that there were numerous oral representations made between Ms. Fournier and the Director (see especially AAR, Volume 2, at pages 284-285).
On January 22, 1996 the applicant obtained an interlocutory injunction before the Associate Chief Justice prohibiting the respondents from issuing notices pending the outcome of judicial review before this Court. The hearing was set for June 3, 1996. On this date, the applicant obtained an order to conduct cross-examinations of Ms. Fournier and Mr. Wolfson and to obtain any other documentation that had been considered by the Director in coming to his decision. More documents were turned over to the applicant.
The applicant has raised three issues with respect to the impugned decision. The first is that there was a reasonable apprehension of bias. The second ground is that the Director made his decision to issue notices without regard to the evidence before him. The final is that there was a breach of natural justice because the Director did not disclose all of the documents considered by him in making the decision prior to the decision and that he entertained submissions ex parte without disclosing same to the applicant.
The first is without merit. There was no reasonable apprehension of bias. The applicant’s argument is that because the Director’s June 12, 1995 letter stated “It has been determined you have violated the following Narcotic Control Regulations as outlined below” (AAR, Volume 1, at page 40), the decision had already been made. Counsel for the applicant further submitted that the applicant was not notified that the decision was going to be made and that she had no opportunity to make submissions. This decision, against which the applicant was supposedly denied the opportunity to respond, showed a predisposition that subsequent submissions did not affect. The thrust of this submission contests the finding of the breach of the Regulations (transcript, at pages 251-255). This submission is without merit. The applicant was put on notice by the April 18, 1995 letter from Mr. Charron that there was a shortage of narcotics for the period for which she was responsible (AAR, Volume 1, at page 30). She made submissions in her defence at this stage by her letter of April 24, 1995 (AAR, Volume 1, at page 32). While these do not amount to submissions to the director per se, this was her first opportunity to stop the entire process had she been able to provide a satisfactory explanation for the missing drugs. The Director, in his June 12, 1995 letter to the applicant, found a breach of paragraphs 50(d) and (e) of the Regulations. This conclusion was necessary to determine whether the Minister should exercise his discretion to issue notice under paragraphs 47(b) and 48(b) of the Regulations. The relevant portion of the letter (AAR, Volume 1, at page 41) reads, thus:
Sections 47 and 48 of the Narcotic Control Regulations contain provisions that when the above-mentioned circumstances exist, the Minister may notify pharmacists and licensed dealers not to supply narcotic drugs on the order of that pharmacist …. Accordingly you are provided with an opportunity to make whatever representations you feel appropriate within fifteen (15) days from the date of the receipt of this letter.
This decision, to see whether the circumstances warrant the exercise of his discretion, in no way amounts to pre-judgment: the letter does not indicate that the Director viewed that the matter should proceed towards notification as of June 12, 1995. This stage of the proceedings was no more than a decision to proceed to the decision stage and is made purely within the administrative framework.
The second ground, that the Director made a reviewable error, also fails. When the Minister or his representatives make a decision pursuant to an Act of Parliament, the Minister is said to constitute a federal board for the purposes of section 18 of the Federal Court Act, R.S.C., 1985, c. F-7 [as am. by S.C. 1990, c. 8, s. 4] (Beauchamp v. Hockin (1989), 30 F.T.R. 318 (F.C.T.D.); Richardson (James) & Sons Ltd. v. M.N.R., [1981] 2 W.W.R. 357 (Man. Q.B.)). Board decisions are usually held to be reviewable only when they are patently unreasonable (Reza v. Canada, [1994] 2 S.C.R. 394). So it is incumbent on the applicant in this case to show that the board made a patently unreasonable finding of fact or law.
The applicant submits that the Director committed a reviewable error when he found that the applicant should be held responsible for losses that were, according to both the applicant and the DCU’s inspectors, the result of pilferage (transcript, at page 259). While this may be a correct assertion, the Regulations impose an almost strict liability on pharmacists to control their narcotics inventories. How the drugs went missing is not the question. Rather, the question is how properly protected narcotics went missing. No satisfactory explanation was given to the Director. This is a factual determination made by the Director on the basis of the material before him. Should the Court defer to the Director’s factual finding?
Courts will usually show deference to a specialized board (Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557). This case is no exception. The director of the Bureau of Drug Surveillance is easily characterized as a specialized board. The rôle of the Bureau is to administer the legislation governing the use of narcotic and controlled drugs in Canada (AAR, Volume 2, at page 120) and to minimize the health hazards associated with the inappropriate circulation and use of narcotic drugs. This includes preventing their entry into the illicit market. The Bureau monitors the distribution of narcotics from information supplied by licensed pharmaceutical dealers, pharmacies and inspection staff employed by the Department (AAR, Volume 2, at pages 121-122). As the evidence before him showed some 8000 narcotic tablets missing, the Director did not make a patently unreasonable error in deciding that the applicant should be held responsible for the shortages. The legal decision made by the Director, to issue notice pursuant to the Regulations, was based on this factual finding and is rationally supported by it. This fits within the thoughts of Mr. Justice MacGuigan of the Federal Court of Appeal in MacLean Hunter Ltd. and Deputy M.N.R. (Customs and Excise) (1988), 15 C.E.R. 340 (F.C.A.), at page 343:
Courts have consistently held that it is not an error of law for a tribunal not to give reasons on every argument presented to it (Canadian Arsenals Limited v. Canada Labour Relations Board, [1979] 2 F.C. 393at pp. 399-400), nor even to fail to make an explicit written finding on each constituent element of its decision (Service Employees’ Int’l Union, Local No. 333 v. Nipawin District Staff Nurses Assn of Nipawin et al. (1974), 41 D.L.R. (3d) 6 at p. 13, [1974] 1 W.W.R. 653 at p. 659). The only question that can arise in the absence of written reasons is whether the decision arrived at can rationally be supported.
The final ground raised by the applicant, that there was a breach of natural justice, warrants careful consideration as there may be grave consequences to Ms. Elguindi’s career. The specific breach alleged by the applicant was that the Director considered material that was not disclosed to the applicant prior to the decision and that the Director considered submissions ex parte without allowing the applicant a chance to respond.
The first question to be addressed is how much procedural fairness the administrative scheme attracts. The statute itself does not speak to any requirements or limits of natural justice. In these cases,
… tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. [Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560, at pages 568-569].
Madam Justice L’Heureux-Dubé, speaking for the majority of the Supreme Court in Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, made it clear that a general duty to be fair will exist if the following three factors laid out by Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643, are met. The first to consider is the nature of the decision. The director’s decision, exercising the Minister’s authority, is not a purely administrative one and comes within the type of “general” decision contemplated by the Supreme Court. The other part of this first factor is the finality of the decision. If the decision is final, as opposed to preliminary, it is more likely to trigger the duty to act fairly. In the case at hand, the decision is final, but may be subsequently lifted as above mentioned.
The second factor is the relationship between the board and the applicant. Here, the director was exercising a delegated statutory power. As Madam Justice L’Heureux-Dubé put it, at page 675:
The powers exercised by the appellant Board are delegated statutory powers which, as much as the statutory powers exercised directly by the government, should be put only to legitimate use … the public has an interest in the proper use of delegated power by administrative bodies.
While this was discussed in the context of an office “held at pleasure”, it does not exclude ministerial discretion delegated to the director.
The third factor to be considered is the impact of the decision on the applicant. How will the decision affect Ms. Elguindi’s rights? In Knight, L’Heureux-Dubé, J. stated that “There is a right to procedural fairness only if the decision is a significant one and has an important impact on the individual” (at page 677). As a general principle, “[a] high standard of justice is required when the right to continue in one’s profession or employment is at stake” (Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, at page 1113). In this case, Ms. Elguindi’s ability to carry out the duties of a professional pharmacist will be impaired by the decision because she will not be able to order narcotics. This is part and parcel of the pharmacist’s profession. Further, it will be a blemish on her record which may impair her ability to secure employment in the future. When the three factors are considered, there is no doubt that the decision attracts a general duty of fairness.
This said, the content of the duty must be determined. Mr. Justice Sopinka noted in Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879, at pages 895-896 that:
Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of the case, the statutory provisions and the nature of the matter to be decided. The distinction between them therefore becomes blurred as one approaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative or executive tribunals. Accordingly, the content of the rules to be followed by a tribunal is now not determined by attempting to classify them as judicial, quasi-judicial, administrative or executive. Instead, the court decides the content of these rules by reference to all the circumstances under which the tribunal operates.
Thus, the decision this Court must make is to determine whether the Director was required to comply with all the rules of natural justice or to accord some of the rules of procedural fairness to the appellant. In this case, the applicant had opportunity to make submissions and did so on several occasions. The full-blown rights of natural justice do not need to be afforded in this case, as this procedure is on the lower end of the spectrum, viz., it is the exercise of ministerial discretion. No oral hearing is stipulated in the Act, nor was one requested. Ample notice was given, and the applicant knew the substance of the allegations and evidence against her. The issue in this case is very narrow. Does the non-disclosure of documents which were before the Director at the time of making the decision, to which the applicant was obviously unable to respond, constitute a breach of procedural fairness? Disclosure, intimately related to the ability to advance one’s case, exists even at the lower end of the spectrum.
The evidence which was before the Director and not disclosed until after the decision is found at Volume 2, tab 5(f) of the applicant’s application record. The extent to which the Director considered each piece, if at all, is not known. The decision simply states “I have reviewed all the evidence” (AAR, Volume 4, at page 834). Of importance to the applicant is that they include all the underlying inventories and sales records of narcotics for both Meditrust and Medis. All the applicant had to respond to was the Community Pharmacy Inspection Report (transcript, at page 108), which was a tabulation of these underlying documents.
The documents received by the applicant pursuant to the June 18, 1996 order by the Associate Chief Justice are as follows:
1. A March 16, 1995 memorandum from inspectors Wolfson and Lueng concerning a meeting with a Crown attorney and two police officers with respect to the narcotics investigation at Meditrust (AAR, Volume 2, at page 332).
2. A March 15, 1995 memorandum from inspectors Wolfson and Lueng to Police Constable Rick Ricketts of the Metropolitan Toronto Police with respect to the applicant and Meditrust (AAR, Volume 2, at page 333).
3. A July 13, 1995 note of a telephone conversation between Mr. Wolfson and Ms. Fournier regarding the applicant and Cim’s Drugmart (AAR, Volume 2, at page 341).
4. A July 14, 1995 Community Pharmacy Inspection Report prepared by inspector Wolfson with respect to Cim’s Drugmart (AAR, Volume 2, at page 342).
5. An August 3, 1995 note from Ms. Fournier to the Director advising that the applicant was arrested July 18 regarding the Meditrust investigation by police and charged for theft under $5000 and regarding a new incident at Cim’s Drugmart not yet investigated (AAR, Volume 2, at page 344).
6. An August 23, 1995 letter from the Director to the College (AAR, Volume 2, at page 345).
7. A September 22, 1995 memorandum from Ms. Fournier to Legal Services regarding the applicant and Cim’s Drugmart (AAR, Volume 2, at page 360).
8. An October 4, 1995 file summary from Ms. Fournier to the Director Mr. Charron and Legal Services (AAR, Volume 2, at page 365).
9. A November 21, 1995 e-mail message from Ms. Fournier to the Director, Legal Services and Mr. Charron (AAR, Volume 2, at page 386).
10. Ms. Fournier’s notes to file of November 22, 1995 and December 14, 1995 with respect to meeting with the College (AAR, Volume 2, at page 393).
11. A November 23, 1995 e-mail message from Mr. Charron to Ms. Fournier (AAR, Volume 2, at page 394).
12. A November 23, 1995 memorandum from Mr. Charron to file and to the Director (AAR., Volume 2, at page 395).
The leading authority on this issue is Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105. Mr. Justice Dickson [as he then was] outlined six propositions; three of these reflected above. The final three propositions are pertinent to disclosure (at pages 1113-1116):
4. The tribunal must listen fairly to both sides, giving the parties to the controversy a fair opportunity “for correcting or contradicting any relevant statement prejudicial to their views” ….
5. It is a cardinal principle of our law that, unless expressly or by necessary implication, empowered to act ex parte, an appellante [sic] authority must not hold private interviews with witnesses … or, a fortiori, hear evidence in the absence of a party whose conduct is impugned and under scrutiny. Such a party must, in the words of Lord Denning in Kanda v. Government of the Federation of Malaya, ([1962] A.C. 322, at p. 337), “… know the case which is made against him. He must know what evidence has been given and what statements have been made effecting him: and then he must be given a fair opportunity to correct or contradict them …. Whoever is adjudicate must not hear evidence or receive representations from one side behind the back of the other.”
…
6. The court will not inquire whether the evidence did work to the prejudice of one of the parties; it is sufficient if it might have done so. Kanda v. Government of the Federation of Malaya, supra, at p. 337. In the case at bar, the Court cannot conclude that there was no possibility of prejudice as we have no knowledge of what evidence was, in fact, given by President Kenny following the dinner adjournment …. We are not here concerned with proof of actual prejudice, but rather with the possibility or the likelihood of prejudice in the eyes of reasonable persons.
In Kane, Mr. Justice Dickson made a strong statement regarding disclosure. Disclosure goes to procedural fairness, in that without full disclosure the applicant may be unable to present her case effectively. Dickson J. also noted that the actual content of the evidence is not relevant. The crucial fact in that case was that the content of the representations made by the university president to the board of governors was not known. The reviewing court could not make any assessment of prejudice. This view of disclosure has been upheld on numerous occasions by various courts (the Federal Court of Appeal in Cashin v. Canadian Broadcasting Corporation, [1988] 3 F.C. 494 Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 the Alberta Court of Appeal in Budge v. Workers’ Compensation Board (Alta.) (1985), 66 A.R. 13.
Whenever there was a breach of natural justice or procedural fairness, predicated, of course, by the degree of procedural fairness the process is afforded, the matter must be sent back to the tribunal for re-determination. This authority flows from Cardinal, supra, where Mr. Justice Le Dain stated, at page 661:
… I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have.
This principle has recently been somewhat tempered by the 1994 Supreme Court decision in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. Mr. Justice Iacobucci quoted Professor Wade [Administrative Law, 6th ed.], at page 228:
A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.
Mr. Justice Iacobucci went on to state that the Mobil case was “exceptional, since ordinarily the apparent futility of a remedy will not bar its recognition” (at page 228). Clearly, the exception should be construed very narrowly.
The limits to this distinction have not yet been established (Yassine v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 135 (F.C.A)). In Yassine, the issue was whether the Convention Refugee Determination Division breached the rules of natural justice by receiving information after the hearing had ended and relying on that information. While the case was decided on another ground, Mr. Justice Stone noted Mobil and stated, at page 140:
While recognizing that natural justice or procedural fairness has been denied, the Supreme Court gave effect to Professor Wade’s distinction by withholding a remedy because the outcome was “inevitable”, in that the decision-maker “would be bound in law to reject the application” of the appellant therein.
The case at bar may fit into this exception only if the outcome is otherwise “hopeless” or “inevitable”. Thus the question at hand becomes even narrower: could the applicant have made meaningful submissions had these documents been disclosed? The question does not purport to determine whether the submissions would have ultimately affected the outcome of the case. Rather, would they challenge an inevitable outcome?
Why should this exception even be explored? The record shows that, at the very least, the applicant is a poor, if not incompetent, record keeper. The Act and Regulations, the intent of which is to safeguard Canadian society from the ravages of illicit drugs, rely on record keeping. Her profession is subject to Parliament’s direction in so far as the tracking of narcotics is concerned. Credibility was raised at the hearing, and while it is not central to the disposition of the case, the Court cannot help but notice and question it. The administrative scheme itself does not exact a high order of procedural fairness: it is a discretionary decision of the Minister, and the Act or Regulations do not provide an elaborate mechanism to safeguard the impugned rights.
There is a basically simple linear arithmetic progression: what quantity of narcotic drugs has been received by the pharmacist? what quantity has been dispensed? how much remains? If not enough remains, the pharmacist is professionally responsible for the shortfall, whether it be insignificant or significant. The applicant was given numerous opportunities for submissions. The applicant had the Community Pharmacy Inspection Report and knew other documents existed. She had, after all, worked at Meditrust as the head pharmacist. Further, she did request disclosure of specific documents, in particular those concerning the Seaway incident. This said, the Court must keep in mind the purpose of the exception: is the final result inevitable?
The documents noted above which were disclosed in accordance with the June 18, 1996 order are of no help to Ms. Elguindi. Even if she could have made submissions, it would not have changed the outcome: the decision was about missing narcotic drugs during her tenure as head pharmacist at Meditrust. The only relevant documents about which she may have made meaningful submissions are the documents which underlie the Community Pharmacy Inspection Report, as that report triggered the entire process. As the limits of the Mobil exception regarding the “inevitable” outcome of a case have not been defined, this Court will invoke the criminal law standard, that beyond a reasonable doubt, in order to afford the applicant the best possible chance in view of the clear breach of procedural fairness by non-disclosure. Because there is a breach of procedural fairness, the respondent must prove beyond a reasonable doubt that the denial of these documents to the applicant would have made no difference on the outcome: it would have been a futile effort in “inevitable” circumstances. The reason for this exercise is that it was not unreasonable for the Director to base his decision on the conclusion of the investigating body and in doing so found no evidence that there were any problems with Meditrust’s documentation, which was the basis for the investigator’s conclusions. It was through this documentation, though, that the applicant may have been able to challenge the results of the audit, if at all. The applicant unfortunately has not persuaded the Court that any of the listed documents could be utilized to impugn the clear count of missing narcotics.
During oral submissions, counsel for the applicant attacked the accounting of a particular drug, Fiorinal c1/2. Review of the documents and oral submissions indicate that there was an error with the inventory figures of Fiorinal c1/2. This was admitted by the respondent’s counsel: “I am willing to acknowledge that there is an obvious error in the inventory with respect to Fiorinal c1/2. I am willing to acknowledge that” (transcript, at page 233). It is clear that a reasonable doubt concerning the inventory figures is raised, at least in so far as the applicant would be able to make meaningful submissions which could contradict the findings of the audit in regard to Fiorinal c1/2. The cross-examination of Mr. Wolfson revealed on numerous occasions that there were problems with the Meditrust documentation. This was revealed by comparing the usage report and by manual verification, i.e., comparison of hard copies of prescriptions against the computer generated records (transcript, at pages 221-223).
The axiom “one rotten apple spoils the bunch” hardly shows the result of the Fiorinal audit. The record and submissions show no reasonable doubt that the applicant would not have been able to challenge the audit successfully. In the case of a breach of procedural fairness, which impacts significantly on Ms. Elguindi’s professional career, the Court cannot be too cautious. On the other hand from the vantage of public health and safety, significant quantities of narcotics were noted above, to have escaped into the public at large, or otherwise “evaporated”, while in the applicant’s professional custody. She appears to have been professionally unreliable, thereby justifying the Director’s decision to notify the College that Ms. Elguindi is prohibited from dispensing narcotic drugs. When the audit is put to scrutiny, it is not shown that the entire audit was redolent with flaws. At the very least, the applicant can challenge the basis of the accounting only in the light of the only admitted flaw noted above. It is not the rôle of this Court to speculate that the whole audit was tainted with inaccuracy.
The allegations by Ms. Elguindi’s counsel regarding the basis for the figures are simply not borne out by the record. During the hearing counsel did show an error with the audit of Fiorinal c1/2, as noted above. None of the other drugs was challenged. One example is Percocet. Mr. Wolfson was cross-examined on how he was able to find that 200 Percocet tablets went missing during the applicant’s period of responsibility. When asked about how he was able to determine this, he answered (AAR, Volume 3, at pages 586-587):
A. All right. In the period, what we did is we … we assume an inventory of zero on 23/3/94. 23rd of March 94, we assume—because we had—we did not have—were privy or access to any stock inventory. And therefore, the only two purchases of the Percocet in that period, during the period—in that period that we were examining as mentioned, was one on the 19th of October ‘94. 10th of October ‘94, 100 tablets and the 28th of September, 1994 and I may say that 28/9/94 was one of the missing entries, which we verified at Medis and that come to 200. You can look at that in here. Okay.
Q. I see it then you’re utilizing two purchases of 200 Percocets?
A. Yes. And those were purchased in that period, so what we did was we—we held the period of responsibility. In that period that 200 were purchased. Now knowing the initial inventory and therefore 200 were missing.
Q. I take it then that there were no sales of Percocets noted on the Meditrust documentation during that period of time?
A. Let me see here. No, I—there—there would not appear to be any sales. So that would be the 200 received and no sales. 200 missing and no initial inventory.
And further, at page 587:
A. We have no idea what the inventory [sic]. We assume it was zero. There may have been more. There may have been tablets on hand, but we had no inventory, so we assume that there is zero. We start with zero and we hold the pharmacist accountable for the purchases in that period. We would not know what the inventory was.
No recorded sales of Percocet were made during the period of the applicant’s responsibility, so there was no problem with placebo record keeping similar to the Fiorinal c1/2 narcotics—even if that admitted error was as glaring as the applicant’s counsel contended it was. The Percocet count alone offers incontrovertible proof that “properly protected” narcotics went missing. This was a simple exercise in addition; not even complicated by the necessity of subtraction. At the end of the day 200 Percocet were missing, and presumably at risk to the public. This loss appears to be proved. Alas for the applicant, it justifies the Director’s decision.
In his cross-examination transcribed in AAR, Volume 3, at pages 450-646 and AAR, Volume 4, at pages 713-811, Mr. Wolfson described the audit methods of himself and his colleague Mr. Leung: pages 469-475, 487-492, 493-519, 521-545 and 634-642. He complained of budget constraints and lack of resources causing delayed response on the Bureau’s part: pages 539-540 and 542-543. Mr. Wolfson detailed the activities which he and Mr. Leung carried out on the Meditrust premises on March 7, 8 and 9, 1995: AAR, Volume 3, pages 546-602 and 604-638, and AAR, Volume 4, page 727 et seq. Mr. Wolfson testified about auditing 12 narcotic medications and finding shortages in 8 of them. Since that cross-examination, the respondent’s counsel has dropped the allegations about Fiorinal c1/2, (placebos, at page 611), leaving shortages alleged in 7 narcotic medications, and not displaced by or on behalf of the applicant. Perused is the Community Pharmacy Inspection Report noted shortages discussed as reported in AAR, Volume 3, page 552. Percocet shortages were alleged as above and discussion is reported in AAR, Volume 3, pages 556-561, 583-587 and 591-602. As well there is the matter specifically of invoice 321628 signed by the applicant, whose discussion is reported in AAR, Volume 3, pages 639-641. Mr. Wolfson’s testimony was not effectively countered.
As mentioned above it is a serious matter, where hundreds of narcotic medications slip through a pharmacist’s fingers and presumably do not go down into the sewer, but get out into the public. It is a danger to public health, and, given the applicant’s unaccountable losses for which she was, and remains, responsible, justifies the Director’s decision.
The application is dismissed.