O. Reg. 212/24: DISCIPLINE AND APPEALS

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ontario regulation 212/24

made under the

Health and Supportive Care Providers Oversight Authority Act, 2021

Made: May 30, 2024
Filed: June 4, 2024
Published on e-Laws: June 4, 2024
Published in The Ontario Gazette: June 22, 2024

DISCIPLINE AND APPEALS

CONTENTS

 

Definitions

Definitions

1. In this Regulation,

“appeals committee” means the appeals committee established under subsection 47 (1) of the Act; (“comité d’appel”)

“by-laws” means the by-laws of the Authority made under subsection 6 (1) of the Act; (“règlements administratifs”)

“discipline committee” means the discipline committee established under subsection 46 (1) of the Act; (“comité de discipline”)

“professional association” means an organized group of individuals that promotes and advocates  for the interests of any class of registrants under the Act, for the employers of any class of registrants under the Act or for any health profession set out in Schedule 1 to the Regulated Health Professions Act, 1991. (“association professionnelle”)

Discipline Committee, Composition

Discipline committee composition

2. (1) The discipline committee shall be composed of at least seven members appointed by the board.

(2) A person is eligible to be appointed or re-appointed to the discipline committee if, on the date of the appointment or re-appointment, they,

(a) are not a current or former registrant;

(b) reside in Ontario;

(c) have not, at any time, applied for registration under the Act but had their application refused by the Chief Executive Officer;

(d) are not a member of the board;

(e) are not employed by the Authority and have not been employed by the Authority within the previous 12 months;

(f) are not, and have not been within the previous five years,

(i) a director, owner, board member, officer or employee of a professional association that represents any class of registrants, or

(ii) a director, board member, officer or employee of a trade union that represents any class of registrants;

(g) are not, and have not within the previous five years, been a member of the council or board of a College of a health profession or group of health professions established or continued under a health profession Act;

(h) are not the subject of any professional disciplinary, incompetency or incapacity proceeding in any jurisdiction;

(i) have not been the subject of any professional misconduct, incompetence or incapacity finding in any jurisdiction in the preceding six years;

(j) are not currently nor previously been a plaintiff in a lawsuit or an applicant in an application against the Authority; and

(k) have not have been removed from a board or a committee of the Authority within the preceding three years.

(3) No person shall serve as a member of the discipline committee while also serving as a member of the appeals committee.

(4) The board shall designate one of the members of the discipline committee as chair and one or more others as vice-chairs.

(5) If the chair is absent or unable to act, or if the office of the chair is vacant, the vice-chairs shall designate one of them to act in the place of the chair who shall have the powers of the chair.

(6) Members of the discipline committee hold office at the pleasure of the board and for the term specified by the board.

(7) The board may rescind the appointment of a member of the discipline committee prior to the expiry of their appointment at any time.

Discipline Committee, Panel

Discipline panel

3. (1) When a matter is referred to the discipline committee, the chair of the discipline committee shall assign a panel composed of the members of the discipline committee to hold a hearing and determine whether the registrant has failed to comply with the prescribed code of ethics that applies to them.

(2) A panel of the discipline committee shall be composed of at least three and no more than five committee members.

(3) No person shall be selected for a panel who has taken part in the investigation of what is to be the subject-matter of the panel’s hearing.

(4) Three members of a panel constitute a quorum.

(5) If the panel is composed of three or more members of the discipline committee, at least one panel member must be a chair or vice-chair of the committee and at least one panel member shall be a member of the committee who is neither a chair nor a vice-chair of the committee.

(6) A member of a panel who ceases to be a member of the discipline committee after a hearing of a matter has commenced before the panel shall be deemed, for the purposes of dealing with that matter, to remain a member of the panel until the final disposition of the matter.

(7) The panel has all the jurisdiction and powers of the discipline committee with respect to hearing and determining the matter referred to the committee.

Appeals Committee, Composition

Appeals committee composition

4. (1) The appeals committee shall be composed of at least seven members appointed by the board.

(2) A person is eligible to be appointed or re-appointed to the appeals committee if, on the date of the appointment or re-appointment, they,

(a) are not a current or former registrant;

(b) reside in Ontario;

(c) have not, at any time, applied for registration under the Act but had their application refused by the Chief Executive Officer;

(d) are not a member of the board;

(e) are not employed by the Authority and have not been employed by the Authority within the previous 12 months;

(f) are not, and have not been within the previous five years,

(i) a director, owner, board member, officer or employee of a professional association that represents any class of applicants, or

(ii) a director, board member, officer or employee of a trade union that represents any class of registrants;

(g) are not, and have not within the previous five years, been a member of the council or board of a college established pursuant to the Regulated Health Professions Act, 1991;

(h) are not the subject of any professional disciplinary, incompetency or incapacity proceeding in any jurisdiction;

(i) have not been the subject of any professional misconduct, incompetence or incapacity finding in any jurisdiction in the preceding six years;

(j) are not currently nor previously been a plaintiff in a lawsuit or an applicant in an application against the Authority; and

(k) have not have been removed from a board or a committee of the Authority within the preceding three years.

(3) No person shall serve as a member of the appeals committee while also serving as a member of the discipline committee.

(4) The board shall designate one of the members of the appeals committee as chair and one or more others as vice-chairs.

(5) If the chair is absent or unable to act, or if the office of the chair is vacant, the vice-chairs shall designate one of them to act in the place of the chair who shall have the powers of the chair.

(6) Members of the appeals committee hold office at the pleasure of the board and for the term specified by the board.

(7) The board may rescind the appointment of a member of the appeals committee prior to the expiry of their appointment at any time.

Appeals Committee, Panel

Appeals panel

5. (1) When a final order of the discipline committee is appealed to the appeals committee, the chair of the appeals committee shall assign a panel composed of the members of the appeals committee to hear the appeal.

(2) A panel of the appeals committee shall be composed of at least three and no more than five committee members.

(3) No person shall be selected for a panel who has taken part in the investigation of what is to be the subject-matter of the panel’s hearing.

(4) Three members of a panel constitute a quorum.

(5) If the panel is composed of three or more members of the appeal committee, at least one panel member must be a chair or vice-chair of the committee and at least one panel member shall be a member of the committee who is neither a chair nor a vice-chair of the committee.

(6) A member of a panel who ceases to be a member of the appeals committee after a hearing of a matter has commenced before the panel shall be deemed, for the purposes of dealing with that matter, to remain a member of the panel until the final disposition of the matter.

(7) The panel has all the jurisdiction and powers of the appeals committee with respect to hearing and determining the appeal.

Application of Statutory Powers Procedure Act

Application of SPPA

6. (1) The following provisions of the Statutory Powers Procedure Act apply with necessary modifications to a hearing by the discipline committee or the appeals committee:

1. Section 4 (waiver of procedural requirement).

2. Section 4.1 (disposition of proceeding without hearing).

3. Section 5.1 (written hearings).

4. Section 5.2 (electronic hearings).

5. Section 5.3 (pre-hearing conferences).

6. Section 21 (adjournments).

7. Section 21.1 (correction of errors).

8. Section 25.1 (rules).

(2) The findings of fact in a hearing shall be based exclusively on evidence admissible or matters that may be noticed under sections 15, 15.1, 15.2 and 16 of the Statutory Powers Procedure Act.

Discipline Committee, Procedure

Parties

7. The parties to a proceeding before the discipline committee are the registrant who is the subject of the proceeding, the Authority and any other person that the discipline committee adds as a party.

Participation of non-parties

8. (1) A panel of the discipline committee, on application by a person who is not a party, may allow the person to participate in a hearing if,

(a) the good character, propriety of conduct or competence of the person is an issue at the hearing; or

(b) the participation of the person, would, in the opinion of the panel, be of assistance to the panel.

(2) The panel shall determine the extent to which a person who is not a party is allowed to participate, and, without limiting the generality of this, the panel may allow the person to make oral or written submissions, to lead evidence and to cross examine witnesses.

Amendment of notice of hearing

9. A panel of the discipline committee may at any time permit a notice of hearing of allegations against a registrant to be amended to correct errors or omissions of a minor or clerical nature if the panel is of the opinion that it is just and equitable to do so and the panel may make any order it considers necessary to prevent prejudice to the registrant.

Disclosure of evidence

10. (1) A party who intends to tender evidence at a hearing before a panel of the discipline committee shall, not later than the day specified by subsection (2), disclose the following to every other party:

1. In the case of written or documentary evidence, a copy of the evidence.

2. In the case of oral evidence of a witness, the identity of the witness and a written statement containing the substance of the witness’s anticipated oral evidence.

3. In the case of oral evidence of an expert, the identity of the expert and a copy of a written report signed by the expert containing the substance of the expert’s anticipated oral evidence.

4. In the case of evidence that is not oral, written or documentary evidence, a written description of the evidence.

(2) The day mentioned in subsection (1) is,

(a) in the case of evidence tendered by the Authority, the 30th day before the date the hearing begins; and

(b) in the case of evidence tendered by any other party, the 15th day before the date the hearing begins.

(3) A party who intends to tender written or documentary evidence, or other evidence that is not oral evidence, at a hearing before a panel of the discipline committee shall give every other party a reasonable opportunity to examine the original evidence before the hearing.

(4) Evidence of an expert led by a person other than the Authority is not admissible unless the person gives the Authority, at least 10 days before the hearing, the identity of the expert and a copy of the expert’s written report or, if there is no written report, a written summary of the evidence.

(5) A panel of the discipline committee may, in its discretion, allow the introduction of evidence that is inadmissible under this section and may make directions it considers necessary to ensure that the Authority and the registrant are not prejudiced.

Production orders

11. (1) Where, in relation to a hearing involving allegations of a registrant’s misconduct of a sexual nature, the registrant seeks an order of the panel of the discipline committee for the production and disclosure of a record that contains information for which there is a reasonable expectation of privacy from a person who is not a party to the hearing, any one or more of the following assertions made by the registrant are not sufficient on their own to establish that the record is likely relevant to an issue in the hearing or to the competence of a witness to testify:

1. That the record exists.

2. That the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or a witness has received or is receiving.

3. That the record relates to the incident that is the subject-matter of the proceedings.

4. That the record may disclose a prior inconsistent statement of the complainant or a witness.

5. That the record may relate to the credibility of the complainant or a witness.

6. That the record may relate to the reliability of the testimony of the complainant or a witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counselling.

7. That the record may reveal allegations of sexual abuse of the complainant or a witness by a person other than the registrant.

8. That the record relates to the sexual activity of the complainant or a witness with any person, including the registrant.

9. That the record relates to the presence or absence of a recent complaint.

10. That the record relates to the sexual reputation of the complainant or a witness.

11. That the record was made close in time to a complaint or report or to the activity that forms the subject-matter of the allegation against the registrant.

(2) A panel of the discipline committee may order the person who has possession or control of the record to produce the record or part of the record if the panel is satisfied that the registrant has established that the record is likely relevant to an issue in the hearing or to the competence of a witness to testify in the hearing and the production of the record is necessary in the interest of justice.

(3) In determining whether to grant an order for the production of records in accordance with this section, the panel shall consider,

(a) the regulatory nature of the proceedings;

(b) the primary purpose of the proceedings, which is to protect the public and regulate the profession in the public interest;

(c) the privacy interest of the complainant or a witness in the record sought; and

(d) the nature and purpose of the record sought in the motion.

(4) Despite section 9, the panel shall, upon the application of any person who has a privacy interest in the records referred to in subsection (1) of this section, grant the person standing on the registrant’s motion for production of the records.

(5) In subsection (1),

“allegations of a registrant’s misconduct of a sexual nature” include, but are not limited to, allegations that the registrant sexually abused a person who receives health services or supportive care services from a registrant.

No communication by panel members

12. No member of a panel of the discipline committee holding a hearing shall communicate outside the hearing, in relation to the subject-matter of the hearing, with a party or the party’s representative unless the other party has been given notice of the subject-matter of the communication and an opportunity to be present during the communication.

Legal advice

13. If a panel of the discipline committee obtains legal advice with respect to a hearing, it shall make the nature of the advice known to the parties and they may make submissions with respect to the advice.

Hearings public

14. (1) A hearing shall, subject to subsection (2), be open to the public.

(2) The panel of the discipline committee may make an order that the public be excluded from a hearing or any part of it if the panel is satisfied that,

(a) matters involving public security may be disclosed;

(b) financial or personal or other matters may be disclosed at the hearing of such a nature that the harm created by disclosure would outweigh the desirability of adhering to the principle that hearings be open to the public;

(c) a person involved in a criminal proceeding or in a civil suit or proceeding may be prejudiced; or

(d) the safety of a person may be jeopardized.

(3) In situations in which the panel may make an order that the public be excluded from a hearing, it may make orders it considers necessary to prevent the public disclosure of matters disclosed at the hearing, including orders banning the publication or broadcasting of those matters.

(4) No order shall be made under subsection (3) that prevents the publication of anything that is contained in the register and available to the public.

(5) The panel may make an order that the public be excluded from the part of a hearing dealing with a motion for an order under subsection (2).

(6) The panel may make any order necessary to prevent the public disclosure of matters disclosed in the submissions relating to any motion described in subsection (5), including prohibiting the publication or broadcasting of those matters.

(7) The panel shall ensure that any order it makes under this section and its reasons are available to the public in writing.

(8) The panel may reconsider an order made under subsection (2) or (3) at the request of any person or on its own motion.

Exception to closed hearings

15. If a panel of the discipline committee makes an order under subsection 14 (2) wholly or partly in relation to a person, the panel may allow the person and their personal representative to attend the hearing and may, in its discretion, allow another person to attend if, in the opinion of the panel, to do so does not undermine the reasons for making the order and does not cause undue prejudice to a party.

Sexual misconduct witnesses

16. (1) A panel of the discipline committee shall, on the request of a witness whose testimony is in relation to allegations of a registrant’s misconduct of a sexual nature involving the witness, make an order that no person shall publish the identity of the witness or any information that could disclose the identity of the witness.

(2) In subsection (1),

“allegations of a registrant’s misconduct of a sexual nature” include, but are not limited to, allegations that the registrant sexually abused the witness when the witness was a person who received health services or supportive care services from a registrant.

Transcript of hearings

17. (1) The panel of the discipline committee holding a hearing shall ensure that,

(a) the oral evidence is recorded;

(b) copies of the transcript of the hearing are available to a party on the party’s request at the party’s expense; and

(c) copies of the transcript of any part of the hearing that is not the subject of an order prohibiting publication are available to any person at that person’s expense.

(2) If a transcript of a part of a hearing that is the subject of an order prohibiting publication is filed with a court in respect of proceedings, only the court and the parties to the proceedings may examine it unless the court orders otherwise.

Admissibility of evidence

18. Despite the Statutory Powers Procedure Act, nothing is admissible at a hearing that would be inadmissible in a court in a civil action and the determinations of a panel of the discipline committee shall be based exclusively on evidence admitted before it.

Members of panel who participate

19. Only the members of a panel of the discipline committee who were present throughout a hearing shall participate in the panel’s decision.

Code of ethics

20. A panel of the discipline committee shall find that a registrant has contravened the prescribed code of ethics if,

(a) the registrant has been found guilty of an offence that is relevant to the registrant’s suitability to provide health and supportive care services;

(b) the governing body of another health profession in Ontario, or the governing body of a health profession in a jurisdiction other than Ontario, has found that the registrant committed an act of professional misconduct that would, in the opinion of the panel, be a contravention of the code of ethics under this section or a contravention of the code of ethics as defined in the regulations;

(c) the registrant has sexually abused a person who received health services or supportive care services from the registrant; or

(d) the registrant has contravened the prescribed code of ethics as defined in the regulations.

Orders

21. (1) If a panel of the discipline committee finds that a registrant has failed to comply with the prescribed code of ethics that applies to them, in addition to the orders available to the panel pursuant to section 46 (4) of the Act, it may make an order doing any one or more of the following:

1. Requiring the registrant to appear before the panel to be reprimanded.

2. If the failure to comply with the prescribed code of ethics that applies to the registrant was the sexual abuse of a person who received health services or supportive care services from the registrant, requiring the registrant to reimburse the Authority for funding provided for that patient pursuant to Ontario Regulation 211/24 (Funding for Therapy and Counselling) made under the Act.

3. If the panel makes an order under paragraph 2, requiring the registrant to post security acceptable to the Authority to guarantee the payment of any amounts, the registrant may be required to reimburse under the order under paragraph 2.

(2) In making an order under clauses 46 (4) (b) or (c) of the Act, a panel may specify criteria to be satisfied for the removal of a suspension or the removal of specified conditions imposed on a registrant’s registration.

(3) A panel may suspend the effect of all or part of an order made under subsection (1) of this section or subsection 46 (4) of the Act for a specified period and on specified conditions.

(4) The panel shall immediately make an interim order suspending a registrant’s registration until such time as the panel makes an order under subsection (5) if the panel finds that the registrant has failed to comply with the prescribed code of ethics that applies to them, by sexually abusing a person who received health services or supportive care services from the registrant and the sexual abuse involves conduct listed under clauses 1 (2) (a) and (b) of the Act.

(5) If a panel finds a registrant has failed to comply with the prescribed code of ethics that applies to them, by sexually abusing a person who received health services or supportive care services from the registrant, the panel shall do the following in addition to anything else the panel may do under subsection (1) of this section and subsection 46 (4) of the Act:

1. Reprimand the registrant.

2. Suspend the registrant’s registration if the sexual abuse does not consist of or include conduct listed in paragraph 3 and the panel has not otherwise made an order revoking the registrant’s registration under clause 46 (4) (a) of the Act.

3. Revoke the registrant’s registration if the sexual abuse consisted of, or included, any of the following:

i. Sexual intercourse.

ii. Genital to genital, genital to anal, oral to genital or oral to anal contact.

iii. Masturbation of the registrant by, or in the presence of, the person who received health services or supportive care services from the registrant.

iv. Masturbation of the person who received health services or supportive care services from the registrant by the registrant.

v. Encouraging the person who received health services or supportive care services from the registrant to masturbate in the presence of the registrant.

vi. Touching of a sexual nature of the genitals, anus, breasts or buttocks of the person who received health services or supportive care services from the registrant by the registrant.

(6) For greater certainty, for the purposes of subsection (5),

“sexual nature” does not include touching or conduct of a clinical nature appropriate to the service provided.

(7) Before making an order under subsection (5), the panel shall consider any written statement that has been filed, and any oral statement that has been made to the panel, describing the impact of the sexual abuse on the person who received health services or supportive care services from the registrant.

(8) The statement may be made by the person who received health services or supportive care services from the registrant or by their representative.

(9) The panel shall not consider the statement unless the panel has made a determination that a registrant has failed to comply with the prescribed code of ethics that applies to the registrant.

(10) When a written statement is filed, the panel shall, as soon as possible, have copies of it provided to the registrant, to their counsel and to the Authority.

Costs if proceedings unwarranted

22. If a panel of the discipline committee is of the opinion that the commencement of proceedings was unwarranted, it may make an order requiring the Authority to pay all or part of the registrant’s legal costs.

Authority’s costs

23. In an appropriate case, a panel of the discipline committee may make an order requiring a registrant who the panel determined failed to comply with the prescribed code of ethics that applies to them, to pay all or part of the following costs and expenses:

1. The Authority’s legal costs and expenses.

2. The Authority’s costs and expenses incurred in investigating the matter.

3. The Authority’s costs and expenses incurred in conducting the hearing.

Notice to complainant who is not a party

24. If a proceeding before a panel of the discipline committee arises from a complaint by a person who is not a party to the proceeding, the committee shall send the person a copy of its determination or order, including the reasons if any that it has given, at the same time that it sends a copy of its determination or order, as the case may be, to each party who participated in the proceeding or the party’s representative.

Notice of appeal right

25. When the discipline committee sends a copy of its determination or order to a party who participated in the proceeding, or the party’s representative, it shall include with the copy a notice outlining the party’s right to appeal under subsection 47 (3) of the Act and the procedures applicable to the appeal.

Release of evidence

26. The discipline committee shall release documents and things put into evidence at a hearing to the person who produced them, on request, within a reasonable time after the matter in issue has been finally determined.

Publication of decisions

27. (1) The Authority shall publish a panel of the discipline committee’s decision and its reasons, or a summary of its reasons, in its annual report and may publish the decision and reasons or summary on the Authority’s website.

(2) In publishing a decision and reasons or summary under subsection (1), the Authority shall publish the name of the registrant who was the subject of the proceeding if,

(a) the results of the proceeding may be obtained by a person from the register; or

(b) the registrant requests the publication of their name.

(3) The Authority shall not publish the registrant’s name unless it is required to do so under subsection (2).

Procedure of the Appeals Committee

Commencement of appeal

28. (1) For the purposes of subsection 47 (3) of the Act, a party to a proceeding before the discipline committee may appeal a determination or order made by the discipline committee by delivering the following to the appeal committee within 30 days after the discipline committee sends notice of its determination or order, as the case may be, to the party:

1. A notice of appeal that,

i. identifies the appellant and the other parties to the appeal,

ii. identifies the determination or order being appealed,

iii. sets out the grounds for the appeal, and

iv. sets out the relief that is sought.

2. The fee for commencing the appeal.

(2) The fee for commencing the appeal is the fee set by the Authority in compliance with section 50 of the Act and shall be payable to the Authority.

(3) Within the 30-day period described in subsection (1), the appellant shall deliver a copy of the notice of appeal to the other parties to the appeal and to the discipline committee.

(4) When a party commences an appeal under subsection 47 (3) of the Act, the discipline committee shall, at the earliest practical opportunity, forward to the appeal committee the record compiled under section 17.

Parties

29. The parties to a proceeding before a panel of the appeal committee are the appellant, the other persons who were parties to the proceeding before the discipline committee and any other person that the appeal committee adds as a party.

Proceedings

30. Sections 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 22, 23, 24, 26 and 27 apply, with necessary modifications, to proceedings before the appeal committee, reading references to the discipline committee as references to the appeal committee.

Commencement

Commencement

31. This Regulation comes into force on the later of the day subsection 47 (1) of Schedule 2 (Health and Supportive Care Providers Oversight Authority Act, 2021) to the Advancing Oversight and Planning in Ontario’s Health System Act, 2021 comes into force and the day this Regulation is filed.

 

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