Pharmascience Inc. v. Binet

Pharmascience Inc. v. Binet
Collection
Supreme Court Judgments
Date
2006-10-26
Neutral citation
2006 SCC 48
Report
[2006] 2 SCR 513
Case number
30995
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Quebec
Subjects
Professional law
Notes
SCC Case Information: 30995
Decision Content
SUPREME COURT OF CANADA
Citation: Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, 2006 SCC 48
Date: 20061026
Docket: 30995
Between:
Jocelyn Binet
Appellant
and
Pharmascience Inc. and Morris S. Goodman
Respondents
And between:
Attorney General of Quebec
Appellant
and
Pharmascience Inc. and Morris S. Goodman
Respondents
Official English Translation: Reasons of LeBel J.
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 70)
Dissenting Reasons:
(paras. 71 to 86)
LeBel J. (McLachlin C.J. and Bastarache, Binnie, Deschamps, Charron and Rothstein JJ. concurring)
Abella J. (Fish J. concurring)
______________________________
Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, 2006 SCC 48
Jocelyn Binet Appellant
v.
Pharmascience Inc. and Morris S. Goodman Respondents
‑ and ‑
Attorney General of Quebec Appellant
v.
Pharmascience Inc. and Morris S. Goodman Respondents
Indexed as: Pharmascience Inc. v. Binet
Neutral citation: 2006 SCC 48.
File No.: 30995.
2006: May 9; 2006: October 26.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for quebec
Law of professions — Ethics — Syndic’s powers of investigation — Injunction — Syndic of Ordre des pharmaciens requiring manufacturer of generic drugs to provide him with any documents indicating that rebates, discounts or other benefits had been granted to pharmacists — Whether power of inquiry provided for in s. 122 of Professional Code authorizes syndic of professional order to request information from persons who are not members of that order — Whether, where third party refuses to provide requested information, syndic may seek injunction pursuant to Code of Civil Procedure — Professional Code, R.S.Q., c. C‑26, ss. 2, 122, 191 — Code of Civil Procedure, R.S.Q., c. C‑25, art. 751.
In 2003, the Quebec media reported that a large number of pharmacists had received rebates, discounts and other financial benefits from generic drug manufacturers in exchange for orders for drugs, a practice that is prohibited by the Code of ethics of pharmacists. Based on information from proceedings instituted by the Régie de l’assurance maladie du Québec against the manufacturers in question, the syndic of the Ordre des pharmaciens began an inquiry. To aid in this inquiry, the syndic asked a generic drug manufacturer to provide him with any documents indicating that rebates, discounts or other benefits had been granted to pharmacists. Despite repeated requests from the syndic, the manufacturer refused to forward the documents and filed a motion for a declaratory judgment to have the requests for documents declared null and illegal. In a cross demand, the syndic sought a permanent injunction to compel the manufacturer to deliver the documents to him. The Superior Court issued the injunction provided for in art. 751 of the Code of Civil Procedure. The Court of Appeal reversed that decision and ordered the syndic to return the documents he had received.
Held (Fish and Abella JJ. dissenting): The appeal should be allowed and the injunction restored.
Per McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Charron and Rothstein JJ.: A grammatical analysis of the statutory provision together with a review of the relevant contextual aspects, such as the purpose of the statute and of the provision in issue, confirms that the legislature intended to subject third parties to the syndic’s power of inquiry under s. 122 of the Professional Code. The ordinary meaning of the pronoun “on” used in the French version of that section favours the argument that the obligation to co‑operate applies to everyone. Furthermore, s. 2, which states the general principle that the Code applies to all professions, does not limit the effect of statutes governing professionals to members of the orders concerned. Such a limit would fail to take sufficient account of the public protection objective of the Professional Code, which cannot be attained unless certain provisions of the Code apply to or affect third parties. The privilege of professional self‑regulation places the individuals responsible for enforcing professional discipline under an onerous obligation. Since the delegation of powers by the state comes with the responsibility for providing adequate protection for the public, it should be expected in this context that individuals with not only the power, but also the duty, to inquire into a professional’s conduct will have sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged. The offence of which the pharmacists in the case at bar are accused is committed when a benefit is received from a third party. Logically, an inquiry into the commission of the offence in question must therefore extend to third parties. The fact that a professional order’s committee on discipline has powers of investigation does not in any way indicate that the means available to a syndic in conducting his or her own prior inquiry must be interpreted narrowly. These two authorities play different, but complementary, roles. It is in everyone’s interest to ensure that a syndic who files a disciplinary complaint has detailed knowledge of the accusations against the professional and that the evidence at the syndic’s disposal is complete. [29‑39] [42]
The words used in s. 122 circumscribe the syndic’s power. The section expressly provides that the information upon which the syndic relies to require the disclosure of information or documents must raise a suspicion that an offence has been committed. However, at this stage, the syndic need not be in a position to identify exactly which professionals are under suspicion. The individualized process provided for in the Professional Code is the lodging of a complaint with the committee on discipline. The syndic’s inquiry precedes this process and is aimed at determining whether a complaint should be lodged. In the instant case, the syndic had reliable information from a government authority and from legal proceedings. He was relying on facts that established a reasonable basis for his inquiry. The scope of the inquiry does not make it a random one. The syndic’s inquiry concerns allegations of clear breaches of the Code of ethics of pharmacists. The syndic has not only the jurisdiction but also the duty to intervene to protect the public. The mere fact that the purpose of the inquiry is to identify the offenders as opposed to determining the specific circumstances of the offence, which would be a more typical situation, is not determinative. [43] [45] [47]
The Superior Court exercised its discretion properly in granting the injunction provided for in art. 751 of the Code of Civil Procedure. In Quebec procedural law, the existence of a specific remedy under a special statute does not close the door on the general law injunction, especially where the public interest requires one. It is the Superior Court judge who must consider the impact of the specific remedy provided for in another statute. The existence of that remedy is one element of the set of circumstances the judge will have to weigh in deciding whether the requested order is warranted. Thus, the existence of a specific sanction under a special statute does not preclude a general law injunction where the circumstances require one. In the circumstances that gave rise to the dispute in the case at bar, the injunction provided for in s. 191 of the Professional Code to prevent the repeated commission of penal offences would not have been an appropriate and effective remedy. The case before the syndic was not, strictly speaking, one of repeated violations, and no penal prosecution had been instituted. Moreover, such proceedings could not have been commenced without prior authorization from the Attorney General, as a syndic cannot act alone. A timely and effective remedy to the failure to co‑operate with the syndic’s inquiry was needed to allow the syndic and the Ordre des pharmaciens to fulfil their obligation of diligence in disciplinary matters. Moreover, in an analysis of serious harm resulting from an offence under the Professional Code, the fact that this statute is a law of public order must be taken into account. When the public interest is at stake, a proliferation of court challenges may make a general law injunction necessary. In light of the evidence of the syndic’s difficulties in obtaining essential documents for his inquiry and given the manufacturer’s refusals and court challenges, the trial judge properly found, in exercising his discretion, that those refusals and that conduct were intended to paralyse the inquiry. The Court of Appeal was not justified in questioning that finding. [57] [60] [63‑67]
Per Fish and Abella JJ. (dissenting): In circumstances where s. 122 of the Professional Code applies, the syndic can obtain information and documents from third parties. This section, however, does not confer a general investigatory power, which is reserved to the Inspection Committee of the Bureau. A syndic is confined by s. 122 to requesting information only in relation to allegations that a particular professional or group of professionals have breached the Code. The scope of investigations is clearly limited by the individualized nature of disciplinary hearings. This individual disciplinary investigation is in contrast to the wider powers of the Bureau’s Inspection Committee which has responsibility for overseeing the entire profession and for investigating matters affecting it. In this case, the syndic launched an investigation to try to identify members who had committed an infraction. Binet had no information regarding any specific, identifiable pharmacists. What he had was general information, obtained from as yet unconcluded legal proceedings against generic pharmaceutical companies, that unnamed pharmacists had been receiving kickbacks. The syndic did not have the information necessary to trigger his power of investigation under s. 122. [72-73] [76] [78] [80-81]
An injunction cannot be issued in these circumstances in the absence of the consent of the Attorney General. The enforcement mechanism envisioned in the Professional Code is found in the interplay of ss. 114, 122, 188 and 191. Although art. 751 of the Code of Civil Procedure provides the Superior Court with broad powers to order injunctions, these powers yield to the particular procedures in the Professional Code, which exhaustively defines the remedies available when it is violated. Even assuming that the request for an injunction was not premature, it is clear from s. 191 that Binet was not permitted to ask the court for an injunction as the Attorney General neither authorized nor requested it. [82] [84‑85]
Cases Cited
By LeBel J.
Distinguished: Beaulne v. Kavanagh‑Lemire, [1989] R.J.Q. 2343; James Richardson & Sons Ltd. v. Minister of National Revenue, [1984] 1 S.C.R. 614; City of Montreal v. Morgan (1920), 60 S.C.R. 393; approved: Coutu v. Ordre des pharmaciens du Québec, [1984] R.D.J. 298; Ordre des optométristes du Québec v. Vision Directe Inc., [1985] C.S. 116; referred to: Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36; Khalil v. Corporation professionnelle des opticiens d’ordonnances, [1991] D.D.C.P. 316; Delisle v. Corporation professionnelle des arpenteurs‑géomètres, [1991] D.D.C.P. 190; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Bristol‑Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533, 2005 SCC 26; Charlebois v. Saint John (City), [2005] 3 S.C.R. 563, 2005 SCC 74; Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47, 2005 SCC 6; Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724; Glykis v. Hydro‑Québec, [2004] 3 S.C.R. 285, 2004 SCC 60; Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, [2005] 3 S.C.R. 425, 2005 SCC 70; Montréal (City) v. 2952‑1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62; Ordre des comptables généraux licenciés du Québec v. Québec (Procureur général), [2004] R.J.Q. 1164; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45; Parizeau v. Barreau du Québec, [1997] R.J.Q. 1701; Atkinson v. Newcastle Waterworks Co., [1874‑80] All E.R. Rep. 757; Couch v. Steel (1854), 3 El. & Bl. 402, 118 E.R. 1193; Pasmore v. Oswaldtwistle Urban District Council, [1898] A.C. 387; Deveault v. Centre Vu Lebel & Des Roches Inc., Sup. Ct. Montreal, No. 500‑05‑003478‑854, May 24, 1985; Ordre des optométristes du Québec v. United States Shoe Corp., SOQUIJ AZ‑89021102; Barreau du Québec v. Descôteaux, SOQUIJ AZ‑95021889; Ordre des pharmaciens du Québec v. Meditrust Pharmacy Services Inc., [1994] R.J.Q. 2833.
By Abella J. (dissenting)
James Richardson & Sons Ltd. v. Minister of National Revenue, [1984] 1 S.C.R. 614; Beaulne v. Kavanagh‑Lemire, [1989] R.J.Q. 2343.
Statutes and Regulations Cited
Act respecting prescription drug insurance, R.S.Q., c. A‑29.01, s. 60.
Act respecting the Barreau du Québec, R.S.Q., c. B‑1.
Canadian Charter of Rights and Freedoms, s. 8 .
Code of Civil Procedure, R.S.Q., c. C‑25, art. 751.
Code of ethics of pharmacists, R.R.Q. 1981, c. P‑10, r. 5, s. 3.05.06.
Income Tax Act, S.C. 1970‑71‑72, c. 63, s. 231.
Interpretation Act, R.S.Q., c. I‑16, s. 41.
Optometry Act, R.S.Q., c. O‑7.
Pharmacy Act, R.S.Q., c. P‑10, s. 3.
Professional Code, R.S.Q., c. C‑26, ss. 2, 23, 26, 27, 112 to 114, 116, 122, 123, 144, 146, 147, 156, 188, 188.1 to 189, 191.
Regulation respecting the conditions on which manufacturers and wholesalers of medications shall be recognized, (1992) 124 G.O. II, 3264, Sch. 1, ss. 1(4), 2(5).
Authors Cited
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 3rd ed. Montréal: Thémis, 2000.
Gendreau, Paul‑Arthur, et autres. L’injonction. Cowansville, Qué.: Yvon Blais, 1998.
Petit Larousse illustré. Paris: Larousse, 2004, “on”.
Poirier, Sylvie. La discipline professionnelle au Québec: principes législatifs, jurisprudentiels, et aspects pratiques. Cowansville, Qué.: Yvon Blais, 1998.
Québec. Assemblée nationale. Journal des débats, 4e sess., 29e lég., 6 juillet 1973, p. 2270.
Quebec. Commission of Inquiry on Health and Social Welfare. Report of the Commission of Inquiry on Health and Social Welfare, vol. VII, t. 1, The Professions and Society. Quebec: Government of Quebec, 1970.
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.
APPEAL from a judgment of the Quebec Court of Appeal (Brossard, Nuss and Morissette JJ.A.), [2005] R.J.Q. 1352, [2005] Q.J. No. 4696 (QL), 2005 QCCA 427, reversing a decision of Déziel J., [2005] R.J.Q. 90, [2004] Q.J. No. 11246 (QL). Appeal allowed, Fish and Abella JJ. dissenting.
Philippe Frère, Odette Jobin‑Laberge and Josiane L’Heureux, for the appellant Jocelyn Binet.
Benoît Belleau and Pierre Arguin, for the appellant the Attorney General of Quebec.
Guy Du Pont, Marc‑André Boutin, Mathieu Bouchard and Jean‑Philippe Groleau, for the respondents Pharmascience Inc. and Morris S. Goodman.
English version of the judgment of McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Charron and Rothstein JJ. delivered by
LeBel J. —
I. Introduction
1 This appeal concerns the validity of an order of injunction issued by the Quebec Superior Court. The order directed the respondent Pharmascience Inc. (“Pharmascience”), a generic drug manufacturer, to provide the appellant Binet, syndic of the Ordre des pharmaciens du Québec (“Order”), with information regarding allegations of unlawful rebates and benefits provided to pharmacy owners. In my respectful view, the appeal must be allowed. The Superior Court was correct to grant the injunction, and the appellant is entitled to the information requested pursuant to s. 122 of the Professional Code, R.S.Q., c. C‑26 (“Prof. C.” or “Code”).
II. Origin of the Case
2 The case at bar arose in 2003, when a scandal involving a large number of Quebec pharmacy owners received extensive coverage in the Quebec media. It was alleged that the owners had unlawfully received rebates, discounts and other financial benefits from generic drug manufacturers in exchange for orders for drugs. The case concerns an inquiry process that could lead to disciplinary complaints against pharmacists for having accepted such discounts. In parallel, the Régie de l’assurance maladie du Québec (“RAMQ”) has instituted civil proceedings against certain manufacturers.
3 In order to better understand the stratagem that was used, according to the RAMQ, it is important to briefly review the drug insurance plan in effect in Quebec. Under the plan, registered individuals pay only part of the cost of certain prescription medications. The remainder of the sale price is covered by the RAMQ, which pays the pharmacists directly. The medications the cost of which is covered in part by the RAMQ are found on a list drawn up by the Minister (s. 60 of the Act respecting prescription drug insurance, R.S.Q., c. A‑29.01). Each medication on the list must be provided at a “guaranteed” selling price established by the manufacturer in accordance with certain conditions.
4 According to the allegations made in the proceedings instituted by the RAMQ, the manufacturers recovered the cost of kickbacks given to pharmacy owners by inflating the guaranteed selling price of their generic drugs. The same medication could thus cost 40 percent more on average in Quebec than elsewhere in Canada. However, according to the undertaking manufacturers are required to give the RAMQ, the guaranteed selling price “must not be higher than any selling price granted by the manufacturer for the same drug under other provincial drug insurance programs” (Regulation respecting the conditions on which manufacturers and wholesalers of medications shall be recognized, (1992) 124 G.O. II, 3264, Sch. I, s. 1(4)). In its undertaking, the manufacturer also agrees to comply with the requirement that “no property given without consideration and no reduction given in the form of a rebate, discount or premium may be granted to a buyer” (Sch. I, s. 2(5)). The kickbacks allegedly represented between 28 and 50 percent of the cost of certain generic drugs purchased by the pharmacy owners. In other words, for every $100 purchase of generic drugs, a pharmacy owner could receive between $28 and $50 in discounts and benefits in various forms.
5 The RAMQ therefore brought actions in damages against certain manufacturers to recover the kickbacks that had allegedly been given to the pharmacists. It alleged that it had paid for these kickbacks indirectly by reimbursing pharmacy owners for generic drugs sold at inflated prices.
6 The Code of ethics of pharmacists, R.R.Q. 1981, c. P‑10, r. 5 (“Code of ethics”), prohibits accepting “any benefit, allowance or commission” (s. 3.05.06). Upon reviewing the RAMQ’s legal proceedings against certain manufacturers, the syndic of the Ordre des pharmaciens, Jocelyn Binet, noted that the Quebec pharmacy owners in question, who represented approximately one quarter of the Order’s six thousand (6,000) registered pharmacists, may have received approximately $200,000,000 in rebates or other benefits between 2000 and 2003. The allegations in the RAMQ’s lawsuit referred not only to payments for training given to pharmacists’ employees and the delivery of pharmacy equipment, such as weekly pill organizers, but also to the provision of prepaid purchase cards, offers of free travel, payment of the cost of construction materials and renovation work, the leasing and purchase of vehicles, and the purchase and installation of swimming pools. The manufacturers were even alleged to have paid for houses either in part or in whole, and to have provided cash, gasoline vouchers, and interest‑free loans. According to the allegations in the RAMQ’s proceedings, Pharmascience’s share of these illegal payments was in excess of $39,000,000.
7 On June 11, 2003, to aid in his investigation, Syndic Binet asked Pharmascience to provide him with any documents indicating that rebates, discounts or other benefits had been granted to pharmacists. His request was based on his powers under s. 122 Prof. C.:
122. The syndic and assistant syndics may, following an [sic] information to the effect that a professional is guilty of an offence contemplated in section 116 [offences against the Professional Code, the regulations made under it or the Act constituting the Order], inquire into the matter and require that they be provided with any information or document relating to such inquiry. . . .
8 Despite repeated requests from the syndic, Pharmascience refused to forward the documents. A few weeks later, the syndic contacted the respondent Goodman, a director of Pharmascience and a pharmacist entered on the roll of the Order, to obtain the information. Mr. Goodman, too, refused to disclose any documents whatsoever. A complaint against him was lodged with the Order’s committee on discipline. In October 2003, Pharmascience and Mr. Goodman took the initiative of bringing a motion for a declaratory judgment to have the disclosure requests declared null and illegal. In a cross demand, the syndic sought a permanent injunction compelling Pharmascience to deliver the documents to him.
III. Judicial History
A. Superior Court, [2005] R.J.Q. 90
9 Déziel J. found that pharmacist Goodman was subject to the syndic’s power of inquiry, even though he had not been a practising pharmacist for several years. On the issue of whether Mr. Goodman had violated his Code of ethics, the judge deferred to the committee on discipline, which would have to rule on the complaint lodged against him.
10 In Déziel J.’s view, the use of the pronoun “on” in the French version of s. 122 suggests that the legislature did not intend that only professionals should be obliged to provide the syndic with information. The objective of monitoring professions adequately is another factor in favour of a large and liberal interpretation. For Déziel J., the syndic’s request was valid and in compliance with the power granted by the legislature under s. 122. The syndic had sufficiently specific information to make the request. Since he saw no ambiguity in s. 122 Prof. C., Déziel J. did not think it necessary to refer to the values protected by the Canadian Charter of Rights and Freedoms to assess the validity of the syndic’s information request. In any event, he considered that, because of the highly regulated nature of the sale of drugs, Pharmascience’s expectation of privacy with regard to the documents requested by the syndic was significantly lower. Given the importance of the syndic’s role in protecting the public, the alleged acts, which — if the allegations were true — were very costly to Quebec’s public purse, the potential delay inherent in the disciplinary proceedings against Mr. Goodman, and the evidence demonstrating the existence of the requested documents and information, the judge concluded that the application for a permanent injunction met the criteria of art. 751 of the Code of Civil Procedure, R.S.Q., c. C‑25 (“C.C.P.”).
B. Quebec Court of Appeal (Brossard, Nuss and Morissette JJ.A.), [2005] R.J.Q. 1352, 2005 QCCA 427
11 The Quebec Court of Appeal allowed the appeal and ordered the syndic to return the documents he had received. It granted the application for a declaratory judgment and ruled that s. 122 Prof. C. could not be set up against Pharmascience or against Mr. Goodman in his capacity as an officer of that corporation. Accordingly, the court quashed the injunction order against Pharmascience.
12 Brossard J.A., writing for a unanimous Court of Appeal, stated that the use of the word “on” in the French version of s. 122 makes the provision ambiguous and that the provision must therefore be interpreted in accordance with s. 8 of the Charter . The court considered the syndic’s power to be specific and limited: his investigation had to target a professional and had to be based on information that an offence had been committed. In the court’s view, this interpretation was supported by Baudouin J.A.’s conclusion in Beaulne v. Kavanagh‑Lemire, [1989] R.J.Q. 2343 (C.A.), that s. 122 Prof. C. did not authorize sending a questionnaire to a group of professionals for the purpose of discovering which of them had committed a specific act. According to the court, the rationale for applying the reasoning in Beaulne is even stronger when third parties are involved. Section 122 must be read in conjunction with s. 2 Prof. C., which limits the scope of the syndic’s powers to “professional orders and to their members”.
13 Although he confirmed that the Superior Court had jurisdiction to issue the injunction, Brossard J.A. nevertheless found that the grounds on which the order was granted had not been established. For instance, according to the Court of Appeal, the fact that the syndic had not obtained the requested information had in no way affected the RAMQ’s lawsuit and had accordingly had no impact on the public purse. Nor, since the injunction did not apply to Mr. Goodman, was there any relevance in the fact that the disciplinary proceedings brought against him might be lengthy. The syndic thus had not shown that he would suffer real and permanent harm if the injunction were refused. According to the court, he could have waited for the information to be provided in the course of the legal proceedings or the disciplinary process already in progress.
C. Appeal to This Court
14 This Court granted leave to appeal in the case at bar for the purpose of determining whether s. 122 Prof. C. imposes on third parties an obligation to disclose information required by a syndic for an inquiry and, if so, whether the syndic can obtain an injunction under the general law to compel the disclosure of documents. The issue of the respondent Goodman’s ethical responsibility in his capacity as a pharmacist is not before this Court and will ultimately, as the courts below have mentioned, be decided by the committee on discipline that hears the complaint against him. Nor is the constitutionality of s. 122 Prof. C. in issue.
IV. Analysis
A. Issues
15 The main issue raised by this appeal is thus whether s. 122 Prof. C. authorizes a syndic to request information from third parties and, if so, whether the circumstances of the case at bar meet the conditions for making such a request. It will then have to be determined whether, should a third party refuse, a syndic may seek an injunction pursuant to the Quebec Code of Civil Procedure to compel the third party to provide the requested information.
B. Positions of the Parties
1. Syndic and Attorney General
16 The appellants argue that the grammatical and ordinary sense of the French version of s. 122 Prof. C., which states that “[l]e syndic et les syndics adjoints peuvent . . . exiger qu’on leur fournisse tout renseignement et tout document” (the English version reads “[t]he syndic and assistant syndics may . . . require that they be provided with any information or document”), clearly demonstrates the legislature’s intention to have this provision apply to everyone, not just a defined group of individuals. Section 122 must also be interpreted in the context of the mechanisms established in the Professional Code to protect the public by monitoring the practice of the profession. In the appellants’ view, Beaulne does not support a narrow interpretation of s. 122 Prof. C. In that case, the syndic of the Ordre des optométristes had no prior information that an offence had been committed. In the case at bar, on the other hand, Syndic Binet had extensive reliable information suggesting that pharmacists who owned pharmacies and were customers of Pharmascience had violated their Code of ethics. The appellants add that the Court of Appeal erred in invoking the values protected by s. 8 of the Charter . They see no ambiguity in the text that would justify resorting to the Charter and its values. The ordinary principles of interpretation are quite sufficient to decide the case. The appellants thus argue that the Superior Court was justified in granting the injunction requested by the syndic and add that the Court of Appeal should have deferred to the trial judge’s findings of fact.
2. Pharmascience
17 Pharmascience replies that s. 122 Prof. C. grants syndics a circumscribed and well‑defined investigative role and that syndics must have personalized information before they may take action. In the case at bar, the syndic was not in a position to identify the pharmacists about whom he wanted to obtain information. He could not use s. 122 to identify members who may have violated the Code of ethics. That approach would amount to a fishing expedition, which is prohibited by s. 122 and the case law of this Court: James Richardson & Sons Ltd. v. Minister of National Revenue, [1984] 1 S.C.R. 614.
18 Pharmascience argues that the interpretation proposed by the appellants is overly literal in that it focuses unduly on the meaning of the French word “on”. A contextual interpretation of the Professional Code leads to the conclusion that s. 122 applies only to members of professional orders. Moreover, s. 2 Prof. C. makes it clear that only professional orders and their members are subject to the Code. The scheme of the legislation also confirms the specific and limited nature of the power of inquiry of syndics. For example, should a professional refuse to respond to a syndic’s order, a complaint may be lodged with the committee on discipline for hindering the syndic’s inquiry. However, the Professional Code does not provide for any similar penalty for third parties who refuse to comply.
19 Even if it were assumed that third parties are obliged to disclose information under s. 122, Pharmascience submits that the only sanction contemplated by the Professional Code is the institution of penal proceedings for contravening the Code (s. 188). In this context, the Attorney General must act as prosecutor or, at the very least, authorize a prosecution (s. 191). Pharmascience contends that, when the legislature passes legislation to establish a framework for a public authority’s powers, the public authority cannot ignore that legislative framework and rely instead on the general law.
C. Legislative Framework
1. Professional Code as a General Framework for the Organization and Activities of Professional Orders in Quebec
20 In 1973, the Quebec legislature carried out a sweeping reform of the law of professions as it stood at that time in the province. The Professional Code was the cornerstone of the reform. It established a set of common rules applicable to professional orders that had up to then been governed only by their constituting legislation. The reform resulted from the work of a commission of inquiry, which found it astonishing
that laws relating to professional bodies do not constitute a system but a disparate nomenclature of legislative documents which do not correspond to one another, relate to one another nor complement one another.
(Report of the Commission of Inquiry on Health and Social Welfare, vol. VII, t. 1, The Professions and Society (1970), at para. 70)
As is clear from s. 2, the Code thus became the law of general application with regard to professions in Quebec. This general scheme is complemented or varied by special legislation governing each individual profession:
2. Subject to the inconsistent provisions of a special Act, of the letters patent issued under section 27 or of an integration or amalgamation order made under section 27.2, this Code applies to all professional orders and to their members.
21 The Code creates two main classes of professions. On the one hand, it recognizes exclusive professions, in which the members of the relevant professional orders have the exclusive privilege to carry out certain acts: for example, only physicians may perform surgery. On the other hand, the Code also provides for professions with reserved titles, in which, although the use of certain titles, abbreviations or initials is restricted to members of the relevant orders, members are not given a monopoly over the practice of the profession (s. 27 Prof. C.). For example, people may offer translation services without being members of the Ordre des traducteurs, terminologues et interprètes agréés du Québec, but may not represent themselves to be professionals entered on the roll of that order or give third parties the impression that they are.
22 There are currently 45 professional orders in Quebec: 25 in exclusive professions and 20 in professions with reserved titles. Each exclusive profession is established by a statute (s. 26 Prof. C.): the Pharmacy Act, R.S.Q., c. P‑10, is one such statute, and the Act respecting the Barreau du Québec, R.S.Q., c. B‑1, and the Optometry Act, R.S.Q., c. O‑7, are two other examples. Each of these statutes sets out the nature of the practice of the profession but also refers to the interrelationship between the scheme it establishes and the Professional Code. The Pharmacy Act is no exception:
3. Subject to this act, the Order and its members shall be governed by the Professional Code.
23 At the time of the 1973 reform, every exclusive professional order then in existence thus had its constituting legislation amended or, in certain cases, adapted to take into account the general law represented by the Professional Code. The implementation of the Code as a framework law governing the organization and practice of all professions in Quebec was the product of a long process of consultations and discussions with stakeholders. As Claude Castonguay, the minister responsible for this legislative reform, noted at that time, the new legislation [translation] “will provide . . . the public with better protection by creating new [disciplinary] mechanisms” for professions (Assemblée nationale du Québec, Journal des débats, 4th Sess., 29th Leg., July 6, 1973, at p. 2270).
2. Organization of Discipline Under the Professional Code: Its Mechanisms and Stages, and the Distinction Between It and Professional Inspection
24 The Professional Code establishes a number of mechanisms to protect the public through the supervision of professional practice. As I recently noted for this Court in Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36, to fully understand the nature of this system for supervising and monitoring professional practice, it is important to recall the distinction between professional inspection, which is preventive in nature, and the disciplinary system, which plays a curative and punitive role (para. 18).
25 Each order must establish a professional inspection committee, which must in particular inspect the records, books and registers kept by professionals, and the equipment they use in practising the profession in question (s. 112). The committee or one of its members may also inquire into the competence of a professional. The Professional Code includes a prohibition against hindering a committee’s inquiry:
114. It is forbidden to hinder in any way a member of the committee, the person responsible for professional inspection appointed pursuant to section 90, an inspector, an investigator or an expert, in the performance of the duties conferred upon him by this Code, to mislead him by concealment or false declarations, [to] refuse to furnish him with any information or document relating to an inspection or inquiry carried out by him under this Code or to refuse to let him take copy of such a document.
26 On completing its inquiry, a committee may recommend to the Bureau of the order that it suspend a member’s right to practise until he or she has completed a refresher course (s. 113). Where the committee has reasonable grounds to believe that a professional has committed an offence under s. 116 Prof. C., that is, an offence against the Code, the order’s constituting legislation or the regulations made under one of those statutes, it must inform the syndic (s. 112, para. 5).
27 The syndic plays a crucial role in the disciplinary system under the Professional Code. The syndic inquires into the conduct of a professional before a formal complaint is lodged with the committee on discipline. The syndic launches an inquiry on the basis of information that a professional is guilty of an offence contemplated in s. 116. This information may come from any of a variety of sources. As mentioned above, it may be provided to the syndic by the professional inspection committee. Another professional, a member of the public, or the Bureau of the order may also ask the syndic to hold an inquiry. Finally, syndics may act on their own initiative if, for example, they themselves observe situations that could give rise to disciplinary complaints; for instance, a syndic might see an advertisement made by a professional in violation of the rules relating to advertising (Khalil v. Corporation professionnelle des opticiens d’ordonnances, [1991] D.D.C.P. 316 (Prof. Trib.); Delisle v. Corporation professionnelle des arpenteurs‑géomètres, [1991] D.D.C.P. 190 (Prof. Trib.), noted in S. Poirier, La discipline professionnelle au Québec: principes législatifs, jurisprudentiels, et aspects pratiques (1998), at p. 81). As in the case of an inquiry by a professional inspection committee, the legislature has imposed an obligation to co‑operate with a syndic’s inquiry in s. 122 Prof. C., the interpretation of which is central to the instant case:
122. The syndic and assistant syndics may, following an [sic] information to the effect that a professional is guilty of an offence contemplated in section 116, inquire into the matter and require that they be provided with any information or document relating to such inquiry. . . .
Section 114 shall apply to every inquiry held under this section.
At the end of his or her inquiry, the syndic decides whether a complaint should be lodged with the committee on discipline (s. 123).
28 Section 116 Prof. C. gives each order’s committee on discipline jurisdiction to sanction offences committed by professionals. These committees are quasi‑judicial adjudicative bodies responsible for ruling on the merits of complaints in adversarial proceedings (s. 144). Like most bodies of this nature, they have the power to summon witnesses and to compel them to appear and answer (ss. 146 and 147). Section 156 of the Code sets out the penalties that may be imposed against a professional.
D. Interpretation of Section 122
29 In my view, a grammatical analysis of the statutory provision together with a review of the relevant contextual aspects, such as the purpose of the statute and of the provision in issue, confirms that the legislature intended to subject third parties to the syndic’s power of inquiry under s. 122 Prof. C. This contextual analysis resolves any ambiguity flowing from s. 122 without it being necessary to refer to Charter principles or values. This Court has consistently held that the courts may turn to Charter values to interpret the meaning of a statutory provision only if an ambiguity persists following a contextual analysis (Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Bristol‑Myers Squibb Co. v.