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Cassels Brock Successfully Defends Application for Judicial Review and Constitutional Challenge on Behalf of the Pharmacy Examining Board of Canada

Published: 04/26/2017

Team: Jed Blackburn, Tim Pinos, Robert Kligman

In a judgment dated April 26, 2017, a panel of the Divisional Court dismissed an application for judicial review commenced by a pharmacy candidate who had failed to pass the Pharmacy Examining Board of Canada’s qualifying examination within the maximum four permitted attempts. 

In his application, the applicant sought to quash an alleged “decision” of the Board rejecting the applicant’s request for a fifth attempt on the basis of certain personal circumstances. In addition, the applicant sought to challenge the Board’s existence altogether and strike down the federal statute under which it was incorporated on the basis that the regulation of professions lies within provincial jurisdiction. Alternatively, the applicant argued that the creation of an attempt limit itself was ultra vires the Board’s incorporating Act. 

The Divisional Court dismissed the application in its entirety. In doing so, Madam Justice Taylor (writing for the Court) held as follows:

  1. The Board’s response letter was not a reviewable “decision” as it did nothing more than set out the Board’s four attempt limit, which did not permit a fifth attempt at the qualifying examination; 
  2. The Board’s incorporating Act was intra vires Parliament as it does not purport to regulate a profession, but merely authorizes the Board to create and administer an examination for qualification of pharmacists across Canada which provincial licensing bodies may choose to rely on at their discretion; and
  3. The Board’s creation of an attempt limit was intra vires the incorporating Act since it amounts to nothing more than establishing the terms and conditions of the qualifying examination as expressly permitted by the Act, and does not result in any regulation of the profession by restricting entry.

This decision is significant as it reiterates that not every response letter from an administrative body will constitute a decision that is amenable to judicial review. It also makes important findings with respect to the constitutional division of powers and upholds the Board’s incorporating Act. 

The Board was represented in the application for judicial review by Jed Blackburn and Tim Pinos, with support from Rob Kligman.

A copy of the reported decision can be found here.