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Pharmacists Granted Leave To Join Colleague's Appeal

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

TWELVE local pharmacists have been granted leave to join their colleague’s appeal of a Supreme Court judge’s decision to not compel the Bahamas Pharmacy Council to renew her licence.

Appellate Justice Roy Jones consented to the dozen unnamed pharmacists taking part in Philippa Finalyson’s appeal of Justice Indra Charles’ decision not to grant their colleague the relief she sought.

According to the ruling, Ms Finlayson obtained her pharmacist qualifications from the McHari Institute. The BPC, which under the Pharmacy Act (PA) regulates the licensing of pharmacists in the Bahamas as of 2009, licensed Ms Finlayson in 2010. Thereafter, the BPC renewed her licence each year.

During that period the BPC also granted and renewed licences to 16 other pharmacists, all of whom also graduated from the McHari Institute and who held similar qualifications.

In January 2017, however, the BPC determined by resolution that it acted beyond its own legal powers in registering and licensing Ms Finlayson and her 16 fellow colleagues. According to the PA, an applicant for registration as a pharmacist must hold a pharmaceutical degree “from an accredited college or university”. However, the McHari Institute is not an accredited college or university under the PA.

Thus, the council decided to stop renewing their licences until they took steps to secure qualifications it deemed acceptable.

Ms Finlayson consequently launched judicial review proceedings against the BPC. She sought an Order for Certiorari quashing the council’s resolution; an Order of Mandamus directing the BPC to renew her licence and those of the other McHari graduates; and a declaration that the BPC acted unfairly, arbitrarily and capriciously towards her.

During the proceedings before Justice Indra Charles, the 16 other McHari graduates applied to be joined onto the action, but later withdrew the application after the BPC signaled its intent to issue provisional licences “until the matter had been finally heard and determined”.

Nonetheless, Justice Charles refused Ms Finlayson the relief she sought.

On June 27 of this year, Ms Finlayson appealed Justice Charles’ decision, and sought an injunction before a single appellate judge requiring the BPC to renew her license and that of her fellow McHari graduates.

The BPC’s principal objection to the injunction was that the McHari graduates were not parties to the judicial review proceedings before Justice Charles, and thus could not seek relief before the Court of Appeal. At the hearing of the matter, Justice Jones agreed with the BPC and dismissed Ms Finlayson’s application for an injunction.

Ms Finlayson subsequently filed a summons seeking an order to have 12 of the 16 pharmacists affected by the BPC’s resolution joined onto her matter. All 12 McHari graduates consented to join Ms Finlayson’s appeal in an attachment to her affidavit dated July 29, 2019.

The issue for determination was thus whether those 12 McHari graduates had a “legal interest” that called for their participation in Ms Finlayson’s appeal. Raynard Rigby, the BPC’s attorney, asserted that the 12 pharmacists do not have a legal interest to be joined as appellants because they are “simply people affected commercially by the appeal”.

Secondly, Mr Rigby asserted that even if they do have a legal interest, it is relative to each one of them and “may turn on special facts” not considered before Justice Charles and that would not arise before the appellate court. That possibility, Mr Rigby argued, would create a risk that the 12 McHari graduates, in seeking to take part in the appeal, may have to adduce fresh evidence that could unnecessarily delay the appeal.

Thirdly, Mr Rigby argued that adding the 12 McHari graduates was unnecessary to the appeal’s outcome because there was no new evidence that would aid in deciding the current appeal.

However, Justice Jones ultimately granted the 12 pharmacists leave to join Ms Finlayson’s appeal, asserting that doing so is “essential to settle all the matters in dispute between (Ms Finlayson), the McHari graduates and the Council and to prevent many satellite proceedings.”

“In the present case the McHari graduates have a legal interest in the result of the proceedings for the following reasons: the challenged resolution arose from the same dispute; the judge, in dismissing the application for mandamus, refers to the applicant ‘and the other McHari graduates’; and as the facts apply equally to the applicant and the other McHari graduates the risk is minimized that there would be a need for fresh evidence and consequential delays,” Justice Jones ruled.

He added: “These conclusions in my view are adequate to allow leave to add the twelve McHari graduates as parties to this appeal.”

Christopher Francis assisted Mr Rigby during the appeal. Luther McDonald and Wynsome Carey represented Ms Finlayson.

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