Protecting the Public Interest

 

The Superior Court of Justice, Divisional District, in a July 4, 2024 decision, dismissed Mr. Rak’s appeal and rejected arguments that mitigating factors were not considered by the Discipline Committee and that the conditions placed on the Certificate of Registration were unreasonable. 

Mr. Rak has been registered with the Ontario College of Pharmacists (College) since 1999.  Since 2008, Mr. Rak has had a significant criminal history that included luring a person under 14, sexual interference, criminal harassment, and breaching bail.  As a result, the Discipline Committee of the Ontario College of Pharmacists placed conditions on the registration of Mr. Rak.  Specifically, Mr. Rak was “prohibited from dispensing to, consulting with, advising, counselling or performing any controlled act on any person under the age of 18 years except where another pharmacist…or a pharmacy technician…is present.”

In ugust 2014, the College initiated an investigation to determine whether Mr. Rak was complying with the conditions imposed.  Mr. Rak was again referred to the Discipline Committee that found he had breached the term of his Certificate in relation to four (4) incidents of the 37 presented, where he dispensed, consulted, advised, counselled, or performed a controlled act on a person under 18 without a supervisor present.  As a result, the Discipline Committee ordered a 12-month suspension and payment of $200,000 in costs.

In response to an appeal by Mr. Rak, the Divisional Court determined that the Discipline Committee’s interpretation of the conditions placed on Mr. Rak was “overly broad” in that it determined Mr. Rak “was prohibited from filling prescriptions for minors even where he had no direct dealings with them.”  The Divisional Court considered the four (4) incidents and found that Mr. Rak had in fact breached the condition of his Certificate, but only with respect to one (1) incident.  The Divisional Court set aside the penalty order and remanded the matter to the Discipline Committee to determine an appropriate penalty.  The Discipline Committee, after hearing, directed a four-month suspension and limited his practice to “retirement homes, long-term care homes and/or adult group homes, without providing services to or for minors, and with a supervisor.”

Mr. Rak appealed the redetermination.  The Court of Appeal would only intervene if the Discipline Committee was in error if the “penalty is clearly unfit”, disproportionate or fell outside the range of penalties imposed for similar conduct.  (See Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039, (Div. Ct.).) This Court found that the Discipline Committee did consider and weigh aggravating and mitigating factors.  Further, this Court concluded that the four-month suspension was not disproportionate given the seriousness of the conduct and penalties in comparable cases.  The Discipline Committee was appropriate in pursuing the public interest and in seeking to protect the public and “maintain public confidence.”

Appeal dismissed.