A former Whitehorse pharmacist has been granted his judicial review of a Yukon Community Services Pharmacy Board of Inquiry decision.

Justice Beverley Browne issued her 21-page written decision on Aug. 9.

She granted Gennadi Gouniavyi’s request for a judicial review, quashed the board’s decision and ordered a new hearing.

Gouniavyi wanted two decisions reviewed.

The first is a July 30, 2017 board decision, while the other is an Aug. 9, 2017 Registrar of Pharmacists decision.

Both bodies suggested that Gouniavyi should be sanctioned over errors made at his local pharmacy.

Browne touched on some background before getting to her reasons.

In May 2015, one of Gouniavyi’s colleagues filed a complaint against him with the Registrar of Professional Licensing and Regulatory Affairs.

She explained that this was a general complaint that reported alleged errors regarding medication, dispensing of narcotics, breaches of patient confidentiality and attempting to cover it up.

In February 2017, Gouniavyi gave the board a narcotic inventory. This document covered a period from November 2016 to that February. The next month, he responded to 63 allegations and gave 12 specific examples as requested by the board.

He told the board that the complainant was a former colleague who had been fired. He questioned this individual’s intentions.

Browne noted that there was little specific information provided, such as dates; thus, Gouniavyi had to assume what the allegations were.

In April 2017, the board concluded that Gouniavyi was guilty of professional misconduct. This decision was not provided to him.

Browne now addressed some aspects of the proceeding that she found unusual. Mark Wallace, the lawyer representing the board during this application, also did so during the original inquiry.

“I found that representation unusual,” Browne said in the decision.

“I appreciated the Yukon is a small jurisdiction and that the legislation is attempting to deal with important issues of public protection, while at the same relying on local people to carry out the appropriate duties under legislation.”

She suggested that another lawyer should be in court rather than the board itself.

She also remarked that Gouniavyi would have the expectation that the board’s decision would be complete and not need an additional explanation.

In reviewing the case, she pointed out that there were little to no other materials to rely on other than the board’s decision.

Following the April 2017 decision, the board made its recommendations on July 30, 2017. Gouniavyi was not informed of this.

Browne said this is important because he had 30 days to file an appeal to a judge.

“Mr. Gouniavyi did not have the opportunity to appeal the decision because he was not informed until after the minister (Community Services, Professional Licensing and Regulatory) made his decision,” Browne said in her decision.

In it, the board recommended that Gouniavyi face a four-week suspension and other punishments that are not in the legislation.

Browne now addressed the issue of procedural fairness. She said the Supreme Court of Canada stated “a high standard of procedural fairness is required when the right to continue in one’s profession or employment is at stake.”

She felt this applied in this case.

“This decision had an effect on Mr. Gouniavyi’s ability to practise his profession and on his reputation, and he is therefore entitled to a high standard of procedural fairness,” Browne said in the decision.

Gouniavyi, through his lawyer, Don Dear, raised several breaches by the board on fairness. They include:

• not telling him who made up the board and the focus of the investigation;

• not giving him the chance to completely take part in the hearing;

• not taking into account relevant and material evidence and not setting aside irrelevant evidence;

• not giving him specific and clear reasons; and

• making recommendations that were not part of the board’s jurisdiction.

Browne agreed that none of the names of the board members were released. She pointed out that an order of council was released, but did not include the names.

“There was no way for Mr. Gouniavyi to know who the decision-makers were, and therefore no opportunity to know whether to object to the composition of the board on the basis of bias,” Browne said in the decision.

She did not feel this was fatal to the board, as there is no accusation of bias. That said, it demonstrates that there was procedural unfairness, she clarified.

She pointed out that the allegations against Gouniavyi were “seriously deficient,” as they were general in tone and only three dates were provided. There was no evidence given to support the allegations.

She said this is a breach of Gouniavyi’s right to know the case he has to meet.

“He was forced to guess what the complaints were in order to respond to them,” Browne said.

She added that Gouniavyi’s evidence was used against him as a result of his not knowing the case against him.

She felt on this issue alone, she would grant the judicial review. She quashed the decision and ordered a new hearing by a new panel.

That said, she addressed his other arguments.

She found that the board did not hold a hearing based on the merits of the allegations. She added that the board did not hold a hearing or ask for submissions during the penalty stage.

This included not following up with any of the complainant’s witnesses.

She felt a fair procedure would have been an oral hearing where the complainant would have been cross-examined by the defence.

“Given that many of the complaints were about Mr. Gouniavyi’s customers, further evidence from these customers might well have been important in assessing the complaints,” Browne said in the decision.

She felt this was a breach to fairness, including the lack of a chance to make submissions during the penalty stage.

On the reasons issue, she felt they did not properly address problems, such as Gouniavyi’s credibility.

She clarified there is alibi evidence that the board found him credible.

She pointed out inconsistency in the decision. In one instance, the reasons state that Gouniavyi did not understand the severity of the allegation, while he provided a letter indicating that he did.

In another instance, the board said he was lying, yet later on said he was telling the truth.

None of these discrepancies were addressed.

She added that the only allegations that can be considered are those that fall within the one-year limitation period.

She now addressed the last issue – penalties being outside the board’s jurisdiction.

She looked to the board’s legislation, which dictated that it can impose a $500 fine, cancel a pharmacist’s licence or suspend it.

“The board has acted outside its jurisdiction in recommending penalties not expressly provided for in the Pharmacists Act,” Browne said in the decision.