In Sobeys West Inc. v. College of Pharmacists of British
Columbia, 2016 BCCA 41, the British Columbia Court of
Appeal determined that it was reasonable for the College of
Pharmacists to prohibit pharmacists from using "customer
In September 2013, the British Columbia College of Pharmacists
introduced bylaws prohibiting "customer incentive
programs" that encouraged patients to use particular
pharmacies or pharmacists. Prohibited incentives included money,
gifts, discounts, rebates, refunds, customer loyalty schemes,
coupons, goods or rewards.
Sobeys West Inc. challenged the College's bylaws. Initially,
on judicial review, the British Columbia Supreme Court held the
bylaws to be overbroad with a net effect that was "harmful to
the public interest in obtaining pharmacy services and
prescriptions at the lowest price." As a result, the bylaws
were held to be unreasonable.
On appeal, the British Columbia Court of Appeal found that the
judicial review judge had considered evidence that should not have
formed part of the "record" in the judicial review and
that the judge had improperly applied the standard of
The Court of Appeal held that the College of Pharmacists could
enact bylaws aimed at preventing harm to the public even without
empirical evidence that harm had actually occurred. Even though the
"evidence supporting the need for the bylaws was thin"
and anecdotal, the College of Pharmacists did not need to wait for
better empirical evidence and did not need to select the least
intrusive method to address its bona fide concerns that inducements
from pharmacists were a matter of public interest and professional
standards. The Court of Appeal held that the bylaws were valid and
enforceable as they represented a reasonable response to questions
of policy within the particular expertise of pharmacists.
The case is an important acknowledgement by the Courts of
regulators' powers to regulate the professions in the best
interests of the public by anticipating issues and responding using
their particular expertise, not just by reacting to
In 2014, the Alberta College of Pharmacists sought to introduce
similar prohibitions against "customer incentive
programs." Sobeys West Inc. also challenged these Alberta
prohibitions and the case will be making its way through the
Alberta Courts. So far Sobeys West Inc. has obtained a Court Order staying the implementation of the
prohibitions, arguing that since the prohibitions have not yet come
into effect, maintaining the status quo would avoid disruption.
Field Law will be monitoring the Alberta proceedings and will
report on major developments.
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