| Legislative Update – What Happened in July 2017? Prepared by

| Legislative Update – What Happened in July 2017? Prepared by

Council Attachment 11.3 | Legislative Update – What Happened in July 2017? Prepared by Richard Steinecke In this Issue: • • • • Proclamation of th...

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Council Attachment 11.3

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Legislative Update – What Happened in July 2017?

Prepared by Richard Steinecke In this Issue: • • • •

Proclamation of the Financial Services Regulatory Authority of Ontario Act, see p. 1 PHIPA reporting of privacy breaches regulation coming October 1st, see p. 1 Health Claims for Auto Insurance Guideline published by FSCO, see p. 1 LHINs consultation still ongoing, see p. 2

Bonus Features: • • • •

Limits to the Good Faith Immunity for Regulators, see p. 2 Mobility Provisions and Unauthorized Practice, see pp. 2-3 Investigative Access to a Practitioner’s Electronic Devices, see p. 3 Outside Reading by Tribunal Members, see pp. 3-4 Ontario Bills (See www.ontla.on.ca)

The Legislature was in recess in July. Proclamations (See www.ontario.ca/en/ontgazette/gazlat/index.htm) Financial Services Regulatory Authority of Ontario Act – This authority will take over some of the regulatory duties of FSCO and the Superintendent of Insurance. The Act has been proclaimed into force effective July 29, 2017 (Gazetted July 15, 2017). Regulations (See www.ontario.ca/en/ontgazette/gazlat/index.htm) Personal Health Information Protection Act – As noted in the June Legislative Update, the regulations under PHIPA are amended, effective October 1, 2017, requiring health information custodians to report certain privacy breaches to the Information and Privacy Commissioner. (Ontario Regulation 224/17, Gazetted July 8, 2017). Health Claims for Auto Insurance Guideline– While not strictly a regulation, FSCO published new guidelines for the submission of claims and accounts for automobile accident insurance effective August 1, 2017 (Gazetted July 8, 2017). Page 1 of 4

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Legislative Update – What Happened in July 2017?

Proposed Regulations Registry (See http://www.ontariocanada.com/registry) LHINs Consultation - Consultation on various proposed regulations relating to LHINs including their required Quality Committee and provision of health services in French. Comments are due by September 4, 2017. Bonus Features (Includes Excerpts from our Blog and Twitter feed found at www.sml-law.com) Limits to the Good Faith Immunity for Regulators Many lawsuits against regulators never make it to trial because the practitioner cannot demonstrate any basis to challenge the good faith of the regulator. In Fitzpatrick v Physiotherapy Alberta College, 2017 ABQB 453, a practitioner was able to pass this hurdle by asserting details of three types of alleged bad faith. 1. The investigator allegedly told the practitioner that she was being investigated for paying kickbacks when this was not the basis of the complaint. The implication of the pleading is that the investigator was unduly suspicious and was trying to broaden the scope of the investigation. 2. The Registrar allegedly gave consideration to the insurance industry’s concerns about improper billing by practitioners to take an aggressive approach to disciplining her, and then expanded the allegations to lesser, but more provable allegations, to justify the allegedly hasty initial referral to discipline. 3. A member of the discipline panel allegedly had previously expressed an interest in purchasing the practitioner’s practice and then prior to the discipline decision being released, allegedly told a banker that the practitioner may now be ready to sell her practice. The Court was clear that these assertions of bad faith were not established. The Court merely held that sufficient details were provided to permit the issues to go to trial for determination. The claims against many of the other participants in the discipline process were dismissed as there were no particulars suggesting they did anything but perform their duties. Mobility Provisions and Unauthorized Practice When obtaining a restraining order against the unauthorized practice of a profession, do mobility rights have to be taken into account? The answer is yes according to Law Society of British Columbia v Pyper, 2017 BCSC 1197. In that case, a former lawyer continued to practise law by becoming a paid director of two of his former corporate clients and appearing in court on behalf of those companies. The Court rejected the argument that the regulator’s alleged delay in processing Mr. Pyper’s application for Page 2 of 4

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Legislative Update – What Happened in July 2017?

reinstatement means it did not come to court with “clean hands”. Only in exceptional circumstances would a restraining order not be granted where the breach of the law was established. However, the Court declined to grant a blanket order prohibiting Mr. Pyper from practising in British Columbia until his licence was reinstated. The Court said that if Mr. Pyper were to become a lawyer in another province and have the right to practise in British Columbia under the mobility provisions, he should be permitted to do so. Investigative Access to a Practitioner’s Electronic Devices The Alberta Court of Appeal has reinforced a lower court ruling that, where relevant, a regulator can have access to a practitioner’s electronic devices even when they are partially used for personal purposes. In Law Society of Alberta v Sidhu, 2017 ABCA 224, the regulator began investigating Mr. Sidhu when media reported his arrest for allegedly bringing drugs to a client in jail. He was eventually convicted. Mr. Sidhu resisted attempts by the regulator to obtain full access to his telephone, laptop and other electronic devices on the basis that this amounted to an unreasonable, and quite intrusive, search and seizure. While the Court did not formally declare the enabling provision as being consistent with section 8 of the Canadian Charter of Rights and Freedoms (protecting against unreasonable search and seizure), it did state that the privacy expectations of members of regulated professions is significantly reduced. Ready access to information relevant to an investigation is necessary to protect the public. In addition, regulators often do have the authority to investigate a practitioner’s conduct in their private life where it reflects on their professional practice. Mr. Sidhu was found to have contributed to the problem by his own choices: Moreover, it is important to emphasize that the appellant’s concern is of his own making. He has admittedly blended his business and personal life by using his cellphone and computers for both business and personal reasons, and by his further suggestion that he has allowed his friends to use those devices without regard for privilege and confidentiality concerns in doing so. That he now asserts an all-encompassing expectation of privacy when faced with a Law Society investigation is unreasonable and defeats the very objectives of the Act. The Court found on the facts of the case that the regulator reasonably required access to the devices. The information appeared to be relevant even if the investigator had not formally stated that they had reasonable and probable grounds or a reasonable suspicion. Outside Reading by Tribunal Members Tribunal members are frequently admonished not to conduct independent research related to cases they hear. They are to obtain all of their information from the hearing itself. In Harris v. Royal Newfoundland Constabulary Public Complaints Commission, 2017 CanLII 46340 (NL SCTD), the issue related to the police interactions with a young man with Asperger’s Syndrome. During the hearing, the adjudicator made Page 3 of 4

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Legislative Update – What Happened in July 2017?

statements indicating that he had done some reading on the condition. At one point, on crossexamination, the young man responded to a question by saying “Can I throw that microphone at your head?” The adjudicator declined to view the comment as a threat of violence towards counsel and appeared to ascribe it to the young man’s disability. On appeal, the officers asserted that the adjudicator had demonstrated an appearance of bias. The Court did not accept that argument. The Court indicated that bias arguments must be raised before the adjudicator and should not be raised for the first time on appeal. Doing so respects the process, is more efficient and permits the adjudicator to put any relevant facts on the record. In addition, the Court did not find that any outside reading materially affected the conduct of the hearing or the findings of credibility. The detailed reasons of the adjudicator assisted the Court in making this determination.

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