Order in Council 864/2023

On the recommendation of the undersigned, the Lieutenant Governor of Ontario, by and with the advice and concurrence of the Executive Council of Ontario, orders that:

Whereas:

1. Ontario Health is a corporation without share capital continued under subsection 3(1) of the Connecting Care Act, 2019 (the “Act”);
2. Ontario Health is an agent of the Crown and its powers may be exercised only as an agent of the Crown;
3. Ontario Health has the capacity, rights, powers and privileges of a natural person for carrying out its objects, except as limited by the Act or the regulations;
4. Ontario Health is authorized under the Act to fund public hospitals, including providing funding to hospitals under the Specialized Therapy Program. Under the Program, Ontario provides funding to public hospitals for certain high-cost, complex drug products that must be administered to patients in a hospital setting. Confidential pricing terms in respect of these drug products are negotiated with drug manufacturers or distributors. The negotiations may be conducted by the pan-Canadian Pharmaceutical Alliance, Ontario Health, or the Ministry of Health. As the Program funder, Ontario Health enters into an agreement with the drug manufacturer or distributor which incorporates the negotiated confidential pricing terms. Pursuant to this agreement, the manufacturer or distributor is required to make certain confidential payments to Ontario Health to reduce provincial drug product expenditures (“contractual payments”).
5. Under paragraph 7 of subsection 7(3) of the Act, Ontario Health is prohibited from receiving money or assets from any person or entity except the Crown in right of Ontario without the approval of the Lieutenant Governor in Council (LGIC). LGIC approval is therefore required to enable Ontario Health to receive contractual payments from drug manufacturers or distributors in respect of drug products that Ontario Health funds under the Program.

Now therefore:

1. For the purpose of this Order in Council, the following terms have the following meanings:

   “Accountability Agreement”

   means the agreement entered into between Ontario Health and the Minister of Health under section 19 of the Act;

   “Manufacturer”

   means the manufacturer or distributor of a drug product;

   “Ministry”

   means the Ministry of Health;

   “Product Pricing Agreement”

   means an agreement between Ontario Health and a Manufacturer respecting a drug product which provides for the implementation of confidential pricing terms and contractual payments; and

   “Program”

   means the Specialized Therapy Program under which Ontario Health provides funding to public hospitals for complex drug products which must be administered to eligible patients in a hospital setting and in respect of which Ontario Health has entered into a Product Pricing Agreement with the Manufacturer.

2. Pursuant to paragraph 7 of subsection 7(3) of the Act, Ontario Health is authorized to receive payments from a Manufacturer in respect of a drug product that the Manufacturer supplies to a public hospital and which is funded by Ontario Health under the Program.
3. The foregoing approval is subject to the following conditions:
   1. Ontario Health shall have a Product Pricing Agreement in place with the Manufacturer setting out the terms of the Manufacturer’s payments to Ontario Health.
   2. Ontario Health shall not accept a payment from a Manufacturer unless the payment is made:
      1. in respect of a drug product that has been approved by the Ministry and specified within the Accountability Agreement as being covered under the Program; and
      2. in accordance with the terms of the Product Pricing Agreement.
   3. Ontario Health shall comply with any terms or conditions relating to the Program that may be specified in the Accountability Agreement.
   4. Ontario Health shall not agree to be bound by any confidentiality provision or any other term or condition in its agreement with a Manufacturer which would prevent Ontario Health from disclosing the terms of the agreement or any part thereof to the Ministry, or which in any way purports to restrict the rights and powers of the Minister of Health under the Act.