DDO Health Law Update

July 6, 2018: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

 

New bills will be added after the new Parliament begins.

 

Proposed Regulations

 

No new regulations of interest.

 

Articles of Interest

 

Government

Doug Ford reveals 21-member cabinet featuring deputy premier Christine Elliott

 

OHIP+

OHIP+ no longer covers kids, young adults with private insurance, new health minister says

Ford Government Making OHIP+ More Cost-Effective

What Ontario changes to OHIP tell us about the future of nationals

 

Wettlaufer Inquiry

Six things we’ve learned so far at the Wettlaufer inquiry

 

Privacy

How does California’s tough new data privacy law affect Canadian businesses?

 

What’s happening in our city this weekend:

Things to do in Toronto

 

Educating Your Procurement Team

“An ounce of prevention is worth a pound of cure.”

One good way to help your organization avoid claims related to a procurement process is to provide some simple training to your staff members who will be participating in the procurement process. In many cases your internal evaluation team will include individuals for whom procurement is not an everyday part of their jobs. These staff members will likely be unaware of the basic principles, rules, and processes with which your organization must carry out its procurement activities.

DDO believes that there is significant value in educating your internal procurement team on such things as:

  • conflicts of interest;
  • treatment of incumbent vendors;
  • the dangers of politicizing procurement decisions;
  • confidentiality;
  • communication with proponents during the procurement process;
  • process transparency; and
  • equal treatment of vendors.

If your staff are unfamiliar with the above-listed ideas, which are essential for a properly run procurement process, a staff member could unwittingly put your organization in breach of applicable procurement rules. Such a breach could force you to re-do the relevant procurement process and put your organization at risk of a legal claim brought by an unhappy proponent.

DDO can help you to create simple and efficient tools to ensure that your procurement team has knowledge of (or, as applicable, are simply reminded of) essential procurement rules prior to their participation in a procurement process.

Contact me: mgleeson@ddohealthlaw.com

 

Beware the Scope of the CFTA

If your organization is a broader public sector organization that is subject to the procurement requirements of the Broader Public Sector Procurement Directive (the “Procurement Directive”) and the (still relatively new) Canadian Free Trade Agreement (“CFTA”), then please take note that the CFTA applies to certain procurements that the Procurement Directive does not.

The Procurement Directive requires organizations to maximize the value that they receive from “public funds”. In the Broader Public Sector Accountability Act, which is the Ontario legislation under which the Procurement Directive came into force, the term “public funds” is defined, subject to certain exclusions, as follows:

“public money of the province of Ontario that is provided by the Government of Ontario or an agency of the Government of Ontario, directly to any authority, board, commission, committee, corporation, council, foundation or organization through a grant or transfer payment or other funding arrangement, and, in the case of a school board, includes money received by the school board from taxes levied under the Education Act for school purposes.”

Based on this definition, the source of funds used for procuring a good or service is relevant to whether the Procurement Directive would apply to the procurement of such good or service. For example, if a public hospital were to purchase goods using funds that were received through charitable donations or that were proceeds from revenue-generating aspects of its activities, that purchase would not be subject to the requirements of the Procurement Directive because it would not involve the expenditure of public funds.

The CFTA, which came into effect just over a year ago (July 1, 2017), does not include a similar reference to public funds and, therefore, is not limited in application only to procurements involving such funds.

The CFTA does include an exemption related to the source of funds for a procurement, but the exemption is far more limited than an exemption for all procurements using non-public funds. The relevant exemption states that the procurement chapter of the CFTA does not apply to “procurement of goods or services financed primarily from donations that require the procurement to be conducted in a manner inconsistent with this Chapter”. In other words, in order for a procurement carried out using donated funds to be exempt, the donated funds would have to have been received by the purchasing organization under a condition that specifically required that the funds be used in a manner that conflicts with the procurement requirements of the CFTA. In our experience, the attachment of such a condition to donated funds would be unusual.

How can we help you?

DDO encourages broader public sector organizations to review their procurement policies to ensure compliance with the requirements of the CFTA. The public funds issue described above is just one of several issues on which the CFTA differs from the Procurement Directive. If you would like help in ensuring that your procurement policies are up to date, please do not hesitate to contact me: mgleeson@ddohealthlaw.com

Important Developments on Police Record Checks

Initially enacted by the Ontario government in 2015, the Police Record Checks Reform Act, 2015 (the “Act”) has finally been proclaimed by the Lieutenant Governor to come into force on November 1, 2018.  In addition to standardizing requests for police record checks, the Act extends privacy protections to the individuals who are the subjects of police record checks (“subject individuals”) by (i) implementing a consent regime, and (ii) prescribing what can and cannot be disclosed in respect of each type of police record check requested.

Impact on your Organization

If your organization requests police record checks as part of its recruitment efforts, whether in respect of employees, volunteers, or volunteer Board members, you will want to refresh your policies and procedures to ensure that they align with the requirements of the Act.  Contravention of the Act is an offence liable to a fine of up to $5000.

Application of the Act

The Act applies to a “police record check”, which is a search of the records maintained within a police database in Canada (e.g., Canadian Police Information Centre database) and required to be conducted by persons (including organizations) in respect of a subject individual for the purposes of:

  • Hiring the subject individual for employment.
  • Engaging the subject individual for volunteer work.
  • Admitting the subject individual to an educational institution, a program, or a membership body.
  • Receiving goods and services from the subject individual or providing them to the subject individual.

The Act will not apply to certain types of searches, such as those in connection with an application for a change of name, an application for custody of a child by a non-parent, certain searches requested by a children’s aid society, and certain others that are listed in the Act and one of its accompanying regulations (“Exempted Searches”).

For some Exempted Searches, the application of the Act is simply delayed for a year and will apply to those searches on November 1, 2019.  Examples of Exempted Searches for which the application of the Act is delayed is a search requested by the Crown in Right of Ontario for appointing certain public servants under Part III of the Public Service of Ontario Act, 2006, or for screening a provider of goods or services to be awarded a contract to provide goods or services to a ministry or government agency.

Types of Police Record Checks

The Act creates three types of police record checks, each disclosing only the information permitted to be disclosed in the Schedule to the Act.  The types of police record checks are set out below in order of the amount of information disclosed (greatest to least):

  1. Vulnerable Sector Check
  2. Criminal Record and Judicial Matters Check
  3. Criminal Record Check

While there is variation amongst the types of police record checks and the information that is permitted to be disclosed, the following is a list of information that is not permitted to be disclosed for any type of check:

  • Summary convictions, if the request is made more than 5 years after the date of the conviction.
  • Court orders made under the Mental Health Act, Part XX.1 of the Criminal Code (Canada), or those related to withdrawn charges.
  • Certain restraining orders made against the subject individual.
  • Convictions for which a pardon has been granted (subject to exceptions).

The Act also specifies when “non-conviction information” can be disclosed. Subject to certain exceptions under the Act, this is information related to the subject individual being charged with a criminal offence which was subsequently dismissed, stayed, withdrawn, or resulted in a stay of proceedings or acquittal.  Non-conviction information may only be disclosed pursuant to a Vulnerable Sector Check if certain criteria listed in the Act are met (e.g., the criminal charge is one listed in the regulations under the Act, the alleged victim was a child or a vulnerable person, and there is a pattern of behaviour or incidents indicating a risk of harm to a child or a vulnerable person). The subject individual has an opportunity to request a reconsideration of any disclosure of non-conviction information.

Procedure for Police Record Checks

In order to standardize the request for and conducting of police record checks, the Act establishes the following procedures:

  • A written request for a police record check may be made by the subject individual or by a person or organization in respect of the subject individual.
  • The written request for a police record check must:
    • Specify the type of police record check being requested.
    • Include the written consent of the subject individual (such consent must be in respect of the particular check being requested).
    • Include any applicable fee.
  • The results of the police record check must first be disclosed to the subject individual, and to no other person.
  • If, after receiving the results, the subject individual provides written consent, the results may be provided to the person or organization that requested the police record check or other person or organization specified by the subject individual.
  • The individual or person that receives the results of a police record check on the consent of the subject individual shall not use or disclose the results except for the purposes for which it was requested or as authorized by law.

If you need assistance in updating your policies and procedures, contact me @ mdeiana@ddohealthlaw.com.

Why Use a Fairness Commissioner?

To enhance the integrity of the procurement process, some organizations consider using a fairness commissioner. This blog post provides a brief description of the role and responsibilities of such an individual, along with the potential benefits of implementing this role.

Description

The role of a fairness commissioner was first envisioned in the Bellamy Report (the “Report”), which was released in 2005 following an inquiry commissioned by Justice Denise Bellamy. It was based on the City of Toronto’s Request for Quotation for new computer acquisition needs. The Report highlighted various findings and recommendations pertaining to the procurement process, both specifically related to the inquiry in question and more generally to apply to all types of procurements.

A copy of the Report can be found at:

https://www.toronto.ca/ext/digital_comm/inquiry/inquiry_site/report/index.html

Fairness commissioners tend to be independent third parties, usually acting as consultants, engaged especially used during complex projects. The role of a fairness commissioner should not be limited to a particular time period of the procurement process – they are to be engaged at the beginning and not just merely at the evaluation stage. The Report noted that having the fairness commissioner involved in the development of the evaluation criteria used to assess submissions is just as important as ensuring adherence to the evaluation criteria.

Advantages of a Fairness Commissioner

There are benefits to including a fairness commissioner throughout the procurement process. For example, the Report noted that having a fairness commissioner involved might make it less likely for the private sector to challenge a particular procurement, thereby saving the organization time and resources. Having a fairness commissioner as part of the procurement process also signals that the process will be more fairly managed and could encourage prospective bidders to participate.

Although not very common, procuring entities should consider whether the advantages provided by a fairness commissioner would be of interest. Consideration should be given especially in cases where:

  • the procurement process could be complex or sensitive, or
  • the goods or services procured are of high value.

DDO is available to provide guidance and best practice strategies on all aspects of broader public sector procurement.

DDO Health Law Update

June 29, 2018: A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

Bills

 

New bills will be added after the new Parliament begins.

 

Proposed Regulations

 

No new regulations of interest.

 

Articles of Interest

 

MAID

Assisted dying was supposed to be an option. To some patients, it looks like the only one

 

Long-Term Care and Palliative Care

Opinion: It took two years to close a cruel loophole in palliative care, even with legislative consensus. Why?

 

Opioids Crisis

More than half a million prescription drugs are stolen each year – and most are opioids

Drug Resistance: The climate change of human health. Is Canada ready?

 

Wettlaufer Inquiry

Systemic problems still exist in long-term care, Wettlaufer inquiry hears

 

Court Proceedings

Ontario judge refuses family’s pleas to keep brain dead woman on life-support

Supreme Court won’t hear Motherrisk Case

 

Marijuana

‘Deeply concerned.’: Marijuana legalization moving too fast for most Canadians, poll suggests

Feds unveil cannabis regulations, say past pot conviction may not prevent participation

Ottawa isn’t putting a cap on the potency of many cannabis products

 

Professional Misconduct

Ontario doctors disciplined for sending profane emails to medical association lead

Obstetrician with privileges at North York hospital induced labour in patients without their consent for more than a decade

 

Mental Health

U of T approves policy that could place students with mental health issues on leave

 

What’s happening in our city this weekend:

Heat warning issued for Toronto as temperature nears 30c

Canada Day in Toronto & GTA 2018

Things to do in this weekend