Application for declaration that mandatory revocation provisions under the Health Professions Procedural Code are unconstitutional as being ultra vires the province.

[2014] O.J. No. 5549

2014 ONSC 6613

Ontario Superior Court of Justice

G. Mew J.

November 21, 2014

Mr. Hanif, the applicant, was a pharmacist. He had a consensual sexual relationship with a patient. Following an investigation into Mr. Hanif’s conduct, the Ontario College of Pharmacists charged Mr. Hanif with professional misconduct and sexual abuse. Mr. Hanif pleaded guilty.

Pursuant to section 51(5) of the Health Professions Procedural Code, being schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, a registrant’s licence is mandatorily and permanently revoked in cases of sexual abuse. In this case, Mr. Hanif challenged the constitutionality of the mandatory licence revocation provisions.

Mr. Hanif appealed the College’s finding of professional misconduct and applied for a declaration that the mandatory revocation provisions are unconstitutional. Revocation of Mr. Hanif’s licence was held in abeyance until the constitutional challenge was determined.

The Attorney General brought a motion before the College for reconsideration of the College’s decision to hold the revocation in abeyance. The College dismissed the Attorney General’s motion for reconsideration. The Attorney General then brought a motion in Superior Court in the context of the application regarding constitutionality to consolidate the underlying proceedings and the constitutional proceedings. The Attorney General’s motion in Superior Court was dismissed. The Attorney General then brought a motion in the Divisional Court to have the Superior Court order set aside. The Divisional Court dismissed that motion. The Attorney General elected not to appeal the Divisional Court’s order to the Court of Appeal.

Mr. Hanif’s application raised two issues: (1) whether the Superior Court has jurisdiction to hear the constitutional challenge; and (2) whether the mandatory revocation provisions are ultra vires the province.

On the first issue, the Attorney General argued that under the Judicial Review Procedure Act, R.S.O. 1990, c. 19, the constitutional challenge must be raised in the Divisional Court. On this issue, the Court held that it was unnecessary to determine the jurisdictional question because the Attorney General was estopped from raising the issue. The jurisdictional issue raised by the Attorney General was litigated by the parties in the Superior Court and a motion in the Divisional Court to set that decision aside was dismissed. Rather than appeal to the Court of Appeal, the Attorney General raised the jurisdiction issue again in the Superior Court and was estopped from doing so.

On the second issue, the Court held that the mandatory revocation provisions are constitutional. The mandatory revocation provisions do not violate the division of powers because they are, in pith and substance, concerned with the professional regulation of Ontario pharmacists. The Court found the purpose of the mandatory revocation provisions is to govern the conduct of health care professionals licensed in Ontario and to prohibit sexual activity in an effort to prevent sexual abuse. The presence of moral considerations does no per se render a law ultra vires the province. The Court held that the mandatory revocation provisions are professional penalties, not criminal penalties. They relate solely to the ability of a registrant to carry on his or her regulated profession. On that basis, Mr. Hanif’s application was dismissed.