He was convicted for dealing in cancer-treating treatment that lacked active ingredients
The Manitoba Court of Appeal has refused to allow cancellation of license held by a pharmacist who was embroiled in a criminal case in the United States.
In Thorkelson v The College of Pharmacists of Manitoba et al., 2023 MBCA 69, Kristjan Thorkelson is a pharmacist who was also the beneficial owner of CanadaDrugs.com group of companies. Included in CD.com Group were CanadaDrugs.com LP and River East Supplies Ltd. In 2015, Thorkelson was charged with misprision of a felony in the United States because his company allegedly sold a cancer-treating drug that lacked active ingredients. He was ultimately sentenced to 60 months probation and a fine of $250,000. The applicant's company allegedly sold a cancer-treating drug that lacked active ingredients.
In 2019, the Council to the College of Pharmacists of Manitoba cancelled Thorkelson's pharmaceutical license, finding that he was convicted of an offence relevant to his suitability to practise pharmacy.
Thorkelson appealed to the court. The application judge set aside the Council's decision and found that the appeal was a new hearing with no defence owed to the Council's decision. Like the Council, the application judge found that the misprision of a felony was an offence relevant to Thorkelson's suitability to practise pharmacy. However, the application judge concluded that cancelling Thorkelson's pharmacist licence was not an appropriate penalty.
The College elevated the matter to the Manitoba Court of Appeal, arguing that the application judge committed an error by not applying the appellate standard of review and showing deference to the Council's decision to cancel Thorkelson's license. Instead, the application judge treated Thorkelson's appeal as a new hearing.
In this case, the dispute focused on interpreting the relevant sections of the Pharmaceutical Act. The College contended that s. 25 of the act, which allows for an appeal of a license cancellation, should be subject to s. 22(1), meaning that the appeal should not be considered a new matter. However, the court rejected this interpretation, stating that the act indicated that the appeal should be considered as a new matter, allowing the application judge to redetermine the facts without deference to the findings under appeal.
The College further argued that the application judge committed a reviewable error by treating the cancellation of a license as disciplinary or punitive rather than administrative and applying principles and precedent respecting penalty in professional misconduct cases. However, the appeal court said the application judge's decision on whether to cancel Thorkelson's license was discretionary. In the absence of a reversible error of fact or law or a decision so wrong as to yield a genuinely unjust result, appellate intervention was not warranted.
Furthermore, the application judge noted that "cancellation of a professional licence is an extreme penalty and should only be imposed in severe cases." It was apparent to the appeal court that cancellation of a license under s. 23(3) of the act was as severe, financially and professionally punitive as cancellation of a license under the College's disciplinary process. In this context, the appeal court saw no reason in principle to differentiate between cancellation under the process in section 23(3) and cancellation under the disciplinary process. As such, the court believed that the application judge made no reversible error in applying the "relevant sentencing considerations for professional misconduct."
The College further argued that the application judge made an error in law or a palpable and overriding error by considering the penalty imposed by the Montana court. The appeal court explained that one of the sentencing considerations for professional misconduct is whether the applicant already suffered other serious financial or other penalties due to the allegations having been made. Accordingly, it was open to the application judge to consider the penalty imposed by the Montana Court.
The College said the application judge gave an excessive weight to the penalty imposed by the Montana Court. Still, this argument did not persuade the appeal court as it found that the application judge's reasons reflected that, in addressing whether the applicant's licence should be cancelled, she also appropriately considered relevant factors.
Ultimately, the court was not persuaded that the application judge misdirected herself in law, committed a reviewable error of fact or rendered a decision so clearly wrong that it amounts to an injustice. The appeal court found that the application judge considered case law where pharmacists were convicted of offences, and the College did not point to any decisions where the conduct of a comparable nature resulted in a pharmacist losing their licence.
Accordingly, the court found no basis to interfere with the application judge's decision on the appeal of the substantive issues.