The Pharmacist v. College of Pharmacists of British Columbia and another, 2024 BCHRT 291
Date Issued: October 17, 2024
File: CS-001057
Indexed as: The Pharmacist v. College of Pharmacists of British Columbia and another, 2024 BCHRT 291
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
The Pharmacist
COMPLAINANT
AND:
College of Pharmacists of British Columbia and Dr. Mandy Manak
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Beverly Froese
Counsel for the Complainant: Laura Track
Counsel for the Respondent College of Pharmacists of British Columbia: Susan Precious and Fritz Gaerdes
Counsel for the Respondent Dr. Mandy Manak: William Clark and Brett Weninger
Date of Hearing: May 31 – June 4, 2021
Location of Hearing: By videoconference
Written closing arguments: July 19, 2021
I INTRODUCTION
[1] This decision is about whether the College of Pharmacists of British Columbia and Dr. Mandy Manak discriminated against the Pharmacist on the basis of disability; specifically, an opioid use disorder and using the opiate agonist Suboxone to treat that disability.
[2] The Pharmacist alleges that Dr. Manak breached s. 8 of the Human Rights Code based on disability when she recommended to the College that it not permit him to practice as a community pharmacist unless he stopped using Suboxone to treat his substance use disorder. He further alleges that because of his substance use disorder, Dr. Manak stereotyped him in a report to the College as evasive, untrustworthy, suspicious, and dishonest.
[3] The Pharmacist alleges the College discriminated against him contrary to s. 14 of the Code based on disability when it refused to reinstate his license to practice as a community pharmacist because he was using Suboxone to treat his substance use disorder.
[4] I have considered all the evidence presented by the parties and their closing submissions. This decision does not include a complete recitation of the evidence and submissions, only those necessary to come to my decision.
[5] I would like to acknowledge and apologize to the parties for the length of time it has taken me to issue this decision. I know the parties expected and deserved a timely decision.
II ISSUES AND DECISION
[6] The Pharmacist alleges that Dr. Manak discriminated against him when she conducted an independent medical examination [IME] in April 2017 and concluded he was not fit to return to practice pharmacy. He also alleges that Dr. Manak discriminated against him by making comments, suggestions, and conclusions in her IME report to the College that were based on negative stereotypes about people with substance use disorders [Comments].
[7] The Pharmacist alleges the College discriminated against him by relying on Dr. Manak’s discriminatory IME report when deciding not to lift his suspension and allow him to return to work as a pharmacist. He also alleges the College failed to accommodate his disability to the point of undue hardship.
[8] The Respondents deny discriminating against the Pharmacist. They argue that the complaint against them should be dismissed on several grounds. Before determining whether either or both of the Respondents discriminated against the Pharmacist, I first must decide the following issues:
a. Should the complaint be dismissed because the Pharmacist failed to address the applicability of the Health Profession Act [Act ]?
b. Should the complaint be dismissed because its substance has already been addressed?
c. Should the complaint against Dr. Manak be dismissed because her opinions and recommendations are protected under the principles of absolute privilege and witness immunity?
d. Should the complaint be dismissed because it is an abuse of process and a collateral attack against the College’s processes?
[9] If I find the complaint should not be dismissed on any of the above grounds, I then must decide whether either or both of the Respondents discriminated against the Pharmacist. That requires me to decide the following issues:
a. Did the Pharmacist have a mental disability protected under the Code ?
b. If so, did the Pharmacist experience any adverse impacts regarding his membership with the College and the services Dr. Manak provided?
c. If so, was there a nexus between those adverse impacts and the Pharmacist’s disability?
d. If so, were the Respondents’ actions justified?
e. If not, what is the appropriate remedy?
[10] After considering the evidence and the parties’ submissions, I find that:
a. The complaint should not be dismissed because the Pharmacist failed to address the applicability of the Act ;
b. The complaint should not be dismissed because its substance has already been addressed;
c. The complaint against Dr. Manak should not be dismissed because her opinions and recommendations are protected under the principles of absolute privilege and witness immunity;
d. The complaint should not be dismissed because it is an abuse of process and a collateral attack against the College’s process;
e. With the exception of one, the Comments are discriminatory;
f. Dr. Manak’s recommendation to the College that the Pharmacist stop taking Suboxone if he wanted to work as a community pharmacist is not discriminatory;
g. The College’s decision not to reinstate the Pharmacist’s license in April 2017 is justified; and
h. The appropriate remedy includes compensation for expenses related to the hearing and for injury to the Pharmacist’s dignity, feelings, and self-respect.
[11] Below are my reasons. I begin with Dr. Manak’s application to limit publication. I then list witnesses from whom I heard evidence. Next, I set out some of the evidence and my findings where necessary. I then address preliminary arguments for dismissing the complaint before addressing the merits of the complaint. The final section in these reasons addresses remedy.
III APPLICATION TO LIMIT PUBLICATION
[12] Dr. Manak applies under Rule 5(6) of the Tribunal’s Rules of Practice and Procedure to limit publication of information that could identify the parties’ names and locations. Such an order was previously granted by the Tribunal during the pre-hearing process.
[13] Rule 5(6) requires a party applying to limit publication to “state why privacy interests outweigh the public interest in access to the tribunal’s proceedings”. The non-exhaustive list of factors the Tribunal considers include the stage of the proceedings, the nature of the allegations, private details in the complaint, harm to the person’s reputation, or other harm: JY v. Various Waxing Salons , 2019 BCHRT 106 at para. 30.
[14] Dr. Manak submits the order is warranted for two reasons. First, she says that given she serves a unique niche population in her geographic area of the province, publishing her identity would have the same impact as if she were a family physician in a very small community. Dr. Manak says that even if the complaint against her is ultimately found to be unproven, publishing her identity could cause irreparable damage to her reputation that she has spent many years developing. She also says that because the doctor-patient relationship is built on trust, making her identity public could impair her ability to provide care to her patients.
[15] Second, Dr. Manak submits that anonymizing this decision protects the Pharmacist’s privacy interests given the sensitive medical information about him that it will contain.
[16] In support of her application, Dr. Manak relies on KS v. Dr. O Corp . and another , 2018 BCHRT 273, where the Tribunal granted the respondent doctor’s application to limit publication. In that case, the Tribunal found the order was appropriate given the doctor’s concerns about the impact publication would have on his reputation and because the decision would include information about the complainant’s sensitive medical records: at para. 9. At para. 7 of the decision, the Tribunal stated:
The compelling state objective of an open and accessible justice system has long been recognized. Except for the most exceptional of cases, proceedings before courts and most tribunals are open to the public. Generally, the identity of participants in such proceedings is a matter of public record and, for the most part, individuals are not protected from being named in decisions. However, there may be irreparable harm that flows from the destruction of a person’s, particularly a doctor’s or other professional’s, reputation by unproven allegations of misconduct or, as in this case, violation of a person’s human rights. It is this balancing of interests that presents the problem in this case. As in all cases, context is important. [citations omitted]
[17] In support of her application, Dr. Manak cites several decisions where the Tribunal granted orders to limit publication in complaints brought against a physician. She points out that relevant factors in those cases included that the parties lived in a relatively small community, the nature of the sensitive medical information about the complainant that would be in the decision, and that knowledge of a human rights complaint being made against a physician might impair their ability to treat their patients. Dr. Manak submits these factors are particularly important given the wide dissemination of decisions over the internet.
[18] All the cases cited by Dr. Manak show an anonymization order may be appropriate in cases where a complaint against a medical professional has been dismissed before a hearing, not accepted because it was late-filed, or not proven at a hearing: Mr. B v. Dr. G , 2007 BCHRT 227; ND v. University of British Columbia and others , 2009 BCHRT 60; Mr. C v. The Clinic and another , 2016 BCHRT 192; LD v. A Health Authority and others , 2015 BCHRT 13; and The Patient v. The Clinic and another (No. 3) , 2021 BCHRT 3.
[19] The Pharmacist consents to an anonymization order if the complaint against Dr. Manak is dismissed. The Pharmacist agrees that he has a privacy interest in keeping his sensitive medical details confidential but opposes the order if his complaint against Dr. Manak is successful. In his submission, the Pharmacist says that if I find he has been discriminated against, he wants his and Dr. Manak’s full names and locations to be disclosed. The Pharmacist submits the public has the right to know a respondent’s identity when allegations of discrimination against them have been substantiated. The Pharmacist further submits that the facts that Dr. Manak practices in a specialized area and her services are sought out by employers and insurers weigh in favour of disclosing her identity. He says that if Dr. Manak has breached the Code , patients and clients may wish to seek out other options and she should not be shielded even if disclosing her identity harms her professional reputation.
[20] In support of his position, the Pharmacist relies on Basic v. Esquimalt Denture Clinic and another , 2020 BCHRT 138. In that case, the Tribunal denied an application to limit publication of the respondent’s name after a hearing on the merits and finding that the complainant’s employer, a medical professional, sexually harassed her. The Tribunal held that the late stage of the proceeding weighed in favour of openness and that the employer was not merely a private business owner, but a medical professional whose practice engaged the public interest through providing extended health and dental care: at paras. 8 and 10. The Tribunal also found that potentially devastating harm to the employer’s reputation and business interests did not justify limiting publication because those impacts flowed solely from his discriminatory actions: at para. 12.
[21] The Pharmacist also relies on The Sales Associate v. Aurora Biomed Inc. and others (No. 3) , 2021 BCHRT 5 [Aurora ]. In that case, the Tribunal denied the respondents’ application to limit publication after a hearing where they were found to have violated the Code . The Tribunal noted that identifying respondents who have breached the Code is in the public interest and that any damage to a respondent’s reputation from a public decision is a consequence that “flows from their own actions”: at para. 14.
[22] The College takes no position on the application other than to say that if it is granted, the order should be made on the basis Dr. Manak seeks and not only if the complaint against her is dismissed.
[23] If I had dismissed the entire complaint against Dr. Manak, I would have no difficulty granting her application based on the case law on which she relies. If, on the other hand, I had found the entire complaint against Dr. Manak was proven, I would have had no difficulty denying her application based on the reasoning in Basic and Aurora . The issue in this case is whether I should grant the application when I have found part of the complaint against Dr. Manak was proved and part of it was not.
[24] After weighing the relevant factors, I am not persuaded that Dr. Manak’s privacy interests outweigh the public interest in accessing the Tribunal’s proceedings.
[25] The stage of the Tribunal’s process weighs in favour of not anonymizing this decision. This is not an interim decision where allegations have been made but the Tribunal has not held a hearing and made factual findings. Further, I have found that Dr. Manak discriminated against the Pharmacist with respect to all but one of the Comments, which also weighs in favour of disclosure of her identity. Further, the nature of the unproven allegation against Dr. Manak is not the kind “likely to attract the public’s ‘prurient’ attention”, for example allegations that involve sexual harassment or impropriety: JY at para. 30. Rather, the unproven allegation is that Dr. Manak’s recommendation that the Pharmacist taper off Suboxone if he wanted to return to work as a community pharmacist was discriminatory. I have thoroughly explained my reasons for dismissing that part of the complaint after finding that Dr. Manak did not exercise her professional medical judgment in a discriminatory manner. For that reason, I am not persuaded that the fact this allegation was made against Dr. Manak but not proven is enough to justify anonymizing her identity.
[26] With respect to the Pharmacist’s identity, he states in his submission that he has a privacy interest in keeping his sensitive medical information confidential. Although he opposes Dr. Manak’s application if his complaint is successful, I am uncertain of the extent to which he consents to having his medical and other personal information become public. This decision contains a considerable amount of the Pharmacist’s sensitive personal and medical information that is relevant to the issues I must decide. This is information to which I cannot refrain from referring to be able to explain my reasons. For that reason, I have granted Dr. Manak’s application to limit publication of the Pharmacist’s identity. In my view it is better to not reveal his identity in these reasons than disclose information he would have wanted to remain confidential.
[27] If after reviewing this decision the Pharmacist wants his identity to be made public, the Tribunal will re-issue a decision that is not anonymized.
IV WITNESSES
[28] The Pharmacist testified on his own behalf and called the following witnesses:
a. his wife;
b. a former employer;
c. Dr. Evan Wood, an addictions medicine specialist; and
d. his family doctor [Family Doctor].
[29] The College called its Senior Investigator in the Complaints and Investigation Department [Senior Investigator] .
[30] Dr. Manak testified on her own behalf and submitted an expert report from Dr. Trevor Gillmore. Dr. Gillmore is licensed to practice medicine in Ontario. He holds a Fellowship Certification with the Canadian Board of Occupational Medicine and the American College of Occupational and Environmental Medicine. Dr. Gillmore is certified with the American and Canadian Societies of Addiction Medicine and has conducted hundreds of physical and psychological assessments of people with substance abuse disorders to determine if they are fit to return to work in safety-sensitive positions. Dr. Gillmore was not called to be cross-examined on his expert report and his opinions were not contested.
[31] Overall, I find the witnesses were credible and am satisfied they testified truthfully to the best of their ability. Memories surrounding certain events or conversations had understandably faded and I find differences in the evidence of some of the witnesses can be attributed to subjective interpretations and perceptions of the same incident. Where it is necessary to do so, I make credibility findings in the course of my analysis.
V EVIDENCE AND FINDINGS OF FACT
[32] In this section, I set out evidence presented at the hearing and some of my findings of fact.
A. The parties
1. The Pharmacist
[33] The Pharmacist has been a registrant with the College since 2003 and works as a community pharmacist. The Pharmacist lives with his wife and their children from previous relationships. It was evident from his testimony that the Pharmacist loves spending time with his family and takes great pride in his work. The Pharmacist’s wife described them as “two peas in a pod” who enjoy their life together in the safe, loving, and supportive environment they have created for their children.
[34] As a community pharmacist, the Pharmacist’s duties include dispensing prescriptions, consulting with customers, and communicating with doctors. The parties do not dispute that a community pharmacist is a “safety-sensitive position”, which means “one if not performed in a safe manner, can cause direct and significant damage to property, and/or injury to the employee, others around them, the public and/or the immediate environment”. [1]
2. The College
[35] The College is a health profession college continued under s. 15.1(4) of the Act . The College licenses pharmacies and regulates pharmacists and pharmacy technicians in the province of British Columbia. Its statutory duties are “to serve and protect the public” and “to exercise its powers and discharge its responsibilities under all enactments in the public interest”: Act , s. 16(1). Its objectives include establishing conditions or requirements for registration and establishing and enforcing “standards of practice to enhance the quality of practice and reduce incompetent, impaired or unethical practice among registrants”: Act , s. 16(2).
[36] Section 15 of the College’s Bylaws and its Terms of Reference establish an inquiry committee consisting of at least six pharmacists and pharmacy technicians appointed by the College’s board [Inquiry Committee]. The Inquiry Committee is a “screening and investigative body” and, according to its Terms of Reference, its mandate is to:
Investigate complaints and concerns regarding a registrant’s conduct, competency and/or ability to practice and decide on an appropriate course of action pursuant to legislation.
[37] There are three circumstances in which the College receives complaints about the conduct or competency of a registered pharmacist. The first is by way of a written complaint made by any person. The second is under a registrant’s “duty to report”, which requires registered pharmacists and pharmacy technicians to report a registrant to the College if they have reasonable and probable grounds to believe the continued practice of that registrant might constitute a danger to the public: Act , s. 32.2. The third is when a registrant is unable to practice because they have been admitted to a hospital “for psychiatric care or treatment, or for treatment for addiction to alcohol or drugs”: Act , s. 32.3. On its own motion, the Inquiry Committee may also investigate a registrant with “a physical or mental ailment, an emotional disturbance or an addiction to alcohol or drugs that impairs his or her ability to practise”: Act , s. 33(4).
[38] The duty to report arises when a registrant has “a physical or mental ailment, an emotional disturbance or an addiction to alcohol or drugs that impairs his or her ability to practise”: Act , s. 32.1. When the College receives such a report, the Senior Investigator contacts the person who made the report and gathers as much information as possible about the health status of the registrant against whom the complaint was made. The Senior Investigator then informs the registrant about the complaint and explains how the Inquiry Committee’s process works going forward. The registrant is invited to provide the Inquiry Committee with information for its consideration. If the registrant does so, the Senior Investigator forwards that information and all other relevant information gathered to the Inquiry Committee.
[39] After reviewing all the information before it, the Inquiry Committee proposes terms and conditions of a consent agreement with the registrant. Typically, a consent agreement suspends the registrant’s registration and requires the registrant to be declared fit to practice by a specialist in the field of the registrant’s impairment before the Inquiry Committee will consider lifting the suspension.
[40] The Inquiry Committee’s goal is to reach an appropriate agreement with the registrant that both protects the public and takes into consideration the registrant’s unique circumstances, medical condition, and appropriate treatment. If a registrant does not agree to the terms and conditions proposed by the Inquiry Committee, the matter is either referred to the College’s disciplinary committee [Disciplinary Committee] for a hearing, or the Inquiry Committee suspends the registrant’s registration or imposes limits and conditions on their practice: Act , s. 35. If it is necessary to protect the public, the Inquiry Committee has the authority to impose limits or conditions on a registrant’s practice or suspend their registration during its investigation or pending a hearing before the Disciplinary Committee: Act , s. 35.
[41] In the Senior Investigator’s experience, there often comes a point in time when a registrant subject to a consent agreement feels they are ready to return to practice. When that happens, the registrant is usually required under the consent agreement to undergo an assessment by a specialist to determine if they are medically fit to practice. If the registrant provides an assessment, the Inquiry Committee will reassess the case and determine whether, from a public safety standpoint, some or all of the limits and conditions on the registrant’s practice can be lifted.
3. Dr. Manak
[42] Dr. Manak is a licensed physician authorized to practice in the province of British Columbia. At the time of the hearing, she had been practicing medicine for over 10 years and her office was in Kamloops. Dr. Manak provides treatment in an outpatient addiction clinic and also conducts IMEs and provides clinical monitoring of workers with substance use disorders who work in safety-sensitive positions.
[43] Dr. Manak has been certified as a specialist in addictions medicine by the American Board of Addiction Medicine, the Canadian Society of Addiction Medicine, and the International Society of Addiction Medicine.
B. The Pharmacist’s substance use and voluntary suspension of his license
[44] The Pharmacist first developed issues with substance use in 2009 after he was prescribed opiates for hip pain and migraine headaches. He testified that he went from primarily taking oxycodone once in awhile to taking it once a week and then taking more and more just to get through the day. By 2013, the Pharmacist was diverting oxycodone from the pharmacy at which he worked and taking it daily to cope with life. He was also experiencing depression and anxiety.
[45] By 2013, the Pharmacist was addicted to opiates and described himself as “a mess”. After his former wife confronted him near the end of July 2014, the Pharmacist admitted he had a serious substance use problem. At that time, the Pharmacist’s former wife contacted his employer, who then reported the Pharmacist’s personal use of prescription drugs to the College under the Act ’s duty to report.
[46] At the end of July 2014, the Pharmacist was admitted to a residential treatment centre [Treatment Centre]. After his admission, the Pharmacist spoke with the College’s Complaints Resolution Officer [Resolution Officer] and told her he would voluntarily suspend his license to practice pharmacy. In a follow up email, the Resolution Officer told the Pharmacist that the College would be asking him to enter into a consent agreement such that he would voluntarily withdraw from the practice of pharmacy until it received a report from an approved physician or other medical professional stating he was fit to return to practice. In his reply email, the Pharmacist told the Resolution Officer things were going well at the Treatment Centre, and he felt he was on his way to recovery.
[47] At the beginning of August 2014, the Inquiry Committee met to review the Pharmacist’s case. The review was done under the Inquiry Committee’s authority under s.33(4)(e) of the Act to investigate a registrant on its own motion regarding “a physical or mental ailment, an emotional disturbance or an addiction to alcohol or drugs that impairs his or her ability to practise the designated health profession”. A few days later, the Resolution Officer sent the Pharmacist a draft consent agreement, which the Pharmacist signed and returned the same day [2014 Consent Agreement]. The terms of the 2014 Consent Agreement were standard for registrants who voluntarily suspend their license for health reasons. One of the terms was that the Pharmacist would not engage in the practice of pharmacy “until such a time that he is reassessed and confirmed to be medically fit to practice”. The Senior Investigator testified that such a reassessment is done in accordance with the Act ’s objectives, which are to serve and protect the public, and to act in the public interest.
[48] Another standard term in the 2014 Consent Agreement was that before applying for reinstatement, the Pharmacist would provide a written report to the Inquiry Committee from a College-approved specialist in addictions medicine that included the specialist’s opinion on his fitness to practice and any applicable treatment plans. The Senior Investigator testified that a specialist’s report is a reliable source of information for the Inquiry Committee because it is an opinion on the registrant’s medical condition at that specific point in time.
[49] The Senior Investigator testified that the Inquiry Committee does not require a registrant to obtain a report from a specific physician because the College respects the registrant’s choice of physician. If the Inquiry Committee has already reviewed a physician’s qualifications and approved them as a specialist in addictions medicine, they are “College-approved”. If a registrant wants to be assessed by a physician who is not “College-approved”, they can provide the physician’s qualifications to the College for review. If the physician is approved by the College as an addiction specialist, the registrant can submit that physician’s assessment report to the Inquiry Committee.
[50] Around the middle of August 2014, the Pharmacist contacted the Resolution Officer and told her he was planning to stay at the Treatment Centre until late September and then take another two months off work. In late September 2014, he emailed the Resolution Officer and said he was leaving the Treatment Centre in a couple of days and was not planning to return to work anytime soon.
[51] In mid-November 2014, the Pharmacist emailed the Resolution Officer and said he was thinking of returning to work in a month or two. He asked the Resolution Officer to start the reinstatement process and provided her with the names of his treating physicians. The Pharmacist and the Resolution Officer spoke on the phone the next day and the Pharmacist told her he would be at the Treatment Centre for two weeks. The Pharmacist testified that although he had not relapsed, he had gone back to the Treatment Centre because he was still struggling.
[52] During their phone conversation, the Resolution Officer told the Pharmacist she would contact his treating physicians to request medical reports and a discharge summary from the Treatment Centre. She told him that once the information was received, the Inquiry Committee would consider it and might impose limits or conditions on his practice, in particular monitoring.
[53] Dr. Wood’s evidence was that workplace monitoring programs for someone in a safety-sensitive position such as a pharmacist should include three basic elements: (1) biological testing to confirm abstinence from illicit drugs or alcohol; (2) a supervised work environment; and (3) modified duties to ensure the person does not handle opioid medications. Dr. Wood testified that in addition to early detection if a person uses substances again, monitoring programs are based on the principle of “contingency management”, which “has been proven effective in the treatment of certain forms of substance use disorder”. As Dr. Wood explained:
… contingency management involves a monitored addiction treatment setting whereby positive patient health behaviours (e.g. remaining abstinent) are rewarded (e.g. remaining employed) or punished in the case of negative health behaviours. In the case of safety sensitive positions, such programs balance the need of employers to ensure workplaces are safe from medical errors or other concerns that could emerge should someone be intoxicated in the workplace, with also the need to accommodate an individual with a medical diagnosis of substance use disorder.
[54] The Pharmacist told the Resolution Officer he understood that the Inquiry Committee might impose limits and conditions on his practice, and he knew from another pharmacist that Dr. Manak might be able to handle the monitoring. The Pharmacist had never met Dr. Manak but heard through a friend that in the past she had done at least one IME for the College.
[55] In mid-November 2014, the Resolution Officer wrote to one of the Pharmacist’s treating physicians and informed him that the Pharmacist was thinking of returning to work. The Resolution Officer requested an assessment and documentation to support the physician’s opinion that the Pharmacist was fit to return to practice.
[56] Near the end of November 2014, the Pharmacist was discharged from the Treatment Centre. He testified that his stay at the Treatment Centre helped because it does not follow a 12-step approach and instead focuses on counselling and therapy.
C. Dr. Manak’s December 2014 assessment and IME
[57] Around mid-December 2014, the Pharmacist followed up with the Resolution Officer about whether she received reports from his treating physicians. The Resolution Officer told the Pharmacist she was waiting for a report from one of his physicians and that she might need to speak to his physicians because the reports she had received did not include a comprehensive assessment of his fitness to practice. A few days later, the Resolution Officer emailed the Pharmacist and told him she was waiting to hear from an addictions specialist in his geographical area about conducting a more complete assessment and monitoring because that is what the Inquiry Committee would want before proceeding further. The Resolution Officer did not name the addictions specialist in her email, but it is clear from other evidence that she was referring to Dr. Manak.
[58] In his reply email to the Resolution Officer, the Pharmacist asked if he should be proactive and contact Dr. Manak’s office to book an appointment for an IME. The Resolution Officer told him that she spoke with Dr. Manak and her assistant would contact him to arrange an appointment. She also told the Pharmacist that he would have to pay for the IME and that:
It is a necessary step in the process to make a complete assessment for diagnosis/monitoring plan that the Inquiry Committee will review for your return to work practice. Also as mentioned, there will likely be limits and conditions and future ongoing monitoring as part of the Committee’s requirements.
[59] On December 19, 2014, Dr. Manak met with the Pharmacist for about three hours. The Pharmacist knew at the time that the purpose of the IME was to provide the College with Dr. Manak’s opinion as to his fitness to practice and that the assessment did not constitute a doctor/patient relationship.
[60] Dr. Manak testified that when she met with the Pharmacist, he seemed to be doing well. In her view, the Pharmacist had good insight into his substance use disorder and his recovery appeared to be stable. In her opinion, the Pharmacist was able to return to practice under certain conditions, specifically that he undergo three years of monitoring, work via tele-pharmacy or under supervision, and not be allowed to handle, dispense, or dispose of narcotics.
D. December 2014 to August 2016
1. The Pharmacist’s suspension is lifted, and he returns to work
[61] In late December 2014, the Pharmacist emailed the Resolution Officer to ask how things were proceeding. She replied the next day and said:
Once we get her report, we will review and then it will be presented to the Inquiry Committee for their consideration as to your fitness to practice. As previously mentioned, it will depend on what Dr. Manak says in her report as it is likely the Inquiry Committee will place limits and conditions on your practice to ensure patient and public safety.
[62] Near the end of January 2015, Dr. Manak sent her IME report [December 2014 IME] to the Resolution Officer. The Pharmacist sent the Resolution Officer additional information to put before the Inquiry Committee about his ongoing recovery and potential employment as a tele-pharmacist. Around that time the Pharmacist also signed a Monitoring and Relapse Prevention Agreement with Dr. Manak’s monitoring company [2014 Monitoring Agreement].
[63] In early February 2015, the Inquiry Committee met to review the Pharmacist’s case. After considering all the information before it, the Inquiry Committee decided to propose a consent agreement that would lift the Pharmacist’s suspension and allow him to return to practice under certain limits and conditions. About a week later the Pharmacist signed a consent agreement with the College and agreed to comply with all treatment prescribed or directed by Dr. Manak, have Dr. Manak monitor his progress for three years, comply with all random drug screens and hair sampling, and advise the College if Dr. Manak stopped being his addiction physician for the purpose of monitoring his recovery [February 2015 Consent Agreement].
[64] In mid-March 2015, the Pharmacist started working one day a week as a tele-pharmacist. At that time, he was also working at a local treatment centre. Between January and late April 2015, the Pharmacist attended all his medical monitoring appointments. Dr. Manak noted in her records that the Pharmacist was fully engaged in the terms of the 2014 Monitoring Agreement, and she had no concerns.
2. The Pharmacist relapses, voluntarily suspends his license, and goes to the Treatment Centre
[65] In late April 2015, the Pharmacist relapsed, primarily due to the deterioration of his marriage. He testified that for the first day or two he drank alcohol and then he started using heroin, which he described as his “substance of choice”. After missing his next monitoring appointment, the Pharmacist called Dr. Manak and told her about his relapse. He also told her that he was not in a good state and was planning to go to the Treatment Centre. Dr. Manak told the Pharmacist she would contact the Resolution Officer about his missed appointment and suggested he do the same.
[66] By the time Dr. Manak contacted the Resolution Officer, the Pharmacist had already reported his relapse to the College. The Pharmacist told the Resolution Officer that he was not returning to work and was planning to go to the Treatment Centre for at least one month. About a week later, the Pharmacist called the Resolution Officer and told her he was doing well at the Treatment Centre but was not sure about returning to practice as a pharmacist. He told her he would consider what he was going to do because he wanted to keep his pharmacist license, and he enjoyed seeing Dr. Manak. The Resolution Officer asked the Pharmacist to contact her once he knew what he wanted to do.
[67] After two weeks at the Treatment Centre, the Pharmacist discharged himself. He testified that he self-discharged because he was not ready to get serious about his recovery. After he left the Treatment Centre, the Pharmacist continued to use drugs and unsuccessfully tried to stop using on his own at least three times. Around this time the Resolution Officer wrote to the Pharmacist’s treating physician at the Treatment Centre to advise that the College was monitoring the Pharmacist’s condition. She asked the physician for a detailed report on the Pharmacist’s medical condition and his professional opinion on the Pharmacist’s fitness to work. In a letter the College received in early June 2015, the physician said he believed the Pharmacist’s relapse was “more of a means to an end”, meaning the Pharmacist was using substances because he wanted to get the support he needed. In the physician’s opinion, the Pharmacist’s relapse was minor, and he was fit to return to work.
[68] Although the Pharmacist had relapsed, he was still subject to the 2014 Monitoring Agreement. Near the end of June 2015, Dr. Manak wrote to the Resolution Officer to let her know that the Pharmacist had missed his second consecutive monitoring appointment. The Resolution Officer then emailed the Pharmacist to ask for an update on his treatment and work situation, and to confirm whether he was still seeing Dr. Manak. In his reply email, the Pharmacist told the Resolution Officer that due to his mental health issues and overwhelming stress, he did not feel he would be able to work for the near future. He asked the Resolution Officer to provide him with his options with respect to renewing his license and said that because of his relapse, he was fine with giving it up voluntarily. The Pharmacist did not say anything in his email about whether he was still seeing Dr. Manak.
[69] In early July 2015, the Inquiry Committee met to review the Pharmacist’s case. After reviewing all the information before it, the Inquiry Committee decided to suspend the Pharmacist’s license until he was deemed fit to return to practice on the basis that his continued practice might constitute a danger to the public. In mid-August 2015, the Pharmacist signed a consent agreement with the College and agreed that he would not engage in the practice of pharmacy until he had been reassessed and confirmed to be medically fit to practice. He also agreed that before applying for reinstatement, he would provide a report from a College-approved addictions specialist that included an opinion on his fitness to practice and future treatment plans , if applicable [August 2015 Consent Agreement].
[70] Between April and August 2015, the Pharmacist unsuccessfully tried to quit using substances several times. After doing a self-detox at his parents’ home, the Pharmacist decided to go back to the Treatment Centre. He testified that by this time he was separated from his former wife, in a “terrible head space”, and wanted to stop using.
3. The Pharmacist relapses again, meets his current wife, and goes back to the Treatment Centre
[71] After leaving the Treatment Centre in September 2015, the Pharmacist moved to the city where his former wife and daughter live. The day after he moved, the Pharmacist relapsed and started using heroin every day.
[72] Around that time, the Pharmacist met his current wife. The Pharmacist hid his daily heroin use from her and only told her a few months into their relationship that he had past issues with addiction. The Pharmacist told her he was a pharmacist but was not currently working because he had gone through a tough divorce. Sometime in January 2016, the Pharmacist moved in with her and her children.
[73] Between September 2015 and August 2016, the Pharmacist unsuccessfully tried several times to quit using heroin on his own. The Pharmacist testified that by August 2016, he was extremely depressed and suicidal. He said he realized he needed to decide whether he wanted to get well, and he chose to go back to the Treatment Centre for one month.
E. The Pharmacist is prescribed Suboxone
[74] The heart of this complaint relates to the Pharmacist’s use of Suboxone, which he was first prescribed when he went to the Treatment Centre in August 2016. In this section, I summarize evidence presented by the parties with respect to addiction in general and the treatment of addiction through what is known as opiate agonist therapy [OAT], which includes Suboxone.
1. The nature of addiction, including opioid use disorder
[75] Dr. Manak described addiction as a pathological function of the brain system where the “reward system has been hijacked”. She said addiction is typically marked by loss of impulse control with respect to a substance or behaviour, and lack of insight and judgment. Dr. Wood’s evidence was that it is not uncommon for someone with an addiction to have poor insight into their compulsive use and deny the severity of their addiction or the consequences to rationalize their use, which can be barriers to their recovery. Dr. Manak’s evidence was that without good treatment, the natural progression of an addiction is for it to get worse over time and eventually lead to morbidity or early mortality.
[76] Both Drs. Manak and Wood agreed that addiction is often punctuated by periods of relapse. They also agreed that the risk of relapse decreases the longer the person abstains from using. Dr. Manak’s evidence was that a person with an addiction is also at high risk of “cross-addiction”, meaning replacing the initial substance or behaviour with another while they are in recovery.
[77] Dr. Gillmore’s evidence was that opiates/opioids “act on a specific class of cell-based receptors … widely distributed in the central nervous system”. His evidence was that opiates/opioids “have the ability to affect cognitive processes, attention learning, memory, pain perception and psychomotor coordination”.
[78] Drs. Manak and Wood described healthcare professionals with an opiate use disorder as a “unique group” because they have access to or handle medication. Dr. Wood’s evidence was that the specific risks associated with healthcare professionals who are addicted to prescription medication include not dispensing medication properly because they are deliberately diverting it or making medication errors because they are impaired.
2. Treatment for opiate use disorders
[79] Dr. Manak described treatment for opiate use disorders as a “continuum” and testified that there are different approaches depending on the nature of the addiction. One method of treating opiate use disorders is OAT, which very generally means pharmacological treatment where the person is prescribed either a full opiate agonist such as methadone, or a partial opiate agonist such as buprenorphine, which according to Dr. Gillmore is significantly more potent than morphine. To treat an opiate use disorder, buprenorphine is co-formulated with naloxone, an opioid reversal drug. The trade name for buprenorphine/naloxone is Suboxone and I refer to it as such throughout this decision.
[80] Dr. Manak testified that traditionally abstinence from all substances has been the “gold standard” when it comes to treating addictions, but it is important for treating physicians to “meet the patient where they’re at”. Dr. Wood’s evidence was that the “preferred first-line treatment approach” for opioid use disorder, meaning the initial treatment that should be selected, has changed significantly over the past 20 years due to the emergence of new medications, more research, and the publication of new standards and guidelines. The Canadian Research Initiative in Substance Misuse’s National Guideline for the Clinical Management of Opioid Use Disorder [CRISM National Guidelines] currently recommends OAT as the preferred first-line treatment approach as compared to other interventions such as counselling or residential inpatient treatment. Dr. Wood testified that the recommendation regarding OAT in the BC Centre on Substance Use’s Guideline for the Clinical Management of Opioid Use Disorder [BC Guidelines] is virtually identical to the CRISM National Guidelines.
[81] Dr. Wood’s evidence was that because Suboxone is a partial opiate agonist, it does not have “the same psychoactive and sedating qualities of full opioid agonists like morphine, oxycontin or methadone”. Dr. Manak testified that based on her clinical observations, people typically feel euphoric for the first few days after they start taking Suboxone because it is an opiate. She said that people no longer feel euphoric after they are stable, meaning their opiate receptors are saturated and they are not in withdrawal. She also testified that based on her clinical observations, people can feel euphoric or experience “opioid toxicity effects” such as dizziness and light headedness if their Suboxone dosage is increased or decreased, or the Suboxone formulation is changed from oral to injectable. Dr. Manak testified that it could take upwards of a year or more to come off Suboxone and with each decreased dose, the person can experience withdrawal effects and cravings.
[82] Both Drs. Manak and Wood testified that Suboxone is very effective in preventing relapse and, overall, is a safer treatment for opiate use disorder than a full opiate agonist such as methadone. Their evidence was that the risk of overdosing on Suboxone is low, and Dr. Wood testified that fatal overdoses from Suboxone are extremely infrequent. Dr. Wood said he describes Suboxone to his patients as a “bullet-proof vest” against opioids because they will not experience cravings and if they do use opioids, Suboxone diminishes, if not eliminates, their psychoactive effects.
[83] Drs. Manak and Wood agreed that because Suboxone is safer than a full opiate agonist, people taking it are often given “carries”, meaning they can take the medication at home as opposed to taking it by “daily witness ingestion” in front of a healthcare provider. They have different views, however, on the risks of “carries”. Specifically, Dr. Manak testified that based on her experience, there are risks associated with compliance, for example some people miss a day taking it, some people save it up to misuse, and some people take it all at once. Dr. Wood was of the view that Suboxone can be provided safely for take-home dosing without the same concerns as there are with, for instance, methadone, which can be sold or stolen. He described Suboxone as a “totally different animal” from methadone because it is a partial opiate agonist.
[84] Dr. Manak testified that she is generally supportive of OAT as a treatment for opiate use disorder and that many of her patients on OAT do very well. Her evidence was that the majority of the hundreds of OAT patients she manages at any give time are on Suboxone. Dr. Manak explained that there is a “30/30/30 split” among her OAT patients, in that 30% are on OAT to avoid going into severe withdrawal, 30% eventually come off OAT, and 30% might stay on OAT for many years depending on the strength of their recovery.
[85] In Dr. Manak’s view, Suboxone does not treat a person’s underlying substance use disorder, but rather stabilizes them so they do not have cravings or go through withdrawal. She testified that OAT gives people the time they need to change the neuroplasticity in their brain and address their underlying issues. Dr. Gillmore shares the same view, and his evidence was that:
… the indefinite prescribing of an opioid to a healthcare professional in recovery is problematic. It lacks the focus of a treatment goal which is a necessary element of an appropriately structured recovery plan.
…
Recovery goes far beyond substance use. It is the process of changing attitudes, thinking and behaviours in search of growth and new meaning which treatment facilitates.
[86] Dr. Wood has a different view. His evidence was that OAT with either methadone or Suboxone is much more effective in treating an opioid addiction and significantly reduces the risk of relapse compared to non-pharmacological treatments alone, for example counselling or residential inpatient treatment. During his testimony, Dr. Wood referred to a study that he described as a “jaw-dropping moment in addiction medicine” because it showed that about 90% of people treated only with non-medication interventions such as psychosocial treatment or a 12-step program relapsed after tapering off Suboxone. Dr. Wood’s evidence was that Suboxone is not a “feel good drug” in the sense that it does not have “rewarding qualities” such as producing euphoria. In his view, Suboxone is a long-acting drug that relieves cravings so a person can move forward with their life. He compared taking Suboxone to treat an opiate use disorder to someone taking an aspirin everyday if they have a heart condition.
3. The Pharmacist is prescribed Suboxone
[87] After his admission to the Treatment Centre in August 2016, the Pharmacist was prescribed Suboxone for the first time. He testified that as a pharmacist, he knew a bit about Suboxone but had been reluctant to try it because he thought he could quit using on his own. The Pharmacist testified that his treating physician at the Treatment Centre talked him into trying Suboxone and after taking it for three or four days, he could not believe how much better he felt. He said he left the Treatment Centre in September 2016 feeling very positive because he knew the Suboxone was working well and would make a “huge difference” in his life.
[88] After he left the Treatment Centre, the Pharmacist was set up with the Family Doctor, who he sees every four to six weeks and continues to prescribe his Suboxone. The Family Doctor testified that by the time they first met in October 2016, the Pharmacist was well established on Suboxone. The Family Doctor’s impression at the time was that the Pharmacist was determined to continue his treatment and do everything he needed to do to get better.
[89] Initially the Pharmacist attended at a pharmacy every day for daily witness ingestion of his Suboxone. Around the end of November 2016, the Pharmacist was given “carries” so he could take the medication at home. Since becoming the Family Doctor’s patient, the Pharmacist’s urine screens have been clear and none of his drug tests have come back positive for any substances other than Suboxone.
[90] The Pharmacist described Suboxone as a “game changer” for his recovery because it prevents him from having strong cravings for other opiates. He testified that other than experiencing some relatively minor side effects, Suboxone has not had any impact on his memory, concentration, or attention to detail. He also testified that Suboxone does not prevent him from driving or doing any of the activities and hobbies he enjoys.
[91] The Pharmacist’s wife testified that after he started taking Suboxone, it was like the “rebirth of a person”. She said the medication has been a positive move forward in the Pharmacist’s recovery and since he started taking it, he laughs more and is more attentive and involved with their family. Other than noticing the relatively minor side effects to which the Pharmacist referred, his wife had no concerns about him taking Suboxone.
F. The Pharmacist requests reinstatement of his license
[92] In the spring of 2017, the Pharmacist felt physically and mentally fit to return to work as a pharmacist. At the end of March 2017, he emailed the Resolution Officer and asked her to begin the reinstatement process. In his email, the Pharmacist told the Resolution Officer he had a rough couple of years but was now doing well and feeling in control of his life. He said he had not used any substances for seven months, was taking Suboxone, seeing his Family Doctor regularly, and being monitored with urine tests. He told the Resolution Officer he was considering going back to work and wanted to know what his options were, particularly about working as a pharmacist, pharmacy technician, or pharmacy assistant.
[93] In her email reply, the Resolution Officer told the Pharmacist that if he wanted to return to work as a pharmacist, the College needed a medical assessment regarding his fitness to practice that included any necessary limitations or restrictions. She told him that once the College received such an assessment, the Inquiry Committee would review his file and approve a revised consent agreement. She asked the Pharmacist to clarify whether he was inquiring about becoming a pharmacy assistant or a College-regulated pharmacy technician. She asked the Pharmacist to let her know when he last saw Dr. Manak because she was the College-approved addictions specialist on record for him. Lastly, she told the Pharmacist that if he was no longer seeing Dr. Manak, to provide the reason.
[94] In his email response the next day, the Pharmacist told the Resolution Officer he stopped seeing Dr. Manak in 2015 because there was no point in doing so after he gave up his license. He told the Resolution Officer he had moved since he saw Dr. Manak and asked her to look into finding a local doctor he could see for an assessment. He also told her that he was currently seeing the Family Doctor every four weeks for Suboxone therapy. In her email reply, the Resolution Officer told the Pharmacist:
The College approved addictions physician in the interior is Dr. Mandy Manak. The Inquiry Committee would want her assessment on your fitness to practice as she was involved from the start in this matter and her speciality is in addictions. I believe [the Family Doctor] is a family physician.
[95] The Pharmacist testified that his understanding of the Resolution Officer’s reply was that he was required to see Dr. Manak for an IME because that was the only option given. In cross-examination, the Pharmacist acknowledged that he did not raise any issues with the College about going to Dr. Manak for an IME after receiving the Resolution Officer’s reply and agreed he did not have any issue with going to Dr. Manak for an IME at that time. It is not in dispute that after receiving the Resolution Officer’s reply, the Pharmacist did not tell her that he did not want to see Dr. Manak or ask for the names of any other addictions specialists, whether local or outside his geographic location.
[96] In cross-examination, the Senior Investigator was asked about the Resolution Officer’s reply and acknowledged that Dr. Manak was the only addictions specialist mentioned in her email exchange with the Pharmacist. She also acknowledged that the College had approved other addictions specialists in the Pharmacist’s geographical location for other registrants.
[97] At the end of March 2017, the Resolution Officer emailed Dr. Manak’s Administrative Supervisor and said:
[The Pharmacist] has recently contacted the College to inquiry [sic] about his pharmacy license. I explained that we need to have a medical re-assessment to determine if he is fit to practice given his medical condition. Dr. Manak is our College approved addictions physician and had been seeing [the Pharmacist] in 2014/2015 (I believe) so we wanted her to provide her medical opinion as to whether he is fit to practice and/or whether there are any limits/conditions needed to ensure public and patient safety in a pharmacy or as a practicing pharmacist .
[The Pharmacist] indicated he is seeing a family doctor [Family Doctor] but I told him that as you had been monitoring him as part of the College file in this matter, he would have to be assessed by you. He understands that your office would be contacting him to arrange this medical appointment and that you may also need to contact [Family Doctor].
[98] In his reply email, the Administrative Supervisor said he would forward the Resolution Officer’s email to Dr. Manak and contact the Pharmacist to arrange an appointment for an IME. On the same day, the Resolution Officer emailed the Pharmacist and told him that Dr. Manak’s office would be in touch with him to set up an appointment.
[99] I note here that in its closing argument, the College says the uncontroverted evidence is that in March 2017, the College did not require the Pharmacist to see Dr. Manak. The College also says the August 2015 Consent Agreement did not name a particular addictions specialist and it remained open to the Pharmacist at this time to obtain an opinion from another addictions specialist. I disagree with the College’s assertions. The documentary evidence makes it clear that despite the wording in the August 2015 Consent Agreement, the Inquiry Committee told the Pharmacist and Dr. Manak that she would have to be the one to conduct the reassessment. For that reason, I find that in March 2017, the College did, in fact, require the Pharmacist to see Dr. Manak for an IME before the Inquiry Committee would consider reinstating his license. Having said that, in my view nothing turns on this point because the Pharmacist did not object to seeing Dr. Manak or raise any concerns about seeing her for an IME at that time.
G. Dr. Manak’s 2017 IME
1. The assessment and discussion about Suboxone
[100] In mid-April 2017, Dr. Manak assessed the Pharmacist for the purpose of preparing an IME report regarding his fitness to practice that would be sent directly to the College. Most of the assessment took place in a room where a transcriptionist was present via videoconference.
[101] At the time of the assessment, the Pharmacist had been taking Suboxone for about eight months. He testified that he was feeling great and was positive he could fully fulfill his duties as a pharmacist. The Pharmacist testified that Dr. Manak asked him about what happened in 2015, and he told her about the changes he had made in his life since then. He said he also told Dr. Manak that his medications were working, and he was no longer anxious or depressed. The Pharmacist’s impression of the assessment was that it was positive, and he thought Dr. Manak was happy to see he was doing well.
[102] Dr. Manak agreed that the Pharmacist was doing all the right things to support his recovery, and she observed that he was feeling confident and positive about his recovery. However, her impression of the Pharmacist at the assessment was that he was not as approachable as he had been in 2014. Dr. Manak testified that she and the Pharmacist had a good rapport during her 2014 assessment, but this time she found him to be “somewhat cautious” in his answers, made minimal eye contact, and was a bit more distant.
[103] Toward the end of the assessment, Dr. Manak and the Pharmacist moved to an examination room where the transcriptionist was not present via videoconference. During this part of the assessment, the Pharmacist and Dr. Manak discussed his use of Suboxone. The Pharmacist told Dr. Manak he planned to continue to take Suboxone because it was a big part of his recovery. Dr. Manak told the Pharmacist that might be an issue because Suboxone is an opiate, and a pharmacist is a safety-sensitive position. The Pharmacist and Dr. Manak do not dispute that the Pharmacist told Dr. Manak he thought that not allowing someone in a safety-sensitive position to take Suboxone was a human rights issue because it prevents them from working in their chosen profession. They do, however, dispute what Dr. Manak said in response.
[104] The Pharmacist testified that Dr. Manak told him she agreed that not allowing someone working in a safety-sensitive position to take Suboxone was a double standard, and he should be allowed to take Suboxone while working as a pharmacist. He said Dr. Manak agreed with him that it could be a human rights issue and encouraged him to pursue it further. In cross-examination, the Pharmacist denied misunderstanding their conversation and said Dr. Manak was “pretty direct” in encouraging him to explore a human rights complaint. When asked why Dr. Manak would encourage him to make a complaint in which she would be named as a respondent, the Pharmacist said it was because Dr. Manak would not have known at the time that the complaint would be against her.
[105] Dr. Manak denied telling the Pharmacist she agreed that not allowing someone to work in a safety-sensitive position while taking Suboxone was or could be a human rights issue. She said she would not have said that because she did not know if it was a human rights issue or not. Dr. Manak denied encouraging the Pharmacist to pursue a human rights complaint and said she only told the Pharmacist that if he felt this was a human rights issue, it was his prerogative to pursue it.
[106] I prefer Dr. Manak’s evidence on this point and find it more likely than not that she did not tell the Pharmacist she agreed that not allowing someone to work in a safety-sensitive position while on Suboxone was a human rights issue. I find her version to be the most plausible and reasonable in the circumstances. It is also consistent with the documentary evidence, specifically the absence of any mention of the Pharmacist’s version of this conversation in any of his subsequent communications with Dr. Manak or the College. My finding should not be interpreted as meaning that the Pharmacist was being untruthful about his recollection of this conversation. Rather, in my view the differing recollections are more likely than not the result of misunderstandings or perceptions that have changed over the course of time.
2. Communications between the Pharmacist and Dr. Manak’s office after the assessment
[107] About a week after the assessment, the Pharmacist emailed Dr. Manak’s office and said he wanted to address some things with which he disagreed. In his email, the Pharmacist asked:
- if Dr. Manak could send him the rules/regulations supporting her telling him that a pharmacist working in a safety-sensitive position could not take Suboxone;
- whether there was a cognition test or assessment he could take to show if Suboxone had any impact on his cognition because he felt mentally and physically competent; and
- why daily witnessed Suboxone could not be an alternative since Dr. Manak told him there are pharmacists working who take daily witnessed naltrexone.
[108] In early May 2017, the Pharmacist sent a follow up email to Dr. Manak’s Administrative Supervisor. In that email, the Pharmacist asked for a copy of Dr. Manak’s IME report [April 2017 IME] and said:
As I will now most likely be taking my case to the BC Human Rights Commission I would appreciate the information I asked Dr Manak about.
[109] In his reply, the Administrative Supervisor told the Pharmacist he would have to go through the College to get a copy of the April 2017 IME. With respect to the information the Pharmacist requested in his previous email, the Administrative Supervisor said it was office policy not to exchange information by email because that was not secure. In his email response, the Pharmacist said:
It wasn’t actually personal info I was asking Dr Manak about. During my appt we discussed my case quite possibly being a human rights issue. What I’m looking for from Dr Manak are the official rules/regulations on safety sensitive positions as I couldn’t find them online.
[110] The Administrative Supervisor emailed the Pharmacist the next day and attached a number of academic articles that Dr. Manak reviewed and the American College of Occupational and Environmental Medicine’s Practice Guidelines: Opioids and Safety-Sensitive Work [ACOEM Guidelines]. In his email, the Administrative Supervisor told the Pharmacist that once an IME is complete, there is usually no communication between Dr. Manak and the person until the registering body has made a decision. Dr. Manak testified that the Administrative Supervisor’s email is consistent with her practice not to send a copy of an IME report to the person because the proper channel is for the person to get a copy from the referring party. She testified it is also consistent with her practice not to communicate with the person after she has done an IME because her objective is to be impartial. She said that because she knew the Pharmacist from before her assessment and they had a good rapport in the past, she thought it would be fair and helpful to send him the sources she used to support her conclusions and recommendations.
[111] The Pharmacist testified that he was not satisfied with the documents he received from Dr. Manak’s office. His evidence, which Dr. Manak did not dispute, was that he never received a response to his questions about a cognitive test or assessment and whether daily witnessed Suboxone was an option. At the hearing, Dr. Manak testified that she is not aware of any kind of sufficiently nuanced cognitive test or assessment that could measure the impacts, if any, of a partial opiate like Suboxone on the cognitive functioning of a pharmacist.
H. The April 2017 IME and communications between the Pharmacist and the College before he receives a copy
1. The April 2017 IME
[112] In early May 2017, the College received the April 2017 IME stating that in Dr. Manak’s opinion, the Pharmacist was not fit for duty in a safety-sensitive capacity. In the April 2017 IME, Dr. Manak identified the following options and treatment recommendations for the Pharmacist’s potential return to work:
(1) If the Pharmacist wanted to pursue safety-sensitive work:
- he should taper off Suboxone;
- he would benefit from an inpatient addiction treatment program for substance use disorder, preferably one that has a separate stream for healthcare professionals;
- after completing initial intensive addiction treatment, he would benefit from a relapse prevention program by a qualified medical monitor;
- medical monitoring for five years starting on the day of the last documented abstinence; and
- two months of abstinence before returning to work.
(2) If the Pharmacist chose not to pursue safety-sensitive work:
- he could stay on OAT if he chose to;
- he would not have to engage in inpatient or outpatient treatment;
- the choice to go to self-meetings would be his; and
- he would not have to enter into a monitoring agreement.
[113] Shortly after receiving the April 2017 IME, the Resolution Officer contacted the Pharmacist to let him know the results. Around this time the Resolution Officer was in the process of transferring the Pharmacist’s file to the Senior Investigator because she was leaving her employment with the College. In an email to the Senior Investigator, the Resolution Officer said she had contacted the Pharmacist about the results of the April 2017 IME and that:
He said he was aware of this as they also discussed what his options were at his assessment with Dr. Manak on April 11, 2017. He is, however, preparing to hire a lawyer to pursue a Human Rights Tribunal application because of what he feels were inappropriate questions/conclusions from Dr. Manak. I let him know that this file would be handled by one of my colleagues as I was leaving the College.
[114] In an email to the Resolution Officer sent a couple of days later, the Pharmacist asked for a copy of the April 2017 IME and said:
Also I need to know in writing what the College’s stance is on my file at the moment. I’ll need to get all my paperwork organized in order to start a Human Rights claim.
[115] In her response, the Resolution Officer provided the Pharmacist with the Senior Investigator’s contact information and said:
… it would be up to you to tell the College what you want to do ie. return to pharmacy practice or not. This matter would then need to go to the Inquiry Committee for their review, assessment and disposition and as previously mentioned it would be based on the professional medical opinion regarding your fitness to practice as a registrant of the College.
[116] The Pharmacist then emailed the Senior Investigator and asked for a copy of the April 2017 IME and for her to let him know what his options were going forward. In her response, the Senior Investigator told the Pharmacist that a copy of the April 2017 IME had already been sent to him by mail and that if he wanted to return to practice, the first step was for him to get a report or IME from an addictions specialist declaring him fit to return to practice, with or without restrictions. She told the Pharmacist that such a report or IME would be presented to the Inquiry Committee to determine if his suspension should be lifted and that usually a registrant’s suspension is lifted if the pharmacist is declared fit to practice. She told the Pharmacist that if the addictions specialist does not declare a pharmacist to be fit to practice, the Inquiry Committee would likely not lift their suspension. The Senior Investigator asked the Pharmacist to let her know what his intentions were after he received the April 2017 IME.
[117] Before receiving a copy of the April 2017 IME, the Pharmacist emailed the Senior Investigator and said:
Most likely I would like my file passed to the Inquiry Committee as soon as possible. Even though I know based on what both you and [Resolution Officer] have told me my suspension most likely won’t be lifted, I will need their decision in order to start a human rights claim with the BC Human Rights Tribunal.
[118] At the hearing, the Pharmacist was asked why he said in his emails to the College that he was going to make a human rights complaint when at that point he had not seen the April 2017 IME and the Inquiry Committee had not yet reviewed his case. He testified that he knew from what Dr. Manak told him at the assessment that he would not be able to return to work in a safety-sensitive position if he was taking Suboxone. He said he also knew from the Senior Investigator’s email that his suspension would likely not be lifted unless he was declared fit to practice. The Pharmacist denied wanting to proceed with a human rights complaint before he saw the April 2017 IME and said he only mentioned making a human rights complaint in his emails because he needed to prepare for what might happen and was “getting all my ducks in order just in case”. He said making a human rights complaint was “just a thought” at that time and he had not yet done anything “official” in that regard.
I. Communications between the Pharmacist and the College after he receives the April 2017 IME
[119] In around mid-May 2017, the Pharmacist emailed the Senior Investigator and said he had a lot of questions about the April 2017 IME. He told the Senior Investigator he would contact her in the next few weeks about his questions but that:
What I’d like to ask today is why I was not informed by [Resolution Officer] that I would not be eligible to regain my license if I take Suboxone. I let her know I currently take Suboxone before she set me up for an appointment with Dr Manak. The appointment cost was $2600. If I knew the info about Suboxone beforehand I certainly would not have spent $2600 for an assessment.
[120] In her response to the Pharmacist the same day, the Senior Investigator said:
While I cannot speak for [Resolution Officer] and what she did not did not [sic] tell you, I don’t think she would have been able to predict Dr. Manak’s assessment of your condition. Certainly, none of us are specialists like Dr. Manak. [Resolution Officer] would not have been able to advise you ahead of time regarding the Suboxone issue – it was Dr. Manak who made that determination.
If you have questions regarding Dr. Manak’s comments in the report, the best person to ask would be Dr. Manak herself. What I can answer for you are procedural questions. If Dr. Manak’s opinion is that you are not fit to practice, then the Inquiry Committee would rely on that opinion. If you disagree with Dr. Manak’s comments, it would be best to address your disagreements with her or obtain a second opinion from another physician.
[121] In late May 2017, the Pharmacist emailed the Senior Investigator and said he had been informed by Dr. Manak’s office that he had to go through the College if he had any requests related to the April 2017 IME. Between that time and mid-July 2017, the Pharmacist and the Senior Investigator exchanged emails about his requests for a copy of the audio recording or written transcript of his appointment with Dr. Manak and the diagnostic criteria she used for her assessment. The documentary evidence indicates that an audio recording or written transcript of the appointment does not exist, and the Senior Investigator told the Pharmacist she could not compel Dr. Manak to send him the diagnostic criteria she used for her assessment.
[122] In mid-July 2017, the Pharmacist emailed the Senior Investigator and asked her to forward his file to the Inquiry Committee for a decision. In her response, the Senior Investigator told the Pharmacist she would have to submit the April 2017 IME to the Inquiry Committee, who would likely defer to Dr. Manak’s recommendations. The Pharmacist testified that his decision to submit the April 2017 IME to the Inquiry Committee was partly related to making a human rights complaint because he needed his request for reinstatement to be rejected before he could make such a complaint. It is not in dispute that before asking for the April 2017 IME be put before the Inquiry Committee, the Pharmacist never asked Dr. Manak to make any corrections or changes to the document.
[123] Before the Senior Investigator sent the Pharmacist’s file to the Inquiry Committee, she asked him if he wanted to submit a written statement. After initially saying he wanted his file to go to the Inquiry Committee “as is”, the Pharmacist sent a letter to the Senior Investigator for the Inquiry Committee’s consideration when determining his fitness to practice. The Pharmacist testified that he sent the letter because he wanted the Inquiry Committee to consider his view that the April 2017 IME was not a fair assessment.
[124] In his letter, the Pharmacist listed what he considered to be errors in the substance of the April 2017 IME and the conclusions he felt were wrong. Specifically, the Pharmacist said Dr. Manak treated him unfairly and accused him of abusing anabolic steroids, unfairly categorized his weight loss and use of walk-in or virtual clinics as “red flags”, inaccurately recorded medication dosages, and used outdated diagnostic criteria. The Pharmacist did not say anything in his letter about Suboxone or the possibility of continuing to take Suboxone and work in a non-safety-sensitive position. When asked why, he said it was because “at that point I thought the rules were written in stone and I was bound”. He said he did not ask the Inquiry Committee to consider reinstating his license with accommodations so he could work in a non-safety-sensitive position because his goal was to work as a community pharmacist.
[125] When asked why he did not get a second opinion on his fitness to practice, the Pharmacist said he believed Dr. Manak when she told him at the assessment that the “accepted standard” was that a person cannot work in a safety-sensitive position while on Suboxone. He said that although he disagreed with that standard, he thought all IME physicians would probably say the same thing and he was not going to pay another $2,600 for a second opinion that would come to the same conclusion.
J. The human rights complaint
[126] In late July 2017, the Pharmacist made this complaint against the Respondents. The Pharmacist testified that he made the complaint before the Inquiry Committee reviewed his file because he did not want to wait to see if it would approve his reinstatement and make any recommendations. He also testified that he chose to make a human rights complaint rather than comply with Dr. Manak’s recommendation to taper off Suboxone because his many attempts to quit using through abstinence-based therapy always led to relapse. The Pharmacist said that Suboxone did, and still does, play a huge part in his recovery.
K. The Inquiry Committee’s decision
[127] At the end of July 2017, the Inquiry Committee met to review the Pharmacist’s case. The Inquiry Committee considered all the information before it, in particular the April 2017 IME, the Pharmacist’s letter, and the Senior Investigator’s recommendations. It is evident from the minutes that the Inquiry Committee was aware that the Pharmacist had reportedly been abstinent from illicit substances since he started taking Suboxone in August 2016.
[128] A few days after the Inquiry Committee met, the Senior Investigator sent a decision letter to the Pharmacist [Decision Letter]. The Decision Letter says the Inquiry Committee reviewed the April 2017 IME in its entirety but made specific note of Dr. Manak’s recommendations regarding the Pharmacist’s “dilemma” of wanting to stay on OAT and work in a safety-sensitive position. It also says the Inquiry Committee considered the Pharmacist’s letter and his concerns about the April 2017 IME. Under the heading “Inquiry Committee’s Disposition and Rationale”, the Decision Letter says:
As per Term 6 in your most recent Consent Agreement, an addictions specialist has provided a written report with an opinion regarding your fitness to practice and future treatment plans. Dr. Manak’s [sic] is duly qualified as a specialist in this area, and has conducted a comprehensive IME on you. Therefore, the Inquiry Committee would rely on Dr. Manak’s professional opinion and recommendations when determining an appropriate disposition in this regard. Without another professional opinion to the contrary, the Inquiry Committee’s disposition would defer to Dr. Manak’s recommendations.
…
The Inquiry Committee notes your concerns with Dr. Manak’s report and recommendations, and what you have indicated to be errors. However, it is not within the Inquiry Committee’s jurisdiction to assess, question, or criticize Dr. Manak’s clinical judgment, practice, and/or report writing skills. You have the option to express your concerns to the College of Physicians and Surgeons of BC regarding Dr. Manak’s practice. Alternatively, if you disagree with Dr. Manak’s opinion, you have the option to seek another medical opinion.
… Given Dr. Manak’s assessment and recommendations, and for public safety reasons, the Inquiry Committee considered that maintaining your suspension would be most appropriate at this point. Consistent with Dr. Manak’s recommendations, the Inquiry Committee will not consider lifting your suspension until you have demonstrated (with documentation where applicable and available) that you have:
- Tapered off Suboxone;
- Attended an inpatient addiction treatment for substance use disorder;
- Upon completion of the inpatient addiction treatment, signed a Relapse Prevention Agreement (or similar Agreement) for monitoring by a qualified medical monitor, for a period of give [sic] continuous years, to commence on the last day of documented abstinence; and
- Completed two months of abstinence from all mood altering substances, including Suboxone.
Alternatively, as stated above, you have the option of seeking a second medical opinion from another addictions specialist and having that physician provide a written report regarding fitness to practice. The Inquiry Committee could then review this report and reconsider its disposition on the matter.
[129] The Pharmacist testified that he was disappointed with the Decision Letter because he hoped the Inquiry Committee would look into his situation a bit more or ask him questions before arriving at its conclusion and adopting Dr. Manak’s recommendations. When asked why he did not provide the College with a second opinion after receiving the Decision Letter, the Pharmacist said at that time he still believed Dr. Manak’s conclusion that he could not work in a safety-sensitive position while on Suboxone was true. He said he thought the Decision Letter was final and that all College-approved addictions specialists would come to the same conclusion and recommend he stop taking Suboxone if he wanted to work as a community pharmacist. In cross-examination, the Pharmacist acknowledged that no one told him other addictions specialists would come to the same conclusion and he agreed he did not take any action to confirm if his assumption was correct. Specifically, the Pharmacist acknowledged he did not ask the College for the names of any other approved addictions specialists that could potentially provide him with a second opinion.
[130] In its closing argument, the College submits that the Pharmacist’s assertion that he believed getting a second opinion would be futile because the result would be the same “strains credibility”. I disagree. While there is no question that the College informed the Pharmacist on more than one occasion that he could get a second opinion, I accept the Pharmacist’s evidence and find his belief was genuine. At the assessment, Dr. Manak told the Pharmacist that his continued use of Suboxone would be an issue if he wanted to work in a safety-sensitive position. In the April 2017 IME, Dr. Manak stated that the “expected standards of care based on occupational safety standards in healthcare professionals is that they must be abstinent from ALL mood altering substances, including buprenorphine”. In her testimony, Dr. Manak said that, in retrospect, she could have used the term “best practices” rather than “standards of care” because there are no “hard and fast” studies one way or the other. Based on this evidence, in my view it was reasonable for the Pharmacist not to question Dr. Manak’s statements at the time and believe that other College-approved addictions specialists would come to the same conclusion that she did.
L. Amended human rights complaint
[131] Sometime around August or September 2017, the Pharmacist retained the BC Human Rights Clinic to represent him. In mid-September 2017, the Pharmacist amended his complaint to add the area of accommodation, services and facilities, further particulars of the allegations against the Respondents, and a remedy.
M. The Pharmacist gets a second opinion from Dr. Wood
[132] In mid-May 2018, the Pharmacist’s legal counsel contacted the Senior Investigator and told her that Dr. Wood was willing to conduct an IME of the Pharmacist. Dr. Wood has done over 100 IMEs, almost exclusively of healthcare professionals with substance use disorders. Part of Dr. Wood’s work includes reviewing IMEs done by other physicians. At the time legal counsel contacted the College, Dr. Wood was not on its list of approved addictions specialists. After reviewing his qualifications, the Inquiry Committee approved Dr. Wood as an addictions specialist near the end of May 2018.
[133] In mid-June 2018, the Pharmacist met with Dr. Wood for an assessment as to whether he could return to work while on Suboxone. In addition to obtaining a detailed history from the Pharmacist, Dr. Wood reviewed the Family Doctor’s records, the December 2014 IME, and the April 2017 IME. As part of the assessment, Dr. Wood diagnosed the Pharmacist as having an “opioid use disorder in sustained remission on maintenance therapy”.
[134] In mid-July 2018, Mr. Track sent Dr. Wood’s IME report [June 2018 IME] to the Senior Investigator. In the June 2018 IME, Dr. Wood reported that the Pharmacist “has excellent insight into his addiction and has clearly benefited from his past inpatient addiction treatment and his ongoing buprenorphine/naloxone treatment”. Dr. Wood concluded that the Pharmacist was fit to return to work in a safety-sensitive position and recommended a three-year monitoring program to protect the public that consisted of:
- random toxicology testing and consideration of regular testing to confirm abstinence from illicit drugs and alcohol;
- close supervision by a senior pharmacist to ensure no concerns with workplace performance such as medication errors; and
- modified duties, including no handling of opioid medication.
[135] The Pharmacist testified that he felt “vindicated” by the June 2018 IME. He said he learned from the June 2018 IME that people can work in safety-sensitive positions while on Suboxone and that what Dr. Manak told him about the “expected standards of care” was not correct.
N. The Inquiry Committee reinstates the Pharmacist’s license
[136] In early August 2018, the Inquiry Committee met to review the Pharmacist’s case. After reviewing all the information before it, including its previous decisions, the April 2017 IME and the Pharmacist’s letter in response, and the June 2018 IME, the Inquiry Committee decided to approve the terms of a consent agreement that were consistent with Dr. Wood’s recommendations. The Inquiry Committee’s rationale for reconsidering its previous decision was that:
In April 2017, Dr. Manak, a duly qualified specialist in addictions, conducted a comprehensive IME on the registrant. Dr. Manak had assessed the registrant in 2014, and therefore already had knowledge of the registrant’s medical history. At its meeting on July 28, 2017, the Inquiry Committee relied on Dr. Manak’s medical opinion to make its disposition, as this was the only objective medical information available at the time. The Inquiry Committee panel at the time reviewed the registrant’s submissions and acknowledged that the registrant disagreed with Dr. Manak’s assessment. However, the registrant’s submissions cannot be considered objective medical information that can be considered by the Inquiry Committee when it makes a disposition as to whether or not his registration was eligible for reinstatement. The Inquiry Committee would be contravening its duty to the public if it had relied on the registrant’s submissions and against Dr. Manak’s recommendations. At that time, there was no objective medical information before the Inquiry Committee to indicate that he was fit to return to practice.
…
In June 2018, the registrant went to another addictions specialist, Dr. Evan Wood, for an IME. Dr. Wood’s medical opinion differed from Dr. Manak’s medical opinion. This does not mean that Dr. Manak’s opinion and recommendations were incorrect – the only organization that can make such a determination is the College of Physicians and Surgeons of BC. The Inquiry Committee acknowledged that differences in opinion can arise between physicians when deciding upon the best course of treatment for a patient. However, it is not the role of this Inquiry Committee to attempt to reconcile competing or differing professional judgments. The Inquiry Committee also noted that Dr. Wood’s IME occurred 14 months after Dr. Manak’s IME, and that changes in the registrant’s medical condition could have occurred during this time.
There is now further medical information to consider, unlike what occurred at the July 28, 2017 meeting. The new and more current medical information from Dr. Wood indicated that the registrant could return to employment as a pharmacist if he were to enter into an appropriate monitoring program …
[137] In late August 2018, the Pharmacist signed a consent agreement with the College for reinstatement of his license subject to specific terms and conditions [August 2018 Consent Agreement]. Those terms and conditions included that the Pharmacist would:
- enter and comply with a monitoring program at his own cost that includes biological testing for confirmation of abstinence from substances other than Suboxone;
- comply with all recommendations and treatment prescribed or directed by Dr. Wood, the Family Doctor and/or other medical professionals involved in his care;
- not work alone and always be supervised by another pharmacist;
- not handle, prepare, or dispense prescription opioid medications;
- not have any access to the narcotics safe in any pharmacy; and
- not be involved in any way in the ordering of narcotics except for the supervised signing off on necessary paperwork.
[138] Within a month of signing the August 2018 Consent Agreement, the Pharmacist signed up with a monitoring company and paid for the monitoring himself. After the Pharmacist completed the necessary course upgrading and submitting a criminal record check, his license to practice pharmacy was reinstated in late December 2018.
O. The Pharmacist returns to work
[139] In January 2019, the Pharmacist actively started looking for work as a community pharmacist. He made the restrictions on his license known to all prospective employers so they would be aware of his situation. The Pharmacist testified that he did not find employment right away because there were not a lot of pharmacist jobs and the restrictions on his license made it hard for him to get interviews. He also testified that his employment prospects were limited by the terms of the August 2018 Consent Agreement requiring him to be supervised at all times and not handle narcotics because few pharmacies in his geographical area have multiple pharmacists working at the same time.
[140] In late April or early May 2019, the Pharmacist contacted Dr. Wood and asked about the possibility of changing some of the terms in the August 2018 Consent Agreement so it would be easier for him to find employment. After meeting with the Pharmacist, Dr. Wood wrote to the College and recommended that the condition in the August 2018 Consent Agreement requiring the Pharmacist to always be supervised be removed and that the limit on the Pharmacist’s handling of narcotics be revisited. Dr. Wood reported to the College that the Pharmacist was continuing to do well in his recovery. He described the Pharmacist as “an addictions treatment success” and, in his view, the Pharmacist’s likelihood of relapse while on Suboxone was extremely low.
[141] Near the end of May 2019, the Senior Investigator asked Dr. Wood for his opinion about the need for restrictions on the Pharmacist’s handling of narcotics. Dr. Wood testified that he did not believe removing the restrictions posed a significant risk to public safety. He testified that the Pharmacist’s stability on Suboxone for almost three years was a material consideration when deciding whether to modify his initial recommendations. Dr. Wood’s evidence was that requiring the Pharmacist to continue to comply with the restrictions surrounding the handling of narcotics would have been a hardship for him.
[142] After receiving Dr. Wood’s opinion, the Senior Investigator recommended to the Inquiry Committee that all limits and conditions on the Pharmacist’s handling of narcotics be lifted but that he remains subject to monitoring. In early June 2019, the Pharmacist entered into a consent agreement with the College that removed the conditions that he always be supervised and that he no longer be restricted in terms of handling, dispensing, and ordering narcotics [June 2019 Consent Agreement].
[143] In mid-July 2019, the Pharmacist started working at a pharmacy about an hour from his home. He testified that he disclosed his substance use disorder to his new employer in his application and they talked about it in the interview. The Pharmacist said that although he had not worked in about four years, he felt like he had never left, and things went very well. His employer at this pharmacy described the Pharmacist as an “excellent employee” and there were no behaviour issues or concerns with the Pharmacist’s job performance.
[144] Sometime in August 2020, the Pharmacist contacted the Senior Investigator about the possibility of changing his monitoring from the company with which he had been engaged since the August 2018 Consent Agreement to the Family Doctor. The Senior Investigator contacted Dr. Wood and asked him whether the Pharmacist’s request should be approved. After meeting with the Pharmacist, reviewing his test results from the monitoring company, and speaking to the Family Doctor, Dr. Wood wrote to the Senior Investigator in mid-October 2020 and recommended that for cost reasons, the Pharmacist’s monitoring should be transferred to the Family Doctor. In Dr. Wood’s view, because the Family Doctor was monitoring the Pharmacist, additional monitoring by the monitoring company was unnecessary.
[145] In March 2021, the Pharmacist found a full-time job in the city where he lives.
[146] The Pharmacist testified that when he returned to work as a community pharmacist, he never had any cravings or problems dispensing narcotics. He said that once in awhile he thinks about how he used to take pills but knows that is not him anymore. The Pharmacist testified that being on Suboxone has made a huge difference in his life and the medication has not had any negative impacts on his mental functioning, cognition, or attention while on the job. The Pharmacist testified that he intends to continue working as a community pharmacist and can see himself staying on Suboxone forever as part of maintaining his mental health.
[147] The Pharmacist’s wife testified that the Pharmacist’s return to work not only had a positive effect on their family financially, but on him personally. She said it was great to see the Pharmacist excited to get up and go to work every morning and his return to work as a pharmacist was like the next step forward for them to being a “normal family”.
VI PRELIMINARY ARGUMENTS TO DISMISS THE COMPLAINT
[148] The Pharmacist alleges that the College discriminated against him regarding his membership in an occupational association based on mental disability contrary to s. 14 of the Code . He alleges that Dr. Manak discriminated against him with respect to a service she provided based on mental disability contrary to s. 8 of the Code .
[149] The Respondents deny discriminating against the Pharmacist. They also argue that the complaint should be dismissed before a determination is made as to whether the Pharmacist has been discriminated against. I consider those arguments first and only if I find the complaint should not be dismissed on any of those grounds do I consider whether the Pharmacist has been discriminated against.
A. Dr. Manak’s preliminary arguments
[150] Dr. Manak submits that I should dismiss the complaint before determining whether the Pharmacist was discriminated against on the grounds that:
- the complaint itself is a form of abuse of process and a collateral attack on the College’s process; and
- her opinions and recommendations in the April 2017 IME were made for a quasi-judicial proceeding and are protected under the principles of witness immunity and absolute privilege.
[151] The Pharmacist says Dr. Manak’s arguments seek to insulate medical professionals from the Code ’s application and the Tribunal’s scrutiny. He says Dr. Manak’s arguments run contrary to the purposes of the Code and that the Code ’s protections must be given a large and liberal interpretation.
[152] I consider each of Dr. Manak’s arguments in turn.
1. Do these proceedings constitute an abuse of process and collateral attack on the College’s process?
[153] In this section, I first set out the law, then a summary of the parties’ arguments and the cases on which they rely, and then my reasons for concluding that these proceedings are not an abuse of process or a collateral attack on the College’s process.
a. The law
[154] The doctrines of collateral attack and abuse of process are related but distinct concepts. The rule against collateral attack “is intended to advance the interests of justice by avoiding duplicative or inconclusive litigation, potential inconsistent results and undue costs, and by preventing a party from avoiding the consequences of an unfavourable decision”: M.K. v. British Columbia (Attorney General) , 2020 BCCA 261 at para. 35. Its purpose is to prevent a party “from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route”: British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52 [Figliola ] at para. 28. Put simply, “the harm to the justice system lies not in challenging the correctness or fairness of a judicial or administrative decision in the proper forums, it comes from inappropriately circumventing them”: Figliola at para. 30.
[155] The underlying rationale of the doctrine of abuse of process is “the protection of the fairness and integrity of the administration of justice by preventing needless multiplicity of proceedings”: Figliola at para. 31. The “doctrine of abuse of process can be triggered where allowing the litigation to proceed would violate principles such as ‘judicial economy, consistency, finality and the integrity of the administration of justice’”: Figliola at para. 32; see also M.K. at para. 36.
b. The parties’ arguments
[156] Dr. Manak submits that the complaint is an abuse of process because it is an attempt by the Pharmacist to frustrate the College’s process with respect to his reinstatement. She further submits that the complaint is a collateral attack on the Decision Letter because rather than exhausting his alternative remedies and having the matter properly and fairly adjudicated at the College level, the Pharmacist sought a different result in a different forum.
[157] Dr. Manak says the Legislature created a process in Part 3 of the Act that gives the College jurisdiction to adjudicate questions of fitness to practice fairly and appropriately. She says the Tribunal’s oversight does not extend to adjudicating a registrant’s fitness to practice because if the Tribunal had such a role, it would in essence usurp the College’s legal obligation to meet its public protection mandate. Dr. Manak says that in this case, the Tribunal is being asked to render a decision on how the College fulfilled its statutory mandate when it was the Pharmacist who failed to follow the processes in the Act to have the Decision Letter reviewed, including adducing additional evidence, or triggering a formal disciplinary hearing so the issue could be fully adjudicated by an independent disciplinary panel.
[158] Dr. Manak further says the evidence shows the Pharmacist made this complaint for improper motives. She says the Pharmacist knew the College asked her to provide her opinion on his fitness to practice and that his suspension would be lifted if an addictions specialist declared he was fit to practice. She says that at each step of the way, the Pharmacist was well informed of his procedural rights and that despite being told the Inquiry Committee would likely proceed based on the medical evidence, he chose to put the April 2017 IME before the Inquiry Committee and not get a second opinion. Last, Dr. Manak says that rather than properly engaging in the legally constituted process in the Act , the Pharmacist decided to make a human rights complaint.
[159] In support of her argument, Dr. Manak cites Khan v. Law Society of Ontario , 2019 ONSC 4974, rev’d on procedural grounds in 2020 ONCA 320. She acknowledges that Khan has limited precedential value but says, nonetheless, its policy analysis remains appropriate to this case. In Khan , the Court found claims against the Law Society and the Law Society Tribunal were an abuse of process because the plaintiff should have continued with the Law Society’s process since its decisions are subject to review, both internally and on judicial review. The Court also found claims against Legal Aid and the Hamilton Police Service were an abuse of process because the plaintiff was suing them in a different civil proceeding.
[160] The Pharmacist argues that the fact that a professional regulator like the College exercises a statutory mandate does not shield its decisions from scrutiny under the Code . In support of his argument, the Pharmacist cites several cases that he says illustrates the Tribunal’s jurisdiction in the context of a complaint against a professional regulator.
[161] The first is Complainant v. College of Physicians and Surgeons of BC (No. 2) , 2018 BCHRT 189, in which the Tribunal denied an application to dismiss the complaint. In that case, the Tribunal held that if the complainant proved that the College of Physicians and Surgeons exercised its discretion and insisted on an unattainable pathway for her return to work when more viable options were available, it could constitute an adverse impact by an occupational association. The Tribunal also held that if the complainant proved the College of Physicians and Surgeons’ actions were based on presumptions and its past experience with her when she was unwell, it could suggest her mental disability was a factor in that adverse impact. Finally, the Tribunal decided the complaint needed to go to a hearing so a determination could be made as to whether the College of Physicians and Surgeons’ currency and competency requirements were justified.
[162] The second is Fossum v. Society of Notaries (No. 2) , 2011 BCHRT 310, where after a hearing the Tribunal found that the Society of Notaries discriminated against the complainant by failing to accommodate his alcohol addiction and allow him to practice. The Tribunal found that the Society of Notaries failed to prove it was necessary to require the complainant to provide an undertaking regarding his remission and that it considered alternatives to accommodate his disability.
[163] The third is Gichuru v. The Law Society of British Columbia (No. 4) , 2009 BCHRT 360, where the Tribunal considered the standard the Law Society adopted to determine if candidates for entry into the legal profession were medically fit to competently practice. In that case, the Tribunal recognized the Law Society’s statutory obligation to assess a candidate’s fitness to practice law to protect the public but found that the manner in which it inquired into the medical fitness of a candidate was discriminatory because it was not adequately tailored.
[164] The fourth is Van Leening v. College of Physical Therapists , 2006 BCHRT 357, in which the Tribunal found that the standards the College of Physical Therapists was required by law to create were adopted in good faith and related to the function performed, namely treating injured people. It also found that the College of Physical Therapists did not discriminate against the complainant because it modified its standard to accommodate his disability and placed reasonable conditions on his practice so he could attain registration without sacrificing the objective of protecting the public.
[165] Last, the Pharmacist cites Bitonti v. British Columbia (Ministry of Health) (No. 3) , 1999 CanLII 35189 (BC HRT), in which the British Columbia Council of Human Rights found that the College of Physicians and Surgeons’ rule that doctors trained in a category of countries must have an additional year of post-graduate training was discriminatory based on place of origin. The Tribunal accepted that the requirement was intended to ensure competency to practice medicine but found that the College of Physicians and Surgeons did not prove the onerous and inflexible requirement was reasonably necessary.
[166] The Pharmacist next argues that the complaint is not a collateral attack or abuse of process because there is no duplication of proceedings. He says that because the Inquiry Committee did not consider whether the April 2017 IME was discriminatory, the issue has not been resolved in another forum and a decision from the Tribunal is necessary and appropriate.
c. Analysis and conclusion
[167] In this section, I address each of Dr. Manak’s arguments and explain why I find the complaint is not an abuse of process or collateral attack on the Decision Letter.
[168] First, I agree with Dr. Manak that the Tribunal’s role is not to assess or adjudicate a registrant’s fitness to practice as a pharmacist. In the context of a complaint against a professional regulator, the Tribunal recognizes and accepts the regulator’s statutory mandate to ensure the competency and fitness of its members and to protect the public. The Tribunal also recognizes that its role is not to usurp any of the regulator’s statutory duties and obligations, but only to ensure the regulator carries out its statutory mandate without breaching the Code : Fossum at para. 306; Van Leening at para. 48.
[169] I disagree, however, with Dr. Manak’s assertion that the Tribunal is being asked to usurp the College’s role in this case and that the Tribunal’s jurisdiction is limited to determining whether a regulatory process created by statute is “fair and consistent with a human rights lens”. In this case, the Tribunal is being asked to determine if the College discriminated against the Pharmacist by relying on her conclusion that he was not fit to practice while on Suboxone. By making that determination, the Tribunal is not usurping the College’s legal obligation to protect the public. Rather, it is deciding whether the Pharmacist experienced any disability-related adverse impacts related to his membership with the College and, if so, whether they are justified.
[170] Next, based on the evidence before me, I disagree with Dr. Manak that the complaint is an abuse of process or a collateral attack on the Decision Letter because the Pharmacist did not exhaust all alternative remedies before making this complaint. Contrary to Dr. Manak’s assertion, I find the evidence established that the Pharmacist did not make this complaint for improper motives or to frustrate the College’s process.
[171] I accept the Pharmacist’s evidence that he made this complaint on the basis of an honestly held belief that Dr. Manak’s conclusion that he was not fit to practice pharmacy while on Suboxone was discriminatory. I accept his evidence that when Dr. Manak told him during the assessment that continuing to take Suboxone would be an issue, he felt it was wrong and unfair because it meant he would have to stop taking a medication he described as a “game-changer” to his recovery to be able to practice his chosen profession. Further, for the reasons explained above, I have already found that the Pharmacist’s belief that it would be futile at that point to get a second opinion was both genuine and reasonable.
[172] I find it of no significance that when the Pharmacist first became aware of the Suboxone issue during Dr. Manak’s assessment, he told her he thought it was a human rights issue. I also find it does not undermine the legitimacy of this complaint because the Pharmacist chose to put the April 2017 IME before the Inquiry Committee and informed the College of his intention to make a human rights complaint before receiving the Decision Letter. In my view, the complaint was not made in an effort to get a different decision in a different forum. Rather, the Pharmacist put the April 2017 IME before the Inquiry Committee to move forward in the College’s process, suspecting based on what the College and Dr. Manak had told him, that the decision he would receive would be one he viewed as discriminatory. As the Tribunal noted at para. 44 of Masters Student A v. University B and others , 2011 BCHRT 113, “nothing in the Code requires that a Complainant exhaust his or her internal remedies prior to availing themselves of recourse to the Code ”.
[173] Finally, and most significantly, there is no internal review or appeal process in the Act that the Pharmacist could have availed himself of if he wanted to appeal the Decision Letter or have it reviewed. Under the Act , Inquiry Committee decisions are not reviewable or appealable in these circumstances. Only two types of decisions of the Inquiry Committee can be appealed to the Supreme Court of British Columbia [BCSC]. The first are decisions related to whether a registrant poses a risk of physical or sexual abuse to children or a risk of physical, sexual, or financial abuse of a vulnerable person: s. 33(2) and (3). The second are orders of the Inquiry Committee suspending or imposing limits or conditions on a registrant’s practice during an investigation or pending a Discipline Committee hearing: s. 35(2) and (5).
[174] Similarly, the Decision Letter is not reviewable by the Health Professions Review Board created under Part 4.2 of the Act : ss. 50.6(1) and 50.53. Therefore, the only alternative internal process under the Act available to the Pharmacist was, as Dr. Manak suggests was appropriate, to trigger a disciplinary hearing. While it is true that a College registrant can insist that their matter proceed to the Disciplinary Committee, it is understandable if a registrant hoping to be reinstated to the practice of pharmacy does not do so: Gichuru at para. 636.
2. Should the complaint against Dr. Manak be dismissed based on witness immunity or absolute privilege?
[175] Dr. Manak argues that her opinions and recommendations in the April 2017 IME are protected by witness immunity and absolute privilege. She says these common law doctrines are a complete defense to the complaint against her because she prepared and tendered the April 2017 IME as part of the Inquiry Committee’s process. Dr. Manak says that process is “quasi-judicial” and the April 2017 IME falls within the category of evidence that makes her immune from liability, including under the Code . The Pharmacist argues that Dr. Manak is not protected by either doctrine because she was not engaged as an expert witness to give evidence in a judicial or quasi-judicial proceeding. For the following reasons, I cannot accede to Dr. Manak’s arguments.
[176] “Absolute privilege” and “witness immunity” are used interchangeably in Dr. Manak’s submissions and in some of the cases she relies on. While there may be nuances to these doctrines relevant to some disputes, in this case I am satisfied that the relevant principles are the same. Generally speaking, both seek to protect the integrity of the justice system by ensuring witnesses, in this case an expert, are able to assist judicial and quasi-judicial decision makers in the search for the truth without the threat of a civil suit against them: Carnahan v. Coates , [1990] 71 DLR (4th) 464 (BCSC); Hung v. Gardiner , 2002 BCSC 1234 at paras. 54-56; Schut v. Magee et al. , 2003 BCSC 36, upheld on appeal 2003 BCCA 417, at para. 36. I will refer to both doctrines as “witness immunity” in the remainder of this decision.
[177] Dr. Manak and the Pharmacist made fulsome submissions to support their arguments about why witness immunity does or does not apply in this case. The submissions largely, but not exclusively, focused on whether the Inquiry Committee’s process constituted a quasi-judicial proceeding that could attract the protections that Dr. Manak claims. The parties cited several cases in support of their arguments, including two cases where the Ontario Human Rights Tribunal [OHRT] extended the doctrine to the human rights arena: Bajouco v. McMaster , 2011 HRTO 569 and Chopra v. Hill , 2018 HRTO 939.
[178] Similar to the Pharmacist, the complainant in Bajouco alleged that the doctors who assessed her capacity to return to work discriminated against her, specifically by asking inappropriate questions and concluding she was mentally disabled. The OHRT held that “given the prevailing public policy rationales and important Code considerations, all alleged aspects of the respondents’ IME, except one, are covered by expert witness immunity”: para. 46. The only aspect of the IME that was not protected by witness immunity was the accessibility of the assessment process itself.
[179] Neither Dr. Manak nor the Pharmacist cited any cases where a BC court or the Tribunal has considered the issue of whether an IME prepared in the course of a professional regulatory process like that engaged in by the Inquiry Committee, is protected by witness immunity, nor was I able to find any such cases. Unfortunately, neither party cited the Tribunal’s decision in Madadi v. B.C. (Ministry of Education) , 2012 BCHRT 380, which I find instructive. In the absence of any reason not to do so, I follow Madadi and conclude that witness immunity does not apply in this case. I explain why next.
[180] The complainant in Madadi was a teacher certified by the College of Teachers, a regulator whose functions were similar to that of the College. He alleged that the College of Teachers’ hearing panel discriminated against him when it found him guilty of misconduct and suspended his teaching license for one year. The respondent applied to dismiss the complaint and argued, among other things, that the principle of judicial immunity protected it and the hearing panel members from liability when exercising their decision-making function during disciplinary hearing proceedings. The respondent also argued that in general, judicial immunity “may be invoked to protect decision-makers who are acting in a quasi-judicial capacity under statutory authority as well as the judiciary”: at para. 17.
[181] The Tribunal found that the principle of judicial immunity protects quasi-judicial decision-makers from civil suit, but not immunity under the Code : at para. 31. In arriving at that conclusion, the Tribunal first considered the case of British Columbia v. Bolster , 2007 BCCA 65. In Bolster , the Court of Appeal stated at para. 78:
Human rights legislation is recognized as having a special character. It is to be interpreted so as to give it full force and effect, and is not to be limited except by express legislative language. The Supreme Court of Canada expressed those principles in Re Winnipeg School Division No. 1 and Craton et al , 1985 CanLII 48 (SCC), [1985] 2 S.C.R. 150 at 156:
Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in a sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement . [emphasis added]
[182] The Tribunal then noted that s. 14 of the Code prohibits occupational associations from discriminating and “only a constitutional immunity can limit the Tribunal’s jurisdiction absent express legislative language to the contrary”: at para. 48. The Tribunal went on to say that “our Courts have made it clear that judicial immunity is a fundamental constitutional principle” that is “central for the concept of judicial independence”: at para. 50. The Tribunal described judicial immunity as “a necessary adjunct to the constitutional principle of judicial independence, the very essence of which is the separation of the judiciary from the legislative and executive branches of government and immunizes judges from the application of the Code ”: at para. 51.
[183] The Tribunal explained that for policy reasons, judicial immunity has been extended to quasi-judicial decision-makers, but only in relation to civil actions such as a claim for negligence. The Tribunal went on to say that “it is clear that in British Columbia, clear and express legislative language is required to limit the application of the Code ”: at para. 58.
[184] After reviewing relevant case law, including that of the OHRT, the Tribunal noted that the difficulty with respect to cases that extended judicial immunity to quasi-judicial decision-makers in the context of human rights law is that “they appear to have carved out an exception to the application of human rights legislation based on a common law principle”: at para. 71. The Tribunal noted at para. 72:
The common law principle of judicial immunity from civil suit has clearly been extended to quasi-judicial tribunals. While it is open to a Court to define the scope and application of common law concepts such as negligence, Bolster makes clear that it is not similarly open to read down human rights legislation on the basis of common law principle . [emphasis added]
[185] In my view, there is some merit to Dr. Manak’s arguments and the HRTO’s reasoning in Bajouco is compelling. However, in the absence of any express legislative language, extending the common law doctrine of witness immunity to protect her from liability in the circumstances at issue, would be impermissibly “reading down” the Code . In other words, if I were to accept Dr. Manak’s arguments, I would be elevating “a common law rule to constitutional status”: Madadi at para. 71. For that reason, I conclude that witness immunity does not protect Dr. Manak from liability under the Code . I decline to dismiss the complaint against her on this basis.
B. The College’s preliminary arguments
[186] The College argues that the complaint should be dismissed before a determination has been made as to whether the Pharmacist was discriminated against on the grounds that:
- he has not addressed the applicability of the Act ; and
- the substance of the complaint has already been adequately addressed.
[187] The Pharmacist says the College’s arguments seek to insulate regulatory bodies from the application of the Code and the Tribunal’s scrutiny. He says its arguments run contrary to the purposes of the Code and that the protections afforded by the Code must be given a large and liberal interpretation. The Pharmacist says the Tribunal should not permit narrowing of the application of the Code to regulators in their engagements with the public.
[188] I consider the College’s arguments in turn.
1. Should the complaint be dismissed because the Pharmacist failed to address the applicability of the Act?
[189] The College submits that the Pharmacist’s failure to address the applicability of the Act is fatal to his case. It says the complaint must fail because every step in addressing the Pharmacist’s substance use disorder from a professional regulatory perspective was done in compliance with the Act and with the Pharmacist’s full understanding and consent.
[190] More particularly, the College submits that after the Pharmacist’s former employer reported his drug use under the duty to report, it followed the process set out in the Act . The College says that typically, as was done in this case, health matters are handled by way of a voluntary consent agreement with the registrant to suspend their license or impose limits and conditions on their practice. The College points out that the Tribunal has recognized that “the approach to addictions in the health professional area … is largely collaborative”: Wood v. Vancouver Coastal Health Authority (No. 2) , 2019 BCHRT 113 at para. 140.
[191] The College says the province has legislated a regime for health profession colleges to address their registrants’ health issues and it routinely does so in accordance with its statutory obligations. The College submits that its regulatory processes regarding registrants with disabilities, including opioid addictions, “have been considered in the caselaw, including by this Tribunal, and near identical claims have been dismissed on the same grounds argued by the Respondents in this case”.
[192] The difficulty I have with the College’s submission is that it does not identify any cases that have raised “nearly identical claims” as those made by the Pharmacist that have been dismissed on this particular ground.
[193] My understanding of the College’s argument is that because the Pharmacist did not allege that the College failed to follow the regime established by the Act in his case, the complaint should be dismissed. I am not persuaded by this argument. The complaint is about whether the College discriminated against the Pharmacist by relying on the Dr. Manak’s recommendation that he stop Suboxone treatment if he wanted to return to work as a community pharmacist, and failing to consider other options to reinstate his license. As discussed above, the scope of the Code is not limited to allegations that the College failed to follow the process set out in the Act .
2. Has the substance of the complaint already been adequately addressed?
[194] The College submits that the complaint should be dismissed under s. 27(1)(f) of the Code , which gives the Tribunal authority to dismiss all or part of a complaint if “the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding”.
[195] The principles underlying s. 27(1)(f) flow from the doctrines of issue estoppel, collateral attack, and abuse of process and include finality, fairness, and protecting the integrity of the administration of justice by preventing unnecessary inconsistency, multiplicity, and delay: Figliola at paras. 25 and 36.
[196] Subsection 25(1) of the Code defines “proceeding” for the purposes of s. 27(1)(f) as including “a proceeding authorized by another Act”. At para. 10 of Reed and Reed v. The Owners, Strata Plan NW 2056 , 2004 BCHRT 64, the Tribunal further defined “proceeding” as meaning:
… a formally established system of dispute resolution: for example, redress mechanisms established by other laws, actions taken in the judicial system, and privately contracted dispute resolution systems such as grievances, commercial arbitration, or the application of formal redress mechanisms.
[197] To decide whether the substance of a complaint has been appropriately dealt with in another proceeding, the Tribunal must ask itself three things:
(1) Did the other proceeding have jurisdiction to decide human rights issues under the Code ?
(2) Was the previously decided legal issue essentially the same as what is being complained to the Tribunal?
(3) Did the complainant have the opportunity to know the case to be met and have a chance to meet it, regardless of whether the previous process mirrored the Tribunal’s?
Figliola , at para. 37
Ultimately, the Tribunal must decide “whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute”: Figliola at para. 37.
[198] The College argues that the processes established and authorized by the Act constitute “a formally established system of dispute resolution”, as defined in the Tribunal’s own jurisprudence. The College says the Inquiry Committee has authority under the Act to conduct investigations, dispose of matters based on the evidence before it, and resolve matters by consent that would otherwise be sent to the Discipline Committee. It says the relevant provisions of the Act and the Inquiry Committee’s mandate import jurisdiction on the Inquiry Committee to consider questions of law and questions of mixed fact and law. The College says that as there is no express statutory language to the contrary, the Inquiry Committee has concurrent jurisdiction to apply the Code .
[199] The College further submits that the Inquiry Committee’s proceeding in August 2018 appropriately dealt with the substance of the complaint, namely whether the Pharmacist could return to practice while on Suboxone, and the relief he sought. It says the principal legal issues raised in the complaint are the conditions for the Pharmacist’s return to practice and whether the College accommodated his return to practice while using Suboxone. The College says those were precisely the issues the Inquiry Committee considered and decided in August 2018.
[200] In support of its arguments, the College relies on Figliola , Lloyd v. Gauvin , 2006 BCHRT 241, and Baharloo v. University of British Columbia , 2016 BCCA 277. In Figliola , the Supreme Court of Canada [SCC] held that the British Columbia Workers’ Compensation Review Division and the Tribunal have concurrent jurisdiction to apply the Code, and the Review Division appropriately dealt with the substance of the complaint. In Lloyd , the Tribunal held that a settlement reached through a grievance process established by a collective agreement appropriately dealt with the substance of the complaint. In Baharloo , the British Columbia Court of Appeal held that the University of British Columbia’s internal academic appeal process was a “proceeding” for the purposes of s. 27(1)(f) and had appropriately dealt with the substance of the complaint.
[201] In response, the Pharmacist argues that the Inquiry Committee’s process is not a “proceeding” for the purposes of s. 27(1)(f) of the Code . He says the Inquiry Committee does not have concurrent jurisdiction to decide human rights issues and it did not decide the same legal issue before the Tribunal, namely whether the College’s refusal to lift his suspension in 2017 was discrimination contrary to s. 14 of the Code . The Pharmacist further argues that the Inquiry Committee did not appropriately deal with the substance of his complaint because it did not grant him the remedies he seeks, specifically a declaration from the Tribunal that the College’s conduct was discrimination, and compensation for the impact of that discrimination.
[202] Neither party cited any case law where the Tribunal or courts have found that the Inquiry Committee is a “proceeding” that has concurrent jurisdiction to apply the Code and I was not able to find any such cases. However, I find it is not necessary for me to make that determination because even if the Inquiry Committee is a proceeding with concurrent jurisdiction, the evidence established that unlike the situations in Figliola , Lloyd and Baharloo, the “essence or pith” of the complaint was not dealt with in August 2018: Villella v. City of Vancouver and others (No. 3) , 2005 BCHRT 405 at para. 17.
[203] In August 2018, the Inquiry Committee decided to reinstate the Pharmacist’s license solely based on the new and current medical information he provided from Dr. Wood. The Inquiry Committee did not consider the same or sufficiently similar factual or legal issues raised in the complaint or canvass applicable human rights principles before making its decision: Villella at para. 20. For that reason, while the cases the College cites are helpful to the analysis, they are distinguishable on the facts.
[204] As I have found the Pharmacist did not have a chance to “air his grievances” before the Inquiry Committee, I decline to dismiss his complaint in its entirety or against the College on the basis it has been appropriately dealt with in another proceeding: Figliola at para. 49. The Inquiry Committee never considered or determined if the Pharmacist had been discriminated against under the Code . In my view, this hearing was not a relitigation of his complaint of discrimination in a different forum so he could get a more favourable result: Figliola at para. 47.
VII DISCRIMINATION ANALYSIS
A. The legal test to prove discrimination
[205] To succeed in his complaint against Dr. Manak, the Pharmacist must prove, on a balance of probabilities, that at the material time: (1) he had a disability protected under the Code ; (2) Dr. Manak treated or impacted him adversely regarding a service she customarily provided to the public; and (3) his disability was a factor. To succeed in his complaint against the College, the Pharmacist must prove, on a balance of probabilities, that at the material time: (1) he had a disability protected under the Code ; (2) he experienced an adverse impact with respect to his membership in the College; and (3) his disability was a factor: Moore v. BC (Education) , 2012 SCC 61 at para. 33. In either case, the Pharmacist does not have to prove his disability was the only or overriding factor, only that it was a factor: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre) , 2015 SCC 39 at para. 52; Stewart v. Elk Valley Coal Corp. , 2017 SCC 30 at para. 46. Nor does the Pharmacist need to prove that Dr. Manak and the College intended to discriminate against him: Code , s. 2.
[206] If the Pharmacist proves his case, then the burden shifts to Dr. Manak and the College to justify their conduct. If their conduct cannot be justified, then discrimination will have occurred: Moore at para. 33.
B. The Pharmacist’s case against Dr. Manak
1. Did Dr. Manak provide a service customarily available to the public?
[207] The Pharmacist alleges that Dr. Manak discriminated against him on the basis of his disability contrary to s. 8 of the Code . That section prohibits a person, without a bona fide and reasonable justification, from denying a person or class of persons or discriminating against a person or class of persons regarding a service “customarily available to the public” based on a protected characteristic. For the Tribunal to have jurisdiction over a complaint under s. 8, “the activity alleged to be discriminatory must be a service, customarily available, and customarily available to the public”: British Columbia v. Crockford , 2006 BCCA 360 at para. 78.
[208] In this case the Pharmacist does not allege he was denied a service customarily available to the public. He alleges that Dr. Manak discriminated against him when providing a service customarily available to the public, specifically when she assessed him in April 2017 and prepared the April 2017 IME.
[209] In her closing submission, Dr. Manak does not appear to dispute that assessments and preparing IMEs are services she provides that are customarily available to the public. She only says that she did not deny those services because she assessed the Pharmacist and prepared the April 2017 IME. If I am mistaken in my understanding of her position, and for the sake of completeness, I consider whether the April 2017 assessment and the April 2017 IME are, in fact, services she provided that are customarily available to the public.
[210] It is not necessary for the purposes of s. 8 that a service be customarily available to the public in general. It is sufficient if the service is customarily available to a subset of the public, whether that be a very large or a very small number of people: University of British Columbia v. Berg , [1993] 2 SCR 353 [Berg ] at p. 386. When defining the “client group” for a particular service, the Tribunal takes a principled approach that considers whether the relationship created by the service provider and the service user is a public relationship or a private one: Berg at pp. 384 and 386. Only services that create a public relationship are subject to scrutiny under the Code : Gould v. Yukon Order of Pioneers , [1996] 1 SCR 571 at para. 57.
[211] The analysis consists of two parts. The first “is to identify the service in question, and then to determine whether that service gives rise to a public relationship between the service provider and the service user”: Gould at para. 58; see also Marine Drive Golf Club v. Buntain et al . and B.C. Human Rights Tribunal , 2007 BCCA 17 [Buntain ]. When considering if there is a “public relationship” arising from the service, the Tribunal takes a contextual approach. The non-exhaustive list of factors to be taken into account includes “selectivity in the provision of the service, diversity in the public to whom the service is offered, involvement of non-members in the service, whether the service is of a commercial nature, the intimate nature of the service and the purpose of offering the service”: Gould at para. 68.
[212] The evidence before me was that around 2014, Dr. Manak started to get requests to do assessments of workers and prepare IMEs for their employers, insurers, or professional regulators such as the College. Dr. Manak estimated that about half of the 200-250 IMEs she had done for people with substance use disorders working in safety-sensitive positions were healthcare professionals.
[213] In December 2014, the College made the initial contact with Dr. Manak about assessing the Pharmacist and preparing an IME, which she did. In March 2017, the College again contacted Dr. Manak directly about assessing the Pharmacist and preparing an IME. Dr. Manak’s office communicated directly with the Pharmacist to arrange all appointments, and the Pharmacist paid for both the December 2014 IME and the April 2017 IME himself. Although both IMEs were sent to the College and not the Pharmacist, their purpose was to provide the College with an opinion as to the Pharmacist’s fitness to practice.
[214] Based on the evidence before me, I find that in April 2017, Dr. Manak provided a service to the Pharmacist that was customarily available to the public. Specifically, I find the service at issue to be assessing an individual and preparing an IME. I find the subset of the public to whom the service was customarily available consists of the individuals referred to Dr. Manak by employers, insurers, and regulators such as the College. Last, I find the service Dr. Manak provided gave rise to a public relationship between her and the Pharmacist, as opposed to a private relationship such as that between a member of the public and a private club: Buntain at paras. 2-3.
2. Did the Pharmacist have a disability protected under the Code?
[215] The term “disability” is not defined in the Code and whether a complainant has established this element is determined on a case-by-case basis. The Tribunal considers “the individual’s physical or mental impairment, if any; the functional limitations, if any, which result from that impairment; and the social, legislative or other response to that impairment and/or limitations”, with the focus being on the third element: Morris v. BC Rail , 2003 BCHRT 14 at para. 214. The Tribunal has said that meeting this part of the test requires proof of a “physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life”: Boyce v. New Westminster (City) , [1994] B.C.C.H.R.D. No. 33 at para. 50.
[216] Dr. Manak does not dispute that the Pharmacist’s substance use disorder is a disability protected by the Code . I find the evidence established that the Pharmacist was diagnosed with an opioid use disorder that, without treatment, significantly impacted his life, in particular his ability to work, associate with others, and carry out the functions of everyday life. For this reason, the first part of the Moore test has been met.
3. Did Dr. Manak discriminate against the Pharmacist in her services?
[217] At the outset I must address Dr. Manak’s argument that the opinions or conclusions arising from an IME can never constitute an adverse impact in the context of a complaint under s. 8 of the Code . In support of her argument, Dr. Manak cites D.W.C. v. College of Physicians and Surgeons of Ontario , 2017 CanLII 55551 (ON HPARB). In that case, the applicant doctor alleged that one of the medical assessors requested by the College of Physicians and Surgeons of Ontario to assess him discriminated against him as an Indigenous person by concluding his judgment was impaired and his current mental state would likely expose patients to a risk of harm. The assessor’s report stated that the appellant “presented as surprisingly nonchalant or even vaguely amused by his situation”: at para. 6. The appellant argued the assessor’s conclusion was discriminatory because “a psychiatric system with Eurocentric values creates issues with racialized communities – leading to misdiagnosis” and “that the use of humour within aboriginal cultures can be misconstrued as nonchalance and a lack of concern”: at paras. 6 and 85.
[218] In D.W.C. , Ontario’s Health Professions Appeal and Review Board did not say that a medical assessor’s conclusions could never constitute an adverse impact. The Review Board stated that disagreement with a physician’s diagnosis does not, in and of itself, constitute discrimination and there was no evidence that the complainant was subject to adverse treatment by two of the assessors because of a disability: paras. 83-84. The Review Board also stated that because there was a factual basis underpinning the conclusions of another assessor about the state of the applicant’s judgment, they were not “arrived at through a discriminatory lens”: at para. 86. What I take from that finding is that if there is clear factual support for a medical assessor’s conclusion, then that conclusion was likely not arrived at through a “discriminatory lens”. That interpretation is consistent with this Tribunal’s case law that a doctor – like any service provider – may be liable for discrimination where the Tribunal finds that their delivery of services, including a medical opinion, is tainted by discriminatory stereotypes or biases: see for example McDonald v. O’Malley and B.C. (Min. of Public Safety and Solicitor General) , 2005 BCHRT 154 at para. 33.
[219] There are two aspects to the Pharmacist’s allegations against Dr. Manak. First, he alleges that the Comments were rooted in discriminatory stereotypes about people with substance use disorders. Second, he alleges that her recommendation that he only be allowed to practice pharmacy in a safety-sensitive position if he stops taking Suboxone [Recommendation] was tainted by discrimination. [2] I consider each of these in turn.
4. The Comments
[220] The Pharmacist argues that the following comments in the April 2017 rely on and invoke negative stereotypes about persons with substance use disorders:
a. The suggestion that he could be abusing anabolic steroids;
b. The recommendation that he discontinue self-injecting testosterone;
c. Identification of “unexplained weight loss” as a “red flag”;
d. The references to multiple doctors and reliance on virtual and walk-in clinics as “red flags”;
e. The comments about his income and finances; and
f. The suggestion that he would be “like a kid in a candy store” if he returned to practice pharmacy.
[221] This aspect of the complaint is about stereotyping, which can be described as:
… a process by which people use social categories such as race, colour, ethnic origin, place of origin, religion, etc. in acquiring, processing and recalling information about others. Stereotyping typically involves attributing the same characteristics to all members of a group, regardless of their individual differences. It is often based on misconceptions, incomplete information and/or false generalizations. Practical experience and psychology both confirm that anyone can stereotype, even those who are well meaning and not overtly biased. … [3] [emphasis added]
[222] There is no question that “addiction is a disability that carries with it great social stigma”: Ontario (Disability Support Program) v. Tranchemontagne , 2010 ONCA 593 at para. 126. In RR v. Vancouver Aboriginal Child and Family Services Society (No. 6) , 2022 BCHRT 116, the Tribunal noted that “[p]eople with substance use issues may be stereotyped as morally blameworthy, untrustworthy, and prone to criminality”: at para. 349; overturned on other grounds in 2024 BCSC 97. The Tribunal recognizes that a respondent’s conduct can be both a response to legitimate concerns and, at the same time, be influenced by stereotypes. In such a case, “a remedy would flow from the harm of being stereotyped”: RR at para. 304.
[223] The issue I must decide is whether Dr. Manak, consciously or unconsciously, stereotyped the Pharmacist in the Comments as someone more likely to lie, abuse prescription medication or anabolic steroids, and engage in nefarious behaviour because he has a substance use disorder.
[224] Although a race-based complaint, I find the principles from Campbell v. Vancouver Police Board (No. 4) , 2019 BCHRT 275, helpful to my analysis. In this case, I consider whether any or all of the Comments had the effect of perpetuating the historical disadvantage endured by people with substance use disorders. If they did, then the Pharmacist’s substance use disorder was a factor in the adverse impacts and, absent a justification, are discriminatory: Campbell at paras. 97-99.
[225] In this case, there is no direct evidence of discrimination. Therefore, whether the Comments negatively stereotyped the Pharmacist turns on if there is evidence from which an inference of discrimination is more likely than Dr. Manak’s explanation, which is that the Comments were based on her assessment: Campbell at paras. 102-103.
[226] The Pharmacist alleges the Comments stereotyped him as evasive, untrustworthy, suspicious, and dishonest. He alleges they suggest “he was someone who was more likely to lie, abuse prescription medication, or engage in criminal or other nefarious activity”, and that his recovery at the time was less stable than it was.
[227] Dr. Manak denies the Pharmacist’s allegations and says none of the Comments were rooted in negative stereotypes about people with substance use disorders. She says that when she assessed the Pharmacist, she evaluated the extent to which his substance use disorder engaged fitness to practice considerations. She says the questions she asked the Pharmacist during the assessment were relevant and the April 2017 IME was comprehensive and detailed. Dr. Manak further says that when she formulated her opinion on the Pharmacist’s fitness to practice, she exercised her professional medical judgment.
[228] I accept that Dr. Manak did not intend to discriminate against the Pharmacist when she made the Comments. I accept that she has dedicated her professional career to treating people with substance use disorders and her evidence that one of the reasons she went into addictions medicine was because she could see her patients improve and get their lives back. I also accept that when Dr. Manak prepares an IME for a regulatory body such as the College, she views her role as an objective advocate for public safety. I recognize that from Dr. Manak’s perspective, it is “preposterous” to suggest that she would discriminate against the Pharmacist because she helps and treats people with substance use disorders every day.
[229] Having said that, human rights law is about effects, not intent. As the Tribunal said inCampbell , “discrimination is much more complex than the thoughts at the top of a person’s mind”: at para. 101.
[230] I now turn to consider the Comments individually and taken together.
a. The Pharmacist’s use of anabolic steroids
[231] During the assessment, Dr. Manak and the Pharmacist briefly discussed his secondary hypogonadism (low testosterone). In the April 2017 IME, Dr. Manak said that secondary hypogonadism from chronic opioid use is common among men. During their conversation, the Pharmacist told Dr. Manak he had been prescribed injectable testosterone and she suggested to the Pharmacist that he take testosterone pills rather than injecting himself. Dr. Manak did not recall whether the Pharmacist told her he went to a walk-in clinic or a virtual clinic to fill his testosterone prescriptions. Her evidence was that the Pharmacist’s PharmaNet records indicated he was referred to a virtual clinic.
[232] In the April 2017 IME, Dr. Manak made general comments about testosterone abuse. She stated that testosterone is subject to abuse that can lead to serious physical and psychological adverse reactions. She noted that many men who abuse anabolic steroids prefer to inject them under the skin rather than into the muscle because they can use greater amounts and avoid acne and excess estrogen levels. She stated that if testosterone use is suspected, the person’s testosterone concentration would be tested to see if it is in the therapeutic range. She then noted that if a person is abusing synthetic testosterone derivatives, their testosterone level might still be in the normal range.
[233] In addition to these general comments, Dr. Manak also made specific comments about the Pharmacist’s use of injectable testosterone. In particular, she stated it was not clear to her whether the Pharmacist ever had his testosterone level tested because he was “very vague in his non-answer regarding this”. She stated she found it “interesting” that the Pharmacist administered testosterone subcutaneously (under the skin) rather than intramuscularly (into the muscle). She stated she was “somewhat surprised” that the Pharmacist was prescribed self-injecting testosterone and that he got his prescriptions through a “virtual clinic from multiple physicians”. Dr. Manak further stated that the Pharmacist was “quite infatuated with ‘gains’ at the gym, which he attends regularly on a daily basis” and that despite being on a medication known to cause weight gain, he had lost 20 lbs. Dr. Manak noted that “gains” is “a term often used by body builders”.
[234] After noting that the bloodwork done on the Pharmacist the day of the assessment showed his testosterone level was within the normal range, Dr. Manak stated:
Based on the information he provided to me today, he does not meet the criteria for anabolic steroid use, but it is difficult to tell from [PharmaNet] if he is overusing this (he only started in December 2015).
[235] One of the treatment recommendations Dr. Manak made in the April 2017 IME was to “Rule Out Anabolic Steroid Use”.
[236] Dr. Manak testified that while there was no evidence to support a diagnosis of anabolic steroid use at the time of the assessment, the Pharmacist had not been injecting testosterone long enough for her to rule it out. Her evidence was that although the Pharmacist did not meet the criteria for anabolic steroid use when she assessed him, that “didn’t mean it wasn’t there”.
[237] With respect to the reference to the Pharmacist being “quite infatuated with ‘gains’ at the gym”, Dr. Manak’s evidence was that she only puts quotation marks around words that are the person’s own words. Her evidence was that she recalled the Pharmacist mentioning “gains” several times during the assessment and she found that to be “unusual and notable”. If that was the case, then in my view it is more likely than not that Dr. Manak would have referred to “gains” somewhere in her contemporaneous notes. There are several words or phrases in quotation marks in Dr. Manak’s contemporaneous notes, but the word “gains” does not appear anywhere. I accept the Pharmacist’s evidence and find it more likely than not that he did not say anything to Dr. Manak about “gains” from going to the gym. I also accept his evidence and find it more likely than not that the Pharmacist told Dr. Manak he enjoyed going to the gym and working out and that he went to the gym to lose weight. The Pharmacist’s evidence on this point is consistent with Dr. Manak’s contemporaneous notes.
[238] I accept that Dr. Manak had a non-discriminatory basis to ask questions about the Pharmacist’s steroid use and suggest that he switch from self-injections to testosterone pills. I accept that her questions about the Pharmacist’s steroid use were relevant to her assessment and for valid medical reasons. I accept that Dr. Manak has treated people who abuse anabolic steroids and her evidence that, as gatekeepers, physicians are responsible for keeping abusable medications off the streets.
[239] In my view, however, describing the Pharmacist as “very vague in his non-answer”, remarking that the manner in which the Pharmacist took his testosterone was “interesting” and she was “somewhat surprised” he was self-injected testosterone, and stating the Pharmacist used a term associated with body builders, strongly suggests that Dr. Manak believed the Pharmacist was deliberately evasive during the assessment and suspected he was not being truthful. In cross-examination, Dr. Manak said that by describing the Pharmacist as “very vague in his non-answer”, she was not necessarily suggesting he was being evasive. She said her observation was that the Pharmacist’s answers were vague, for example he could not tell her the results of his testosterone level test ordered by the Family Doctor. I accept her evidence, however, regardless of her intent and explanation, in my view that is not how “very vague in his non-answer” would be reasonably interpreted.
[240] The Pharmacist’s evidence, which I accept, was that because the Family Doctor only treated him for his substance use disorder, he had to fill his testosterone prescriptions at walk-in clinics because he could not find a doctor in his area accepting new patients. I also accept the Pharmacist’s evidence that he was told by doctors at the walk-in clinic that self-injection was the only means of administering testosterone. Based on the evidence before me, I find it more likely than not that Dr. Manak did not consider whether the Pharmacist’s “resistance” to her suggestion that he switch to testosterone pills was because he wanted to do what other doctors told him to do to correct his hormonal imbalance.
b. Identifying “unexplained weight loss” as a “red flag” and a “compulsive behaviour”
[241] In the April 2017 IME, Dr. Manak stated that the Pharmacist’s “unexplained weight loss” was a “red flag” that might be an indicator of “possible substance use disorder in this patient”. She also referred to the Pharmacist’s weight loss in the section entitled “Substance Use History” under the sub-heading “Other Compulsive Behaviours” and stated:
[The Pharmacist] endorses a five-day-per-week one hour per day strength training routine. He appears to be focused on “gains”, a term often used by body builders. He has lost 20 lbs in the past half year or so, despite being on 175 mg of Seroquel.
[242] At the hearing, Dr. Manak explained that a “red flag” is a common medical term that means something that needs to be asked about or investigated because it might suggest a further pathology. She testified that she identified the Pharmacist’s weight loss as a “red flag” because when someone starts taking a medication like Seroquel, they often gain a considerable amount of weight. She testified that she identified the Pharmacist’s weight loss as a “compulsive behaviour” because, in her experience, people with an addiction sometimes substitute one compulsive behaviour for another and commonly that other compulsive behaviour is exercise.
[243] I accept Dr. Manak’s reasons for asking the Pharmacist about his weight loss. I accept her evidence that it is her responsibility to report her observations and identify “red flags” and compulsive behaviours of concern in an IME.
[244] Dr. Manak testified that she was not suggesting in the April 2017 IME that she was concerned about the Pharmacist’s weight loss or that his regular exercise was a compulsive behaviour. That may very well be the case, however, in my view, characterizing the Pharmacist’s weight loss as a “red flag” and his regular exercising a “compulsive behaviour” suggests she did find something unusual or alarming about them. Further, the Pharmacist’s weight loss was not “unexplained”, as Dr. Manak agreed in cross-examination that he told her during the assessment that his dosage of Seroquel had been reduced, he had stopped eating sweets and drinking alcohol, was exercising five days a week, and was eating a healthier diet. Dr. Manak also agreed that other than taking a medication known to cause weight gain, the Pharmacist’s weight loss was explained by changes he made to his diet and lifestyle.
[245] In my view, Dr. Manak’s assertion that the Pharmacist’s weight loss was a “red flag” rests on a discriminatory stereotype that he was not being honest about the reasons for his weight loss and a suspicion that he was still using illegal substances. Likewise, the reference to exercise as “compulsive behaviour”, without a reasonable basis for that assessment, invokes the negative stereotype that the Pharmacist was not making efforts to improve his health but had merely replaced one addiction with another.
c. References to using walk-in or virtual clinics and identifying “Multiple doctors” as a “red flag”
[246] In the April 2017 IME, Dr. Manak identified “Multiple doctors” as a “red flag”. At the hearing, she explained that “multi-doctoring” is a general term that means multiple doctors appear on a person’s PharmaNet record. In the April 2017 IME, Dr. Manak reported that the Pharmacist’s PharmaNet record for the previous 12 months showed he obtained prescriptions for medications other than Suboxone from various doctors through a virtual clinic. She noted that the Pharmacist did not have a family doctor and stated:
… [The Pharmacist] sees various virtual physicians at EQ Virtual Online clinic, something that is not optimal for patients with SUD, and particularly those that are self-injecting testosterone due to the risk of diversion and abuse with this medication.
…
… He is prescribed [IM testosterone], and most of his other medications, through a virtual clinic from multiple physicians. …
… He needs to establish himself with a primary care physician who is aware of his opiate dependence diagnosis, and not rely on virtual clinics for his ongoing medical needs. …
[247] I accept Dr. Manak’s evidence that asking a person whether they obtain medication through virtual or walk-in clinics is appropriate because it is better to have a continuous provider. I also accept that she reviewed the Pharmacist’s PharmaNet record and noted that he had seen multiple doctors for his prescriptions other than Suboxone.
[248] I accept Dr. Manak’s evidence that she did not note “multi-doctoring” as another way of “talking bad” about the Pharmacist. I also accept her evidence that from her perspective, what she wrote in the April 2017 IME is not stigmatizing. However, in my view referring to multiple doctors as a “red flag” without any additional context suggests that the Pharmacist was doing something untoward by relying on walk-in or virtual clinics to get prescriptions. The Pharmacist’s evidence, which I accept, was that he could not find a family doctor in his area that was accepting new patients until late 2018 or early 2019. During her testimony, Dr. Manak acknowledged that in 2017, it was difficult to find a family doctor in the area in which the Pharmacist lived that was accepting new patients. In my view, Dr. Manak’s reference to the Pharmacist’s use of walk-in or virtual clinics as a “red flag” rests on a discriminatory stereotype that he was deliberately not looking for a continuous provider so he could obtain medications from different doctors that he could either divert or abuse.
d. Comments about the Pharmacist’s income and finances
[249] During the assessment, Dr. Manak asked questions about the Pharmacist’s income and finances because he was unemployed. The Pharmacist’s evidence was that he told Dr. Manak he lived off his savings because he had invested wisely when he was working. The Pharmacist said he was well-paid during the 12 years he previously worked as a pharmacist. The Pharmacist also told Dr. Manak he was not eligible for social assistance because of his extensive savings.
[250] Under the heading “Psychosocial History” in the April 2017 IME, Dr. Manak referenced the breakdown of the Pharmacist’s marriage in 2015 and his subsequent relapse and daily heroin use. Dr. Manak wrote that the Pharmacist:
… admits that this was costing him $1300 a week which is a rather astounding amount. When asked how he afforded such a habit, particularly since he had been unemployed since April 2015, he reported that he had been living off his savings, which he had “invested wisely”. How he afforded to be off work, pay for rehab twice, and use $1300 worth of heroin each week defies logic and remains a mystery to me, no matter how much he earned, saved, or invested. [The Pharmacist] has not been working since April 2015 and had previously exhausted his medical EI and was not eligible for short-term disability. He explained that prior to his relapse he had saved “quite a bit of money” as he was making “a lot” in his previous position as a pharmacist and was responsible with his money. Because of his ability to save previously, he was able to live off of the savings and continues to do so.
[251] I accept the reasons why Dr. Manak says she asked the Pharmacist about his income and finances. I accept her evidence that in her experience, it is common for a person’s finances to be affected by their substance use disorder. Further, I accept Dr. Manak’s evidence that she was not intentionally implying in these comments that the Pharmacist was a criminal or involved in crime in some way.
[252] Having said that, I agree with the Pharmacist that there is no way to interpret the comments about his income and finances other than that Dr. Manak did not believe what he told her. I also agree with the Pharmacist that these comments strongly suggest that Dr. Manak believed he was earning money nefariously, specifically by drug dealing. There was no basis for that suggestion, which directly invokes stereotypes about people with substance use disorders being prone to criminality and dishonesty.
e. Asking the Pharmacist if he would feel “like a kid in a candy store” if he returned to practice pharmacy
[253] Dr. Manak testified that based on her experience with the Pharmacist after he unsuccessfully returned to work in March 2015, they talked extensively during the assessment about him returning to work again. It is not in dispute that during the assessment, Dr. Manak asked the Pharmacist if he would feel “like a kid in a candy store” if he went back to work in a pharmacy.
[254] I accept Dr. Manak’s explanation for why she asked the Pharmacist about how he would feel returning to practice pharmacy. The evidence established that healthcare professionals with substance use disorders, including pharmacists, deal with unique challenges when they return to work.
[255] Dr. Manak testified that asking if the Pharmacist would feel “like a kid in a candy store” was a poor choice of words. Her evidence was that she only phrased the question that way after trying to ask the Pharmacist in several different ways about the risk of diverting medication if he went back to work and he did not seem to understand what she was getting at. The Pharmacist did not recall if Dr. Manak asked him in different ways if he would be tempted to divert medication if he returned to work in a pharmacy before she asked him if he would feel “like a kid in a candy store”. I accept Dr. Manak’s evidence on this point because her recollection of their conversation was clear, and her explanation for why she used this phrase is credible. I find it more likely than not that Dr. Manak asked the Pharmacist if he would feel “like a kid in a candy store” only after asking him about the risk of diverting medication if he returned to work in different ways. While the question was poorly worded, I am not persuaded that it constituted discriminatory adverse treatment towards the Pharmacist. This aspect of the Pharmacist’s complaint is dismissed.
f. Conclusion regarding the Comments
[256] In summary, I am satisfied that with the exception of the “kid in a candy store” comment, the remaining Comments that Dr. Manak made in the April 2017 IME were based on discriminatory stereotypes about people with substance use disorders [Discriminatory Comments]. The Discriminatory Comments said or implied that some of the Pharmacist’s routine behaviours – including his fitness, access to health care, and financial management – were suspicious or untrustworthy. By using the term “red flag”, they suggested that the Pharmacist was not being honest and may present unknown risks. They also made negative judgments about the Pharmacist’s character that were not based on the facts he presented to her, which, in my view, were based on discriminatory stereotype and, as such, were inherently adverse.
[257] I note here that in his submission, the Pharmacist submits that the Comments, made in a report for the College, raised the spectre that they would influence the Inquiry Committee when deciding whether to lift his suspension. He says the Comments prejudiced him in the eyes of the Inquiry Committee because they created an impression that his honesty and credibility were at issue. He also says that whether the Inquiry Committee was, in fact, influenced by the Comments is not determinative.
[258] There is nothing in the evidence before me suggesting that the Comments influenced the Inquiry Committee when it decided whether to lift the Pharmacist’s suspension. Specifically, the “Complaint Assessment, Recommendation and Rationale” document prepared by the Senior Investigator, the Minutes of the Inquiry Committee’s meeting, and the Decision Letter all indicate that the focus of the Inquiry Committee’s attention was on the Recommendation. For that reason, I find that the Inquiry Committee based its decision not to lift the Pharmacist’s suspension solely on the Recommendation.
5. The Recommendation
[259] In this section, I first consider the Pharmacist’s argument that in arriving at the Recommendation, Dr. Manak adopted a “not on OAT” standard when she assessed his fitness to practice and explain my reasons for rejecting that argument. I then consider whether the Recommendation was “tainted by discrimination” and explain how I arrived at my conclusion that it was not.
a. Did Dr. Manak adopt a “not on OAT” standard when she assessed his fitness to practice?
[260] In his closing argument, the Pharmacist submits that Dr. Manak adopted a “not on OAT” standard against which she assessed his fitness to practice. He further submits that Dr. Manak “imposed” the “not on OAT” standard and the College “enforced” that standard when it decided not to lift his suspension. The Pharmacist says Dr. Manak would have imposed the “not on OAT” standard on any pharmacist she assessed, and her mind was made up as soon as he disclosed to her his intent to continue taking Suboxone. He says Dr. Manak adopted the “not on OAT” standard even though she agreed that Suboxone is safe and effective for treating opiate use disorder, it prevents people from relapsing, he was doing well on Suboxone, and there was a risk of relapse if he tapered off it.
[261] In support of his argument, the Pharmacist cites the Tribunal’s decision denying the Respondents’ application to dismiss the complaint in The Pharmacist v. The Doctor and another , 2019 BCHRT 176 [ATD Decision]. In the ATD Decision, the Tribunal considered whether to dismiss the complaint under s. 27(1)(c) of the Code on the ground it has no reasonable prospect of success.
[262] In the ATD Decision, the Tribunal said it appeared from the evidence that Dr. Manak adopted a “not on OAT” standard and “was, to a certain extent, engaged in the licensure exercise”: at para. 63. The Tribunal also said that by adopting the “not on OAT” standard, “the Doctor was exercising medical judgment, but she was also, in effect, setting a requirement that the Pharmacist had to meet to regain his license”: at para. 64. Lastly, the Tribunal said there was evidence that the “not on OAT” standard might not be reasonably justified: at para. 55.
[263] The ATD Decision is helpful, but it is not determinative. It is important to recognize that the Tribunal does not make factual findings on an application to dismiss. When the Tribunal decides whether to exercise its discretion under s. 27(1)(c) and dismiss a complaint, the focus is on whether the complaint is based on more than mere speculation and whether the respondent has met the high threshold of establishing that the complaint has no reasonable prospect of success.
[264] The Tribunal acknowledged in the ATD Decision that this complaint “is complicated by the role the Director played in the College’s duty to ensure there are no discriminatory barriers to practice combined with [the Doctor’s] role as a physician assessing his fitness to return to practice”: at para. 66. In denying the Respondents’ application, the Tribunal said at para. 89:
… I am not finding that the Pharmacist will make out his case against the Doctor. I make no findings about the role the Doctor played in the College’s duty to ensure there are no discriminatory barriers to practice. That is an issue that is appropriately canvassed in the context of the hearing. Again, my conclusion simply means that I am not satisfied that the Pharmacist has no reasonable prospect of proving that the Doctor’s role in adopting a particular safety standard for a return to practice, adversely affected him in connection with his disability. Further, any justification of the safety standard requires a hearing.
[265] After hearing all the evidence, I find that Dr. Manak did not adopt or impose a “not on OAT” standard when she made her Recommendation. The evidence established that the College asked Dr. Manak to provide her medical opinion on the Pharmacist’s fitness to practice, which she did in the April 2017 IME. It also established that the Inquiry Committee made the decision not to lift the Pharmacist’s suspension, not Dr. Manak. Based on the evidence before me, Dr. Manak’s role was to conduct an IME and give her medical opinion. For that reason, in my view the question at this stage is not whether the Recommendation is justified as a bona fide and reasonable justification [BFRJ], but rather whether there is a nexus between the adverse impacts the Pharmacist experienced from the Recommendation and his substance use disorder. In other words, in my view the proper approach is to first consider the Recommendation under the third step of the Moore test and only if I find that it is “tainted by discrimination” should I go on to consider a BFRJ defence: M.K. v. Health Authority and others , 2014 BCHRT 34 at para. 101.
[266] It is well established that the Tribunal is not the forum for second-guessing the appropriateness of a physician’s exercise of professional medical judgment and medical decision-making. In McDonald, the complainant alleged the respondent doctor discriminated against him when he did not prescribe certain medications while he was incarcerated. The respondent doctor denied discriminating and said that at all times he treated the complainant in good faith and in accordance with his best medical judgment. When dismissing the complaint on the ground it had no reasonable prospect of success, the Tribunal said:
… The question of the standard of medical care when a doctor is exercising her or his best medical judgment is not an issue for the Tribunal to decide, as long as that judgment is exercised in a non-discriminatory manner, and as long as Mr. McDonald’s disabilities were accommodated. I note that other medical practitioners prescribed anti-depressants and pain medication to Mr. McDonald. Differences in opinion can arise when doctors, exercising their best medical judgment, decide upon the best course of treatment: at para. 33.
[267] The Tribunal’s reasoning in McDonald has been cited with approval in cases such as Egan v. Dr. Kennedy, Dr. O’Kane and St. Paul’s Hospital , 2006 BCHRT 15 at para. 20; Gallagher v. Henry , 2006 BCHRT 318 at para. 19; Patient X v. The Clinic and another , 2012 BCHRT 118 at paras. 23-26; M.K. at para. 101; EC v. Dr. GL , 2015 BCHRT 121 at para. 32; The Patient v. The Centre and Dr. W , 2016 BCHRT 25 [Dr. W ] at paras. 47-49; The Patient v. The Clinic and another (No. 3) , 2021 BCHRT 3 at para 80.
[268] I recognize that the above cases dealt with treatment decisions made by a doctor in a typical doctor/patient relationship. The parties did not cite any cases where the Tribunal considered whether a doctor discriminated against the complainant with respect to an IME. Even so, I find the principles from the treatment decision cases helpful to my analysis. In my analysis, I consider whether I am being asked to sit in review of the Recommendation when that is “best left to the courts or to a professional college”: Dr. W at para. 49.
[269] The Pharmacist does not allege that Dr. Manak failed to accommodate his disability during the assessment process. Therefore, the only issue for me to determine is whether the Recommendation was tainted by discrimination.
[270] The evidence established that there are two schools of thought in addictions medicine surrounding the issue of the use of Suboxone by someone working in a safety-sensitive position.
[271] The first is Dr. Manak’s. In her view, someone working in a safety-sensitive position, including a pharmacist, must be abstinent from all mood-altering substances, including Suboxone. As support for the Recommendation, Dr. Manak relied on the ACOEM Guidelines, which state:
… there are long-standing recommendations against the use of narcotics, particularly including opioids in safety-sensitive work such as in the transportation sector. Thus, whether opioids impair safety-sensitive work is unclear and prior evidence-based guidance is weak.
…
Acute or chronic opioid use is not recommended for patients who perform safety-sensitive jobs. These jobs include operating motor vehicles, other modes of transportation, forklift driving, overhead crane operation, heavy equipment operation, sharps work (eg. knives, box cutters, needles), work with injury risks (eg. heights) and tasks involving high levels of cognitive function and judgment. The rating level is “C”. Confidence in the recommendation is moderate. Panel agreement with this guideline recommendation is 100%.
[272] Dr. Manak described the ACOEM as an umbrella organization whose objective is to promote competencies, prevent workplace injuries, accidents, and further disability. She testified that the ACOEM is made up of several subgroups, one of which relates to people working in safety-sensitive positions who have an addiction or are on a monitoring program. Dr. Manak testified that the ACOEM Practice Guidelines are a leading authority and based on expert opinions on best practices in occupational medicine in the US.
[273] Dr. Gillmore shares Dr. Manak’s view. His evidence was that the use of drugs such as Suboxone:
… has gained wider acceptance by society which has made positive change for those suffering from the disease of addiction. Having said that it does not make their use acceptable in individuals who choose to pursue employment where they are responsible for the lives and safety of others. Individuals who choose those career paths do so knowing that they will be held to a higher standard by virtue of the level of responsibility their job demands.
[274] Dr. Manak’s evidence was that in her experience, when it is done right, people can taper off Suboxone and return to work in safety-sensitive positions. In her view, if someone feels they would not be able to come off Suboxone, it suggests their recovery is not as robust as they would prefer it to be. While Dr. Manak agreed in cross-examination that a person on a stable dose of Suboxone is safer to the public than someone who takes illicit substances, in her view there is a risk to the public if that person’s Suboxone dose is either increased or decreased.
[275] The second school of thought is Dr. Wood’s. In his view, there should not be a bar to someone on Suboxone returning to work in a safety-sensitive position provided other protections are in place.
[276] The evidence established there is no consensus among addictions specialists in Canada, including in BC at the material time, surrounding the use of Suboxone by a worker in a safety-sensitive position. Dr. Manak’s evidence was that in Canada, there are no clear-cut or “hard and fast” regulatory standards or guidelines about whether someone in a safety-sensitive position can take Suboxone. Dr. Wood’s evidence was consistent on this point, and he stated in the June 2018 IME that:
… it should be acknowledged that, historically in BC, workplace addictions policies for safety sensitive workers have often precluded health care professionals from using buprenorphine/naloxone.
[277] Dr. Gillmore also commented on the lack of consensus in Canada on this issue and he stated in his report:
There is [sic] varying medical opinions around the prescribing of chronic opioids to those employed in safety-sensitive positions and opinions vary depending on the jurisdiction involved. There are no regulatory standards that I am aware of that address this issue in Canada which leaves decisions to be made by guidelines or “best practices”. Unfortunately there is no “one size fits all approach”. Each of these cases are judged on their own merits and decisions are influenced by the assessors professional medical judgment, clinical knowledge and expertise. Decisions being made on these matters currently are and continue to be a “work in progress”.
[278] The evidence also established there is no uniform policy or consensus in jurisdictions outside of Canada with respect to healthcare professionals with an opioid use disorder returning to work while taking Suboxone. Specifically, in the June 2018 IME, Dr. Wood noted that some states in the US and some European settings allow doctors or nurses to work while on Suboxone.
[279] During his testimony, Dr. Wood gave evidence about a US study published in 2012 [2012 US Study] that he cited in the June 2018 IME to acknowledge what the authors describe as a “hidden controversy” about whether it is safe for healthcare professionals to return to work while on OAT. Dr. Wood agreed with the authors of the article when they said:
It remains controversial whether it is safe for these recovering individuals to return to clinical practice after treatment for drug addiction. Current recommendations for reentry are based on collective expert opinion with little empirical data.
…
For [healthcare professionals] in recovery from opioid abuse, the use of pharmacotherapeutics, such as methadone and buprenorphine, is particularly controversial, as indicated by the difficulty encountered while attempting to obtain information regarding individual state policy. Some states allow reentry of [healthcare professionals] undergoing buprenorphine maintenance therapy; others are adamant that reentry remain strictly forbidden. Some do not have any official policy, whereas others take a “hands-off” approach and allow the individual’s addiction counselor to make the decision. Several states have demonstrated reluctance to share their policies.
[280] Lastly, the evidence established that studies regarding the use of Suboxone by workers in safety-sensitive positions are limited, particularly in the context of healthcare professionals. In the 2012 US Study, the authors stated:
Most studies evaluating the effects of buprenorphine maintenance therapy found some degree of impairment when participants were subjected to a variety of tests designed to assess particular nuances of higher cerebral functioning. Many studies compared performance with buprenorphine vs methadone, clearly showing that although buprenorphine causes less impairment, it still causes impairment. Unfortunately, evidence is lacking in the specific population of HCPs treated with this medication. Studies need to be conducted that evaluate participants’ ability to perform tasks specific to those requires of HCPs while undergoing buprenorphine therapy. These studies should involve standardized patients or operating room simulation, using realistic scenarios that require rapid analysis and action, complex decision making, eye-hand coordination, and fine motor skills. [emphasis added]
[281] Based on the evidence, I find the two schools of thought in this case depend in large part on how the limitations and deficiencies in the literature are interpreted.
[282] Specifically, in Dr. Manak’s view, there is not enough good research to definitively say one way or the other whether it is safe for someone in a safety-sensitive position to take Suboxone. She testified that because Suboxone is an opiate and there are no good studies showing it can be used safely while performing safety-sensitive work, it would not be on the side of public safety if the Pharmacist returned to a highly stressful environment and a position that requires a high level of cognitive functioning while taking Suboxone. Her view is shared by Dr. Gillmore and in his opinion:
To this point there has not been a threshold established for the level of a narcotic and the degree of impairment it may cause in a given individual. One cannot state with certainty there would not be some residual degree of impairment. In this instance the safety of [the Pharmacist’s] clients is paramount. Most of the studies in this area involve motor vehicle performance to gauge impairment. Those tasks differ significantly from those of a clinical pharmacist. For the most part objective tests employed to detect impairment in the work place usually deal with the physical signs of a drug and do not test for impairment involving the higher order cognitive functions required to perform duties as a pharmacist which is another major concern. It is for these reasons that Dr. Manak’s diagnostic assessment was reasonable. In particular, her conclusion that [the Pharmacist] was not fit for duty as a pharmacist in a safety sensitive position was reasonable and appropriate.
[283] The 2012 US Study is also consistent with Dr. Manak’s interpretation. In the authors’ view:
… it does not seem reasonable to prescribe [buprenorphine] to an HCP with a history of opioid addiction. After carefully considering the evidence, we believe that opioid-substitution therapy with buprenorphine is not a reasonable choice for this particular patient population. HCPs are engaged in safety-sensitive work that requires vigilance and full cognitive function. We therefore recommend abstinence-based recovery until studies with this specific HCP population performed in a simulated health care environment document that highly safety-sensitive tasks can be performed without deterioration in performance.
[284] The other interpretation is Dr. Wood’s, whose view is that even though there are no standardized and robust studies of health care professionals taking Suboxone, generalizations can be drawn from existing studies based on what is known about human beings generally. Dr. Wood testified that in a perfect world, there would be studies on the impacts of opioids on people working in safety-sensitive positions, but nevertheless, generalizations can be drawn from the information that exists.
[285] Dr. Wood does not agree with the authors of the 2012 US Study that buprenorphine is not a “reasonable choice” for healthcare providers with a history of opioid addiction. In his view, the 2012 US Study is at the “lowest level” of the “hierarchy” of evidence-based medicine, and he described it as an “opinion article”. He also does not refer to or rely on the ACOEM Guidelines when he conducts an IME. In Dr. Wood’s view, the ACOEM Guidelines are not reliable, and its recommendation is at odds with other reviews of existing studies.
[286] Dr. Wood’s evidence was that he is not aware of any studies of healthcare professionals showing that Suboxone has anynegative impacts on cognitive functioning or suggesting that Suboxone is associated with any medical errors or other concerns. In the June 2018 IME, Dr. Wood said studies that have evaluated the impact of opioids on cognitive performance are of limited value because they used automobile driving-related tests to evaluate impairment and included people taking full opiate agonists like methadone and people taking the partial opiate agonist buprenorphine. He testified that what was compelling about the existing studies was that despite their limitations and weaknesses, they did not show an association between a stable dose of Suboxone and functional outcomes.
iii. Analysis and conclusion
[287] Dr. Manak submits there is no evidence suggesting the Recommendation is discriminatory. I agree.
[288] The Tribunal’s role is not to decide which school of thought on whether someone working in a safety-sensitive position should be allowed to take Suboxone is right. The Tribunal’s only role is to decide if the Recommendation is tainted by discrimination. Absent some indicator of discrimination, questions related to the Pharmacist’s fitness to practice are beyond the Tribunal’s expertise and jurisdiction: Egan at para. 31.
[289] Based on the totality of the evidence regarding the issue of Suboxone use while working in a safety-sensitive position, I find the Recommendation is not tainted by discrimination. Specifically, I find that Dr. Manak did not do anything except exercise her best medical judgment when arriving at her conclusions: Gallagher at para. 20. The evidence does not support a finding that Dr. Manak arrived at her conclusions and Recommendation by applying a discriminatory lens or based her conclusions and Recommendation in whole or in part on negative stereotypes about people with substance use disorders.
[290] I accept Dr. Manak’s evidence that the Recommendation was based on her knowledge from years of practicing in occupational health and being a member of the ACOEM, the Occupational and Environmental Association of Canada, the Physician Safety Program, and her experience as a Medical Review Officer. I accept her evidence that she concluded the Pharmacist was not fit to return to practice as of April 2017 and made the Recommendation based on the following factors:
- the Pharmacist had previous multiple relapses, and previous monitoring was not enough for him to remain abstinent;
- the Pharmacist appeared overconfident and had a lack of insight compared to his earlier assessment;
- returning to work in an environment where medications that were the Pharmacist’s substance of choice were present and he had previously diverted medication;
- the risk of relapse is higher in the first year and the Pharmacist had only been on Suboxone for 7.5 months;
- there was a risk of potential abuse because she has seen patients abuse Suboxone when not stable; and
- the medical literature she reviewed does not support someone returning to work on Suboxone in a safety-sensitive position and there were no studies demonstrating that returning to work would be safe.
[291] Having found the Recommendation was not tainted by discrimination, it is not necessary for me to consider whether it was justified.
6. Summary on the complaint of discrimination against Dr. Manak
[292] For the reasons set out above, I find that:
- with the exception of the “kid in a candy store” question, the Comments, taken together, portray the Pharmacist as someone more likely to lie, abuse prescription medication, and engage in criminal behaviour because of his substance use disorder; and
- the Recommendation was not tainted by discrimination.
[293] I want to say here that I disagree with Dr. Manak’s assertion in her closing submission that the Pharmacist’s allegations about the Comments are “ridiculous”. I also disagree with her assertion that the Pharmacist intentionally misinterpreted the April 2017 IME “looking for any minor flaws to support his predetermined effort to attack the process rather than engaging in the College processes”. Even though I have dismissed part of the complaint against Dr. Manak, there is no question in my mind that the Pharmacist acted in good faith and from a sincere belief that he had been discriminated against.
C. Complaint against the College
1. Section 14 of the Code
[294] The Pharmacist alleges the College discriminated against him under s. 14 of the Code , which states:
Discrimination by unions and associations
14 A trade union, employers’ organization or occupational association must not
(a)exclude any person from membership,
(b)expel or suspend any member, or
(c)discriminate against any person or member
because of the Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or member, or because that person or member has been convicted of a criminal or summary conviction offence that is unrelated to the membership or intended membership.
[295] An “occupational association” is defined in s. 1 of the Code as “an organization, other than a trade union or employers’ organization, in which membership is a prerequisite to carrying on a trade, occupation or profession”. There is no question that the College is an “occupational association” for the purposes of s. 14, as it is a prerequisite for pharmacists to be licensed by the College to be able to practice pharmacy.
2. Did the Pharmacist have a disability protected by the Code?
[296] Similar to Dr. Manak, the College does not dispute that the Pharmacist’s substance use disorder is a disability protected by the Code . For the reasons explained earlier, I have already found the evidence established the Pharmacist’s substance use disorder is a disability protected by the Code .
3. Did the Pharmacist experience an adverse impact with respect to his membership with the College?
[297] The College argues that the Pharmacist did not experience any adverse impacts because he knew that under the terms of the August 2015 Consent Agreement, he had to provide the Inquiry Committee with a report from a College-approved addictions specialist confirming his fitness to practice and future treatment plans, if any. I disagree.
[298] The Inquiry Committee’s rationale for not lifting the Pharmacist’s suspension is properly considered as part of the College’s defence. At this step of the test, I only consider whether the Pharmacist was adversely impacted from the Inquiry Committee’s decision.
[299] As a result of the Inquiry Committee’s decision, the Pharmacist’s license continued to be suspended until the suspension was lifted in August 2018. During that time, the Pharmacist was not able to work in his chosen profession. This part of the Moore test has been met.
4. Was there a connection between the continued suspension of the Pharmacist’s license and his substance use disorder?
[300] The College argues that this step has not been met because the Pharmacist’s disability was not a factor in the Inquiry Committee’s decision not to reinstate his license. The College says the only reason the Pharmacist’s license was not reinstated was because he did not comply with the requirement in the August 2015 Consent Agreement to provide medical evidence from a College-approved addictions specialist confirming he was fit to practice.
[301] I agree with the College that the Inquiry Committee did not refuse to reinstate the Pharmacist’s license because he has a disability. However, I disagree with the College that this step of the test has not been met. Again, the College’s rationale for not reinstating the Pharmacist’s license is properly considered as part of its defence.
[302] The Pharmacist was only required to provide the Inquiry Committee with medical evidence of his fitness because of his substance use disorder. This is sufficient to establish that his disability was a factor in its decision not to reinstate his license. For that reason, I find this step of the test has been met.
[303] Having found the Pharmacist had a disability protected by the Code and there is a nexus between that disability and the adverse impacts he experienced related to his membership with the College, I go on to consider the College’s defence.
5. Was the Inquiry Committee’s decision not to reinstate the Pharmacist’s license justified?
[304] The parties do not dispute that even though s. 14 of the Code does not expressly include a justification defence, the Tribunal has “read-in” such a defence into that provision: Bitonti at para. 192; Gichuru at paras. 435-436; Fossum at para. 290; Brar and others v. B.C. Veterinary Medical Association and Osborne , 2015 BCHRT 151 at para. 691.
[305] In the absence of any disagreement and submissions from the parties, I see no reason to depart from the prevailing decisions on this issue.
a. The legal test
[306] To prove the decision not to reinstate the Pharmacist’s license to practice was justified, the College needs to show that:
- it adopted the standard for a purpose or goal rationally connected to the function being performed;
- it adopted the standard in an honest and good faith belief it was necessary to fulfill the legitimate purpose or goal; and
- the standard is reasonably necessary to accomplish the purpose or goal, in the sense that the College cannot accommodate persons with the Pharmacist’s characteristic without incurring undue hardship.
British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , [1999] 3 SCR 868 [Grismer ] at para. 20.
[307] To meet this test, the focus is on the means by which a respondent’s purposes and goals are achieved. For example, the standard cannot be higher than necessary to achieve workplace safety, irrelevant to the work required, or one that arbitrarily excludes some classes of people: Grismer at para. 21.
b. What is the standard at issue?
[308] The Pharmacist and the College disagree on the standard at issue in this case.
[309] The Pharmacist submits that the Inquiry Committee adopted a “not on OAT” standard. I disagree.
[310] There is no evidence before me indicating that the College in general or the Inquiry Committee in particular had a policy, standard, or guideline in place that prohibited a pharmacist from practising while on OAT. The fact that the Inquiry Committee lifted the Pharmacist’s suspension after receiving Dr. Wood’s report and allowed him to practice while on OAT supports my conclusion.
[311] Further, I find the Inquiry Committee did not, as the Pharmacist asserts, merely “enforce” Dr. Manak’s “not on OAT” standard. Rather, the evidence before me established that when deciding whether to lift the Pharmacist’s suspension, the Inquiry Committee was exercising its authority under s. 33(4) of the Act to determine whether he was fit to practice, or his substance use disorder impaired his ability to practice. For that reason, I agree with the College that the standard at issue in this case is that to be licensed to practice, a registrant must not have an addiction to alcohol or drugs that impairs their ability to practice [Standard].
c. Did the College adopt the Standard for a purpose or goal rationally connected to the function being performed?
[312] The first step of my analysis is to determine what the Standard was generally designed to achieve: British Columbia (Public Service Employee Relations Commission) v. BCGSEU , [1999] 3 SCR 3 [Meiorin ] at para. 57. The focus “is not on the validity of the particular standard that is at issue, but rather on the validity of its more general purpose”: Meiorin at para. 59.
[313] The purpose or goal of the Standard is self-evident. There can be no question that requiring registrants not to have an addiction to alcohol or drugs that impairs their ability to practice is rationally connected to the College’s statutory duties and objectives, and the Inquiry Committee’s function.
[314] Broadly speaking, the College’s statutory duty is “to serve and protect the public”: Act , s. 16(1). Professional regulators such as the College play a crucial role in protecting the public interest: Pharmascience Inc. v. Binet , 2006 SCC 48 at para. 36. In Pharmascience , the SCC expressly noted at para. 36 that:
The general public’s lack of knowledge of the pharmaceutical field and high level of dependence on the advice of competent professionals means that pharmacists are another profession in which the public places great trust.
[315] Relevant to this complaint is the College’s goal of enforcing “standards of practice to enhance the quality of practice and reduce incompetent, impaired or unethical practice amongst registrants”: Act , s. 16(2)(d). The Inquiry Committee’s primary function is to investigate complaints and concerns and determine if a registrant’s continued practice “might constitute a danger to the public”: Act , ss. 32.2(1), 32.2(4)(b)(ii). Such a danger includes an addiction to alcohol or drugs that impairs the registrant’s ability to practice pharmacy: Act s. 32.1(b); 33(4)(e).
d. Did the College adopt the Standard in an honest and good faith belief it was necessary to fulfill the legitimate purposes or goals?
[316] At this stage, the focus of the analysis shifts from the general purpose of the standard at issue to the standard itself: Meiorin , at para. 61. To satisfy this part of the test, a respondent must establish that the standard at issue was adopted “with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the claimant”: Meiorin , at para. 60. If imposing the standard “was not thought to be reasonably necessary or was motivated by discriminatory animus”, then it fails this step of the test: Meiorin, at para. 60.
[317] The Standard is imposed by the Act and the College and Inquiry Committee are required to apply it when assessing a registrant’s fitness to practice. There is no evidence before me indicating that the Standard was not adopted in an honest and good faith belief that ensuring pharmacists do not have an addiction to alcohol or drugs that impairs their ability to practise is not necessary to fulfill legitimate purposes and goals. I accept this criterion of justification is met.
e. Is the Standard reasonably necessary to accomplish its purposes or goals, in the sense that the College could not accommodate persons with the Pharmacist’s characteristic without incurring undue hardship?
[318] At this stage of the test, the Tribunal considers whether the occupational association has accommodated “the characteristics of affected groups within their standards, rather than maintaining discriminatory standards supplemented by accommodation for those who cannot meet them”: Grismer at para. 19. In other words, accommodation must be incorporated into the standard itself to ensure “that each person is assessed according to her or his own personal abilities, instead of being judged against presumed group characteristics”: Grismer at para. 19. Whether a standard is “reasonably necessary” means “when reasonable means of accommodation are exhausted and only unreasonable or impracticable options for accommodation remain”: Council of Canadians with Disabilities v. VIA Rail Canada Inc. , 2007 SCC 15 at para. 130.
[319] In his closing argument, the Pharmacist makes lengthy submissions about why a “not on OAT” standard fails this part of the test. As I have found that a “not on OAT” standard is not the standard at issue in this case, I take those submissions into consideration only to the extent they may be relevant to whether the Standard meets this part of the test.
[320] When determining whether this part of the test has been met, I find Grismer and Van Leening to be most helpful.
[321] In Grismer , the SCC held that the blanket driving prohibition against persons with a medical condition known as homonymous hemianopia [HH] was discriminatory. In that case, the British Columbia Superintendent of Motor Vehicles adopted a standard that required a minimum of a 120-degree field of vision. The standard did not permit anyone with HH to drive and provided no exceptions for people with HH to be individually assessed. The SCC held that although the standard was designed to achieve reasonable highway safety and was rationally connected to the general function of issuing driver’s licenses, it was not reasonably necessary to accomplish that goal. More particularly, the SCC held that the standard did not meet the third part of the test because the Superintendent did not prove that no one with HH could ever achieve reasonable highway safety or that providing individual assessments of people with HH would be an undue hardship.
[322] At para. 44, the SCC stated:
This decision stands for the proposition that those who provide services subject to the Human Rights Code must adopt standards that accommodate people with disabilities where this can be done without sacrificing their legitimate objectives and without incurring undue hardship. It does not suggest that agencies like the Motor Vehicle Branch must lower their safety standards or engage in accommodation efforts that amount to undue hardship.
[323] In Van Leening , the complainant alleged the College of Physical Therapists discriminated against him based on disability when it refused to register him as a fully registered Physiotherapist because he was not able to meet the requirement of treating patients “hands-on”: at para. 1. The College of Physical Therapists approved the complainant for limited registration under certain conditions, but the complainant did not accept those conditions. Its defence was that it had done everything possible within the statutory regime in the Act to accommodate the complainant.
[324] The Tribunal held that the College of Physical Therapists was required to address the complainant’s situation, “without sacrificing its legitimate objects, including protecting the public”: at para. 51. The Tribunal stated that the College of Physical Therapists needed to assess the complainant individually to determine how it could accommodate him so he could attain registration. It found that the College of Physical Therapists met its duty to accommodate the complainant by modifying the registration standards and imposing conditions to ensure public safety. Echoing the reasoning in Grismer , the Tribunal stated at para. 52:
The College is not required to lower its registration standards or to allow Mr. Van Leening Full Registration when he did not qualify. The College could not grant Mr. Van Leening Full Registration without compromising its standards and objects; a compromise which would represent an undue hardship for the College, as it would be in breach of the Act .
[325] Based on the evidence before me and the reasoning in Grismer and Van Leening , I find the Standard meets this part of the test because it is reasonably necessary to achieve the College’s legitimate and mandated goals of protecting the public and ensuring registrants do not pose a danger to the public from an addiction to alcohol or drugs that impairs their ability to practice. The Standard is not higher than necessary to achieve workplace safety, it is not irrelevant to the work required of a community pharmacist, nor does it arbitrarily exclude some registrants. It properly focuses on impairment rather than a particular diagnosis. Unlike the situation in Grismer , accommodation is incorporated into the Standard because it allows for individualized assessments so a registrant can show the Inquiry Committee they are not a danger to the public. I find the fact that only community pharmacists who cannot show from an individualized assessment that their ability to practice is impaired are excluded from practicing does not amount to discrimination: Grismer at para. 21.
[326] I find the means by which the College determines whether a registrant has an addiction to alcohol or drugs that impairs their ability to practice was not based on negative stereotypes or “impressionistic assumptions” about people with substance use disorders. Unlike the situation in Grismer , there is no absolute prohibition against allowing a community pharmacist with a substance use disorder from practicing. Unlike the situation in Grismer , the Pharmacist had the right to be assessed, and the College offered the Pharmacist an avenue to reinstatement that would still allow it to fulfill its statutory mandate and further its objectives. In my view, that is sufficient to establish that the College fulfilled its obligation to accommodate the Pharmacist. Further, I find that it is reasonably necessary for the College to rely on the assessment and opinion of medical professionals to determine whether a registrant’s ability to practice is impaired by an addiction to alcohol or drugs. This is outside the College’s specific expertise. Finally, I find that, given its purpose of public safety and origins in legislation, the College could not lower or modify the Standard without incurring undue hardship: Van Leening at para. 52.
[327] In his closing argument, the Pharmacist submits that the College also failed to meet its duty to accommodate him because the Inquiry Committee did not consider the possibility of reinstating his license so he could remain on Suboxone and practice in a non-safety-sensitive position, for example as a pharmacy technician.
[328] Both the Pharmacist and the College had duties in the accommodation process. The College was responsible for collecting relevant information and identifying options to accommodate the Pharmacist. The Pharmacist’s obligation was to facilitate the search for accommodation by bringing forward relevant information, and to accept any reasonable proposals: Central Okanagan School District No. 23 v. Renaud , 1992 CanLII 81 (SCC), [1992] 2 SCR 970.
[329] The Minutes of the Inquiry Committee’s meeting in late July 2017 to consider the Pharmacist’s request for reinstatement state:
Dr. Manak has stated that if the registrant is not going to pursue “safety sensitive work”, then he does not need to follow the recommendations that she has listed. However, given the registrant’s area of practice is community pharmacy and it would be where he would likely practice in the future, it would not be appropriate to lift the registrant’s suspension and then expect that he not practice in a non-safety sensitive position. Non-safety sensitive positions are not commonly available in the pharmacy profession.
[330] The Pharmacist raised the possibility of working as a pharmacy technician when he first reached out to the Resolution Officer at the end of March 2017 about reinstatement of his license. In her reply, the Resolution Officer asked the Pharmacist to clarify whether he was inquiring about being a pharmacy assistant or a College-regulated pharmacy technician. Although the College was aware that the Pharmacist had worked as a tele-pharmacist, which could have been a non-safety-sensitive employment option, there is no evidence indicating that the Pharmacist ever responded to the Resolution Officer or asked the Inquiry Committee to consider reinstating his license so he could work in a non-safety sensitive position. The Pharmacist’s evidence was that he did not do so because his goal was to work as a community pharmacist. Further, after the Inquiry Committee issued the Decision Letter, the Pharmacist never contacted the College to raise the issue of working in a non-safety sensitive position.
[331] Based on the evidence, I find that the Pharmacist did not bring forward the relevant information to initiate an accommodation process. Specifically, he did not communicate to the College that he wanted to work in a non-safety-sensitive position or inquire about his options. In this circumstance, the Inquiry Committee’s decision not to consider reinstating the Pharmacist’s license so he could work in a non-safety sensitive position does not mean it failed to meet its duty to accommodate his disability.
6. Summary and conclusion
[332] For the reasons set out above, I find that:
- the Pharmacist experienced disability-related adverse impacts regarding his membership with the College; and
- the College’s conduct was justified.
VIII REMEDY
[333] Having found the Discriminatory Comments were based on discriminatory stereotypes about people with substance use disorders, I declare they constitute discrimination contrary to s. 8 of the Code . I order Dr. Manak to cease the contravention and refrain from committing the same or a similar contravention: Code , ss. 37(2)(a) and (b).
[334] The Pharmacist seeks compensation for lost wages, injury to dignity, and expenses incurred. I consider each in turn.
A. Compensation for lost wages
[335] Section 37(2)(d)(ii) of the Code gives the Tribunal discretion to award compensation to a successful complainant for wages lost by the contravention. The intent of a wage loss award “is to restore a complainant, to the extent possible, to the position he or she would have been in had the discrimination not occurred”: Gichuru v. The Law Society of British Columbia (No. 9) , 2011 BCHRT 185 [Gichuru No. 9 ] at para. 300, petition dismissed 2013 BCSC 1325; appeal dismissed 2014 BCCA 396. The Pharmacist bears the burden of proving a causal connection between the discrimination and the wage loss he claims: Gichuru No. 9 at paras. 301-302. If he does that, “the amount of compensation is a matter of discretion, to be exercised on a principled basis, in light of the purposes of the remedial provisions of the Code , and the purpose of the award”: Gichuru No. 9 at para. 303.
[336] The Pharmacist submits that he lost income because of the Recommendation and the College’s decision not to reinstate his license. He does not assert, nor is there any evidence to support such an assertion, that he lost any wages because of the Discriminatory Comments.
[337] As I have found that the Recommendation was not discriminatory and dismissed the complaint against the College, I decline to award any amount to the Pharmacist for lost wages.
B. Compensation for wages lost to attend hearing
[338] The Pharmacist seeks $1,398.44 for compensation for wages lost to attend the hearing. The Tribunal has authority under s. 37(2)(d)(ii) of the Code to make such an award: Cassidy v. Emergency and Health Services Commission and another (No. 3) , 2009 BCHRT 110 at para. 164.
[339] The Pharmacist’s evidence was that he took a week off work to attend the hearing, and he submitted documentary evidence to prove his income loss. As I have dismissed the entire complaint against the College and half of the complaint against Dr. Manak, I award $349.61, which is 25% of the amount claimed by the Pharmacist as compensation for his wage loss to attend the hearing.
C. Compensation for other expenses
[340] The Pharmacist seeks $1,316.70 for compensation for accommodation expenses he incurred because he travelled to Vancouver from his home for the hearing. The Pharmacist submitted documentary evidence to prove this amount.
[341] The Tribunal has authority under s. 37(2)(d)(ii) to order compensation to a successful complainant for travel expenses to attend the hearing: Cassidy at paras. 100-104.
[342] The College submits that the Pharmacist should not be compensated for this expense because the hearing was held virtually and there was no need for him to have travelled to Vancouver. In reply, the Pharmacist says it was reasonable for him to travel to Vancouver for the hearing given the uncertainty of the impact of the COVID-19 pandemic on the Tribunal’s processes and so he could participate from the same room as his counsel.
[343] I accept the Pharmacist’s evidence and find it was reasonable for him to want to participate in the hearing from Vancouver with his legal counsel. As I have dismissed the entire complaint against the College and half of the complaint against Dr. Manak, I award $329.18, which is 25% of the amount claimed by the Pharmacist as compensation for his accommodation expenses to attend the hearing.
D. Compensation for injury to dignity
[344] Under s. 37(2)(d)(iii) of the Code , the Tribunal has discretion to award compensation to a complainant for injury to their dignity, feelings, and self-respect. Such an award is intended to compensate a complainant who has been discriminated against, not to punish the respondent: Silver Campsites Ltd. v. James , 2013 BCCA 292 at para. 41. The amount of compensation depends on the facts of the particular case and relevant factors, namely the nature of the discrimination, the complainant’s vulnerability, and the effect of the discrimination on the complainant: Oger v. Whatcott (No. 7) , 2019 BCHRT 58 at para. 225.
[345] The Pharmacist seeks $75,000 for compensation for injury to his dignity, feelings, and self-respect. Most of the Pharmacist’s submission focuses on the impact he alleges he experienced from not being allowed to work in his chosen profession because of the Recommendation and the Inquiry Committee’s decision not to reinstate his license until August 2018. As I have dismissed those parts of the complaint, I only consider the impact the Discriminatory Comments had on the Pharmacist.
[346] As the Tribunal noted at para. 26 in Shahadat v. Northern School of Spa Therapies (No. 3) , 2024 BCHRT 120:
Assessing the appropriate amount to award for an injury to a person’s dignity is a difficult exercise. Money cannot undo the damage of discrimination, or fully compensate for its harms. Compensatory damages are just the law’s best attempt. They are how the Code achieves its purpose of providing redress to people who have been discriminated against: s. 3(e). There is no mathematical formula that calculates dignity. Comparison between cases is inherently imperfect and can be a demoralizing exercise in valuing – or devaluing – a person’s pain. Difficult as it may be, the Tribunal must apply its expertise and exercise its discretion to identify an appropriate amount of money to compensate a complainant – as much as money ever could – for the indignity and harms of discrimination.
[347] I begin with the nature of the discrimination. Any discrimination is serious; however, the egregiousness of the discriminatory conduct varies depending on the specific facts of the case: Aurora at para 189. The nature of the discrimination in this case is discriminatory stereotyping of persons with substance use disorders.
[348] I reject Dr. Manak’s argument that the Pharmacist did not suffer any injury to his dignity or that his credibility is in question because he knew what would be in the April 2017 IME well before he received it. I also reject her argument that the Pharmacist could not, as he says he was, be “extremely vulnerable” at the time he read the April 2017 IME while at the same time asserting he was in stable recovery.
[349] I accept the Pharmacist’s evidence that even though he knew the Inquiry Committee would likely not lift his suspension if he kept taking Suboxone, he viewed the Discriminatory Comments as “extremely negative” and that they painted him in a bad light. I accept his evidence that the first time he read the April 2017 IME, he had to take a break about halfway through because he was “disappointed, shocked, and confused” by the Discriminatory Comments. I also accept the Pharmacist’s wife’s evidence that after the Pharmacist read the April 2017 IME, he became withdrawn and “completely went into his own”. I accept her evidence that the Pharmacist told her that the April 2017 IME was about what a “loser” he was. I accept her evidence that she worried the Pharmacist might relapse and start using again so she did things like check the garbage to make sure he was taking his Suboxone, check in with him during the day, and spend as much time at home as possible.
[350] When considering the Pharmacist’s vulnerability, I also bear in mind that persons with mental disabilities have been disadvantaged, marginalized and subjected to damaging stereotypes: KW v. BC Ministry of Children and Family Development (No. 2) , 2021 BCHRT 43 at para. 88. In X.P. obo J.R. v. The Hospital and The Correctional Centre , the Tribunal expressly noted “the realities that persons with addictions face” and cited the following passage from para. 58 of Gascon J.’s dissenting opinion in the SCC’s decision in Stewart :
Drug dependence is a protected ground of discrimination in human rights law. Its status as such is settled, and none of the parties dispute this. Still, stigmas surrounding drug dependence — like the belief that individuals suffering from it are the authors of their own misfortune or that their concerns are less credible than those of people suffering from other forms of disability — sometimes impair the ability of courts and society to objectively assess the merits of their discrimination claims.
[351] The cases cited by the parties are of limited assistance because they focused their submissions on the appropriate amount of compensation for injury to dignity should the entire complaint be successful. The most helpful decision in this circumstance is Fossum , where the Tribunal found that the Society of Notaries discriminated against the complainant when it characterized his addiction to alcohol in an inquiry notice in a way that was “uninformed, stereotypical and prejudicial”: at para. 266. The Tribunal found that the Society of Notaries’ use of accusatory and disparaging language in the notice caused the complainant stress and humiliation, and “undermined his self-confidence and self-respect”: at para. 353. The Tribunal further found that the Society of Notaries discriminated against the complainant when it accepted an undertaking from him that, in essence, required him “to not have a reoccurrence of his disability”: at para. 354. Based on evidence about how the discrimination impacted the complainant, the Tribunal awarded him $5,000 for compensation for injury to dignity.
[352] Weighing all the relevant factors and taking into consideration the reasoning in Fossum and the fact that it is a decision from 2011, I exercise my discretion and award the Pharmacist $7,500 as compensation for injury to his dignity, feelings, and self-respect.
IX CONCLUSION AND ORDERS
[353] For the reasons set out above, the complaint against the College is dismissed in its entirety and the complaint against Dr. Manak regarding the Recommendation is dismissed.
[354] For the reasons set out above, I find that Dr. Manak violated s. 8 of the Code when she made the Discriminatory Comments and make the following orders:
- Pursuant to ss. 37(2)(a) and (b) of the Code , I declare that the Discriminatory Comments are discrimination contrary to s. 8 of the Code and I order Dr. Manak to cease the contravention and refrain from committing the same or a similar contravention;
- Pursuant to s. 37(2)(d)(ii), I order Dr. Manak to pay the Pharmacist the amount of $349.61 as compensation for wages lost to attend the hearing;
- Pursuant to s. 37(2)(d)(ii), I order Dr. Manak to pay the Pharmacist the amount of $329.18 as compensation for accommodation expenses to attend the hearing;
- Pursuant to s. 37(2)(d)(iii), I order Dr. Manak to pay the Pharmacist the amount of $7,500 as compensation for injury to his dignity, feelings, and self-respect; and
- I order Dr. Manak to pay the Pharmacist post-judgment interest on all amounts awarded until paid in full, based on the rates set out in the Court Order Interest Act , RSBC 1996, c. 79, as amended.
[355] If after reviewing this decision, the Pharmacist wants his identity made public, the Tribunal will re-issue a decision that is not anonymized.
Beverly Froese
Tribunal Member
[1] From p. 5 of Dr. Gillman’s report citing the Canadian Human Rights Commission’s 2017 definition of “safety-sensitive position”.
[2] The Pharmacist has not alleged that any other aspect of Dr. Manak’s recommendations for his return to practice, for instance that he be subjected to medical monitoring for five years, are discriminatory.
[3] From the Ontario Human Rights Commission’s Policy and Guidelines on Racism and Racial Discrimination , cited with approval in Tribunal decisions such as Brar and others v. B.C. Veterinary Medical Association and Osborne , 2015 BCHRT 151 at para. 720 and Francis v. BC Ministry of Justice (No. 3) , 2019 BCHRT 136 at para. 288.