Facts:
C, a veterinarian, ran a sub-distribution operation whereby veterinary drugs were re-sold to human pharmacies. After a complaint by a drug distributor, a panel of the Discipline Committee of the College of Veterinarians found that C’s conduct constituted professional misconduct, as it was contrary to a newly amended regulation which restricted such re-sales to “reasonably limited quantities in order to address a temporary shortage”. The drugs re-sold by C were neither in “reasonably limited quantities” nor were they to address any temporary shortage. As a result of pharmaceutical companies’ refusal to sell veterinary drugs to human pharmacies, pharmacies were in a state of permanent—rather than temporary—shortages of these drugs.
C argued that the regulations were unconstitutional on grounds of vagueness and overbreadth under s. 7 of the Charter. The panel rejected this argument, explaining that the provision was not invalid because it did not include a specific quantum. Instead, whether re-selling is contrary to the regulation will depend on the particular circumstances. The panel held that C’s re-selling operation, considered as a broader course of conduct, contravened the regulation. It imposed a one-month suspension, as well as awarding the College one-third of its costs.
C appealed to the Divisional Court, arguing that the Discipline Committee erred in upholding the constitutionality of the provision, erred in finding he had engaged in professional misconduct, and that its order on penalty was unreasonable. The Divisional Court dismissed the appeal.
Decision:
Appeal dismissed (per Trotter, Benotto, and Zarnett JJ.A.).
The Divisional Court correctly held that the impugned provision was not unconstitutional.
In general, s. 7 of the Charter does not protect economic interests. As the Court of Appeal held in Tanase v. College of Dental Hygienists of Ontario1, neither professional disciplinary proceedings, nor the sanctions that may flow from them, engage the right to liberty or security of the person under s. 7. Before the Court of Appeal, C clarified that he was no longer grounding his vagueness and overbreadth arguments in s. 7, but instead in the rule of law.
Whether C’s submissions were rooted in the Charter or in the rule of law, the impugned provision was neither impermissibly vague, nor overbroad. The fact that a regulation requires interpretation in the context of a specific factual matrix is not sufficient to render it unconstitutionally vague. The phrases “in reasonable quantities” as a result of a “temporary shortage” inform each other’s content, with the ‘reasonably limited quantities’ being quantities proportionate to the ‘temporary shortage’.
The impugned provision was also not overbroad by virtue of capturing conduct that has not caused actual harm. The College is entitled to regulate its members to mitigate risk, rather than being required to wait for actual harm to materialize. Further, it was immaterial that in light of pharmaceutical companies’ refusal to supply veterinary drugs to human pharmacies, the regulation in effect amounted to a categorical prohibition on the re-sale of drugs to pharmacies. The regulation was sufficiently tailored to its objective, regardless of how it impacted pharmacies.
The Divisional Court did not err in upholding the panel’s finding of professional misconduct. The evidence before the panel clearly indicated that C’s operation was not responding to “temporary shortages” but was instead filling orders without requiring any explanation, and he continued in his sub-distribution business despite warnings about this conduct.
The Divisional Court similarly did not err in upholding the penalty imposed by the panel, which included a one-month suspension, public reprimand, an ethics course, and an award of approximately $94,000 in costs to the College. Nothing about the penalty imposed was clearly unreasonable or demonstrably unfit. Similarly, discipline committees command a wide discretion in crafting a costs award, and the amount ordered was reasonable in the circumstances.
Commentary:
With the court declining to expressly resolve the juristic basis for its analysis, it appears to confirm that the vagueness threshold for regulations is the same, whether considered as a principle of fundamental justice under s. 7 or under more general “rule of law” principles. Accordingly, while vagueness and overbreadth challenges may still be available in situations where s. 7 is not engaged (such as the professional discipline context), litigants continue to face a very high threshold. Regulations and other subordinate legislation need not achieve absolute precision, as long as they provide sufficient guidance for legal debate. This would seem to suggest that in cases where s. 7 is available, there is minimal tactical advantage to framing vagueness arguments under one or the other.
Interestingly, despite C’s vagueness and overbreadth arguments being rooted in s. 7 of the Charter before both the Discipline Committee and the Divisional Court, it was not until the Court of Appeal that the issue of the non-application of s. 7 in the professional discipline context was expressly raised. Rather than dismissing this ground of appeal on the basis that there was no deprivation of liberty or security of the person, the court invited supplementary submissions from the parties and allowed C to proceed with his vagueness and overbreadth submissions on a different juristic footing. Although this in some ways strays into permitting new arguments to be raised on appeal, this case should not be viewed as an invitation to do so in other cases. The court’s willingness to consider both the Charter and rule of law arguments is likely attributable to the same legal standard applying under both, enabling the appellate court to continue to rely on the reasons below.
The court’s conclusions on overbreadth also suggest a deferential approach in the regulatory context where the focus of the impugned measures is on risk mitigation. Regulations may capture conduct which does not itself cause actual harm without becoming overbroad. Further, courts will not entertain challenges to the wisdom of a regulation disguised as overbreadth arguments: the focus is not on the broader impact of the impugned provision (here, that the restriction in effect amounted to a categorical prohibition on re-sales), but instead on whether it captures conduct beyond what is required to achieve its specific purpose.