Case: Thorkelson v. The College of Pharmacists of Manitoba, 2023 MBCA 69 (CanLII)

Keywords: drugs; administrative law; standard of review; “misprision of a felony”


A brief factual chronology as follows:

  • Kristjan Thorkelson is a pharmacist and the ultimate beneficial owner of the “ Group of Companies”. (See para. 2).
  • A member company, River East, purchases a quantity of the drug “Avastin” from a wholesale pharmacy in Denmark.
  • River East sells some of the drug to a clinic in the U.S.
  • River East is notified that the drug “did not appear right”.
  • The U.K. regulator, Medicine and Healthcare Products Regulatory Authority (“MHRA”), commences an investigation, as does the U.S. Food & Drug Administration (“FDA”).
  • The FDA issues a press release indicating that some of the Avastin contained no active ingredient.
  • Health Canada and the College of Pharmacists of Manitoba conduct separate investigations, but no action is taken and no professional misconduct charges are laid.
  • The U.S. Department of Justice then files an Indictment in the United States District Court for the District of Montana.
  • As beneficial owner of River East, Mr. Thorkelson pleads guilty to “misprision of a felony”.
  • Thorkelson admits that an email he sent to employees of CanadaDrugs contained a factual inaccuracy which “constituted an act of attempted concealment”.
  • Thorkelson is sentenced to 60 months’ probation, with the first six months to be served as home detention, and a $250,000 fine. (See paras. 2-6).
  • The College of Pharmacists of Manitoba then advises Mr. Thorkelson that the Council will consider his matter pursuant to s. 23(3) of The Pharmaceutical Act, SM 1991-92, c 28 (i.e. a provision which says the Council may direct the College Registrar to cancel a licence where a pharmacist is convicted of an offence that is relevant to the practice or operation of a pharmacy). (See para. 7).
  • The Council to the College of Pharmacists of Manitoba renders a decision directing the Registrar to cancel Mr. Kristjan Thorkelson’s pharmaceutical licences. (See para. 1).
  • The Application Judge (Suche J.) grants Mr. Thorkelson’s request for an order setting aside the Council’s decision on the basis that “cancellation of the applicant’s pharmacist licence was not an appropriate penalty”. (See para. 11).
  • The College of Pharmacists of Manitoba appeals.
  • The Court of Appeal (Cameron, Pfuetzner, JJ.A. and Perlmutter A.C.J. (ad hoc)) finds “no basis to interfere” on the appeal of the substantive issues. (See para. 44).


As a preliminary matter, the Court of Appeal clarified the standard of review applicable to the appeal provisions of The Pharmaceutical Act:

Here, the Act is clear on the standard of review—the appeal is to be considered as a new matter.  As such, the application judge could redetermine the facts on the basis of the fresh evidence tendered on appeal without deference to the findings under appeal. (See para. 27).

The College of Pharmacists of Manitoba submitted that the Application Judge erred by treating licence cancellation as “disciplinary or punitive rather than administrative” and by “applying principles and precedent respecting penalty in professional misconduct cases”. (See para. 29).

The Court of Appeal emphasized the discretionary nature of the Application Judge’s decision. (See para. 30). It also noted that cancellation of a licence – as acknowledged by the Council to the College of Pharmacists of Manitoba – is “as severe and financially and professionally punitive as cancellation of a licence under the College’s disciplinary process under Part 6 of the Act”. (See para. 31).

In other words, the Application Judge did not err by applying sentencing considerations from the professional misconduct context, which the Court of Appeal says “properly align with the objectives to be balanced by a professional disciplinary body imposing a penalty”. (See para. 31; Dhalla v. College of Physicians and Surgeons of Manitoba, 2022 MBCA 7 at paras. 72-84).

Ultimately, the Court of Appeal found no basis to interfere with the Application Judge’s decision on the appeal of the substantive issues. (See para. 44).

We pause to note the Application Judge’s description of the crime of misprision. (See Thorkelson, 2022 MBQB 29 (CanLII) at para. 11). The essential elements as follows:

a) a felony offence was committed;

b) the accused had knowledge of the offence;

c) the accused failed to notify authorities of the offence as soon as possible;

d) the accused took steps to conceal the offence.

According to the Application Judge, misprision is an old common law offence and one which is “not part of Canadian law”. (See Thorkelson, 2022 MBQB 29 (CanLII) at para. 11). However, with its appearance in this case, perhaps civil claimants and lawmakers will consider it with renewed interest?

Counsel for the Appellants: Joseph Pollock and Avery Sharpe (Marr Finlayson Pollock LLP, Winnipeg)

Counsel for the Respondents: Tyler Kochanski and Jennifer Sokal (MLT Aikins LLP, Winnipeg)

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