Federal Court Decisions

     T-1961-95

BETWEEN:

     SAHAR ELGUINDI

     Applicant

     - and -

     CANADA (MINISTER OF HEALTH) AND

     DIRECTOR OF BUREAU OF DRUG SURVEILLANCE

     Respondents

     REASONS FOR ORDER

JEROME A.C.J.:

     This motion by the applicant for an order staying the execution of the judgment of Mr. Justice Muldoon dated December 5, 1996, pending the disposition of the applicant's appeal, and for an order extending the operation of the interlocutory injunction granted on January 22, 1996, until the final disposition of the applicant's appeal, came on for hearing at Toronto, Ontario on December 16 and 23, 1996 and on January 20, 1997. By Order dated December 23, 1996, I dismissed the applicant's motion for a stay. At the conclusion of argument on January 20, 1997, I took the motion for the extension of the interlocutory injunction under reserve and indicated that these written reasons would follow.

BACKGROUND

     The applicant is a pharmacist licensed to practise in Ontario. The respondent, the Director of the Bureau of Drug Surveillance, made a decision that notices would be sent to the Ontario College of Pharmacists and to its members and licensed narcotics dealers prohibiting them from dispensing narcotic drugs to fill any order of the applicant. Before Mr. Justice Muldoon, the applicant sought an order setting aside the decision of the Director of the Bureau of Drug Surveillance. By Order dated December 5, 1996, the application for judicial review was dismissed.

     An interlocutory injunction preventing the Director and the Ontario College of Pharmacists from issuing the notices was in place pending the outcome of the judicial review application. The applicant now seeks to have the injunction extended until the conclusion of her appeal of Mr. Justice Muldoon's decision. The Federal Court of Appeal has granted a motion for an expedited appeal, which is scheduled to be heard in Toronto, Ontario, on April 29, 1997.

SUBMISSIONS OF THE PARTIES

     The applicant submits that the extension of the injunction should be granted as each of the elements of the three-part test have been satisfied. The applicant states that serious issues for appeal exist:

(i) Did Muldoon J. err in finding that despite the Director's breaches of procedural fairness in coming to the Decision, the Director's Decision should not be quashed because the Decision was "inevitable"?;

(ii) Did Muldoon J. err in failing to find that there was a reasonable apprehension that the Director had predetermined the issues of (1) whether there was a shortage of narcotics; (2) whether the Applicant had violated the Regulations; and (3) whether the matter should proceed towards notification, and that therefore there was a reasonable apprehension of bias;

(iii) Did Muldoon J. err in law by interpreting ss.50(d) and (e) of the Regulations as effectively requiring the Applicant to prove who "stole" or "pilfered" the alleged missing narcotics and how they were stolen or pilfered?

(iv) Did Muldoon J. err by not quashing the Decision on the ground that the Director based his Decision on an erroneous finding of fact without regard for the material before him?

     The applicant submits that the issuance of notices against her will have a significant negative impact on the applicant's professional reputation, have a significant negative impact on her ability to obtain full time employment as a pharmacist, and will destroy the applicant's career. As such, the applicant states that there will be irreparable harm suffered by her if the injunction is not extended.

     The applicant argues that the balance of convenience is in her favour as the respondents have already waited a considerable amount of time to issue the notices and there would be no irreparable harm and very little inconvenience to them in waiting until the Court of Appeal's final disposition of the matter. In addition, if the notices are issued the applicant will be irreparably harmed as her reputation and career will be destroyed and, to a large extent, the benefits of a successful appeal will be reduced.

     The respondents submit that the applicant has failed to meet the three requirements for an injunction and that, therefore, the extension should not be granted. The respondents argue that no serious issue exists as Mr. Justice Muldoon took into account all of the relevant facts and circumstances in reaching his decision and correctly applied the law.

     The respondents state that the applicant has failed to meet the burden of proof of establishing harm to her reputation and has only adduced speculative evidence regarding the impact which the issuance of the notices will have on her present and future employment. Further, the respondents submit that the question of irreparable harm to the respondents must be considered as there is a clear and present danger to the public health by allowing the applicant to continue ordering narcotics. Finally, the respondents submit that the balance of convenience clearly tilts towards protection of public health.

ANALYSIS

     In R.J.R.-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, the Supreme Court of Canada affirmed the three part test to be applied to applications for injunctions:

1.      the moving party must demonstrate the existence of a serious question;

2.      the moving party must convince the Court that it will suffer irreparable harm if the relief is not granted. Irreparable harm is harm which cannot be quantified in monetary terms or which cannot be cured; and

3.      the balance of convenience must be assessed.

     In my view, the applicant has satisfied these three elements. A serious issue exists for appeal regarding whether Mr. Justice Muldoon erred in finding that, despite breaches of procedural fairness in the respondent's decision to issue notices, the decision should not be quashed because it was inevitable. The applicant will suffer irreparable harm to her professional reputation and career. The issuance of the notices will place the applicant's livelihood in jeopardy. I find that the balance of convenience favours the applicant, particularly in light of the fact that the appeal will be dealt with on an expedited basis.

     For these reasons, the applicant's motion for an extension of the operation of the interlocutory injunction granted by Order dated January 22, 1996, until the final disposition of the applicant's appeal is allowed.

O T T A W A                     

March 27, 1997                      "James A. Jerome"

                             A.C.J.