Home Featured ‘Self-contradictory and arguably bizarre’: Ontario court strikes down discipline against pharmacist, citing issues with victim’s credibility

‘Self-contradictory and arguably bizarre’: Ontario court strikes down discipline against pharmacist, citing issues with victim’s credibility

by HR Law Canada

A ruling by the Discipline Committee of the Ontario College of Pharmacists has been mostly set aside after a court found the complainant’s evidence against a pharmacist to be “self-contradictory and arguably bizarre.”

The college originally ruled the pharmacist was guilty of professional misconduct after the worker — a pharmacy employee — made allegations of harassment, including touching and inappropriate comments. It issued a penalty against the pharmacist, including a reprimand, 16-month suspension, a $10,000 fine, and $250,000 in costs.

The pharmacist appealed both the finding and the penalty to the Ontario Divisional Court.

Criminal charges

The pharmacist was charged criminally, and acquitted, before the college’s hearing took place. He was required to let the college know within 30 days of the charges, but failed to do so. He thought he could wait until his annual filing, at which time he did report them.

But the court said it was his duty to know the rule, and his omission on that count amounted to professional misconduct.

The office incident

The college considered evidence that, on or about Sept. 14, 2013, the pharmacist repeatedly attempted to grab the complainant’s breasts, reach into her pants and shirt, and place her hand on his groin.

It then ran through a litany of other incidents, including an attempt to hug her; placing his hands on her breasts; asking her to accompany him to the freezer and trying to touch her; and that during her two-and-a-half years at the pharmacy he sexually harassed and assaulted her at least once or twice a week.

Issues with credibility

The court, though, noted the committee did not mention a number of issues with the complainant’s credibility. For example, with respect to the freezer incident, the complainant maintained both that the pharmacist touched her and that he did not touch her.

The complainant also testified that various security videos showed the pharmacist assaulting her, but they did not. She also made allegations of sexual and other serious misconduct against other employees at the store.

“She alleged that she had been sexually harassed by a merchandiser She alleged that two employees were involved in theft and fraud. She tried to catch these employees and spent hours reviewing video surveillance evidence to do so. Based on her accusations investigations were commenced. None of her allegations were substantiated,” it said.

The court said, viewed in their entirety, the “complainant’s evidence was self-contradictory and arguably bizarre at times.” It was also contradicted by another employee, whose evidence was accepted, and by video surveillance evidence.

In short, she had a history of making serious allegations against other employees — allegations that were never proven.

“Rather than deal with these issues, it appears that the Committee compartmentalized the evidence charge by charge and omitted to consider it as a whole when determining the reliability of the complainant on the charges on which it found misconduct,” the court said. “That was an error.”

It said the verdict on the office incident could not stand, and must be tried again.

Sexual harassment from time to time  

The committee ruled that certain video evidence was consistent with discrete incidents of opportunistic harassment.

But the videos showed nothing improper, the court said.

“In the first video, the complainant approached the (pharmacist) and engaged him in conversation. His arms were crossed the whole time. In the other two videos the (pharmacist) walked past the complainant. These events took place a year after the (pharmacist) told the complainant to stay away from him,” the court said. “None of this constitutes harassment and none of it is capable of supporting a conclusion that the appellant engaged in unwelcome advances from time to time.”

The fact the pharmacist may have told her to stay away from him, and then did not take sufficient steps to stay away from her, is not a basis for finding he engaged in unwelcome advances, it said. It set aside that finding of misconduct.

The ruling

The court noted the penalty from the college was imposed for three acts of misconduct, two of which it set aside.

“The penalty is set aside as well,” it said. It referred the matter back to the college’s committee, “differently constituted,” to try whether the pharmacist committed misconduct with respect to the office incident of Sept. 14, 2013.

If so, a penalty should be imposed and, if not, it should be dismissed. It also said the college needed to impose a penalty for failing to report the criminal charges within 30 days.

It awarded costs to the pharmacist in the amount of $17,500.

For more information, see Aslam v Ontario College of Pharmacists, 2023 ONSC 2549 (CanLII)

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