In the midst of COVID-19, the proceedings of many health colleges, and consequently of the health professionals they regulate, have been in limbo while everyone finds a way forward.
On March 25, 2020, the Ontario government enacted the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (the “Act”) to help the process along.
The Act empowers statutory tribunals with more discretion as to how proceedings before them are held.
Prior to the Act, a statutory tribunal could make rules governing the practice and procedure before it under section 25.1 of the Statutory Powers Procedure Act (or “SPPA”), including whether or not to hold electronic hearings (SPPA, s. 5.2). However, under the SPPA, a “hearing” is limited to the hearing in a proceeding. In contrast, under the Act, a “hearing” is much broader, and includes not only the hearing in a proceeding, but any other appearance in the course of the proceeding, including pre-hearing conferences or alternative dispute resolution processes.
The Act prevails over the SPPA, any rules previously made by a tribunal, or any other legislation, allowing administrative bodies (such as health colleges) to move their matters forward electronically regardless of whether they previously had anything in place in that regard. Under the Act, a tribunal may conduct a hearing in person, electronically, in writing or by a combination of any of them. Moreover, a tribunal may make any orders, give any directions, or make rules respecting the format of a hearing, and “any matters ancillary to the holding of the hearing”, including the service or filing of materials for the hearing, attendance at the hearing, recording of the hearing, or public access to the hearing.
Finally, the Act applies to retroactively, i.e. to proceedings that were commenced before the Act came into force.
Although the word “temporary” appears in the title of the legislation, the Act is not set to expire after a set amount of time, but is instead “to be repealed on proclamation of the Lieutenant Governor”. It will be interesting to see how long the Act will be in place for, and whether the SPPA will later be amended to permanently adopt the Act’s measures.
For now, we hope that the Act will enable health colleges to move matters forward in a fair and expeditious manner.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).
The past several weeks have been a challenging time for everyone. Health professionals have been bombarded with Emergency Orders and other pronouncements that can be confusing and at times seem contradictory.
With the rules and restrictions changing so rapidly, it is advisable to keep an eye on the website, social media feeds, and other communications from your respective regulatory College for your College’s interpretation and position on what you should and should not be doing during the pandemic. While the Emergency Orders and pronouncements apply to a broad spectrum of health professionals, individual Colleges can provide guidance and interpretation about how those orders and pronouncements relate to your specific profession.
But what if you’re still unsure about whether you can provide a particular service to a specific patient/client; or some other aspect of your professional obligations at this uncertain time?
Earlier this year, Wise Health Law succeeded on a motion for summary judgment in a dental malpractice case on the basis that the limitation period had expired before the Statement of Claim was issued. The (unreported) decision was delivered orally on the day of the motion.
In part, the plaintiff argued that she did not discover her claim until the Royal College of Dental Surgeons of Ontario (the “RCDSO” or “College”) rendered its decision, as she did not know if the defendant was negligent when she complained to the RCDSO, but merely had a “suspicion”.