Executive Summary: Key Legal and Evidentiary Issues

• Central dispute concerned whether a coworker pharmacy assistant qualified as the pharmacist’s “patient” under the Health Professions Procedural Code and Ontario Regulation 260/18 at the time of the sexual misconduct.
• Interpretation of the “direct interaction” requirement in the Patient Criteria Regulation was pivotal, specifically whether dispensing and clinically verifying a prescription without a verbal consultation is sufficient to establish a pharmacist–patient relationship.
• The appellate court had to classify the “who is a patient” question as either a pure question of law (correctness review) or one of mixed fact and law (palpable and overriding error standard).
• Use of documentary and video evidence—including prescription hardcopies, patient records, billing entries, and surveillance footage—was key to proving that the appellant was the sole dispensing pharmacist for the complainant’s medication.
• Application of the statutory sexual abuse regime, including the Code’s purpose clause and the Protecting Patients Act, guided a broad, protective reading of “patient” to advance zero tolerance for sexual abuse by health professionals.
• Consideration of workplace power dynamics, including the complainant’s subordinate role, informed both the characterization of the relationship and the seriousness of the professional misconduct.

Facts of the case

The proceedings involve a pharmacist, Sukhjeev Tatla, and his regulator, the Ontario College of Pharmacists, arising from events on August 14, 2022, at a community pharmacy. On that day, the appellant was working a single shift as a relief pharmacist. The complainant was employed at the same pharmacy as a pharmacy assistant. No other pharmacists or assistants were on duty, placing the appellant in sole charge of the professional pharmacy functions while the complainant worked in a subordinate supporting role. During the shift, the complainant processed a refill of her own prescription for pms-benzydamin. In her capacity as pharmacy assistant, she entered and processed the refill, affixed labels to the medication bottle, and made notations on the prescription hardcopy. She then placed the basket containing the prescription and the medication in the workspace where the appellant was stationed as the pharmacist. Surveillance footage later reviewed by the Discipline Committee showed the appellant working with the same basket and bottle, affixing a label and making markings on the prescription hardcopy before leaving the basket for the complainant to collect. The complainant did not seek or receive a formal counselling session or verbal consultation about the medication. The prescription was billed to the complainant’s insurance plan, which covered the full cost; she paid nothing out of pocket. When she left at the end of her shift, she took the dispensed medication home with her. The complainant testified that she saw the appellant sign the prescription hardcopy as the dispensing pharmacist. She further stated that no other pharmacist or College registrant was involved in filling or dispensing her medication. An Agreed Statement of Facts, the prescription hardcopy, the complainant’s patient medical record, billing data, and the surveillance video corroborated these points and were accepted as reliable by the Discipline Committee. Against that background, the complainant alleged that the appellant engaged in sexual touching, behaviour and remarks of a sexual nature later in the shift. The impugned conduct, which the appellant did not dispute on appeal, included grabbing the complainant’s breast around 3:00 p.m., followed by further sexualized behaviour and comments. The complainant was both his coworker and, the College alleged, his patient at the time of this misconduct.

Statutory and regulatory framework

The regulatory framework is built on the Regulated Health Professions Act, 1991 (RHPA), the Health Professions Procedural Code (the Code), the Pharmacy Act, 1991, and related regulations. The Ontario College of Pharmacists is a self-governing body whose mandate includes serving and protecting the public interest by regulating the practice of pharmacy and governing its members. The Code defines “sexual abuse” by a member to include sexual intercourse or other physical sexual relationships with a patient, touching of a sexual nature of the patient, and behaviour or remarks of a sexual nature directed at the patient. A dedicated purpose provision, section 1.1 of the Code, clarifies that the sexual abuse provisions are designed to encourage reporting of abuse, provide funding for therapy and counselling, and ultimately eradicate sexual abuse of patients by regulated health professionals. In 2017, the Protecting Patients Act amended this framework, strengthening protections and introducing a specific definition of “patient” for sexual abuse matters. Section 1(6) of the Code now provides that, for the sexual abuse provisions, “patient” encompasses individuals who fall within the ordinary meaning of the term and also includes, among others, those determined to be patients in accordance with criteria set out in regulations. Ontario Regulation 260/18—the Patient Criteria Regulation—implements those criteria. It provides that an individual is a patient of a member if there is “direct interaction” between them and at least one of several conditions is met, such as the member charging or receiving payment (directly or through a third party) for a health care service provided to the individual, contributing to the individual’s health record or file, obtaining the individual’s consent to a recommended health care service, or prescribing a drug that requires a prescription. The regulation also includes limited exceptions where, even if the criteria might otherwise be satisfied, a person will not be considered a patient. Those exceptions did not apply on the facts of this case. The Pharmacy Act defines the scope of practice of pharmacy to include the custody and dispensing of drugs and authorizes pharmacists to dispense, sell and compound drugs and to supervise areas where drugs are kept. In addition, the College has adopted the National Association of Pharmacy Regulatory Authorities (NAPRA) Model Standards of Practice for Canadian Pharmacists. Those standards define “dispensing” to include evaluating a prescription, assessing the patient and their health history and medication record, packaging and labelling the drug, and providing the drug pursuant to a prescription. These statutory and professional standards together frame the question of when a person who receives pharmacy services becomes a “patient” for the purpose of the sexual abuse regime.

Proceedings before the Discipline Committee

The Discipline Committee heard the merits of the allegations over several days in April and May 2024. The complainant testified at the hearing, while the appellant did not testify. The evidentiary record included the partial Agreed Statement of Facts, prescription documents, the complainant’s patient record, insurance billing information, surveillance video from the pharmacy on the date in question, and the NAPRA Standards. In its decision released on August 19, 2024, the Committee found the appellant guilty of professional misconduct under subsection 51(1)(b.1) of the Code for sexually abusing a patient. It concluded that the appellant engaged in touching of a sexual nature, specifically grabbing the complainant’s breast, and that he also engaged in further behaviour and remarks of a sexual nature during the same shift. The Committee found there was a clear power imbalance between the appellant, as the only pharmacist and a regulated health professional, and the complainant, who was a subordinate coworker in the pharmacy environment. A central legal issue was whether the complainant was a “patient” of the appellant at the time of the sexual misconduct. The Committee determined that she was. It found that the appellant was the dispensing pharmacist for the complainant’s pms-benzydamin prescription: he was the only pharmacist present, his signature appeared on the prescription hardcopy, and no other College registrant was involved in the filling or dispensing of her medication. The complainant knew he was the pharmacist who would be administering her refill. The Committee concluded that, by dispensing the prescription and conducting a clinical verification of the refill by roughly 1:30 p.m., the appellant provided a health care service to the complainant and thereby engaged in a “direct interaction” with her for the purposes of the Patient Criteria Regulation. It further held that at least two of the regulation’s conditions were satisfied: the appellant, in respect of a health care service provided to the individual, caused a payment to be received from a third-party insurer on her behalf, and he contributed to her health record or file through the prescription documentation and associated records. On that basis, the Committee held that the complainant was the appellant’s patient at the relevant time. The appellant’s position before the Committee was that a “direct interaction” required a consultation and that, without a verbal exchange or physical hand-off of the medication, the regulatory threshold was not met. The Committee rejected that argument. It reasoned that limiting “direct interaction” to circumstances involving a formal consultation would effectively make it harder for individuals to be recognized as patients for sexual abuse purposes after the Patient Criteria Regulation came into force than it had been under the earlier common-law test. That, in the Committee’s view, would run counter to the Code’s section 1.1 purpose clause and the objectives of the Protecting Patients Act, which were designed to expand, not contract, protections for patients. The Committee also emphasized the realities of pharmacy practice: pharmacists routinely provide services through dispensing, clinical verification and recordkeeping, much of which occurs without a formal counselling session or in-person discussion. On these facts, it considered it artificial to treat the complainant as anything other than a patient when her prescription had been dispensed and billed under the appellant’s authority and entered into her health record. Because the complainant was a patient when the sexual misconduct occurred, the statutory provisions relating to sexual abuse of a patient were engaged. By operation of the Code, a finding of sexual abuse in these circumstances carried severe consequences, including automatic interim suspension of the appellant’s certificate of registration. The Committee subsequently imposed the mandatory penalty of revocation of his certificate of registration and, in its penalty decision, ordered him to pay costs to the College.

Issues and arguments on appeal

The appellant appealed the Discipline Committee’s decision to the Ontario Divisional Court under sections 70(1) and (2) of the Code, which authorize appeals on questions of law, fact and mixed fact and law. He asked the Court to set aside both the findings and the revocation of his licence or, alternatively, to remit the matter to a differently constituted panel of the Discipline Committee. On appeal, the appellant did not dispute the Committee’s factual findings regarding the underlying sexual touching, behaviour and remarks. Instead, he concentrated on the Committee’s determination that the complainant was his patient for the purposes of the sexual abuse provisions. The appellant advanced two main lines of argument. First, he contended that the Committee had committed an error of law in interpreting the term “direct interaction” in the Patient Criteria Regulation. He argued that, because there was no binding appellate authority on the meaning of “direct interaction,” the Committee was required to apply the rules of statutory interpretation as set out in decisions such as Bell ExpressVu. In his submission, the grammatical and ordinary meaning of “direct interaction” required some form of engagement, communication or interaction between two people without intermediaries. Simply performing a health care service in the background, he argued, was not enough. Second, the appellant maintained that, even on the regulation’s own terms, a direct interaction had not occurred. He relied on the complainant’s evidence that she did not consult with the pharmacist, that she herself removed the medication from the shelf after he signed the prescription, and that, in her role as pharmacy assistant, she scanned the medication out. He submitted that this sequence of events showed there was no direct interaction between them in the provision of the health care service and thus no overlapping pharmacist–patient relationship at the time of the sexual misconduct. The Ontario College of Pharmacists, for its part, argued that the question of who is a patient has consistently been treated by courts as a fact-intensive inquiry calling for the specialized expertise of professional discipline bodies. It pointed to authorities where physician discipline tribunals and courts had addressed the existence of a doctor–patient relationship by reference to a variety of factors, including the existence of a file, billing records, and prior treatment or consultation. The College submitted that the Patient Criteria Regulation must be understood against that background and that the Protecting Patients Act expanded the definition of “patient” rather than narrowing it. In this case, the College maintained, the complainant plainly met both the ordinary and the regulatory meanings of “patient” in light of the dispensing, clinical verification, contribution to the health record, and insured billing carried out under the appellant’s authority.

Standard of review and characterization of the patient issue

The Divisional Court identified the applicable standard of review by reference to Canada (Minister of Citizenship and Immigration) v. Vavilov and Housen v. Nikolaisen. Because the appeal was provided for by statute, appellate standards applied: questions of law were subject to correctness review, whereas questions of fact and questions of mixed fact and law (in the absence of an extricable error of law) attracted the deferential palpable and overriding error standard. The appellant attempted to classify the “patient” issue as a pure question of law, on the basis that it turned solely on the interpretation of the term “direct interaction” in the Patient Criteria Regulation. The Court rejected that characterization. It held that, even after the enactment of the Patient Criteria Regulation, determining whether someone is a patient for sexual abuse purposes remains a question of mixed fact and law. As prior case law in the health-professional context had emphasized, the existence of a patient relationship is a factual inquiry that requires applying legislative and regulatory language to complex professional and evidentiary contexts, an exercise that falls squarely within the expertise of disciplinary committees. The Court further noted that the Protecting Patients Act and the Patient Criteria Regulation were intended to expand the reach of the “patient” concept in the sexual abuse context without limiting its ordinary meaning. The regulation provided deemed criteria that, when met, would conclusively establish a patient relationship in addition to, not in place of, other situations where a person might be considered a patient. On that basis, the Court concluded that the Committee’s determination that the complainant was the appellant’s patient engaged the application of law to fact and was subject to review only for palpable and overriding error. It declined to find any extricable error of law in the Committee’s approach to interpreting “direct interaction” or applying the regulatory conditions to the evidence.

Court’s analysis of direct interaction and regulatory criteria

Applying the deferential standard, the Divisional Court examined how the Discipline Committee had interpreted and applied the Patient Criteria Regulation. The Court observed that the Committee had used the modern approach to statutory interpretation, considering the words of the regulation in their entire context and in light of the Code, the Pharmacy Act and the policy objectives underlying the sexual abuse regime. It agreed with the Committee that construing “direct interaction” in a narrow, consultation-only way would undermine the express purpose of the Code’s sexual abuse provisions and the legislative intent of the Protecting Patients Act, which sought to strengthen protections for patients and encourage reporting of sexual abuse by regulated health professionals. The Court also addressed the appellant’s argument that the Committee’s interpretation rendered the conditions in the regulation redundant. It found this unpersuasive. In the Court’s view, the listed conditions—payment for a health care service, contribution to a health record, obtaining consent to a recommended service, or prescribing a drug—serve an important role in distinguishing between casual or informal encounters and professional relationships where the regulated member is actually delivering health care services. For example, they may guide the analysis where a professional offers brief advice or responds to a question outside a formal treatment setting. In those more marginal situations, the presence of a bill, a file entry, or a prescription may be determinative of whether the person has become a “patient.” By contrast, in this case the evidence showed that the appellant was the sole pharmacist responsible for dispensing the complainant’s prescription, that he signed the hardcopy, that the prescription was entered into her patient record, and that an insurer had paid for the medication. The Court held that it was entirely reasonable for the Committee to treat these facts as satisfying both the “direct interaction” requirement and the regulatory conditions. The Court further noted that the Pharmacy Act and the NAPRA Standards recognize that the act of dispensing a prescription involves several controlled and professional acts, including evaluating the prescription, clinically verifying its appropriateness, authorizing its dispensing, and documenting it in the patient’s record. Many of these steps occur without a face-to-face discussion. Requiring a verbal consultation or physical hand-off as the only way to establish “direct interaction” would, in the Court’s view, ignore how pharmacy practice actually functions and could lead to the anomalous conclusion that members of the public whose prescriptions are dispensed and billed under a pharmacist’s authority are not patients of that pharmacist. The Court also reaffirmed the Committee’s finding of a power imbalance between the appellant and the complainant, aggravated by her subordinate position as an assistant. It accepted the Committee’s view that this context strengthened the rationale for recognizing a pharmacist–patient relationship once the appellant undertook professional acts to dispense and verify her medication.

Outcome and costs

In light of its analysis, the Divisional Court held that the Discipline Committee’s conclusion that the complainant was the appellant’s patient at the time of the sexual misconduct was a reasonable application of the Patient Criteria Regulation and the broader statutory scheme. It found no palpable and overriding error in the Committee’s interpretation of “direct interaction,” its application of the regulatory conditions to the evidence, or its reliance on the protective purpose of the sexual abuse regime. Because the appellant did not challenge the underlying findings of sexual touching, behaviour and remarks of a sexual nature, the determination that the complainant was a patient meant that the Committee’s finding of sexual abuse of a patient under subsection 51(1)(b.1) remained intact. The Court therefore dismissed the appeal, leaving in place the findings of professional misconduct and the revocation of the appellant’s certificate of registration. As for costs on the appeal, the parties agreed that the Ontario College of Pharmacists, as the successful party, was entitled to a fixed amount. The Divisional Court ordered the appellant to pay costs of $10,000 in favour of the College, and this is the total monetary amount specified in the decision as awarded to the successful party.