Case: Sobeys West Inc et al v College of
Pharmacists of British Columbia, 2016 BCCA 41 (Court File No.
CA42103), appeal from 2014 BCSC 1414
Nature of case: Appeal from judicial review
application striking down Bylaws adopted by the College of
Pharmacists of British Columbia
Successful party: College of Pharmacists of
British Columbia
Date of decision: 27 January 2016
Case: Sobeys West Inc v Alberta College of
Pharmacists, 2016 ABQB 232 (Court File No. 4103 06927),
Nature of case: Judicial review application of
delegated legislation enacted by the Alberta College of
Pharmacists
Successful party: Sobeys West Inc.
Date of decision: 22 April 2016
Summary
The College of Pharmacists of British Columbia
(CPBC) appeals a judgement of the Supreme Court of
British Columbia striking down Bylaws of the CPBC prohibiting
pharmacists from providing "customer incentive programs"
to patients in connection with the purchase of drug products or
pharmacy services. The Court of Appeal allowed the appeal,
reversing the decision of the lower court. The CPBC's Bylaws
prohibiting the provision of incentives for prescriptions and
pharmacy services are now in force.
Sobeys West Inc. (Sobeys), operating as Safeway
and Sobeys in Alberta, sought judicial review of amended provisions
of the Alberta College of Pharmacists' (ACP)
Code of Ethics and Standards that prohibit pharmacists from
offering, providing or being party to offering an inducement to a
patient in connection with the patient obtaining drug product or
professional services from the regulated member or licensed
pharmacy. The Court found that the ACP went beyond its authorized
power to adopt amendments prohibiting pharmacy inducements.
Background
The CPBC and APC are the regulatory colleges responsible for
licensing and registering pharmacists, pharmacies and pharmacy
technicians in British Columbia and Alberta, respectively. The
governing legislation of the colleges grants authority to the CPBC
and APC to make bylaws, standards and codes consistent with their
duties and objectives under the governing legislation, including to
serve and protect the public and exercise its power in the public
interest.
In September 2013, the CPBC introduced Bylaws that would prohibit
pharmacists from providing incentives (including, rebates, gifts,
discounts, money, customer loyalty schemes, coupons, goods or
rewards) to patients for the purpose of inducing the patient to
fill a prescription or obtain other professional services from the
pharmacist or pharmacy (BC Incentive Prohibition).
The purpose of the prohibition was to protect against the potential
harms associated with the provision of incentives, including
encouraging customers to procure more drugs, delay filling
prescriptions or transferring prescriptions in order to obtain an
incentive reward. The Bylaws came into effect on December 2,
2013.
Sobeys, who operates Safeway and Thrifty Food stores in British
Columbia which offer such customer incentive programs, brought an
application for judicial review to quash the CPBC's Bylaws. The
lower court agreed with Sobeys and ordered that the BC Incentive
Prohibition be struck down for being overbroad, falling outside the
range of acceptable outcomes, given the competing public interests.
The CPBC appealed that decision.
Similarly, the ACP proposed amendments to its Code of Ethics and
Standards that would prohibit pharmacists from offering, providing
or being party to offering an inducement (including a reward, gift,
cash, prize, coupon, points or other mechanisms in incentive or
loyalty programs) to a patient in connection with the patient
obtaining drug product or professional services from the regulated
member or licensed pharmacy (AB Inducement
Prohibition). The amendments were to come into force on
June 10, 2014. Sobeys brought an application for judicial review of
the AB Inducement Prohibition. The Court delayed the implementation
of the AB Inducement Prohibition until the case was decided.
British Columbia: The Incentive Prohibition Bylaws remain in force
The main issue on appeal was whether the lower court erred in
its interpretation and application of the reasonableness standard
and the degree of deference afforded to bylaws passed by the
governing bodies of health professionals.
The CPBC submits that the lower court erred in its decision,
applying a high degree of scrutiny to the CPBC's concerns of
customer incentive programs and requiring evidence of "actual
harm" to the public before the BC Incentive Prohibition could
be justified as protecting the public interest. The Court of Appeal
agreed with the CPBC and found that the lower court erred by
failing to consider, on the whole, whether the BC Incentive
Prohibition fell within a range of reasonable possibilities based
on the CPBC's public interest concerns.
Given the expertise of the regulatory body and their concerns for
public safety, deference should have been afforded to the CPBC. The
Court held that the CPBC was bona fide in their view that customer
incentive programs were a matter of public interest and was free to
take measures to prevent actual harm from occurring. The lower
court's decision to strike down the impugned Bylaws was
overturned. The BC Incentive Prohibition remains in force.
Alberta: The Inducement Prohibitions are ultra vires
The main issue before the Court was whether the ACP had the
authority under its governing legislation, the Alberta Health
Professions Act (HPA), to adopt the AB Inducement
Prohibition.
The Court found that "the legislature clearly intended that
the HPA would require the role of the regulatory colleges to be
separate from the economic functions", and that the objective
and guiding principles of the HPA is to ensure the competency and
accountability of pharmacists to the public. The AB Inducement
Prohibition relate to the cost of drugs to consumers and amount to
controlling the way commercial entities (pharmacies) operate and
compete in the marketplace. Justice Ouellette found that the AB
Inducement Prohibition are inconsistent with the governing
legislation and "have nothing to do with the competency or
unethical behavior of its regulated members". Further, with
respect to the ACP's role of protecting the public interest,
the Court found that there was no evidence of actual or reasonable
harm to customers and patients as a result of inducements or other
loyalty programs offered by pharmacies.
The Court concluded that by adopting the AB Inducement
Prohibitions, the ACP had exercised powers outside the intended
scope of its governing legislation. The Court did not state the
implications of its decision.
Appeals sought
Sobeys has filed an application for leave to appeal with the Supreme Court of Canada (Docket 36917). The APC has sought appeal of the Court's judgment (Court File No. 1603-0120AC).
Links to decision:
Sobeys West Inc v College of Pharmacists of
British Columbia, 2016 BCCA 41
Sobeys West Inc v Alberta College of
Pharmacists, 2016 ABQB 232/em>
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