On December 8, 2011, the Honourable Deb Matthews, the Minister of Health and Long-Term Care (the "Minister") wrote to the President of the College of Denturists of Ontario (the "CDO") notifying him of her intention to recommend to the Lieutenant Governor in Council that a College supervisor be appointed for the CDO.
Pursuant to the Regulated Health Professions Act, S.S.O. 1991, c. 18 (the "RHPA"), the Lieutenant Governor in Council may appoint a person as College supervisor on the recommendation of the Minister, where the Minister considers it appropriate or necessary and where, in the Minister's opinion, a Council has not complied with a requirement under subsection 5(1).1 In deciding whether to make a recommendation under subsection (1), the Minister may consider any matter she considers relevant, including:
As further detailed in our bulletin dated August 12, 2011, entitled Ontario Minister of Health Orders An Audit of the College of Denturists, the Minister ordered an operational review and audit of the activities of the CDO in March of this year. At that time, the Minister expressed concerns about the "troubling" volume and nature of concerns that came to the attention of the Minister, emanating from both organizations and individuals.3 In May, the Minister appointed PricewaterhouseCoopers ("PwC") to conduct the operational review and audit. The Minister has now received the report from PwC (the "PwC Report").
The RHPA is silent on whether any of the results of the Minister's review of a college pursuant to section 5 must be made public. In this case, the Minister required the CDO to post her order of the audit and her December 8 letter4 prominently on its website. The Minster has not indicated whether she intends to publish the PwC Report.
In our August bulletin5, we speculated that the appointment of PwC may be a first step towards a College supervisor being appointed to the CDO. If a supervisor is appointed, this will be the first time that this provision has been utilized in the RHPA since it was enacted in 2009.
In her letter to the CDO, the Minister states she is recommending a College supervisor based, in part, on the PwC Report which identifies, among other things, "...a number of significant deficiencies in the College's practices and procedures".6 The Minister also cites the CDO Council's failure to comply with a requirement under subsection 5(1) of the RHPA – specifically, that the Minister had required the CDO to "...refrain from making any new by-laws pursuant to clause 94(1)(y) of the Health Professions Procedural Code and suspend all efforts at implementing the professional liability insurance program that was announced by the President of the College at the College's Special General Meeting on November 19, 2010..."7. Despite that direction from the Minister on March 9, 2011 the Minister asserts that the Council approved just such an amendment to the by-laws related to the professional liability insurance program on March 11, 2011. In a letter dated December 15, 2011 and posted on its website, the CDO indicates that the approval of amendments to its by-laws related to professional liability insurance were inadvertent and the CDO is currently taking steps to amend the by-laws.
The Minister is required under the RHPA to provide notice to the CDO before recommending to the Lieutenant Governor in Council that a supervisor is to be appointed.8 The RHPA provides Colleges with an opportunity to submit written reasons as to why a supervisor should not be appointed and requires such submissions to be presented to the Lieutenant Governor in Council if the Minister makes a recommendation to appoint a supervisor.9 If the Lieutenant Governor in Council ultimately receives such a recommendation from the Minister the Lieutenant Governor in Council will have to determine whether the circumstances warrant the appointment of a supervisor.10
If a supervisor is appointed, unless the appointment provides otherwise, the supervisor will have the right to exercise all the powers of the College's Council and every person employed/retained/appointed to administer the RHPA, the Drug and Pharmacies Regulation Act or the Drug Interchangeability and Dispensing Fee Act.11 In fact, any actions taken by a College's Council while a supervisor is in place will require the written approval of the supervisor in order to be valid.12 A College supervisor must follow every direction of the Minister during his or her appointment13 (which is valid until terminated by cabinet order).14
It remains unclear whether the appointment of a supervisor will result in the changes that the Minister has stated she is seeking. Under a different provision in the RHPA, the Minister can compel the Council to make, amend or revoke a regulation under the RHPA15 and if it fails to do so, the government can enact the regulatory change itself16. This power has been used at least once in the past, without success. It will be interesting to see if a supervisor, if appointed, will have more success in effecting changes through complete governance control of a college rather than just through regulatory amendments.
1 Subsection 5(1) gives the Minister the authority to do any of the following: (a) inquire into or require a Council to inquire into the state of practice of a health profession in a locality or institution; (b) review a Council's activities and require the Council to provide reports and information; (c) require a Council to make, amend or revoke a regulation under a health profession Act, the Drug and Pharmacies Regulation Act or the Drug Interchangeability and Dispensing Fee Act; (d) require a Council to do anything that, in the opinion of the Minister, is necessary or advisable to carry out the intent of this Act, the health profession Acts, the Drug and Pharmacies Regulation Act or the Drug Interchangeability and Dispensing Fee Act.
2 RHPA at s. 5.0.1(2).
3 Letter to the President and members of Council of the CDO from the Minister, dated March 9, 2011
4 Letter to the President of the CDO from the Minister, dated December 8, 2011
5 Bulletin, Ontario Minister of Health Orders an Audit of the College of Denturists, available at: www.fasken.com
6 Supra Note 4
8 The notice required is 30 days. RHPA at s. 5.0.1(3).
9 RHPA at s. 5.0.1(4).
10 In making a determination the Lieutenant Governor in Council will consider any submissions made by the CDO along with the Minister's recommendation.
11 Ibid. at s. 5.0.1(6).
12 Ibid. at s. 5.0.1(8).
13 RHPA at s. 5.0.1(12)
14 Ibid. at s. 5.0.1(5)
15 Ibid at s .5(1)(c)
16 Ibid at s. 5(3)
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