- within Corporate/Commercial Law topic(s)
- with Senior Company Executives, HR and Finance and Tax Executives
- in United Kingdom
- with readers working within the Healthcare, Pharmaceuticals & BioTech and Law Firm industries
Overview
The Ontario Hospital Association (OHA), in partnership with Borden Ladner Gervais LLP (BLG), has developed this resource to provide individuals supporting hospital governance with 10 practical and frequently considered compliance tips. This resource offers processes that are effective, meet legal obligations and are aligned with sector best practices. This resource also references relevant Guide to Good Governance, Fourth Edition Form Templates. All templates can be accessed at: www.oha.com/GGG
Tip 1: Assess Meeting Type and What Considerations Apply
'Open' Board Meetings
Hospitals are private corporations and are not legally required to hold open board meetings. That said, hospitals are also broader public sector organizations and guided by principles of accountability and transparency. As a result, hospitals may opt (voluntarily or pursuant to policy) to hold board meetings open to the public and/or invited guests. Public portions of board meetings may include any subject matter, other than matters discussed in camera in accordance with the hospital's policies.
In Camera Meetings/Portions of Meetings
In an in camera meeting or portion of a meeting, individuals other than the board and/or specially invited guests are excluded from the meeting and asked to leave, typically pursuant to a policy. A board policy typically directs moving in camera when the potential harm from public disclosure of a matter is greater than the benefits of transparency. Examples of matters commonly dealt with in camera include:
- Where personal information is or may be revealed
- Labour relations matters
- Litigation or potential litigation
- Solicitor-client privilege
- Contract negotiations or disputes
- Board self-evaluation
- Security of property and/or property purchase discussions
- Other matters the board considers confidential
It is important to note that Ontario's Not-for-Profit Corporations Act, 2010 (ONCA) requires meeting minutes to be kept for all board and committee meetings. This requirement includes portions of meetings that are held in camera. Hospitals should consider how in camera meeting minutes are distributed, retained, and distinguished from open portion minutes; again, this is typically set out in a policy.
'Meetings' Without Management
It is common practice for boards to 'meet' without management or ex officio directors after board meetings are adjourned. These are not board meetings and formal business cannot be conducted during these 'meetings'. These 'meetings' provide independent directors the opportunity to assess matters such as governance quality and adequacy of meeting materials, build cultural cohesion, and consider the timeliness of information coming to the board.
Relevant Guide to Good Governance, Fourth Edition Form Templates
- Form 8.13: Sample Board Agenda
- Form 8.15: Meeting Minutes Best Practices
- Form 8.17: Sample Policy for Open Board Meetings
- Form 8.19: Procedure for Members of the Public Addressing the Board
- Form 8.21: Sample Policy for Meeting without Management
Tip 2: Determine Appropriate Consent Agenda Use, in Context
Consent agendas are used to improve the efficiency of board meetings by approving multiple routine, non-controversial items with a single vote, without discussion. They allow for board approval of routine matters, where no debate is anticipated, while ensuring board business is recorded in meeting minutes. It is best practice for:
- Board meeting agendas to clearly indicate which matters are proposed to be adopted on consent.
- Supporting materials for consent agenda items to be clearly marked as such.
- Directors to ensure they have read and reviewed consent agenda materials in advance of the meeting.
- Directors to request removal of consent agenda items prior to, or at, the board meeting, if in their view additional debate or deliberation is required.
Board meeting minutes should set out, in full, resolutions enacted by way of consent. There are various acceptable approaches for this: for example, one motion for acceptance of the entire agenda (deemed to include adoption of the items in the consent agenda), a declaration by the Chair that certain matters are adopted on consent, or a motion relating specifically to the consent agenda business.
The CEO and Board Chair should work collaboratively to set board meeting agendas and deliberately consider what items should, and should not, be included on the consent agenda.
Relevant Guide to Good Governance, Fourth Edition Form Templates
- Form 8.14: Consent Agenda Policy
Tip 3: Ensure Documents Accurately Reflect the Nature of Corporate Member Meetings
Under ONCA, the following business is conducted at the annual meeting of the corporate members:
- Consideration of the financial statements
- Consideration of the audit
- Election of directors
- Reappointment of the incumbent auditor
If any member business is conducted in addition to the above, the meeting is no longer just an annual meeting – it is an annual and special meeting, and any business in addition to the above is special business. Notices and corresponding documentation should indicate this, and for special business, the notice must state the nature of the business in sufficient detail to permit a member to form a reasoned judgment on the business and state the text of any special resolutions to be submitted to the meeting.
Relevant Guide to Good Governance, Fourth Edition Form Templates
- Form 8.20: Annual Meetings of Members – Frequently Asked Questions
Tip 4: Confirm Virtual Meetings are ONCA Compliant and Understand How Hospital Policies Deal with Specified Matters
ONCA provides that boards, committees, and corporate members may meet virtually, unless a corporation's articles or by-laws provide otherwise. The OHA's Prototype Corporate By-law (Prototype By-law) currently enables virtual meetings. For virtual meetings to be ONCA compliant:
- Directors must be able to communicate simultaneously and instantaneously; and
- Members must be able to reasonably participate.
Telephone or video calls meet these ONCA requirements but email or messenger applications, as sequential communication, do not. As a result of continued use of virtual meetings, it may be beneficial to either create, or revisit and refresh, a virtual meeting etiquette policy, which may include:
- 'Camera on' requirements
- Attending meetings in confidential, non-public locations
- Name display requirements
- Guardrails respecting body language, hand raising, muting, multitasking prohibitions, and other aspects of respectful conduct
Finally, the OHA's Guide to Good Governance, Fourth Edition and Prototype By-law permit the calling of secret ballots. Hospitals should consider how the calling of secret ballots will be handled in a virtual meeting and ensure mechanisms are in place to address ballot secrecy.
To view the full article click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
