DDO Health Law – COVID-19

COVID-19 has the potential to affect all of us in many ways. At DDO Health Law, and our sister firm, INQ Data Law, we are gathering the lessons already learned in operating in this new environment, and will post them here. This includes on clinical matters, health services delivery (including virtual care); privacy and information management; corporate and commercial matters; governance; regulated health professions; procurement; risk management (including reputational risk); public policy and more.

The health and safety of our staff and clients is of paramount importance. In light of the pandemic, we have closed our offices in Toronto and Ottawa but continue to deliver uninterrupted services.

We are proud to have taken measures in 2019 to operate a seamless legal services experience for lawyers and clients working virtually. Last year, we moved to an agile office space that supports remote working, purchased technical tools to support a completely paperless office, and we have equipped our lawyers with resources to easily work remotely, including using video tools to stay connected. Our continued goal is to provide exceptional service.

In the meantime, here is the full text of the Emergency Management and Civil Protection Act, which applies when an emergency has been declared as is the case with COVID-19 today, March 17: https://www.ontario.ca/laws/statute/90e09#BK13.

This Act creates broad authority for emergency orders to be issued, including to compel the collection, use and disclosure of information where necessary to prevent, respond to or alleviate the effects of the emergency. Orders are in place for as long as necessary; and with limitations on intrusiveness. See s. 7.0.2(4) for a list of emergency orders that may be made by the Lieutenant Governor in Council (or if delegated, by a provincial Minister or the Commissioner of Emergency Management). See also paragraph 13 of section 7.02(4) for authority to make emergency orders compelling the collection, use or disclosure of information during a declared emergency. See sections 7.02(7)-(9) for the limits on intrusiveness of such orders – including special rules for research if information is de-identified or consent of the person is obtained.

We wish you and your families continued health and safety in these unprecedented times as we work collectively to contain COVID-19’s impact.

Regulating Internet Sales of Prescription Eyewear in Canada


With the explosion of internet sales of prescription eyewear, a new threat exists to traditional optometry and opticianry.  On-line retail sales have skyrocketed since 2000. Business models permitting the dispensing of prescription eyewear, whether glasses or contact lenses, must include the involvement of an optician or optometrist in accordance with Ontario law and the law of most (but not all) Canadian provinces. Many on-line retailers use a business model that complies with provincial law and they dispense prescription eyewear.

BC Case Law

However, some business models do not comply with provincial regulations. Companies involved in such enterprises have been challenging provincial regulations across Canada over the past decade.  An early court decision in British Columbia found that a business model that violated the regulations had to be revised to comply with existing law. The court granted the injunction requested by the applicant college of opticians, but suspended the operation of the injunction for six months, finding no harm or urgency to the retailer’s customers. This suspension gave the retailer time to craft a business model to comply with the regulations and to seek legislative change to accommodate their business model[1].  During those six months, in early 2010, the British Columbia government changed how it regulates opticians, permitting dispensing of repeat prescriptions without the involvement of a regulated eye care professional. The lucrative business model could continue in compliance with BC law.

Quebec Case Law

In 2014, in a similar application involving the same on-line retailer based in British Columbia, the Quebec Superior Court ruled, in accordance with the Quebec Civil Code, that the sale of the prescription eyewear occurred in B.C., rather than Quebec, and therefore did not violate Quebec law that required the involvement of an optician or optometrist[2]. The Quebec optometry regulator was unsuccessful in its appeal to the Quebec Court of Appeal[3] and the Supreme Court of Canada[4].

Association Position Statements

In 2014 the Canadian Association of Optometrists issued position statements about internet dispensing and online eye exams, cautioning that on-line sales of prescription eyewear can compromise patient care[5]. In May of 2018 the Association indicated that “prescribing in the absence of a comprehensive eye exam poses a risk to the public of substandard care”,[6] and it documented the steps to be taken to protect optometrists.

Where are we in Ontario?

What is the situation in Ontario today? In 2018, regulators in Ontario continue to argue, in accordance with the current law, that professional standards and the public interest require that only opticians or optometrists be permitted to dispense prescription eyewear, whether they are involved on-line or in a bricks and mortar location; their guidance documents concerning internet dispensing reflect this position.  Concurrently, internet retail sales of prescription eyewear continue to skyrocket.

In January of 2018, pursuant to an application for an injunction filed in 2016, an Ontario court found that the Ontario law applies to companies that dispense prescription eyewear to Ontario residents without the involvement of an optician or optometrist, despite the fact that the company operates out of British Columbia[7]. The court granted the regulators’ request for an injunction to prevent the company from dispensing products in Ontario without the involvement of an optician or optometrist.  The court noted that policy change is the domain of the provincial legislature, and it is for the province to determine whether the landscape should be shifted.

Competition Bureau Weighs In

In the summer of 2018, the Competition Bureau weighed in. After reviewing Canadian, American and European reports showing that internet dispensing facilitated access for thousands of Canadians living in remote locations, and benefitted Canadians by ensuring competitive prices, the Bureau concluded that Canadian regulators should consider whether less restrictive measures can be created to permit on-line dispensing, while concurrently maintaining patient health and safety. The Bureau argues that doing so would “help to ensure that the Canadian economy benefits from innovative, high quality products and services and the lowest possible prices”, and would give enhanced access to consumers in remote areas.  The Bureau argues that regulations should be modernized so as not to inhibit legitimate forms of competition that benefit consumers and the economy. [For the Bureau’s report see http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04377.html].


Whether or not the Ontario government weighs in on the matter remains to be seen, as legislative change would be required to permit the legal operation of Essilor’s current business model as described in the injunction order. For now, the legal landscape in Ontario preserves the legislative scheme that firmly entrenches the dispensing of prescription eyewear as part of an act that carries with it a risk of harm, and requires the involvement of an optician or optometrist, rather than a retail endeavour.  Future directions remain to be seen.

The above article does not constitute legal advice.  If you need legal advice, feel free to contact me at spalter@ddohealthlaw.com.


[1] College of Opticians of British Columbia v. Coastal Contacts Inc. 2009 BCCA 459 (CanLII) at paragraph 33.

[2] Ordre des optometrists du Quebec v.  Coastal Contacts Inc. 2014 QCCS 5886 (CanLII).

[3] Ordre des optometrists du Quebec v.  Coastal Contacts Inc. 2016 QCCA 837 (CanLII).

[4] Ordre des optometrists du Quebec v.  Coastal Contacts Inc. 2017 CanLII 442 (SCC).

[5] https://opto.ca/sites/default/files/resources/documents/cao_position_statement_-_internet_dispensing.pdf

[6] https://opto.ca/sites/default/files/resources/documents/internet_dispensing_en_may_2018.pdf

[7] College of Optometrists et al v. Essilor Group Canada Inc., 2018 ONSC 206 (CanLII).

Now Underway – Consultation on a Future Framework for Palliative Care in Canada

The federal government passed a private member’s bill (C-277), the Framework on Palliative Care in Canada Act, on December 12, 2017. As required by the Act, the federal government is consulting on the future of palliative care in Canada – specifically, in the context of the availability of physician-assisted death. The goal is to develop a framework for access to high quality palliative care in hospitals, home care, long-term care facilities and residential hospices.

According to is website, the federal government is now seeking input from health care professionals across Canada, health system experts, caregivers, people living with life-threatening illnesses, and interested Canadians about their long-term vision for palliative care in Canada, including access, education, support and training for caregivers. The consultation seeks ideas and experiences on the following topics:

  • Definition of palliative care
  • Advance care planning
  • Person and family-centred care
  • Challenges facing people living with life-threatening illness
  • Consistent access to palliative care
  • Special populations (i.e., Indigenous, infants, children and youth, homeless, rural and remote communities, LGBTQ2, people living with disabilities, immigrants and refugees, and others)
  • Health care provider education, training and supports
  • Caregiver training and supports
  • Community engagement
  • Bereavement

This is a great opportunity to have your organization’s voice heard and to give your administrators and health care staff a chance to contribute to the development of public policy.  The voices of health care providers, caregivers and their families are also an integral part of these consultations about the future of palliative care in Canada.

Submissions are due by July 13, 2018 and may be made in writing or on-line.  For help making a submission, please get in touch with me: spalter@ddohealthlaw.com. If you are interested in reading the Act, it is available here: http://www.parl.ca/DocumentViewer/en/42-1/bill/C-277/royal-assent

By December 11, 2018, the report of the federal Minister of Health that sets out the framework for palliative care must be presented to the House of Parliament and 10 days after that the report must be posted on Health Canada’s website.  Watch this blog to stay informed.



Progressing Toward the Regulation of Psychotherapy in Ontario

The regulation of psychotherapy has been more than 10 years in the making but significant strides have been made recently toward full implementation.  Further to the Minister of Health and Long-Term Care’s direction in December of 2017, the College of Registered Psychotherapists of Ontario created a draft regulation identifying therapy modalities that its members could use when providing psychotherapy services. The proposed regulation (under the Psychotherapy Act) was released in April and comments are due by June 15, 2018. The draft regulation is available here: https://www.ontariocanada.com/registry/view_posting.jsp;jsessionid=mAnot1q4ZrYdoGo6sV7mSaT?language=en&postingId=27366

There are six categories of treatment modalities identified in the proposed regulation and they are fairly broad. In order to give some additional clarity to the regulation, and further to the Minister’s direction, the CRPO conducted a public consultation about its draft policy identifying activities that do not fall within the controlled act of psychotherapy. The draft policy is available here: https://www.crpo.ca/wp-content/uploads/2018/03/CRPO-CATG-Consultation-Documents_Consultation-Draft.pdf

Psychotherapists who are not currently registered with an RHPA or social work college whose members are permitted to practise psychotherapy must determine whether their practice falls within one of the broad prescribed modalities identified in the draft regulation; if yes, the practitioner must take steps to become registered with a college permitting such practice (such as the CRPO) or they must take steps to restrict their practice.

In order to provide additional guidance to currently unregulated psychotherapists to help them determine whether they are providing the controlled act of psychotherapy, and therefore whether they need to take steps to register before December of 2019, the CRPO also released a self-assessment tool for providers.  A link to the self-assessment tool is found here https://www.crpo.ca/wp-content/uploads/2018/03/CRPO-CATG-Consultation-Documents_Consultation-Draft.pdf

Prior to the CRPO’s public consultation about the draft regulation, the Health Professions Regulatory Advisory Council reported to the Minister about clarifying the meaning of the controlled act of psychotherapy. That report, entitled “The Therapeutic Relationship as the Cornerstone of Psychotherapy” was released to the public in March of 2018 and is available on the Council’s website.

The CRPO regulation and policy represent a significant move forward toward comprehensive regulation of psychotherapists in Ontario.

For more information, contact Simmie Palter @ spalter@ddohealthlaw.com

Professionalism and the Public Interest

The Alberta Court of Appeal recently confirmed a health profession regulator’s authority to enact regulations in the public interest, even if no harm is occurring. In Sobey’s West v. College of Pharmacists of Alberta (2017 ABCA 36), Sobey’s sought judicial review of a College policy (incorporated into a regulation to give it the force of law) that prevented pharmacies, pharmacists and pharmacy technicians from offering inducements to clients that required the intervention of a pharmacist or pharmacy technician. Sobey’s acquired Safeway and continued Safeway’s policy of permitting Air Miles loyalty points to be collected by clients filling prescriptions at their pharmacy. While no complaints were made to the College about the loyalty points program, Sobey’s West sought judicial review of the policy, arguing that it curbed competition. At the time, Sobey’s West was challenging a similar policy in the court in British Columbia.

The Alberta Court of Queen’s Bench (the trial division in Alberta) found that the College’s policy was ultra vires (outside the authority of) the College. The Alberta Court of Appeal reversed the trial judge’s decision, indicating that the College has legislative authority to enact law that protects the public interest. Therefore, the policy prohibiting the collection of Air Miles loyalty points on prescription drug purchases was within the jurisdiction of the College. This decision is consistent with Sobey’s West v. College of Pharmacists of B.C. (2016 BCCA 41), where the B. C. Court of Appeal found a similar college policy was within the authority of the College to make (and reversed the B.C. trial division decision).

The reasoning of these decisions is consistent with the Supreme Court of Canada’s decision in Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care) (2013 SCC 64), where the Supreme Court of Canada upheld provincial drug benefit legislation and regulations whose intent was to increase transparency in generic drug pricing on the grounds that the regulations were consistent with the stated purpose of the enabling legislation.  The court explained, in a unanimous decision, that to be found ultra vires, regulations must be shown to be inconsistent with the objective of the enabling statue or the scope of the statutory mandate. The court noted that there is a presumption of validity regarding regulations, which means that the regulations should be reconciled with the enabling statute in manner that is possible to construe them as intra vires and that the onus of proving them ultra vires is on the challenger – not on the rule-maker to justify them.  The court also makes a point of noting that it is not the court’s role to assess the policy merits of the rules nor the partisan, social, or economic issues that may have been the catalyst for their creation.

Does the decision of the Alberta Court of Appeal, together with the Supreme Court of Canada’s presumption of validity for regulations, imply that regulators have a wide berth to enact restrictive rules as a matter of public interest, and that such rules will be difficult to challenge on judicial review?  While regulators do have considerable latitude to enact regulations as a matter of protecting the public, each challenge to a regulation will turn on the particular wording of the regulation or policy in question, and on the precise wording of the enabling statute.  In the past, regulations preventing the charging of block fees by physicians were judged to be ultra vires the Medicine Act because the court found they were made for the purpose of preventing extra-billing rather than for protecting the public, thus departing from the statutory mandate. See:  Szmuilowicz v. Ontario (Minister of Health), (1995) 125 D.L.R. (4th) 688 (Gen. Div.).

Similarly, regulations preventing dentists from advertising their services using content that was informational, accurate, and helpful to individuals choosing a dentist were struck down as contrary to the right to freedom of expression protected by the Charter: see Rocket v. Royal College of Dental Surgeons of Ontario, (1990) 71 D.L.R. (4th) 68 (S.C.C.).

In a third case, regulations preventing inactive physiotherapists from practising beyond their scope of practice were found by the court to be unauthorized:  see Lefko v. College of Physiotherapists of Ontario, (1998) 116 O.A.C 86 (Div Ct).

These cases show that professional regulations are not impossible to successfully challenge.

Consequently, it is recommended that regulators, when seeking enactment of such rules into legislation, carefully draft the proposed rules to ensure that they are consistent with the regulator’s statutory mandate and do not exceed the scope of authority granted by the enabling legislation.

For help in drafting regulations for health professions, please feel free to get in touch: spalter@ddoheatlhlaw.com.

Sexual abuse of patients by health care providers

Physicians and other regulated health professionals have a duty to act in the best interests of their patients, an obligation that has always been viewed as being generally incompatible with any sort of sexual relationship between health care providers and patients. Under the Regulated Health Professions Act, Ontario takes a zero tolerance approach to sexual activity between patients and health care providers, and it’s no defence to argue that a sexual relationship between a patient and a provider is consensual. All sexual acts, including “behaviour and remarks of a sexual nature” come within the definition of “sexual abuse”, though the concept “of a sexual nature” excludes touching, behaviour, or remarks of a clinical nature appropriate to the service provided.

The Health Professions Procedural Code provides for mandatory revocation of a regulated health professional’s certificate of registration for certain instances of sexual abuse – if the abuse comes within a defined list of sexual acts, revocation must result. For sexual abuse that does not involve these acts, the penalty is at the discretion of the Discipline Committee. If a provider’s certificate of registration has been revoked, the provider can’t apply for re-instatement for 5 years.

The mandatory revocation provisions have been challenged in the Court of Appeal several times since they took effect in December of 1993. This month the Divisional Court affirmed the legislative scheme, and specifically the mandatory revocation sections, as being constitutional[1].  The Court affirmed that there is no constitutional right to practise a profession; that a revocation of a professional license is not a deprivation of an individual’s liberty (and therefore not contrary to section 7 of the Charter) and that the ordeal of undergoing disciplinary proceedings (and the related media storm) is not a violation of a provider’s security interests (also protected under section 7 of the Charter).

Over the years, some providers have argued in court that the zero tolerance provisions are too broad because they include spouses, and sexual relationships that pre-date the professional relationship, and certain exemptions with respect to spousal relationships have been added to the Act. A spousal exemption enacted in 2013, to permit treatment of spouses where the profession makes a regulation to that effect, gave rise to a novel  defence in a recent abuse case.

In Sliwin v CPSO, the provider argued that his multi-year extra-marital relationship, conducted clandestinely in his office, in exchange for free (and major) cosmetic surgery, was tantamount to a spousal relationship, even though they did not cohabit. The court rejected this argument, holding that the exemption is specific, unambiguous and narrowly drafted to include only spouses, as defined in the Family Law Act (which includes married and common law spouses), and only sexual relationships that occur when the provider is not engaged in the practice of the profession.

Zero tolerance for sexual abuse is now an entrenched principle, and in some ways is becoming even more strict. The Ontario government has recently proposed changes to expand the list of defined sexual acts which, once proven, will require mandatory revocation; the proposed changes will also require suspension of a professional’s privilege to practise where outright revocation is not mandatory. Debates about these changes, embodied in Bill 87, the Protecting Patients Act, began on March 27, 2017.  As of April 13, 2017, the Bill is at second reading and has been referred to the Standing Committee of the Legislative Assembly of Ontario.

While the Bill expands the grounds for mandatory revocation, and increases fines for failures to report instances of sexual abuse of patients, the proposed amendments would introduce temporal parameters around the meaning of “patient”. In Bill 87, a patient remains a patient for one year after the end of the patient-provider relationship. Additional criteria for defining “patient” may be set out in a government regulation. This introduces some flexibility into the zero tolerance approach and reflects some of the arguments previously advanced by unsuccessful litigant health care professionals.

To see Bill 87, click here http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&BillID=4477&detailPage=bills_detail_the_bill

To see the decision of the Divisional Court in Sliwin v. CPSO (2017), click here. http://www.canlii.org/en/on/onscdc/doc/2017/2017onsc1947/2017onsc1947.html?searchUrlHash=AAAAAQAGc2xpd2luAAAAAAE&resultIndex=7

To see a list of the 26 professions regulated under the RHPA, click here https://www.ontario.ca/laws/statute/91r18#BK52   and then click on Schedule 1.

Simmie Palter is senior health law counsel at Dykeman & O’Brien LLP. Professional regulation is one of Simmie’s main areas of interests, but she provides advice in many other aspects of health law. The views expressed herein do not constitute legal advice. For more information email spalter@ddohealthlaw.com.

[1] Sliwin v. College of Physicians and Surgeons of Ontario 2017 ONSC 1947 (CanLII, Div Ct).