The Applicant, Sobeys West Inc., sought judicial review of new regulations adopted by the Respondent, the Alberta College of Pharmacists. The Court decided the standard of review was correctness even though the parties agreed the standard of review was reasonableness.

[2016] A.J. No. 235

2016 ABQB 138

Alberta Court of Queen's Bench

V.O. Ouellette J.

March 10, 2016

The Applicant, Sobeys West Inc. (“Sobeys”), operated several pharmacies in Alberta. The Respondent, Alberta College of Pharmacists (the “College”), is the governing body responsible for regulating pharmacies and pharmacists in Alberta. The College does this pursuant to its statutory authority granted by the Health Professions Act and the Pharmacy and Drug Act.

On April 10, 2014, the College adopted regulations to prohibit pharmacies and pharmacists from offering inducements to customers that are conditional on the customer obtaining a drug or a pharmacy service (the “Inducement Prohibitions”). The Inducement Prohibitions were scheduled to come into effect on June 10, 2014. Sobeys applied for judicial review of the College’s decision before the Inducement Prohibitions came into effect. Sobeys argued the Inducement Prohibitions were regulating professional fees and were therefore ultra vires of the College’s jurisdiction.

The Court of Queen’s Bench granted a stay of the Inducement Prohibitions on June 4, 2014. On December 2 & 3, 2015, the hearing of the petition for judicial review commenced. The parties agreed that the applicable standard of review was reasonableness. The Court decided the standard of review was correctness and later released this decision to explain the basis for that finding.

The Court considered the factors outlined in Dunsmuir v. New Brunswick, 2008 SCC 9. In this case, there was no privative clause shielding the College’s decision from judicial review. The Court also reviewed the College’s purposes to regulate pharmacies and pharmacists in the public interest. The Court considered that the question here related to the scope of the College’s duty to protect the public interest. The Court considered that the College did not have any special expertise about the scope of the “public interest”. The meaning of “public interest” is an issue of importance to the legal system because it is relevant for many other self-regulated professions.

The Court concluded the standard of correctness was applicable to the following two issues in the petition for judicial review:

  1. whether the prohibition of inducements offered through loyalty programs by pharmacies and pharmacists is ultra vires of the College under the Health Professions Act; and
  2. whether, in light of the records, the mandate of the College, to regulate pharmacies and pharmacists under the Health Professions Act, and protect the public interest extends to the maintenance of competition through the prohibition of loyalty programs.