Oversight of Health Facilities and Devices Act, 2017, S.O. 2017, c. 25, Sched. 9

Oversight of Health Facilities and Devices Act, 2017

S.o. 2017, chapter 25
Schedule 9

Historical version for the period December 12, 2017 to April 17, 2019.

Note: THIS ACT IS NOT YET IN FORCE. It comes into force on a day to be named by proclamation of the Lieutenant Governor. (See: 2017, c. 25, Sched. 9, s. 123)

Last amendment: 2017, c. 25, Sched. 9, s. 83.

Legislative History: 2017, c. 25, Sched. 9, s. 83.

CONTENTS

 

Part I
Interpretation

Interpretation

1 In this Act,

“Board” means the Health Services Appeal and Review Board under the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998; (“Commission”)

“business day” means a day on which Canada Post ordinarily delivers lettermail; (“jour ouvrable”)

“cessation order” means an order made under section 55; (“ordre de cessation”)

“community health facility” means,

(a) a place or a collection of places where one or more services prescribed in regulations made by the Minister are provided, and includes any part of such a place, and

(b) a place or collection of places prescribed in regulations made by the Minister; (“établissement de santé communautaire”)

“compliance order” means an order made under section 54; (“ordre de conformité”)

“energy applying and detecting medical device” means a prescribed device that,

(a) is an instrument, apparatus, contrivance or other similar article, including a component, part or accessory of any of them, that is manufactured, sold or represented for use in,

(i) diagnosing, treating, mitigating or preventing a disease, disorder or abnormal physical state, or any of their symptoms, in human beings, or

(ii) restoring, modifying or correcting the body structure of human beings or the functioning of any part of the bodies of human beings, and

(b) is used to,

(i) apply to the body of a human being acoustic, electromagnetic or particle radiation, or

(ii) detect acoustic, electromagnetic, or particle radiation emitted from or applied to the body of a human being pharmaceutically or by other means; (“instrument médical d’application et de détection d’énergie”)

“executive officer” means the executive officer appointed under section 2, and where more than one executive officer has been appointed, means the person who is the executive officer for the purposes of the provision in which the term appears; (“administrateur”)

“facility cost” means,

(a) a charge, fee or payment for or in respect of a service or operating cost that supports, assists and is a necessary adjunct, or any of them, to an insured service but is not part of the insured service, and

(b) anything else that is prescribed as a facility cost; (“coût d’établissement”)

“inspecting body” means an organization designated as an inspecting body in accordance with the regulations; (“organisme d’inspection”)

“inspector” means an inspector appointed by an inspecting body under section 40 or by the executive officer under section 41; (“inspecteur”)

“insured person” has the same meaning as in the Health Insurance Act; (“assuré”)

“insured service” means, subject to the regulations, a service rendered in Ontario to an insured person by a physician or practitioner where the service is an insured service under the Health Insurance Act and the regulations made under it; (“service assuré”)

“justice” has the same meaning as in the Provincial Offences Act; (“juge”)

“licence” means a licence issued under this Act, and “licensed” has a corresponding meaning; (“permis”)

“licensee” means,

(a) in respect of a community health facility, the holder of a licence to operate the facility, and

(b) in respect of an energy applying and detecting medical device in respect of which a licence has been issued, the owner or other person having management and control of the device; (“titulaire de permis”)

“local health integration network” means a local health integration network as defined in section 2 of the Local Health System Integration Act, 2006; (“réseau local d’intégration des services de santé”)

“Minister” means the Minister of Health and Long-Term Care or such other member of the Executive Council as may be assigned the administration of this Act under the Executive Council Act; (“ministre”)

“Ministry” means the ministry of the Minister; (“ministère”)

“personal health information” has the same meaning as in the Personal Health Information Protection Act, 2004; (“renseignements personnels sur la santé”)

“personal information” means personal information as defined in the Freedom of Information and Protection of Privacy Act and includes personal health information; (“renseignements personnels”)

“physician” means a legally qualified medical practitioner who is lawfully entitled to practice medicine in Ontario; (“médecin”)

“practitioner” means a person other than a physician who is lawfully entitled to render insured services in Ontario; (“praticien”)

“prescribed” means prescribed in the regulations; (“prescrit”)

“procedure” means either or both of the services prescribed in regulations made by the Minister for the purposes of a community health facility and the procedures performed in the course of operating an energy applying and detecting medical device; (“acte”)

“prospective licensee” means a person who is permitted to operate a community health facility under section 19 pending a decision of the executive officer as to whether to issue a licence; (“titulaire éventuel d’un permis”)

“provincial offences officer” has the same meaning as in the Provincial Offences Act; (“agent des infractions provinciales”)

“regulated health College” means a College of a health profession or group of health professions established or continued under an Act named in Schedule 1 to the Regulated Health Professions Act, 1991; (“ordre de santé réglementé”)

“regulations” means the regulations made under this Act; (“règlements”)

“requirement under this Act” means a requirement contained in this Act or its regulations, or set out in a compliance order, cessation order or other order authorized under this Act or in a notice of administrative penalty under section 58 or in any directive of the Minister under section 73, or a requirement that is a condition of a licence or of receiving funding. (“exigence que prévoit la présente loi”)

Part II
Executive Officer

Executive officer

2 (1) The Lieutenant Governor in Council shall appoint one or more persons as the executive officer for community health facilities and energy applying and detecting medical devices.

Functions and powers

(2) Subject to this Act and the regulations, it is the function of the executive officer, and the executive officer has the power, to perform any functions or duties that he or she may have under this Act and the regulations.

Appointment

(3) Where more than one person is appointed as executive officer, the appointment may provide for the functions and duties of each person who is appointed.

Part III
Licensing and Related Matters

Request for applications, community health facilities

3 (1) The executive officer may, at any time, request one or more applications for the operation of one or more community health facilities.

How made

(2) The executive officer may request applications,

(a) by sending an application form to one or more specified persons; or

(b) by publishing a request for applications in any manner that the executive officer considers appropriate.

Submission

(3) A person interested in operating a community health facility may respond to a request for applications by submitting an application form that complies with subsection 4 (3).

Additional information

(4) The executive officer may request additional information in respect of any application.

No obligation to accept

(5) The executive officer is under no obligation to accept any application.

Cancellation

(6) The executive officer may cancel a request for applications at any time, and for any reason.

Applications, general

Community health facilities

4 (1) Any person may apply for a licence to operate a community health facility, subject to any prescribed conditions or prohibitions, whether or not the executive officer has requested applications, but the executive officer is under no obligation to accept or consider an application that has not been requested.

Energy applying and detecting medical devices

(2) Any person may apply for a licence to operate an energy applying and detecting medical device, subject to any prescribed conditions or prohibitions.

Application

(3) Every application for a licence shall be in a form acceptable to the executive officer and contain any information, which may include personal information, that the executive officer considers necessary or advisable.

Issuance

5 (1) The executive officer may issue a licence to an applicant where the following conditions are met:

1. The applicant has applied in a manner that complies with the requirements under subsection 4 (3).

2. The applicant has paid any fee established in a regulation made by the Minister.

3. In the case of an application with respect to a proposed community health facility, including a community health facility operating under section 19,

i. where there has been a request for applications, the applicant and the proposed community health facility meet the requirements of the request, in addition to making the application in accordance with subsection 4 (3),

ii. where a person has submitted an application under subsection 4 (1), the applicant and the proposed community health facility meet any requirements set out in the form referred to in subsection 4 (3),

iii. the applicant and the proposed community health facility meet all applicable prescribed requirements,

iv. the executive officer is satisfied that the applicant will operate the proposed community health facility in compliance with this Act and the regulations and any other applicable Act or regulation,

v. the applicant and the proposed community health facility have passed any inspection that the executive officer has requested, or that an inspecting body has initiated,

vi. the applicant has complied, to the satisfaction of the executive officer, with any orders that have been issued by the executive officer or an inspecting body in respect of a community health facility that is permitted to operate under section 19 pending a licensing decision,

vii. the executive officer is satisfied that the applicant or, where the applicant is a corporation, its officers and directors and the persons with a controlling interest in it, will operate the community health facility with honesty and integrity,

viii. the executive officer is satisfied that the past conduct relating to the operation of a community health facility or any other matter or business of a person listed in subsection (2) affords reasonable grounds to believe that the persons are competent to operate a community health facility in a responsible manner,

ix. the executive officer is satisfied that the past conduct relating to the operation of a community health facility or any other matter or business of a person listed in subsection (2) affords reasonable grounds to believe that the facility will be operated in accordance with the law, and

x. the applicant has paid any fee required to be paid under clause 78 (3) (t).

4. In the case of an application with respect to an energy applying and detecting medical device,

i. the applicant and the device meet all prescribed requirements,

ii. the executive officer is satisfied that the applicant is competent to operate the device and would operate the device in a competent and responsible manner, after considering, as the executive officer may consider appropriate, anything concerning the applicant’s history and qualifications that are relevant to the provision of the procedures that will be provided and to the operation of the device,

iii. the applicant and the device have passed any inspection that the executive officer has requested, and

iv. the executive officer is satisfied that a licence should be issued, after having considered,

A. the proposed use of the device,

B. the extent to which the proposed use of the device is already available in Ontario or any part of Ontario,

C. the need for the proposed use of the device in Ontario or any part of Ontario,

D. the future need for the proposed use of the device in Ontario or any part of Ontario, and

E. any other matter that the executive officer considers relevant to the management of the health care system.

Relevant persons

(2) The following are the persons listed for the purposes of subparagraphs 3 viii and ix of subsection (1):

1. The applicant.

2. If the applicant is a corporation, the officers and directors of the corporation and any other person with a controlling interest in the corporation.

3. If the person with a controlling interest is a corporation, the officers and directors of the corporation.

Additional requirement, community health facilities

(3) In the case of an application that contemplates the provision at the community health facility of insured services or services for which the applicant may receive funding from the Minister, the executive officer shall not issue a licence unless the executive officer is satisfied that a licence should be issued, after having considered,

(a) the nature of the services to be provided in the community health facility;

(b) the extent to which the services are already available in Ontario or in any part of Ontario;

(c) the need for the services in Ontario or any part of Ontario;

(d) the future need for the services in Ontario or any part of Ontario;

(e) the projected cost in public money for the establishment and operation of the community health facility;

(f) the availability of public money to pay for the establishment and operation of the community health facility;

(g) the concentration of ownership, control or management of community health facilities in Ontario or any part of Ontario; and

(h) any other matter that the executive officer considers relevant to the management of the health care system.

Discretion

(4) The executive officer may, in the executive officer’s absolute discretion, decide not to issue a licence even where all the requirements of this section have been met, and in the case of an application in respect of a community health facility, may prefer one application over others.

Conditions, etc., time of issue

6 The executive officer may specify conditions that apply to a licence at the time it is issued.

Conditions, etc. after issue — executive officer

7 (1) The executive officer may, at any time after the issuance of a licence, amend the licence or the conditions of a licence, including imposing new conditions or removing existing ones.

Notice of amendment

(2) The executive officer shall serve notice of an amendment under subsection (1), together with brief written reasons, on the licensee.

When effective

(3) An amendment under subsection (1) takes effect upon the date specified by the executive officer in the notice of amendment.

Conditions, community health facility that was formerly licensed under the Private Hospitals Act

8 A license issued or amended under this Act with respect to a community health facility that was formerly licensed under the Private Hospitals Act shall include the following conditions:

1. The facility shall only provide the same services that it provided when the facility was licensed under the Private Hospitals Act.

2. The facility shall only operate in the same location that it operated in when the facility was licensed under the Private Hospitals Act.

3. The patient bed capacity of the facility shall be no greater than what it was when the facility was licensed under the Private Hospitals Act.

Amendment of licence, on application

9 (1) Without restricting the executive officer’s powers under section 7, a licensee may, at any time, apply to the executive officer to amend the licence or the conditions of a licence.

Restriction, community health facility

(2) A licensee in respect of a community health facility may only make an application under subsection (1) with respect to the services that may be provided under the licence, the location or locations where services may be performed or any other condition of a licence provided for in the regulations.

Form and manner

(3) An application for an amendment shall be made in a form and manner that is acceptable to the executive officer.

Response of executive officer

(4) Where a licensee has applied to the executive officer for an amendment, the executive officer may,

(a) amend the licence or the conditions of the licence in accordance with the application;

(b) amend the licence or the conditions of the licence subject to any further conditions; or

(c) deny the application for amendment.

Written reasons, etc.

(5) Where the executive officer amends the licence subject to further conditions or denies the application, the executive officer shall provide brief written reasons for the decision.

Transfer of licence

10 (1) Subject to section 11, a licence in respect of a community health facility is not transferable without the prior written consent of the executive officer.

No transfer if unpaid fees

(2) The executive officer shall not consent to transfer a licence unless the current holder of the licence has paid any fee required to be paid under clause 78 (3) (t).

Criteria

(3) Subject to section 11, in deciding whether to consent to the transfer of a licence, the executive officer,

(a) shall treat the proposed transferee of the licence as if the proposed transferee were an applicant for a licence, and for that purpose section 5 applies with necessary modifications; and

(b) shall also consider whether the current holder of the licence is complying with the requirements under this Act, and may refuse to consent, or consent subject to conditions on the consent, where either or both of the Minister and executive officer have identified a failure to comply with any requirement under this Act by the current holder of the licence.

Conditions

(4) Subject to section 11, the executive officer’s consent to the transfer of a licence may be made subject to conditions, and in consenting to the transfer of a licence, the executive officer may attach to the licence any conditions that the executive officer considers necessary in the circumstances.

Prohibition, transfer of EADMD licence

(5) A licence in respect of an energy applying and detecting medical device is not transferable.

Community health facility that was formerly licensed under the Private Hospitals Act

Transfer of licence

11 (1) A licence in respect of a community health facility that was formerly licensed under the Private Hospitals Act is not transferable without the prior written consent of the Minister.

No transfer if unpaid fees

(2) The Minister shall not consent to transfer a licence unless the current holder of the licence has paid any fee required to be paid under clause 78 (3) (t).

Criteria

(3) In deciding whether to consent to the transfer of a licence in respect of a community health facility that was formerly licensed under the Private Hospitals Act, the Minister,

(a) shall treat the proposed transferee of the licence as if the proposed transferee were an applicant for a licence, and for that purpose section 5 applies with necessary modifications; and

(b) shall also consider whether the current holder of the licence is complying with the requirements under this Act, and may refuse to consent, or consent subject to conditions on the consent, where the Minister has identified a failure to comply with any requirement under this Act or under the Private Hospitals Act by the current holder of the licence.

Interpretation

(4) For the purposes of clause (3) (a), all references to the executive officer in section 5 shall be read as references to the Minister.

Conditions

(5) The Minister’s consent to the transfer of a licence may be made subject to conditions, and in consenting to the transfer of a licence, the Minister may attach to the licence any conditions that the Minister considers necessary in the circumstances.

Licence subject to conditions, etc.

12 A licence is subject,

(a) to every condition that may be specified by the executive officer; and

(b) to every condition that may be prescribed.

Term of licence

13 A licence expires on the date, if any, specified in the licence in accordance with the regulations, if any, unless it is revoked or surrendered sooner, and may be renewed at the discretion of the executive officer.

Part iv
corporate licences, community health facilities

Controlling interest

14 (1) Without limiting the meaning of controlling interest, a person shall be deemed to have a controlling interest in a licensee in respect of a community health facility if the person, either alone or with one or more associates, directly or indirectly,

(a) owns or controls, beneficially or otherwise, with respect to a licensee that is a corporation,

(i) 10 per cent or more of the issued and outstanding equity shares, and

(ii) voting rights sufficient, if exercised, to direct the management and policies of the licensee; or

(b) has the direct or indirect right or ability, beneficially or otherwise, to direct the management and policies of a licensee that is not a corporation.

Same

(2) Without restricting the generality of subsection (1), a person shall be deemed to have a controlling interest in a licensee in respect of a community health facility if that person, either alone or with one or more associates, has a controlling interest in a person who has a controlling interest in a licensee, and so on.

Associates

(3) For the purposes of subsection (1), one person shall be deemed to be an associate of another person if,

(a) one person is a corporation of which the other person is an officer or director;

(b) one person is a partnership of which the other person is a partner;

(c) one person is a corporation that is controlled directly or indirectly by the other person;

(d) both persons are corporations and one person is controlled directly or indirectly by the same individual or corporation that directly or indirectly controls the other person;

(e) both persons are members of a voting trust where the trust relates to shares of a corporation;

(f) one person is the father, mother, brother, sister, child or spouse of the other person or is another relative who has the same home as the other person; or

(g) both persons are associates within the meaning of clauses (a) to (f) of the same person.

Calculating shares

(4) In calculating the total number of equity shares of a corporation beneficially owned or controlled for the purposes of this Act, the total number shall be calculated as the total of all the shares actually owned or controlled, but each share that carries the right to more than one vote shall be calculated as having the number of shares equal to the total number of votes it carries.

Gaining controlling interest

15 (1) Subject to section 16, a person who by any method gains a controlling interest in a licensee in respect of a community health facility shall obtain the approval of the executive officer.

Executive officer’s approval

(2) Subject to section 16, the approval by the executive officer is subject to any conditions that would apply with respect to the licensee if the person had already gained a controlling interest in the licensee.

Attachment of conditions

(3) Subject to section 16, the executive officer may attach conditions to an approval.

Regulations may provide for timing, process

(4) The regulations may provide for when the approval of the executive officer must be obtained and for the process for obtaining the approval.

Community health facility that was formerly licensed under the Private Hospitals Act

Gaining controlling interest

16 (1) A person who by any method gains a controlling interest in a licensee in respect of a community health facility that was formerly licensed under the Private Hospitals Act shall obtain the approval of the Minister.

Minister’s approval

(2) The approval by the Minister is subject to any conditions that would apply with respect to the licensee in respect of a community health facility that was formerly licensed under the Private Hospitals Act if the person had already gained a controlling interest in the licensee.

Attachment of conditions

(3) The Minister may attach conditions to an approval under subsection (2).

Regulations may provide for timing, process

(4) The regulations may provide for when the approval of the Minister must be obtained and for the process for obtaining the approval. 

Duty of corporation to notify executive officer

17 (1) A licensee in respect of a community health facility that is a corporation shall notify the executive officer in writing, within the time provided for in the regulations, of any change in the officers or directors of the corporation.

Same

(2) Where a corporation has an interest in a licence of a community health facility and there is reasonable ground for belief that an event will occur by which a person would acquire an interest or increase an interest affecting the control of the corporation while the corporation has an interest in the licence, the corporation shall notify the executive officer of the possible event within the time provided for in the regulations.

Part V
Prohibitions

Prohibitions, community health facility

Operation

18 (1) No person shall operate a community health facility except under the authority of a licence, unless section 19 applies.

Holding out

(2) No person shall hold themself out as operating a community health facility if the person is not operating a community health facility under the authority of a licence or by virtue of section 19.

Operation on an interim basis and exemptions

19 Section 18 does not prohibit a person from operating a community health facility without a licence where any of the following apply:

1. Where the person is already operating a facility at the time that it becomes a community health facility for the purposes of this Act, the person may continue to operate it without a licence for up to 120 days after the day the facility becomes a community health facility, or a longer period specified by the executive officer, as long as any conditions specified by the executive officer are complied with.

2. Where the person submits an application for a licence for the community health facility to the executive officer during the period mentioned in paragraph 1, the person may continue to operate the community health facility until the executive officer has made a decision, as long as all applicable provisions of this Act, the regulations and any conditions specified by the executive officer are complied with.

3. Where the regulations provide for an exemption from section 18, the facility may be operated without a licence, subject to compliance with any conditions provided for in the regulations.

4. Where a person is issued an order under clause 52 (1) (a) to apply for a licence for a community health facility, the person may continue to operate the community health facility without a licence up to the date specified in the order, as long as any conditions specified in the order are complied with.

5. Where the person submits an application for a licence for the community health facility to the executive officer during the period mentioned in paragraph 4, the person may continue to operate the community health facility until the executive officer has made a decision, as long as all applicable provisions of this Act, the regulations and any conditions specified by the executive officer are complied with.

Payments, etc.

20 (1) No person shall charge or accept payment of a facility cost unless,

(a) the facility cost is charged and accepted with respect to an insured service provided to an insured person at a community health facility that is approved for funding under this Act; and

(b) the facility cost is charged to, and accepted from, the Minister or a prescribed person.

Access

(2) No person shall, except as permitted under subsection (1),

(a) charge or accept payment for providing an insured person with access to an insured service at a community health facility;

(b) obtain or accept a benefit, direct or indirect, for providing an insured person with access to an insured service at a community health facility; or

(c) offer to do anything referred to in clause (a) or (b).

Non-discrimination

(3) No person shall, in respect of a community health facility, refuse to provide or continue providing an insured service to an insured person for any reason relating to the insured person’s choice not to,

(a) pay an amount requested or charged in connection with the provision of an insured service at the community health facility; or

(b) provide the licensee or another person or entity with any benefit, direct or indirect, in connection with the provision of an insured service at the community health facility.

Obtaining funding to which not entitled

(4) No person shall obtain, receive or attempt to obtain or receive funding or facility costs or any payment for or in respect of a service that the person is not entitled to obtain pursuant to the conditions, rules and restrictions of funding provided for under this Act or the regulations, if any.

Aiding and abetting

(5) No person shall aid or abet another person in obtaining, receiving or attempting to obtain or receive funding or facility costs or any payment for or in respect of a service that the person is not entitled to obtain pursuant to the conditions, rules and restrictions of funding provided under this Act or the regulations, if any.

Licence not to be used as security

21 A licence for a community health facility shall not be used as security for the payment or performance of an obligation, and any transaction purporting to use such a licence as security for the payment or performance of an obligation is void.

Contracts

22 (1) A licensee in respect of a community health facility shall not enter into a contract that may result in,

(a) a change in the beneficial ownership of the licence without a corresponding transfer of the licence in accordance with section 10; or

(b) in the case of a licensee that is a corporation, a person acquiring or increasing an interest affecting the control of the corporation while it is a licensee.

Exception

(2) Subsection (1) does not apply if the licence includes a condition as to the ownership or control of the licensee and the contract would not result in a breach of the condition.

Prohibitions, energy applying and detecting medical devices

Prohibition, operating without licence

23 No person shall operate an energy applying and detecting medical device except under the authority of a licence that has been issued with respect to the device.

Prohibition, operating improperly

24 No person shall operate an energy applying and detecting medical device except in accordance with this Act and the regulations and in accordance with the terms and conditions of the licence for the device.

Vicarious Liability

Vicarious liability

25 If the executive officer or an inspector appointed by the executive officer is of the opinion that any person working in connection with anything regulated by this Act is failing to comply with this Part, the licensee shall be deemed to have not complied with the relevant provision, and the executive officer or inspector may take any action permitted under this Act in consequence.

Part VI
Requirements and Standards

Requirements

26 (1) Every licensee shall comply with every condition of the licensee’s licence.

Same

(2) Every licensee and prospective licensee shall comply with every requirement under this Act.

Truthfulness

27 Every licensee and prospective licensee shall provide truthful, complete and accurate information in any application, report, document or any other information required or requested under this Act or the regulations or as a condition of a licence or of receiving funding.

Safety and quality standards

28 Every licensee and prospective licensee shall comply with all safety and quality standards provided for in the regulations.

Quality management programs

29 Every licensee and prospective licensee shall participate in every quality management program provided for in the regulations.

Business practice standards

30 Every licensee and prospective licensee in respect of a community health facility shall comply with all business practice standards provided for in the regulations.

Quality advisor

31 (1) Every licensee and prospective licensee in respect of a community health facility shall, in accordance with the requirements provided for in the regulations, if any, ensure that there is a quality advisor for the community health facility.

Requirements

(2) The quality advisor,

(a) must be a member of a regulated health College;

(b) must be approved by the executive officer;

(c) must not be a licensee or prospective licensee, except with the prior written approval of the executive officer; and

(d) must meet any other requirements provided for in the regulations.

Responsibilities

(3) The quality advisor is responsible for,

(a) advising the licensee on how to provide services in the community health facility in compliance with the safety and quality standards provided for in the regulations;

(b) promptly informing the executive officer and any inspecting body designated for the community health facility where the quality advisor has reasonable grounds to believe that the licensee is not providing services in compliance with the safety and quality standards provided for in the regulations; and

(c) any other functions provided for in the regulations.

Quality committee

32 (1) Every licensee and prospective licensee in respect of a community health facility shall ensure that there is an inter-professional quality committee for the community health facility that complies with the requirements provided for in the regulations, if any.

Same

(2) The quality committee shall,

(a) provide advice to the quality advisor on the quality and standards of services provided in the community health facility; and

(b) perform any other functions provided for in the regulations.

Safety officer

33 (1) Every licensee in respect of an energy applying and detecting medical device shall, in accordance with the requirements provided for in the regulations, if any, ensure that there is a safety officer for the energy applying and detecting medical device.

Responsibilities

(2) The safety officer is responsible,

(a) for ensuring that the energy applying and detecting medical device is maintained in safe operating condition; and

(b) for any other matters related to the safe operation of energy applying and detecting medical devices that are provided for in the regulations.

Monitoring of services

34 Every licensee and prospective licensee in respect of a community health facility shall establish and maintain a system to monitor the results of services provided in the community health facility in accordance with the requirements provided for in the regulations, if any.

Complaints

35 Every licensee and prospective licensee in respect of a community health facility shall establish and maintain a process for receiving and responding to complaints from patients and service providers in accordance with the requirements provided for in the regulations, if any.

Incident review process

36 (1) Every licensee and prospective licensee shall, in accordance with the requirements provided for in the regulations, if any, establish and maintain a process for the review of prescribed incidents and the disclosure of information, which may include personal information, if necessary, related to such incidents.

Disclosure of information related to prescribed incidents

(2) If information related to a prescribed incident is required to be disclosed, the information may only be disclosed to prescribed persons or entities.

Posting

37 (1) Every licensee and prospective licensee in respect of a community health facility shall post, in a prominent place clearly visible to members of the public, at or near the entrance of the community health facility, and in compliance with the requirements provided for in the regulations, if any,

(a) a copy of the licence for the facility in the case of a licensee;

(b) the name of the licensee or prospective licensee;

(c) copies of the last two inspection reports in respect of the community health facility or, if two inspection reports have not been issued in respect of the facility, a copy of any inspection report with respect to the facility;

(d) the facility’s procedure for initiating complaints to the licensee or prospective licensee;

(e) the executive officer’s procedure for making complaints to the executive officer, together with the contact information of the executive officer, or the contact information of a person designated by the executive officer to receive complaints;

(f) a copy of each compliance order made under section 54 in respect of the facility and each cessation order made under section 55 in respect of the facility, for as long as the order is in effect; and

(g) any other prescribed documents.

No personal health information

(2) No personal health information may be posted under subsection (1).

Provision of information, executive officer

38 (1) Every licensee, prospective licensee and any other prescribed person shall, for the purposes provided for in subsection (2), provide reports, notices and other information, which may include personal information if necessary, to the executive officer or any other prescribed person,

(a) as may be required by the executive officer from time to time; and

(b) as provided for in the regulations, if any.

Purposes

(2) The purposes under subsection (1) are,

(a) purposes related to this Act;

(b) purposes related to the Commitment to the Future of Medicare Act, 2004;

(c) purposes related to the Health Insurance Act; and

(d) any other prescribed purposes.

Collection, use and disclosure of personal information

39 (1) In the course of performing a duty or exercising a power under this Act or the regulations, no person shall,

(a) collect, use or disclose personal information if other information will serve the purpose of the collection, use or disclosure; and

(b) collect, use or disclose more personal information than is reasonably necessary to meet the purposes of the collection, use or disclosure.

Recipient of personal information

(2) Unless a person or entity is subject to the Personal Health Information Protection Act, 2004, the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act or is otherwise permitted or required by law to use or disclose the information and subject to any exceptions and additional requirements prescribed by regulation, a person or entity that receives personal information under subsection 38 (1), paragraph 5 of subsection 40 (3) and paragraph 4 of subsection 65 (5), shall not use or disclose the information for any purpose other than,

(a) the purposes for which the information was authorized to be disclosed under this Act or the regulations; and

(b) the purposes of carrying out a statutory or legal duty.

Part VII
Inspecting Bodies

Inspecting bodies

40 (1) The regulations may designate one or more organizations as inspecting bodies of community health facilities for the purposes of this Act and the regulations.

Power to act

(2) Every organization that is designated as an inspecting body is deemed to have among its objects all the powers necessary to act as an inspecting body for the purposes of this Act and the regulations.

Responsibilities of inspecting bodies

(3) Subject to the regulations, an inspecting body has the following powers and responsibilities with respect to the community health facilities provided for in the regulations:

1. Developing safety and quality standards for the community health facilities and updating existing standards either as the inspecting body considers appropriate or as requested by the executive officer.

2. Establishing schedules for the regular inspection of the community health facilities.

3. Providing for the inspection of community health facilities as the inspecting body considers advisable or as requested by the executive officer.

4. Appointing inspectors to carry out the responsibilities of inspectors under this Act and the regulations.  In the appointment the inspecting body may limit the authority of an inspector in such manner as the inspecting body considers necessary or advisable.

5. Submitting reports of inspections and other information, which may include personal information, to the executive officer and to other prescribed persons or entities.

6. Making reports of inspections available to the public.

7. Making orders under sections 54 and 55.

8. Making orders issued under sections 54 and 55 available to the public.

9. Establishing committees to carry out any functions of the inspecting body, or any function required by the executive officer.

10. Establishing and collecting fees for any activity that the inspecting body is required or permitted to carry out under this Act or the regulations, including fees for administrative and overhead costs related to the activity, from the following persons:

i. applicants for a licence,

ii. prospective licensees, and

iii. licensees.

11. Exercising any power and carrying out any responsibility provided for in the regulations.

No personal health information

(4) Before making a report or order available to the public under subsection (3), the inspecting body shall remove all personal health information from the copy of the report or order that it intends to make public.

Shall carry out responsibilities

(5) Every inspecting body shall exercise its powers and carry out its responsibilities according to the requirements provided for in this Act and in the regulations.

Requiring information

(6) An inspecting body may request a licensee, prospective licensee or other prescribed person to provide the inspecting body with any information or reports that the inspecting body considers necessary for the purpose of carrying out its functions and the licensee, prospective licensee or prescribed person shall comply with the request in the manner and within the time set by the inspecting body.

Confidentiality

(7) Every inspecting body and every inspector appointed by an inspecting body shall keep confidential all information that comes into their possession in the course of carrying out their functions under this Act, except,

(a) where the executive officer requests the information from the inspecting body in the course of carrying out the executive officer’s functions under this Act;

(b) where the inspecting body is required under this Act or the regulations to post the information or to make the information public;

(c) where the regulations require the inspecting body to provide the information;

(d) where the person to whom the information relates has consented to the disclosure;

(e) where the disclosure is for purposes related to,

(i) the Regulated Health Professions Act, 1991, a health profession Act, or the Drug and Pharmacies Regulation Act,

(ii) the Commitment to the Future of Medicare Act, 2004,

(iii) the Health Insurance Act, or

(iv) the Health Protection and Promotion Act;

(f) where the disclosure is to a police officer to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;

(g) where disclosure of the information is required by a law of Ontario or Canada;

(h) where disclosure is required in a proceeding before the Board;

(i) where there are reasonable grounds to believe that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons; or

(j) as provided for in the regulations.

Part VIII
Enforcement

Inspectors, appointed by executive officer

41 The executive officer may appoint, in writing, inspectors or classes of inspectors for the purposes of this Act, whether or not an inspecting body has been given the responsibility of appointing inspectors, and in the appointment may limit the authority of an inspector in such manner as the executive officer considers necessary or advisable.

Functions of inspectors

42 The following applies with respect to inspectors:

1. The function of an inspector appointed by an inspecting body is to conduct inspections to ensure compliance with sections 28, 29, 31, 32, 34, 35 and 37 and with any other prescribed requirements. Without restricting the generality of this function, it may also include conducting inspections to assist the executive officer to determine whether a licence should be issued under section 5.

2. The function of an inspector appointed by the executive officer is to conduct inspections to ensure compliance with all requirements under this Act, including, but not limited to anything mentioned in paragraph 1.

Powers of inspector

43 (1) For the purpose of carrying out an inspector’s function under this Act an inspector may, without a warrant or other order and without notice, enter and inspect,

(a) a licensed community health facility or a place in respect of which an application for a licence for a community health facility has been made;

(b) any business premises of a company that owns, operates or franchises one or more community health facilities;

(c) any place that the inspector reasonably believes is operating as a community health facility; and

(d) any premises at which an energy applying and detecting medical device is located or where the inspector reasonably believes an energy applying and detecting medical device is located.

Time of entry

(2) The power under this section to enter and inspect without a warrant or other order may be exercised at any reasonable time.

Dwellings

(3) No inspector shall enter a place or a part of a place that is being used as a dwelling, except with the consent of the occupier of the place or under the authority of an order under section 48.

Use of force

(4) An inspector is not entitled to use force to enter and inspect a community health facility, business premises, place or premises.

Identification

(5) An inspector conducting an inspection shall produce, on request, evidence of the inspector’s appointment.

Powers of inspector while inspecting

(6) An inspector conducting an inspection may, if the inspector considers it relevant to the inspection,

(a) examine records or anything else;

(b) demand the production of a record or any other thing;

(c) upon providing a receipt, if someone is available to provide it to, remove a record or any other thing for copying, review, examination or testing;

(d) in order to produce a record in readable form, use data storage, information processing or retrieval devices or systems that are normally used in carrying on business in the place;

(e) take photographs or make any other kind of recording;

(f) question a person about a matter relevant to the inspection;

(g) directly observe the practice of, and the performance of procedures by, any person performing a procedure on a patient, in accordance with subsection (8); and

(h) call upon experts who may enter the premises and provide assistance to the inspector in carrying out the inspection in any manner that the inspector considers necessary.

EADMDs

(7) In addition to the powers set out in subsection (6) an inspector conducting an inspection of a premises at which an energy applying and detecting medical device is located may,

(a) require the licensee to cease the operation of the device and to dismantle the device for the purpose of an examination or test;

(b) affix stickers, labels or other things to an energy applying and detecting medical device for purposes of ensuring that the device is not used without the use being detected;

(c) make tests and examinations to determine whether or not the energy applying and detecting medical device is installed and used in compliance with this Act and the regulations; and

(d) require the production of proof that any person who operates an energy applying and detecting medical device meets the prescribed qualifications and requirements to ensure that this Act and the regulations are complied with.

Where inspector observes patient

(8) Where, as part of the inspection, an inspector directly observes a person performing a procedure on a patient, before the observation occurs, the inspector shall,

(a) identify themself to the patient as an inspector appointed under this Act;

(b) explain the purpose of the direct observation to the patient;

(c) inform the patient that information obtained from the direct observation, including personal information, may be used in proceedings under the laws of Ontario;

(d) answer any questions that the patient asks about a matter relevant to the inspection; and

(e) obtain the patient’s written consent to the direct observation of the patient by the inspector.

Written demand

(9) A demand under clause (6) (b) that a record or any other thing be produced must be in writing and must include,

(a) a statement of the nature of the record or thing required; and

(b) a statement of when the records and other things are to be produced.

Obligation to produce and assist

(10) If an inspector demands that a record or any other thing be produced under this section, the person who has custody of the record or thing shall produce it and, in the case of a record, shall on request provide any assistance that is reasonably necessary to interpret the record or to produce it in a readable form.

Records and things removed from place

(11) A record or other thing that has been removed for review, examination, copying or testing,

(a) shall be made available to the person from whom it was removed on request and at a time and place that are convenient for the person and for the inspector; and

(b) shall be returned to the person within a reasonable time.

Confidentiality

(12) Except as otherwise provided for in the regulations, an inspector appointed by the executive officer shall keep confidential all information that comes to the inspector’s knowledge in the course of an inspection and shall not communicate any information to any other person except as required by law or except where the communication is to the executive officer or the Minister or a person employed in or performing services for the Ministry.

Co-operation

(13) Every person shall give all reasonable assistance to an inspector in the exercise of the inspector’s powers or the performance of the inspector’s duties under this Act or the regulations.

Obstruction

(14) No person shall,

(a) hinder, obstruct or interfere with an inspector conducting an inspection, or otherwise impede an inspector in carrying out their duties;

(b) destroy or alter a record or other thing that has been demanded under clause (6) (b); or

(c) fail to do anything required under subsection (10) or (13) or under subsection 45 (7).

Definition of record

(15) In this section,

“record” means any document or record of information, in any form, including a record of personal information.

Copy constitutes evidence

44 (1) In any proceeding, other than a prosecution, a copy of an order, decision or inspection report made under this Act or the regulations that appears to be signed by an inspector, an inspecting body or the executive officer is admissible as evidence of the order, decision or inspection report and of the facts appearing in the document without further proof.

Same

(2) In any proceeding, other than a prosecution, a copy of a record or thing made under clause 43 (6) (c) that appears to be certified as a true copy of the original by an inspector, an inspecting body or the executive officer is admissible as evidence of the record or thing and of the facts appearing in it without further proof.

Same, prosecution

(3) In any prosecution, a copy of an order, decision or inspection report made under this Act or the regulations that appears to be signed by an inspector, an inspecting body or the executive officer is admissible as evidence, in the absence of evidence to the contrary, of the order, decision or inspection report and of the facts appearing in the document without further proof.

Same

(4) In any prosecution, a copy of a record or thing made under clause 43 (6) (c) that appears to be certified as a true copy of the original by an inspector, an inspecting body or the executive officer is admissible as evidence, in the absence of evidence to the contrary, of the record or thing and of the facts appearing in it without further proof.

Admissibility of certain documents

(5) In any proceeding, a certificate as to the result of an examination or test conducted under subsection 43 (6) or (7) that states the name and qualifications of the person who conducted the examination or test and that appears to be signed by that person is, without further proof of the office or signature of that person, admissible as evidence, in the absence of evidence to the contrary, of the facts stated in the certificate, if the certificate has been served on the other parties to the proceeding within a reasonable time before the certificate is adduced.

Production order

45 (1) On application without notice by a provincial offences officer, a justice may issue a production order to a person, other than a person under investigation for an offence, requiring the person to,

(a) produce documents or copies of documents, certified by affidavit to be true copies, or produce data; or

(b) prepare a document based on documents or data already in existence and produce it.

Contents of order

(2) A production order must stipulate when, where and how the documents or data are to be produced and to whom they are to be produced.

Grounds

(3) A justice may make a production order if satisfied by information given under oath or affirmation that there are reasonable grounds to believe that,

(a) an offence under this Act has been or is being committed;

(b) the document or data will provide evidence respecting the offence or suspected offence; and

(c) the person who is subject to the order has possession or control of the document or data.

Conditions

(4) A production order may contain any conditions the justice considers advisable.

Evidence

(5) A copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this Act and has the same probative force as the original document would have if it had been proved in the ordinary way.

No return of copies

(6) Copies of documents produced under this section are not required to be returned to the person who provided them.

Compliance required

(7) A person to whom a production order is directed shall comply with the order according to its terms.

Not compellable witness

46 An inspector or person who, at the request of an inspector, accompanies an inspector doing anything authorized under this Act is not a compellable witness in a civil suit or any proceeding respecting any information or material furnished, obtained,  made or received by them under this Act while acting within the scope of their employment.

Protection of information

47 In a prosecution for an offence under this Act or where documents or materials are filed with a court under section 45 of this Act or sections 158 to 160 of the Provincial Offences Act in relation to an inspection or an investigation into an offence under this Act, the court may, at any time, take precautions to avoid the disclosure by the court or any person of any personal information about an individual, including, where appropriate,

(a) removing the identifying information of any person whose personal information is referred to in any documents or materials;

(b) receiving representations without notice;

(c) conducting hearings or parts of hearings in private; or

(d) sealing all or part of the court files.

Order for entry or inspection

48 (1) A justice may issue an order authorizing an inspector to do anything set out in section 43, including to enter a place or a part of a place that is being used as a dwelling, if the justice is satisfied, on evidence under oath by an inspector, that there are reasonable grounds to believe that,

(a) it is appropriate for the inspector to do anything set out in section 43 for the purpose of determining any person’s compliance with this Act or the regulations; or

(b) the inspector may not be able to carry out their duties effectively without an order under this section because,

(i) no occupier is present to grant access to a place that is locked or otherwise inaccessible,

(ii) a person has prevented or may prevent the inspector from doing anything set out in section 43,

(iii) it is impractical, because of the remoteness of the place to be inspected or for any other reason, for an inspector to obtain an order under this section without delay if access is denied, or

(iv) an attempt by an inspector to do anything set out in section 43 might not achieve its purpose without the order.

Same

(2) Subsections 43 (2), (3) and (5) to (15) apply to an inspection carried out under an order issued under this section.

Use of force

(3) An inspector named in an order under this section may use whatever force is necessary to execute the order and may call upon a police officer for assistance in executing the order.

Expiry

(4) Unless renewed, an order under this section expires on the earlier of the day specified for the purpose in the order and the day that is 30 days after the date on which the order is made.

Renewal

(5) An order under this section may be renewed in the circumstances in which an order may be made under subsection (1), before or after expiry, for one or more periods, each of which is not more than 30 days.

When to be executed

(6) Everything that an order under this section authorizes must be done at a reasonable time.

Application without notice

(7) An order under this section may be issued or renewed on application without notice.

Reports

49 (1) Promptly after completing an inspection of a community health facility,

(a) an inspector appointed by an inspecting body shall make a written report to the inspecting body; and

(b) an inspector appointed by the executive officer shall make a written report to the executive officer.

Same

(2) An inspecting body shall, on request, provide to the executive officer, in the form and at times satisfactory to the executive officer, copies of,

(a) every report made by an inspector under clause (1) (a);

(b) a written summary of every report made under clause (1) (a); and

(c) every order made by the inspecting body or an inspector appointed by the inspecting body under this Act.

Requirements certain documents

50 Every report, summary of a report and order made by an inspector or by an inspecting body under this Act must comply with the requirements provided for in the regulations, if any.

General matters re enforcement

51 (1) The use of any measure provided for in this Act in respect of a contravention of a requirement under this Act does not prohibit the use, at the same time or different times, of any other measure provided for in this Act or otherwise available in law in respect of the same contravention.

Consideration of past conduct

(2) Where the executive officer, an inspecting body or an inspector makes a decision under this Act, they may consider any person’s current or past failures to comply with a requirement under this Act or under any other Act that they may consider relevant.

Person operating community health facility without a licence

52 (1) If the executive officer or an inspector appointed by the executive officer believes on reasonable grounds that a person is operating a community health facility without a licence, except as permitted under section 19, the executive officer or inspector may serve an order on the person ordering the person to,

(a) apply for a licence under this Act by a date specified on the order or cease operating the community health facility; or

(b) cease operating the community health facility.

Person operating EADMD without a licence

(2) If the executive officer or an inspector appointed by the executive officer believes on reasonable grounds that a person is operating an energy applying and detecting medical device without a licence, the executive officer or inspector may serve an order on the person ordering the person to cease operating the energy applying and detecting medical device.

Conditions

(3) An order under clause (1) (a) may contain any conditions the executive officer or inspector, as the case may be, considers advisable.

Actions if non-compliance found

53 (1) If an inspector or inspecting body or the executive officer finds that a licensee or a prospective licensee in respect of a community health facility has not complied with a requirement under this Act, the inspector or inspecting body or executive officer shall do at least one of the following as they consider appropriate and as provided for in this Act:

1. Issue a written notification to the licensee or prospective licensee.

2. Issue a written request to the licensee or prospective licensee to prepare a written plan of correction for achieving compliance, to be implemented voluntarily.

3. Make an order in accordance with section 54 or 55.

4. Issue a notice of administrative monetary penalty in accordance with section 58.

Restriction, inspecting body

(2) An inspecting body and an inspector appointed by an inspecting body may only take an action under subsection (1) with respect to a requirement under this Act for which the inspecting body is responsible under its designation by the regulations or that is reasonably connected to such a requirement.

Compliance orders

Compliance orders, EADMD

54 (1) An inspector or the executive officer may order a licensee in respect of an energy applying and detecting medical device,

(a) to do anything, or refrain from doing anything, to achieve compliance with a requirement under this Act;

(b) to do anything, or refrain from doing anything, that is necessary or advisable to protect the health or safety of any patient or any other person in or near the premises where the energy applying and detecting medical device is operated; or

(c) to stop operating the device and to ensure that no one else is operating the device.

Grounds

(2) A compliance order under subsection (1) may be made if, in the opinion of the inspector or the executive officer, after considering any factors provided for in this Act or the regulations, the licensee has not complied with a requirement under this Act or, if in the opinion of the inspector or the executive officer, it is necessary or advisable to protect the health or safety of any person in or near the premises where the energy applying and detecting medical device is operating.

Compliance orders, community health facilities

(3) An inspector appointed by the executive officer, an inspecting body or the executive officer may order a licensee or a prospective licensee in respect of a community health facility to,

(a) do anything, or refrain from doing anything, to achieve compliance with a requirement under this Act; or

(b) prepare, submit and implement a plan to the inspecting body or the executive officer, depending upon who is making the order, for achieving compliance with a requirement under this Act.

Grounds

(4) A compliance order under subsection (3) may be made if, in the opinion of the inspector, inspecting body or the executive officer, after considering any factors provided for in this Act or the regulations, the licensee or prospective licensee has not complied with a requirement under this Act or, if in the opinion of the inspector, inspecting body or the executive officer, it is necessary or advisable to protect the health or safety of any person.

Restrictions

(5) A compliance order made by an inspecting body may only be made with regard to a requirement under this Act respecting the functions for which the inspecting body is responsible under its designation in the regulations or that is reasonably connected to such a requirement.

Time of validity

(6) A compliance order issued under clause (1) (c) is valid until the date set out in the order or until the conditions specified in the order have been met, whichever is earlier.

Cessation orders

55 (1) An inspector or inspecting body or the executive officer may order a licensee or a prospective licensee in respect of a community health facility to cease from operating or to cease from providing a service.

Grounds, cessation order

(2) A cessation order may be made if, in the opinion of the inspector, inspecting body or the executive officer, after considering any factors provided for in this Act or the regulations, the licensee or prospective licensee has not complied with a requirement under this Act and the non-compliance poses a serious risk of harm to the health and safety of any person.

Restrictions

(3) A cessation order made by an inspecting body or an inspector appointed by an inspecting body may only be with regard to requirements under this Act respecting the functions for which the inspecting body is responsible under its designation in the regulations or that is reasonably connected to such a requirement.

Cessation order by certain inspectors

(4) The following applies with respect to a cessation order made by an inspector appointed by an inspecting body:

1. The order must be reviewed by the inspecting body within the time provided for in the regulations and the inspecting body must make a decision with respect to the order within a time provided for in the regulations. If the inspecting body does not make a decision within that time, the order ceases to be valid.

2. The licensee or prospective licensee may make submissions in writing to the inspecting body within the time specified by the inspecting body.

3. In its review, the inspecting body must consider the cessation order made by the inspector, the inspector’s report and any submissions received from the licensee or prospective licensee.

4. In its decision, the inspecting body may confirm, alter or rescind the order made by the inspector and may also,

i. substitute another order for that of the inspector, including issuing a compliance order in accordance with section 54, and

ii. require an additional inspection to be carried out in accordance with its instructions.

5. The inspecting body shall serve the licensee or prospective licensee with notice of the decision, which shall include written reasons if the order is confirmed or altered or another order is substituted.

Copy

(5) An inspector or inspecting body that issues a cessation order shall promptly provide the executive officer with a copy of the order.

Funding

(6) Where, under a cessation order, a licensee or prospective licensee is required to cease providing any service, no funding shall be provided by the Minister or any other person out of public money with respect to the service that was the subject of the cessation order until the cessation order is terminated by an order issued under subsection (7).

Order valid

(7) A cessation order is valid until terminated by further order of the inspector, inspecting body or executive officer.

Copy

(8) An inspector or inspecting body that terminates a cessation order shall promptly provide the executive officer with a copy of the order.

Review of compliance order EADMD

56 (1) A licensee against whom a compliance order is made by an inspector under subsection 54 (1) may request the executive officer to review the order.

When and how request to be made

(2) The request for review must be in writing and shall be served on the executive officer within 28 days from the day the order was served on the licensee.

Contents of request for review

(3) The request for review must include,

(a) the portions of the order in respect of which the review is requested;

(b) any submissions that the licensee wishes to be considered; and

(c) an address for service for the licensee.

No automatic stay pending review

(4) Despite section 25 of the Statutory Powers Procedure Act, a request for a review does not stay an order unless the executive officer orders otherwise, in writing, upon being satisfied that a stay will not cause harm or a risk of harm to any person.

Decision

(5) On a review of an order, the executive officer may rescind, confirm or alter the order, and may substitute another order for that of an inspector.

Notice of decision

(6) The executive officer shall serve the licensee with notice of the decision, which shall include brief written reasons if the order is confirmed or altered.

Automatic confirmation of order

(7) If the executive officer does not serve the licensee with a copy of a decision within 28 days of receiving the request for review, the order shall be deemed to have been confirmed.

Supervisor

57 (1) The executive officer may appoint a person as a community health facility supervisor in respect of a community health facility that receives public funds where the executive officer considers it in the public interest to do so.

Notice of appointment

(2) The executive officer shall give the licensee in respect of a community health facility at least 14 days notice before appointing a supervisor.

Term of office

(3) The appointment of a community health facility supervisor is valid until terminated by order of the executive officer.

Powers of supervisor

(4) Unless the appointment provides otherwise, a community health facility supervisor has the exclusive right to exercise all of the powers of the licensee of the facility.

Same

(5) The executive officer may specify the powers and duties of a community health facility supervisor appointed under this section and the terms and conditions governing those powers and duties.

Additional powers of supervisor

(6) If, under the order of the executive officer, the licensee continues to have the right to act with regard to any matters, any such act of the licensee is valid only if approved in writing by the community health facility supervisor.

Report to executive officer

(7) A community health facility supervisor shall report to the executive officer as required by the executive officer.

Disclosure

(8) The executive officer shall make any report provided to the executive officer under subsection (7) public.

Personal health information to be removed

(9) Before making the report available to the public, the executive officer shall ensure that all personal health information in the report is removed.

Directions

(10) The executive officer may issue directions to a community health facility supervisor with regard to any matter within the jurisdiction of the supervisor.

Directions to be followed

(11) A community health facility supervisor shall carry out every direction of the executive officer.

Notice of administrative penalty

58 (1) An inspector appointed by the executive officer or the executive officer may issue a notice in writing requiring a licensee or prospective licensee in respect of a community health facility to pay an administrative penalty in the amount set out in the notice if the inspector or executive officer is of the opinion that the licensee or prospective licensee has not complied with a requirement under this Act.

Purpose of administrative penalty

(2) A notice of administrative penalty may be issued under this section for the purpose of,

(a) encouraging compliance with a requirement under this Act; or

(b) preventing a licensee or prospective licensee from deriving, directly or indirectly, any economic benefit as a result of not complying with a requirement under this Act.

Amount of administrative penalty

(3) Subject to subsection (4), the amount of an administrative penalty in respect of a failure to comply,

(a) shall be in the amount prescribed for the purposes of the contravention; and

(b) shall reflect the purpose referred to in subsection (2).

Same, reduction

(4) The inspector or executive officer shall reduce the amount of an administrative penalty determined under subsection (3) if the inspector or executive officer determines that the amount is excessive in the circumstances or is, by its magnitude, punitive in nature having regard to all the circumstances.

Two-year limitation

(5) A notice of administrative penalty shall not be issued under this section more than two years after the day the most recent failure to comply on which the notice is based first came to the knowledge of an inspector or executive officer.

Contents of notice of administrative penalty

(6) A notice of administrative penalty served on a licensee or prospective licensee shall,

(a) contain or be accompanied by information setting out the nature of the contravention including, if relevant, the date on which and location where the contravention occurred;

(b) set out the amount of the penalty to be paid and specify the time and manner of payment; and

(c) inform the licensee or prospective licensee of their right to request an appeal of the notice by the Board.

Review of inspector’s notice

(7) A licensee or prospective licensee who is required by a notice issued by an inspector under subsection (1) to pay an administrative penalty may, within 20 days after service of the notice, by written notice served on the executive officer, request that the executive officer review whether the contravention or failure to which the notice relates occurred.

Contents of request for review

(8) A request for review under subsection (7) must include,

(a) the portions of the notice of administrative penalty in respect of which the review is requested;

(b) any submissions that the licensee or prospective licensee wishes to be considered; and

(c) an address for service for the licensee or prospective licensee.

Stay

(9) If a licensee or prospective licensee requests a review under subsection (7), the requirement to pay is stayed until the disposition of the review.

Decision

(10) On a review of a notice of administrative penalty, the executive officer may rescind, confirm or alter the notice and may substitute another notice for that of an inspector.

Reductions of administrative penalty

(11) In confirming or altering a notice of administrative penalty, the executive officer may find that the penalty is excessive in the circumstances or is, by its magnitude, punitive in nature having regard to all the circumstances and in that case shall reduce the amount of the penalty.

Notice of decision

(12) The executive officer shall serve the licensee or prospective licensee with notice of the decision, which shall include reasons if the notice of administrative penalty is confirmed or altered.

Automatic confirmation of notice

(13) If the executive officer does not serve the licensee with a copy of a decision within 28 days of receiving the request for review, the notice of administrative penalty shall be deemed to have been confirmed and, for the purposes of an appeal to the Board by the licensee or prospective licensee, the executive officer shall be deemed to have served the licensee with a copy of that decision on the expiry of the 28 day period.

Hearing

(14) A licensee or prospective licensee who is required by a notice issued by the executive officer under subsection (1) to pay an administrative penalty may appeal the decision of the executive officer to the Board in accordance with section 74.

Payment to Minister of Finance

(15) A licensee or prospective licensee who is required to pay an administrative penalty under this Act shall pay the penalty to the Minister of Finance.

Enforcement of administrative penalty

(16) Subject to subsection (17), if a licensee or prospective licensee who is required to pay an administrative penalty fails to pay it within the time specified in the notice, a copy of any of the following may be filed with a local registrar of the Superior Court of Justice and on filing is deemed to be an order of that court and is enforceable as an order of that court:

1. A notice of administrative penalty under subsection (1).

2. A decision of the Board with respect to the notice under section 74.

Same

(17) The notice of administrative penalty or decision filed under subsection (16) may only be filed upon the expiry of the period for appealing the notice or decision.

Post-judgment interest

(18) Section 129 of the Courts of Justice Act applies in respect of a notice of administrative penalty or decision filed with the Superior Court of Justice under subsection (16) and, for the purpose, the date on which the notice of administrative penalty or decision is filed under subsection (16) is deemed to be the date of the order that is referred to in section 129 of the Courts of Justice Act.

Crown debt

(19) An administrative penalty issued under this Act that is not paid within the time set out in the notice of administrative penalty is a debt due to the Crown and enforceable as such.

Suspension, revocation, etc.

Community health facilities

59 (1) With respect to a community health facility, the executive officer may suspend, revoke or refuse to renew a licence or suspend or revoke a licensee’s authorization to provide one or more services under a licence where the executive officer has reasonable grounds to believe that,

(a) the requirements under section 5 for the issuance of a licence were not met at the time of issuance, or are no longer being met;

(b) the community health facility does not meet the prescribed safety and quality standards, having regard to any factors the executive officer considers relevant, including, without being limited to,

(i) the nature of risks revealed in the course of inspections, and

(ii) the actions taken by the licensee in response to compliance orders;

(c) the licensee or anyone else operating or working at the community health facility has failed to comply with a requirement under this Act, or with any other relevant Act or law; or

(d) the licensee has not provided services provided for in the licence for a period of at least six months and is not taking reasonable steps to provide the services.

Licence renewal, community health facilities

(2) The executive officer shall refuse to renew a licence unless the licensee has paid any fee required to be paid under clause 78 (3) (t).

Energy applying and detecting medical devices

(3) With respect to an energy applying and detecting medical device, the executive officer may suspend, revoke or refuse to renew a licence, where the executive officer has reasonable grounds to believe that,

(a) the requirements under section 5 for the issuance of a licence were not met at the time of issuance, or are no longer being met;

(b) the licensee does not meet the prescribed standards, having regard to any factors the executive officer considers relevant, including, without being limited to,

(i) the nature of risks revealed in the course of inspections, or

(ii) the actions taken by the licensee in response to compliance orders; or

(c) the licensee or anyone else operating an energy applying and detecting medical device has failed to comply with a requirement under this Act, or with any other relevant Act or law.

Notice

(4) The executive officer shall give notice of every action taken under this section in accordance with section 63.

Health care system factors

Community health facilities

60 (1) Subject to section 61, with respect to a community health facility, at any time the executive officer may suspend, revoke or refuse to renew a licence or suspend or revoke a licensee’s authorization to provide one or more services under a licence where the executive officer has reasonable grounds to believe that there has been a change in any factors related to the management of the health care system, including any of the following:

1. The nature of the services provided in the community health facility.

2. The extent to which the services are available in Ontario or in any part of Ontario.

3. The need for the services in Ontario or any part of Ontario.

4. The future need for the services in Ontario or any part of Ontario.

5. The projected cost in public money for the operation of the community health facility.

6. The availability of public money to pay for the operation of the community health facility.

7. The concentration of ownership, control or management of community health facilities in the area in which the licensee operates the facility.

8. Any other matter that the executive officer considers relevant to the management of the health care system.

Energy applying and detecting medical device

(2) With respect to an energy applying and detecting medical device, at any time the executive officer may suspend, revoke or refuse to renew a licence where the executive officer has reasonable grounds to believe that there has been a change in any factors related to the management of the health care system, including any of the following:

1. The proposed use of the device.

2. The extent to which the proposed use of the device is already available in Ontario or any part of Ontario.

3. The need for the proposed use of the device in Ontario or any part of Ontario.

4. The future need for the proposed use of the device in Ontario or any part of Ontario.

5. Any other matter that the executive officer considers relevant to the management of the health care system.

Health care system factors

Community health facilities that were formerly licensed under the Private Hospitals Act

61 (1) With respect to a community health facility that was formerly licensed under the Private Hospitals Act, at any time the Minister may revoke or refuse to renew a licence where the Minister is of the opinion that it is in the public interest to do so.

Same, public interest

(2) In making a decision in the public interest under subsection (1), the Minister may consider any matter he or she regards as relevant including, without limiting the generality of the foregoing, the integrity of the publicly funded health care system, the proper management of the health care system in general, and the availability of financial resources for the management of the health care system and for the delivery of health care services.

Due diligence, mistake do not prevent order, appointment or penalties

62 The authority to make an order under clause 52 (1) (a) or section 54 or 55, make an appointment under section 57, issue a notice under section 58 or take an action under section 59 against a licensee or prospective licensee who has not complied with a requirement under this Act may be exercised whether or not,

(a) the licensee or prospective licensee took all reasonable steps to prevent the non-compliance; or

(b) at the time of the non-compliance, the licensee had an honest and reasonable belief in a set of facts that, if true, would have resulted in there not being any non-compliance.

Forms and service of orders and notices

63 (1) An order under section 54 or 55, or the notice of taking an action under section 59 or 60,

(a) must be in writing;

(b) must set out the grounds upon which it is made;

(c) must set out, if there is a right of review under section 56, a statement of that right and an explanation of how to exercise that right, including the deadline for requesting the review;

(d) must set out, if there is a right under section 74 to appeal the order, a statement of that right and an explanation of how to exercise that right, including the deadline for exercising the right; and

(e) subject to subsection (2), must be served on the licensee or prospective licensee against whom the order is made or the action is taken.

Service of orders under s. 55

(2) An order made under section 55 may be served on a person engaged in the administration or operation of a community health facility but, where an order is served on an administrator or operator, a copy of the order must be delivered to the licensee or prospective licensee of the community health facility.

Forms and service of orders and notices

Community health facility that was formerly licensed under the Private Hospitals Act

64 The notice of taking an action under section 61,

(a) must be in writing;

(b) must set out the grounds upon which it is made;

(c) must be served on the licensee against whom the action is taken; and

(d) may include directions to the licensee of a community health facility that was formerly licensed under the Private Hospitals Act providing for the actions the licensee must take to ensure the health and safety of patients.

Part IX
funding

Funding

65 (1) The Minister may,

(a) provide funding for community health facilities that may include, but is not limited to, facility costs; and

(b) provide funding for inspecting bodies.

Conditions

(2) The Minister may attach conditions to funding provided under subsection (1), including how funding may be used.

Restrictions

(3) The provision of funding under subsection (1) is subject to any other conditions, rules and restrictions that may be provided for in the regulations, including requirements relating to eligibility to receive funding.

Set-off

(4) Amounts owed to the Crown may be set off against funding that would otherwise be provided under subsection (1).

Other persons and entities

(5) The Minister may make regulations that designate one or more persons or entities to provide funding under clause (1) (a) to community health facilities provided for in those regulations and, where the Minister makes such regulations, the following applies:

1. The Minister and the designated person or entity shall enter into an accountability agreement.

2. The designated person or entity may provide the funding on the terms and conditions that the person or entity considers appropriate, subject to the accountability agreement entered into under paragraph 1 and any requirements that may be set out in the regulations made by the Minister for the purposes of this subsection.

3. The Minister may assign to the designated person or entity the Minister’s rights and obligations under all or part of an agreement between the Minister and a community health facility, including an agreement to which a person or entity that is not a community health facility is also a party.

4. The designated person or entity shall provide the reports, notices and other information, which may include personal information, if necessary, to the Minister or such other person prescribed in a regulation made under this section,

i. as may be required by the Minister from time to time for purposes related to the administration of the Act and regulations, and

ii. as may be provided for in the regulations made by the Minister under this subsection.

5. The designated person or entity is deemed to have among its objects all the powers necessary to act as a designated person or entity under this Act.

6. Section 66 does not apply to the funding provided by the designated person or entity.

Regulations

(6) The Minister may make regulations prescribing persons or entities that may receive information under paragraph 4 of subsection (5).

Determinations by Minister

66 (1) Subject to paragraph 6 of subsection 65 (5), the Minister shall determine all issues relating to payment of funds for services provided in accordance with this Act.

Actions of Minister

(2) The Minister may take an action described in subsection (3), in respect of a service provided by a licensee or prospective licensee and for which the Minister provides or has provided funding under this Act or a predecessor to this Act,

(a) if the Minister is of the opinion that all or part of the service was not in fact rendered;

(b) if the Minister is of the opinion that the nature of the service is misrepresented, whether deliberately or inadvertently;

(c) if the Minister is of the opinion that the charge or claim for the service has not been submitted in accordance with this Act and the regulations;

(d) if the Minister is of the opinion that all or part of the service was not provided in accordance with prescribed safety and quality standards;

(e) if the Minister is of the opinion that a licensee’s or prospective licensee’s records do not support a claim, invoice or report for payment; and

(f) in such other circumstances as may be prescribed.

Same

(3) Under the circumstances described in in subsection (2), the Minister may,

(a) suspend the making of payments for any time;

(b) reduce the amount of payments for any time; or

(c) recover payments by,

(i) deduction or set-off from any money owing under this Act or the Health Insurance Act, or

(ii) demand for repayment of amount the Minister has determined is owing and every licensee or prospective licensee shall comply with any such demand issued by the Minister.

Notice

(4) Before taking any action under subsection (3), the Minister shall provide the licensee or prospective licensee with notice of the Minister’s initial opinion and provide a reasonable time set by the Minister to respond and, where the Minister provides such a notice, the following applies:

1. The notice of initial opinion must,

i. provide a brief statement of the facts giving rise to the Minister’s initial opinion,

ii. advise the licensee or prospective licensee of the rights under paragraph 2, how to provide the information contemplated by that paragraph to the Minister and that the licensee or prospective licensee could be subject to a direction under paragraph 4, and

iii. advise the licensee or prospective licensee whether the Minister has applied statistical inference to calculate the amount that the licensee or prospective licensee may be required to reimburse the Minister and how statistical inference was used to calculate the amount.

2. A licensee or prospective licensee who receives a notice of initial opinion may, within 20 business days of receiving the notice, provide the Minister in writing with any information that the licensee or prospective licensee believes is relevant to the Minister’s opinion.

3. Where the licensee or prospective licensee has provided information under paragraph 2, the Minister shall review the information.

4. Following the Minister’s review under paragraph 3, or where more than 20 business days have passed without the licensee or prospective licensee acting under paragraph 2, the Minister shall issue a direction to the licensee or prospective licensee that,

i. confirms the initial opinion,

ii. alters the initial opinion, or

iii. rescinds the initial opinion.

5. A direction under paragraph 4 must,

i. inform the licensee or prospective licensee of the Minister’s reasons for the direction, if the Minister has confirmed or altered the initial opinion,

ii. where subparagraph 4 i or ii applies, set out the amount of the payment that will be suspended, reduced or recovered, as the case may be, and the date on which such action will be taken or the times within which payment must be made by the licensee or prospective licensee, as the case may be, and

iii. inform the licensee or prospective licensee whether statistical inference was used to calculate the amount of the reimbursement and how statistical inference was used to calculate the amount.

6. Despite section 25 of the Statutory Powers Procedure Act, an application for judicial review of the Minister’s direction under paragraph 4 does not have the effect of staying the direction.

Persons who receive services not to pay

(5) For greater certainty, no licensee or prospective licensee shall charge or accept payment from a person who receives services from a community health facility for a service with respect to which the Minister has refused to pay or for which the Minister has taken action under subsection (3).

Part x
Miscellaneous

Publication

67 (1) The executive officer shall make available to the public,

(a) every order made by the executive officer under this Act that is in relation to a community health facility; and

(b) anything that is prescribed as something that the executive officer must make available to the public.

Personal health information to be removed

(2) Before making an order, or anything provided for in the regulations, available to the public, the executive officer shall ensure that all personal health information is removed.

Protection from liability

68 (1) No action or other proceeding, other than an application for judicial review under the Judicial Review Procedure Act or any right of appeal or review that is permitted under this Act, shall be commenced against the Crown, the Minister, the executive officer or any employee or agent of the Crown, including a local health integration network, or any officer, director or employee of a local health integration network or an inspector appointed by the executive officer or an inspecting body or any employee or agent of an inspecting body or person appointed by an inspecting body or a member of the board of directors of an inspecting body or a member of a committee of an inspecting body, for anything done or omitted to be done in good faith in the execution or intended execution of a power or duty under this Act.

No remedy

(2) Despite any other Act or law, no costs, compensation or damages are owing or payable to any person and no remedy, including but not limited to a remedy in contract, restitution, tort or trust, is available to any person against the Crown, the Minister, the executive officer or any employee or agent of the Crown, including a local health integration network, or any officer, director or employee of a local health integration network or an inspector appointed by the executive officer or an inspecting body or any employee or agent of an inspecting body or person appointed by an inspecting body or a member of the board of directors of an inspecting body or a member of a committee of an inspecting body, in connection with anything referred to in subsection (1) except as otherwise provided under this Act.

Limitations on remedies

69 (1) No cause of action arises as a direct or indirect result of,

(a) the enactment or repeal of any provision of this Act; or

(b) the making or revocation of any provision of the regulations made under this Act.

No remedy

(2) No costs, compensation or damages are owing or payable to any person and no remedy, including but not limited to a remedy in contract, restitution, tort or trust, is available to any person in connection with anything referred to in clause (1) (a) or (b).

Proceedings barred

(3) No proceeding, including but not limited to any proceeding in contract, restitution, tort or trust, that is directly or indirectly based on or related to anything referred to in subsection (1) may be brought or maintained against any person.

Same

(4) Subsection (3) applies regardless of whether the cause of action on which the proceeding is purportedly based arose before or after the coming into force of this section.

Proceedings set aside

(5) Any proceeding referred to in subsection (3) commenced before the day this section comes into force shall be deemed to have been dismissed, without costs, on the day this section comes into force.

No expropriation or injurious affection

(6) Nothing done or not done in accordance with this Act or the regulations made under it constitutes an expropriation or injurious affection for the purposes of the Expropriations Act or otherwise at law.

Person defined

(7) In this section,

“person” includes the Crown and its employees and agents and members of the Executive Council.

Not Crown agency

70 (1) Despite the Crown Agency Act, an inspecting body is not an agent of the Crown for any purpose and shall not hold itself out as such.

Same

(2) The following persons are not agents of the Crown and shall not hold themselves out as such:

1. Persons who are employed or whose services are retained by an inspecting body.

2. Members, officers and agents of an inspecting body.

3. Members of the board of an inspecting body, including those appointed by the Minister, if any.

No Crown liability

71 (1) No cause of action arises against the Crown, a minister of the Crown, a Crown employee or a Crown agent as a result of any act or omission of a person who is not a minister of the Crown, a Crown employee or a Crown agent if the act or omission is related, directly or indirectly, to the activities or affairs of an inspecting body or to the administration of this Act.

No proceeding

(2) No proceeding for damages, including but not limited to a proceeding for a remedy in contract, restitution, tort or trust, shall be instituted against the Crown, a minister of the Crown, a Crown employee or a Crown agent by a person who has suffered any damages, injury or other loss based on or related to any act or omission described in subsection (1).

Personal information

72 (1) The Minister or the executive officer may directly or indirectly collect personal information, subject to such conditions as may be prescribed, for purposes related to the administration of this Act, the Health Insurance Act or the Commitment to the Future of Medicare Act, 2004 or for other prescribed purposes.

Use of personal information

(2) The Minister or the executive officer may use personal information, subject to such conditions as may be prescribed, for purposes related to the administration of this Act, the Health Insurance Act or the Commitment to the Future of Medicare Act, 2004 or for any other prescribed purposes.

Disclosure

(3) Despite anything else in this Act, the Minister or the executive officer shall disclose personal information subject to such conditions as may be prescribed, where the disclosure is necessary for purposes related to the administration of this Act, the Health Insurance Act or the Commitment to the Future of Medicare Act, 2004 or for any other prescribed purposes, but shall not disclose the information if, in the Minister or executive officer’s opinion, as the case may be, the disclosure is not necessary for those purposes.

Disclosure to College

(4) Where the Minister or the executive officer is of the opinion that it is advisable to do so, the Minister or the executive officer, as the case may be, shall disclose personal information to a College within the meaning of the Regulated Health Professions Act, 1991 for the purpose of the administration of that Act or an Act named in Schedule 1 to that Act.

Directives by Minister

73 (1) The Minister may issue operational or policy directives to a community health facility where the Minister considers it to be in the public interest to do so.

Binding

(2) The licensee or operator of a community health facility shall comply with every directive of the Minister.

General or particular

(3) An operational or policy directive of the Minister may be general or particular in its application.

Non-application of Legislation Act, 2006

(4) Part III (Regulations) of the Legislation Act, 2006 does not apply to operational or policy directives.

Public availability

(5) The Minister shall make every directive under this section available to the public.

Law prevails

(6) For greater certainty, in the event of a conflict between a directive issued under this section and a provision of any applicable Act or rule of any applicable law, the Act or rule prevails.

Appeals

74 (1) Except with respect to a decision based on factors related to the management of the health care system, a licensee, prospective licensee or an applicant for a licence may appeal to the Board,

(a) a decision of the executive officer to refuse to issue a licence to an applicant who has been operating a community health facility without a licence by virtue of section 19;

(b) a decision of the executive officer to refuse to issue a licence to an applicant that is in respect to an energy applying and detecting medical device;

(c) a decision of the executive officer to specify conditions that apply to a licence in respect to an energy applying and detecting medical device under section 6;

(d) a decision of the executive officer to amend a licence or the conditions of a licence in respect to an energy applying and detecting medical device under section 7 or 9 or to deny an application for an amendment of a licence in respect to an energy applying and detecting medical device;

(e) a decision of the executive officer with regard to the transfer of a licence under section 10;

(f) a decision of the executive officer under subsection 56 (5) to confirm or alter an order in respect to an energy applying and detecting medical device;

(g) a decision of the executive officer to issue a compliance order under subsection 54 (1) or to substitute a compliance order under subsection 56 (5);

(h) a decision of the executive officer, an inspector appointed by the executive officer or of an inspecting body to issue a cessation order under section 55;

(i) a decision of an inspecting body to confirm or alter a cessation order under subsection 55 (4);

(j) a decision of the executive officer to issue a notice of administrative penalty under section 58; and

(k) a decision of the executive officer to suspend, revoke or refuse to renew a licence or suspend or revoke a licensee’s authorization to provide one or more services under a licence under section 59.

Time limit

(2) An appeal must be commenced within 15 days of the executive officer’s or inspecting body’s decision.

Stay

(3) Subject to subsection (4), an appeal respecting a licence has the effect of staying a decision of the executive officer with respect to the licence, but not any other act of the executive officer or any other person or entity based on the same set of facts.

No stay of cessation order

(4) Despite section 25 of the Statutory Powers Procedure Act, the appeal of a cessation order does not have the effect of staying the order.

Stay, administrative monetary penalty

(5) If a licensee or prospective licensee appeals to the Board a notice of administrative penalty issued by the executive officer under subsection 58 (1) or a decision of the executive officer under subsection 58 (10) respecting a notice of administrative penalty, the requirement to pay is stayed until the disposition of the appeal.

Parties

(6) The parties to an appeal are,

(a) the applicant, licensee or prospective licensee;

(b) the executive officer, where the decision being appealed is with respect to a decision or an action taken by the executive officer or an order of the executive officer or an inspector appointed by the executive officer;

(c) the inspecting body, where the decision being appealed is based on a finding or order of an inspecting body or an inspector appointed by an inspecting body; and

(d) any other person that the Board, in its discretion, designates as a party.

Hearing

(7) After receiving a notice of appeal, the Board shall promptly appoint a time and place for a hearing.

Notice of hearing

(8) The Board shall give each of the parties at least seven days notice of the time and place of the hearing.

Recording of evidence

(9) The oral evidence taken before the Board at a hearing shall be recorded and, if required, copies of a transcript of the evidence shall be furnished.

Health Insurance Act

(10) Subsections 23 (1), (2), (4) and (6) of the Health Insurance Act apply to the proceedings and decisions of the Board under this Part.

Onus

(11) In any appeal under this section, the onus is on the appellant to establish why any decision or order should not have been made.

Decision of Board

(12) After a hearing, the Board may rescind, confirm or alter the order or decision appealed from and may substitute its own opinion and may direct the person or organization that made the decision to take any action that the Board considers ought to be taken in accordance with this Act and the regulations.

Same, administrative monetary penalty

(13) Despite subsection (12), after a hearing the Board may rescind, confirm or alter a notice of administrative penalty issued by the executive officer under subsection 58 (1) or a decision of the executive officer under subsection 58 (10) respecting a notice of administrative penalty according to what it considers reasonable in the circumstances, but the Board shall not vary the amount of the penalty unless it considers the amount to be unreasonable.

Appeal to court

(14) Any party to the proceedings before the Board may appeal from its decision to the Divisional Court in accordance with the rules of court.

Stay, administrative monetary penalty

(15) If a party appeals a decision of the Board made under subsection (13) to Divisional Court, the requirement to pay is stayed until the disposition of the appeal.

Record to be filed in court

(16) Where any party appeals from a decision of the Board, the Board shall forthwith file in the Divisional Court the record of the proceedings before it in which the decision was made which, together with the transcript of evidence if it is not part of the Board’s record, shall constitute the record in the appeal.

Powers of court on appeal

(17) An appeal under this section may be made on questions of law or fact or both and the court may affirm or may rescind the decision of the Board and may exercise all powers of the Board to direct the executive officer to take any action which the Board may direct the executive officer to take and as the court considers proper and for such purposes the court may substitute its opinion for that of the executive officer or of the Board or the court may refer the matter back to the Board for rehearing, in whole or in part, in accordance with such directions as the court considers proper.

Funding not to be considered

75 The sufficiency of the funding provided to a licensee or prospective licensee from any source shall not be considered in any review or appeal under this Act.

Service

76 (1) Any notice that is required to be served under this Act may be served,

(a) by personal service;

(b) by sending the notice by registered mail addressed to the person or entity to be served at their last address appearing on the records of the executive officer if the executive officer is serving notice or of the inspecting body if the inspecting body is serving notice;

(c) by sending the notice by fax to the person or entity to be served at their last fax number appearing on the records of the executive officer if the executive officer is serving notice or of the inspecting body if the inspecting body is serving notice;

(d) by sending the notice by commercial courier to the person or entity to be served at their last address appearing on the records of the executive officer if the executive officer is serving notice or of the inspecting body if the inspecting body is serving notice; or

(e) by any other prescribed method of delivery.

Deemed receipt

(2) Where notice is served in a manner described in subsection (1), the person or entity shall be deemed to have received the notice,

(a) in the case of a notice sent by registered mail, on the fifth business day after the day is was mailed;

(b) in the case of a notice sent by personal delivery or fax, on the first business day after the day it was sent;

(c) in the case of a notice sent by commercial courier, on the second business day after the commercial courier received the document; or

(d) in the case of a notice sent by any other prescribed methods, on a day provided for in the regulations.

Delegation

77 The executive officer may delegate in writing any of the executive officer’s powers under this Act to a prescribed person or entity, subject to any conditions or restrictions that the executive officer considers advisable, and the exercise of such a power by the person or entity is deemed to be the exercise of the power by the executive officer for all purposes.

Regulations

78 (1) The Lieutenant Governor in Council may make regulations for carrying out the purposes and provisions of this Act.

Same

(2) Without limiting the generality of subsection (1), the Lieutenant Governor in Council may make regulations,

(a) providing for and governing anything that this Act refers to as being prescribed or provided for in the regulations, or as being required to be done in accordance with the regulations, other than a matter for which the Minister is empowered to make regulations;

(b) defining or clarifying the meaning of any word or expression used in this Act that is not otherwise defined in this Act;

(c) providing for additional powers, functions and duties of the executive officer;

(d) governing the service of any document or information that is required to be served under this Act or the regulations;

(e) designating inspecting bodies and governing the exercise of their responsibilities under this Act;

(f) governing inspections, including the actions to be taken by an inspector or inspecting body;

(g) providing for exemptions from this Act or any provision of this Act, subject to any conditions that may be set out in the regulation;

(h) providing for and governing any transitional matters the Lieutenant Governor in Council considers necessary or advisable in connection with the implementation of this Act and with the repeal of the Healing Arts Radiation Protection Act, the Independent Health Facilities Act and the Private Hospitals Act.

Same, community health facilities

(3) The Lieutenant Governor in Council may make regulations governing community health facilities and their licensing and, without restricting the generality of the foregoing, may make regulations,

(a) respecting and governing the operation of community health facilities;

(b) respecting and governing the care, treatment and services provided in community health facilities;

(c) respecting and governing the quality and standards of services provided in community health facilities;

(d) respecting and governing the quality and standards of community health facilities;

(e) respecting and governing the qualifications of persons providing services in community health facilities;

(f) respecting and governing the requirements for persons working in community health facilities;

(g) respecting and governing conditions and requirements that apply to licensees and prospective licensees in respect of community health facilities, and requiring compliance with those conditions and requirements;

(h) respecting and governing the construction, establishment, location, equipment, maintenance and repair of community health facilities;

(i) respecting and governing books, records and accounts that are required to be kept by licensees and prospective licensees;

(j) respecting and governing information that a licensee, prospective licensee and any other person is required to provide to the executive officer or other prescribed persons;

(k) respecting and governing the requirements for posting reports, information and documents;

(l) respecting and governing reports, decisions and orders that are required to be made publicly available and the persons responsible for making such reports, decisions and orders available;

(m) respecting and governing administrative penalties under this Act and respecting all matters concerning the administration of a system of administrative penalties under this Act;

(n) respecting and governing the provision of funding under this Act, including  providing for the amounts payable, which may be set at nil;

(o) governing claims made for purposes of payment under this Act, including requiring claims to be made in the prescribed manner and at the prescribed time and prescribing conditions for the making of claims;

(p) prescribing services, classes of services and operating costs that are not part of an insured service and that do not support, assist and are not a necessary adjunct, or any of them, to an insured service;

(q) prescribing services, classes of services and operating costs that are part of an insured service;

(r) governing the admission and discharge of patients;

(s) respecting and governing the requirements and duties that apply to a licensee that is a corporation, including prescribing additional requirements;

(t) requiring applicants for a license, prospective licensees and licensees to pay fees established by an inspecting body for any activity the inspecting body is required or permitted to carry out under this Act or the regulations, including fees for administrative and overhead costs related to the activity.

Same, EADMDs

(4) The Lieutenant Governor in Council may make regulations governing energy applying and detecting medical devices and their licensing and, without restricting the generality of the foregoing, may make regulations,

(a) respecting and governing the places and areas where energy applying and detecting medical devices are located, and associated places;

(b) respecting communication of information to patients with respect to the use of energy applying and detecting medical devices;

(c) respecting and governing standards of design, construction, operation and performance for energy applying and detecting medical devices and their components;

(d) respecting and governing the installation of energy applying and detecting medical devices;

(e) respecting and governing the monitoring and maintenance of energy applying and detecting medical devices and their component parts;

(f) respecting and governing qualifications for the operators of energy applying and detecting medical devices;

(g) respecting and governing the operation of energy applying and detecting medical devices;

(h) providing for requirements, standards and procedures related to the radiation exposure by energy applying and detecting medical devices for patients, operators and the public;

(i) respecting, governing and limiting the purposes for which any person or class of persons may operate an energy applying and detecting medical device or any class of energy applying and detecting medical devices;

(j) respecting and governing requirements and standards for evaluating the performance of procedures and quality management programs regarding energy applying and detecting medical devices;

(k) respecting and governing requirements and duties that apply to licensees in respect of energy applying and detecting medical devices and requiring compliance with those requirements;

(l) respecting and governing books, records and accounts that are required to be kept by licensees;

(m) respecting and governing information that licensees in respect of energy applying and detecting medical devices are required to provide to the executive officer;

(n) providing for the position of an energy applying and detecting medical device safety officer, and governing qualifications for that position and its responsibilities.

Minister regulations

(5) The Minister may make regulations,

(a) establishing the fees to be paid by applicants for licences;

(b) except for fees established by an inspecting body, requiring applicants for licences and licensees to pay other fees, and establishing those fees;

(c) prescribing services for the purpose of the definition of “community health facility” in section 1;

(d) prescribing a place or collection of places for the purpose of the definition of “community health facility” in section 1.

Retroactivity

(6) A regulation is, if it so provides, effective with reference to a period before it is filed.

Scope

(7) A regulation may be general or specific in its application to any person, organization, licence, place or thing or any class of them, may impose different requirements, conditions or restrictions on or in respect of any class and may be limited as to time and place.

Classes

(8) A class described in a regulation may be described according to any characteristic or combination of characteristics and may be described to include or exclude any specified member, whether or not with the same characteristics.

Rolling incorporation by reference

(9) If a regulation adopts by reference any code, standard, guideline or similar document, the regulation may require compliance with the code, standard or guideline, as amended from time to time, whether the amendment was made before or after the regulation was made.

Offences

79 (1) Every person is guilty of an offence who,

(a) transfers a licence contrary to section 10;

(b) transfers a licence contrary to section 11;

(c) contravenes any requirement under Part IV;

(d) does anything prohibited under Part V;

(e) contravenes any requirement under Part VI;

(f) contravenes subsection 43 (14);

(g) fails to comply with an order under clause 52 (1) (a);

(h) fails to comply with an order under clause 52 (1) (b) or subsection 52 (2);

(i) fails to comply with a direction of the Minister under clause 64 (d);

(j) does anything prohibited in section 82; or

(k) fails to comply with a compliance order or cessation order.

No imprisonment or probation

(2) Despite anything else in this Act, a person convicted of an offence under clause (1) (g) or (k) is not liable to imprisonment or to a probation order under subsection 72 (1) of the Provincial Offences Act as a result of the conviction or as a result of default in payment of the fine resulting from the conviction.

Due diligence, mistake not a defence

(3) It is not a defence to a charge under clause (1) (g) or (k) that the person took all reasonable steps to prevent any failure to comply with this Act or, at the time of the failure, the person had an honest and reasonable belief in a set of facts that, if true, would have resulted in there not being any non-compliance.

Penalty, individual

(4) Every individual who is convicted of an offence under this section is liable for each day or part of a day on which the offence occurs or continues,

(a) for a first offence, to a fine of not more than $50,000 or to imprisonment for a term of not more than 12 months, or to both; or

(b) for a subsequent offence, to a fine of not more than $75,000 or to imprisonment for a term of not more than 12 months, or to both.

Same, corporation

(5) Every corporation that is convicted of an offence under this section is liable, for each day or part of a day on which the offence occurs or continues, to a fine of not more than $100,000 for a first offence and to a fine of not more than $250,000 for a subsequent offence.

Compensation or restitution

(6) The court that convicts a person of an offence under this section may, in addition to any other penalty, order that the person pay compensation or make restitution to any person who suffered a loss as a result of the offence.

No limitation

(7) Section 76 of the Provincial Offences Act does not apply to a prosecution under this section.

Transition, community health facilities

80 The following occurs when this section comes into force:

1. Subject to paragraphs 3 and 4, every licence for an independent health facility under the Independent Health Facilities Act that was in force immediately before this section came into force is replaced by a licence under this Act to provide the same services at the same locations for a term, determined by the executive officer, that shall be set out in the replacement licence.

2. The conditions and limitations that otherwise applied to the licence under the Independent Health Facilities Act, other than those respecting the services and locations mentioned in paragraph 1, cease to apply, but the licensee must still comply with all of the requirements of this Act, and the executive officer may make the replacement licence subject to new conditions in accordance with this Act and the regulations.

3. Where, immediately before this section came into force, the independent health facility was subject to a notice from the Director of Independent Health Facilities under either subsection 18 (1) or (2) of the Independent Health Facilities Act, the licence for the facility is revoked and the facility must cease operating until the executive officer issues a licence under this Act with respect to the facility. The executive officer may issue the licence without applying the requirements under section 5 if,

i. the facility undergoes an inspection by an inspector appointed by an inspecting body within six months after this section comes into force, and

ii. within one year of the coming into force of this section, or a longer period set by the executive officer, the facility passes the inspection under subparagraph i.

4. Where the executive officer determines that one or more services authorized by the licence under the Independent Health Facilities Act have not been provided at the location in the six-month period immediately before the coming into force of this section, the executive officer may decline to provide for those services under the replacement licence and if those services are the only services that were provided under the licence may decline to issue a replacement licence.

5. In the case of premises that were subject to inspection under Part XI of Ontario Regulation 114/94 (General) under the Medicine Act, 1991 and that are community health facilities for the purposes of this Act, but that were not independent health facilities under the Independent Health Facilities Act, section 19 of this Act applies.

Crown bound re EADMDs

81 The requirements of this Act respecting energy applying and detecting medical devices bind the Crown.

Prohibition, providing in-patient medical and nursing care

82 (1) Only the persons and entities specified in subsection (2) may accept a person as an in-patient and provide treatment to that person.

Entities specified for the purposes of subs. (1)

(2) The following persons and entities are specified for the purposes of subsection (1):

1. A person or entity that is licensed under the Private Hospitals Act.

Note: On a day to be named by proclamation of the Lieutenant Governor, paragraph 1 of subsection 82 (2) of this Act is repealed. (See: 2017, c. 25, Sched. 9, s. 83)

2. A community health facility that was formerly licensed under the Private Hospitals Act.

3. A public hospital within the meaning of the Public Hospitals Act.

4. The University of Ottawa Heart Institute/Institut de cardiologie de l’Université d’Ottawa.

5. A psychiatric facility within the meaning of the Mental Health Act.

Application

(3) The prohibition in subsection (1) only applies with respect to insured services.

Definitions

(4) In this section,

“in-patient” means a person admitted to and assigned a bed for overnight accommodation in any type of health care facility; (“malade hospitalisé”)

“treatment” means medical and nursing care including the maintenance, observation and supervision of an in-patient. (“traitement”)

Section Amendments with date in force (d/m/y)

2017, c. 25, Sched. 9, s. 83 - not in force

83 Omitted (provides for amendments to this Act).

84-122 Omitted (amends, repeals or revokes other legislation).

123 Omitted (provides for coming into force of provisions of this Act).

124 Omitted (enacts short title of this Act).

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