Bill 74 – What Does it Really Mean?

This blog delves into what Bill 74 will really mean for the Ontario health care system – what exactly is changing? What powers will the Minister have, what powers will the super agency (Ontario Health, or OH) have, and what if any powers will remain with the LHINs? What are integrated care delivery systems (ICDSs) and how do they fit into the scheme of things?

Specifically, this blog answers the following questions:

  • What is Ontario Health?
  • How are the rules for OH different than the rules for LHINs, CCO, TGLN, etc.?
  • What is happening to the LHINs under Bill 74?
  • What’s the impact on HSPs?
  • What’s the impact of Bill 74 on those HSPs like public hospitals and LTC homes that were exempted from some of the LHINs’ powers under LHSIA?
  • Are integration powers broader/different than under the LHIN legislation?
  • What’s the impact on the ability to issue binding directives to HSPs?
  • What’s the impact on the ability to appoint investigators and supervisors over HSPs?
  • What’s the impact on funding of HSPs?
  • What are these new ICDSs?
  • What exactly happens when the Bill passes, and what may happen later?

Note of Caution

As I write this, we’re only at second reading. Details in the Bill may change.

This analysis is not intended to be comprehensive.

Overview – The Evolution of Power Distribution

Bill 74 is essentially a redraft and revisioning of the LHIN legislation (the Local Health System Integration Act, 2006, or LHSIA). Of course, the current government isn’t a fan of the LHINs. So Bill 74 (the Connecting Care Act) is LHSIA on steroids.

As the LHINs evolved under the Liberal government, day-to-day integration decisions about health service providers (HSPs) were devolved from the Minister to the LHINs, along with the responsibility for funding of HSPs. The Minister gave over significant power, reserving for the Ministry powers over integration orders that create what I call “extinction level events” (ELEs). When I refer to ELEs in this blog, I’m referring to integration decisions that require a HSP to:

  • wind-up, dissolve or cease operating
  • amalgamate
  • transfers all or substantially all of its assets to another entity.

The 2016 Patients First Act amended LHSIA so that the LHIN had even greater powers unilateral powers:

  • To issue binding directives to HSPs
  • To appoint investigators and supervisors over HSPs (with notable exceptions for long-term care homes and hospitals).

The 2016 Patients First Act gave the Minister parallel new powers over LHINs – showing that the way the Minister would control the health care system would be by using the LHINs as its operational agencies. The Minister could issues directives to the LHINs, and the LHINs could then pass them down to the sector, in addition to the LHINs’ own unilateral powers. And if the LHINs got out of hand, the Minister had the ability to appoint investigators and supervisors to turn things right. Government also controlled LHINs through the appointment of their board members through Orders-in-Council.

Fundamentally, Bill 74 is repatriating powers back to the Minister. And the Minister may then delegate all of those powers (except for regulation-making) to the new health care “super agency”, OH.

Bill 74 will dissolve the LHINs – not immediately, but eventually and with certainty.

  1. What is Ontario Health?

OH is the new “super agency” that is going to assume the mandates of the 14 LHINs and the following other six government agencies:

  • Cancer Care Ontario (CCO)
  • Trillium Gift of Life Network (TGLN)
  • eHealth Ontario (eHO)
  • HealthForce Ontario (HFO)
  • Health Shared Service Ontario (HSSO)
  • Health Quality Ontario (HQO)

OH is going to be a hugely powerful agency. The Minister may delegate all of her powers (except for regulation-making) to OH. Depending on the extent of delegation by the Minister of her powers to OH, it could become all-powerful over Ontario HSPs. We will have to see how this evolves.

Current status: Even though OH only comes into existence as a Crown agency when Bill 74 is passed, the government has incorporated a non-profit called Health Program Initiatives and has already appointed its first 12-person board of directors:  https://news.ontario.ca/mohltc/en/2019/03/ontario-health-board-of-directors.html

As of Friday, March 8th, by Order-in-Council, the OH board members became the board for all the 20 agencies it will ultimately inherit. The Orders-in-Council of the then-existing directors of the 20 agencies were revoked, allowing them to be replaced. The OH board is now doing initial due diligence to determine what decisions need to be made for the 20 agencies over the immediate next months.

  1. How are the rules for OH different than the rules for LHINs, CCO, TGLN, etc?

Importantly, OH is not required to hold its board meetings in public or to give public notice of its board meetings. This is very different from the public mandate of the LHINs in particular.

Interestingly, the OH board can delegate to its employees any of its powers, except the power to appoint investigators and other powers that may be prescribed by regulation. This allows the OH board to delegate to staff the ability to exercise the following powers that were previously required to be performed by the LHIN boards:

  • Imposing a service accountability agreement (SAA) on a HSP after a negotiation period
  • Issuing directives to HSPs
  • Appointing supervisors over HSPs
  • Issuing a facilitated integration order to a HSP
  • Issuing a required integration order to a HSP
  • Vetoing a voluntary integration by HSPs.

This level of delegation means that the senior staff of OH could be hugely powerful themselves.

Unlike each LHIN currently, there is no requirement for OH to have an integrated health service plan that is publicly available and for its funding decisions to be consistent with that plan.

Unlike some of the existing agencies (such as TGLN), OH will not be able to give indemnities in contracts. This is status quo for CCO and the LHINs.

OH must be audited by the Auditor General. Previously some of the agencies (like LHINs, TGLN and HSSO) engaged their own auditor.

No OH annual report is required to the Minister – this was a requirement for some of the agencies, such as LHINs and TGLN.

Notably, Bill 74 does not include the powers given to the Minister under the Patients First Act in 2016 over LHINs – the Minister cannot appoint an investigator or supervisor over OH.

  1. What is happening to the LHINs under Bill 74?

LHINs are going to disappear, but not immediately. LHIN boards have already been taken over by the OH board as of March 8, and the LHIN mandates will be eventually assumed by OH, with their assets, employees, operations and liabilities being transferred to OH by Ministerial order, mirroring how the CCACs were transferred to the LHINs in 2017.

Bill 74 repeals LHSIA, but that repeal does not take effect on passage (Royal Assent) of the Bill. Instead, the Bill contemplates that LHSIA may be repealed in different provisions on different dates by proclamation. This is clearly intended to be an evolution – over what period of time, we can’t say.

There are a couple hints about how that evolution may play out, embedded in Bill 74:

  • The Bill contemplates amending one specific section of LHSIA (again, not at the time of Royal Assent, but later) that takes Health Quality Ontario out of the reporting loop for LHINs. This suggests the LHINs will be around for a bit.
  • There’s an existing exclusion in LHSIA – the community services (home care services) purchased by a LHIN from service providers under the Home Care and Community Services Act were not themselves HSPs. This exclusion remains, but the LHINs are no longer the ones purchasing the community services – it’s the HSPs or ICDSs directly purchasing community services, with no mention of LHINs. That suggests to me that the LHINs will not be operating the home care services for very long, if we’re plotting out how this is going to evolve.
  1. What’s the impact on HSPs?

If you are an HSP under the existing LHIN legislation, you are a HSP under Bill 74.

And congratulations to independent health facilities – you are joining the fold of HSPs.

It is important to note that physicians still are not HSPs, what I have always considered a fatal flaw. I get the political rationale behind this, but it’s hard to integrate a health care system without physicians.

  1. What’s the impact of Bill 74 on those HSPs like public hospitals and LTC homes that were exempted from some of the LHINs’ powers under LHSIA?

Exemption Table

ExemptionLHSIABill 74
LHIN DirectivesPublic hospitals
LTC homes
University of Ottawa Heart Institute
None

Note: Directives now issued by Minister unless power delegated to OH
LHIN Appointment of InvestigatorLTC homesLTC homes (even if they are part of an ICDS subject to an appointment)

Public hospitals – but the Minister can recommend to Cabinet the appointment of an investigator for a public hospital or the ICDS it is part of (recall that the Minister can recommend the appointment of an investigator to Cabinet under the Public Hospitals Act)
LHIN Appointment of SupervisorPublic hospital
Private hospital
LTC homes
Public hospitals – but the Minister can recommend to Cabinet the appointment of a supervisor for a public hospital or the ICDS it is part of (recall that the Minister can recommend the appointment of a supervisor to Cabinet under the Public Hospitals Act)

LTC homes (even if they are part of an ICDS subject to an appointment)

Note: Supervisors now appointed by Minister unless power delegated to OH
Voluntary Integration OrdersLTC homes, to the extent the Minister or director the Long-Term Care Homes Act had approval right in that legislationSame
ELE Integration OrdersThe Minister could not issue an ELE integration order to a Board of Management.

The Minister could not issue an ELE integration order to a stand-one LTC home (one that is not also a hospital or other type of HSP).

The Minister could not issue a ELE integration order for wind-up/dissolution only to a HSP such as a hospital that also operates a LTC home, where the ELE order is only in respect of the LTC home.
Same.

Plus ELE integration order includes an order to co-ordinate services with or partner with another person or entity that receives funding from the Agency
  1.  Are integration powers broader/different than under the LHIN legislation?

The definition of “integration” is exactly the same.

Integration orders are almost the same, with a few tweaks.

Recall that LHSIA divided integration orders into four categories:

  • Section 25, integrations negotiated/facilitated by the LHIN
  • Section 26, integrations required by the LHIN
  • Section 27, voluntary integrations proposed by HSPs that could be vetoed by the LHIN
  • Section 28, integrations required by the Minister.

These same orders exist but are now framed as:

Type of Integration OrderLHSIABill 74
FacilitatedSection 25(2) – LHINs issueSection 32 - Facilitation decision by OH
RequiredSection 26 – LHINs issueSection 33 - “Integration order” by Minister*
VoluntarySection 27 – LHINs issueSection 35(8) – Decision by the Minister* not to proceed with an integration
MinisterialSection 28 – Minister issues (ELE orders)Section 33 – grouped with Ministerial* orders under “required integrations”

LHSIA had defined “service” very broadly, so that the integration of services included front-line, supportive services for front-line services, and back-office services. Bill 74 does not define “service”, and this is a significant omission. Note that Cabinet can pass regulations defining terms in the Bill not otherwise defined, so it may be the intention to define what constitutes a “service” under the regulations.

As pointed out above, there is a new required integration order the Minister can make (or can delegate to OH to make): to co-ordinate services with or partner with another person or entity that receives funding from the Agency. This is classified with the ELE integration orders above, because the Ministry cannot issue such an order to LTC home licensees that are boards of management or to stand-alone LTC home licensees. I’m a bit puzzled why coordinating services is being grouped with the ELE orders – it’s not like the other ELEs that end a HSP’s existence. It’s not that burdensome to coordinate with another organization – in fact, this is the heart of integrations. I’m not sure what the rationale is here, unless the intent is that integration of services and partnering be done primarily through the ICDSs.

  1. What’s the impact on the ability to issue binding directives to HSPs?

The Minister now assumes the powers to issue directives to HSPs. OH does not have the power to issue binding directives to HSPs, unless this power is delegated by the Minister.

LTC homes, public hospitals and the University of Ottawa Heart Institute are not exempt from binding directives.

Note that the LHINs had to issue a binding directive in draft. This is no longer a requirement.

LHSIA referred to “operational” or “policy” directives. There is no longer this distinction. There is just a reference to “directives”. I don’t think this is material.

LHSIA gave the Minister the power to issue “provincial standards”. This is gone, but the ability to issue directives is so broad it would encompass this former authority to set provincial standards.

Interesting thought:  Given that OH also will include the mandate of eHO, directives could be issued relating to standardized use of EMR systems in Ontario in order to move forward a provincial EMR.

  1. What’s the impact on the ability to appoint investigators and supervisors over a HSP?

OH assumes the power to appoint investigators from the LHINs.

Public hospitals are now exempt from the appointment of an investigator, but the Minister can recommend to Cabinet the appointment of an investigator for the public hospital or the ICDS it is part of.

OH does not take over the power of appointing supervisors from the LHINs. This is now a Ministerial power, which can be delegated to OH.

Public hospitals remain exempt from the appointment of a supervisor, but the Minister can recommend to Cabinet the appointment of a supervisor for the public hospital or the ICDS it is part of.

Recall that the Minister can recommend the appointment of an investigator or supervisor to Cabinet under the Public Hospitals Act.

LTC homes remain exempt from the appointment of investigators and supervisors, even if they are part of an ICDS.

  1. What’s the impact on funding of HSPs?

OH takes over the role of the LHIN in funding HSPs or ICDSs directly. OH may fund both health services and non-health services that support provision of health care. There is no longer a geographic component to the funding as there was with the 14 geographically situated LHINs.

The Minister can assign to OH or any other person or entity an existing funding agreement. Under LHSIA, the Minister could assign funding agreements only to the LHINs – recall the fuss this created in the negotiation of the FHT funding agreement and the concerns about the LHINs taking over funding for the FHTs.

Unlike each LHIN currently, there is no requirement for OH to have an integrated health service plan that is publicly available and for its funding decisions to be consistent with that plan.

Negotiation of the SAA is more expedited than under LHSIA. Recall the 2016 Patients First Act gave HSPs extensive and escalating negotiating rights over the SAA. That negotiation period is now 90 days from first notice. After the 90 days, OH can issue a notice of offer (take it or leave it), and there’s a further 60-day period to finalize. At the end of the 60 days, OH can impose the SAA on the HSP, copying the Ministry. The process no longer includes a written issues statement from the HSP, escalating involvement of CEOs and Chairs, and the funder’s need to consider the HSP’s issues before imposing the SAA.

I’ve tried to summarize how powers are distributed under the Connecting Care Act in this table:

Power Chart

PowerLHSIABill 74
FundingMinister – power over LHIN
LHIN – power over HSPs
Minister – power over OH
OH – power over HSPs and ICDSs
DirectivesMinister – power over LHIN
LHIN – power over HSPs

Minister* only – power over Agency, HSPs and ICDSs
InvestigatorMinister – power over LHIN
LHIN – power over HSPs (with exceptions)
OH – power over HSPs and ICDSs (with exceptions)
SupervisorMinister – power over LHIN
LHIN – power over HSPs (with exceptions)
Minister* - power over HSPs (with exceptions) and ICDSs
Designate an ICDSn/aMinister*
Facilitated/negotiated integration decisionLHIN – power over HSPsOH – power over HSPs
Required integration decisions (including ELE integration decisions)LHIN – power over HSPsMinister* - power over HSPs and ICDSs
Voluntary integration decisionsLHIN – power over HSPs to veto voluntary integrationsMinister* - power over HSPs and ICDSs to veto voluntary integrations

 

*Recall that the Minister can delegate all powers under Bill 74 (except regulation-making) to OH.

  1. What are these new ICDSs?

These are referred to in some media reports as “Ontario Health Teams”, which will, according to government media, provide:

  • one integrated team of health care providers working together to meet your needs
  • a medical record that both you and your providers can access easily
  • help in navigating the public health care system 24/7

The Minister has new powers to designate one or more persons as an ICDS to deliver at least three of the following types of services:

  • hospital
  • primary care
  • mental health or addictions
  • home care or community
  • long-term care
  • palliative
  • services prescribed by regulation.

There may be further regulations established by Cabinet that prescribe conditions and requirements that must be met before a designation of an ICDS by the Minister. Again, a reminder that the Minister can delegate this designation power to OH.

ICDSs will be directly funded by the Agency, which may reduce the number of SAAs across Ontario. OH may provide overarching funding to an ICDS with a constituent board (or all constituent boards?) of the constituent HSPs being required to determine how to allocate funding amongst themselves. We will see how this plays out.

Any power in the Bill relating to a HSP can be extended to an ICDS and each constituent HSP in that ICDS.

Do ICDs have any powers over other HSPs? No, not on the face of the Bill. But note that Cabinet can pass regulations respecting “any other matter that the Lieutenant Governor in Council consider necessary or desirable for carrying out the purposes and provisions of this Act” – which is very broad and would allow Cabinet to devolve/delegate Agency powers to ICDSs.

  1. What exactly happens when the Bill passes, and what may happen later?

Very little actually happens when the Bill receives Royal Assent.

Under the Connecting Ontario Act, nothing happens on Royal Assent (not even creating OH as a crown agency). Everything happens by proclamation.

Schedule 3 of the Bill sets out the impacts on other pieces of legislation. On Royal Assent:

  • The composition of CCO’s board changes under the Cancer Act to align with OH
  • The Cancer Act can be repealed in different parts on different dates
  • The composition of HQO’s board changes under the Excellent Care for All Act to align with OH
  • ECFAA can be repealed in different parts on different dates
  • LHSIA can be repealed in different parts on different dates
  • The Lung Health Act can be repealed in different parts on different dates
  • The composition of TGLN’s board changes under the TGLN Act to align with OH
  • Mysteriously, the non-existent section 246 of ONCA is repealed. Anyone who figures this out gets a gold star. Why would anything in ONCA be repealed immediately when ONCA itself isn’t in force yet?

This will be an evolution. The question is, how fast or how slow?

 

Questions? Please contact Kathy O’Brien @ kobrien@ddohealthlaw.com.

 

 

Conducting Supplier Debriefings

The Broader Public Sector Procurement Directive entitles unsuccessful proponents participating in a procurement valued at $100,000 or more to a supplier debriefing. A debriefing is an opportunity for a proponent to:

  • discuss with the purchaser the strengths and weaknesses of the proponent’s submission in relation to the evaluation criteria of the procurement;
  • ask questions related to the procurement process; and
  • provide feedback on how the procurement process and the purchaser’s practices could be changed or improved.

A purchaser must include in the documents that initiate a procurement details about supplier debriefings, including the process by which a proponent can request a debriefing. A purchaser must provide proponents with at least 60 days following contract award notification to request a debriefing.

A debriefing should be a process that allows both the purchaser and a proponent to gain valuable input from the other. However, if not conducted properly, a debriefing could lead to additional questions or process-related challenges from a proponent, which would likely mean greater costs being incurred by the purchaser for staff time and legal fees.

To ensure that your organization carries out debriefings efficiently, effectively, and in keeping with applicable regulatory and contractual obligations, your debriefing processes should be formalized to ensure consistency and your staff should be educated on restrictions imposed by applicable procurement requirements and contractual obligations.

DDO is experienced in helping our clients to:

  • establish straight-forward and effective processes for addressing debriefing requests;
  • ensure that their staff are up-to-date on current legislative and regulatory requirements related to debriefings;
  • create an agenda for debriefings that will allow for consistency across debriefings and contribute to the (a) equitable treatment of proponents and (b) transparency of the process;
  • formalize document management and record-keeping procedures for debriefings;
  • train procurement staff on leading a debriefing and on identifying questions that are out of scope of a debriefing; and
  • educate staff on the confidentiality obligations that a purchaser owes to the proponents in a procurement process.

If you are interested in DDO providing your organization with advice on debriefings, or if you have any specific questions related to debriefings, please do not hesitate to reach out to me: mgleeson@ddohealthlaw.com

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.

 

 

Health Sector Payment Transparency Act, 2017

Status

Schedule 4 of Bill 160 enacts the Health Sector Payment Transparency Act, 2017 (the “Act”). On December 12, 2017, the Act received Royal Assent, but has not yet been proclaimed in force.

Purpose of the Act

The purpose of the Act is to require the reporting of information related to financial relationships that exist within Ontario’s health care system. The purpose is also to enable the collection, analysis and publication of that information in order to, among other things:

  • strengthen the transparency to sustain and enhance patients’ trust in both the health care system and health care providers, and
  • allow patients to make informed decisions about their health care by providing them with access to information.

The Act is similar to the Physician Payments Sunshine Act found in the United States and is the first of its kind in Canada. The Act calls attention to the financial relationship between the medical industry (such as pharmaceutical and medical device companies) and those involved in the health care sector (individuals and organizations) – it creates a regime that requires mandatory disclosure of private sector payments to health professionals. As part of Bill 160, the Strengthening Quality and Accountability for Patients Act, 2017, the Act aims to enhance transparency, accountability, and the quality of care across the health care sector.

Requirements of the Act

The Act requires a “payor” to report to the Minister of Health and Long-Term Care (the “Minister”) information related to a “transfer of value” provided to a “recipient”, whether directly or indirectly through an intermediary. Intermediaries and affiliates may also be required to make reports, if requested by the Minister. The Act describes a payor as any of the following persons if the person provides a transfer of value to a recipient:

  1. A manufacturer that sells a medical product under the manufacturer’s own name or under a trade-mark, design, trade name or other name or mark that is owned or controlled by the manufacturer and that fabricates, produces, processes, assembles, packages or labels the product, even if those tasks are performed by someone else on the manufacturer’s behalf.
  2. A person who fabricates, produces, processes, assembles, packages or labels a medical product on behalf of a manufacturer described in #1.
  3. A wholesaler, distributor, importer or broker that promotes or facilitates the sale of a medical product.
  4. A marketing firm or person who performs activities for the purposes of marketing or promoting a medical product.
  5. A person who organizes continuing education events for members of a health profession on behalf of a manufacturer described in #1.
  6. A prescribed person or entity.

Note other relevant definitions:

  • “Transfer of value” means a transfer of value of any kind, including a payment, benefit, gift, advantage, perquisite or any other prescribed benefit.
  • “Recipient” means a prescribed person, as per the regulations, that receives a transfer of value from a payor.

The Act requires the following information to be reported:

  1. The name of the parties to the transaction.
  2. The source of the transfer of value (if requested).
  3. The parties’ respective business addresses.
  4. The date of the transfer of value.
  5. The transfer of value’s dollar value (or its approximate dollar value, if it is a non-monetary transfer of value).
  6. A description of the transfer of value (including reasons).
  7. Any other prescribed information.

The Act also requires the Minister to analyse the information that is reported for the purposes of health system research and evaluation, planning, and policy analysis. The Minister is allowed to disclose the information reported at least once in a calendar year. Furthermore, the Act establishes a framework for inspections and other compliance mechanisms.

Draft Regulations

In February 2018, draft regulations under the Act were published by the Ontario Government. Details found within the draft regulations include, among other things:

  • a list of 31 persons/entities that constitute recipients, including regulated health professionals; hospitals under the Public Hospitals Act and the Private Hospitals Act; psychiatric facilities under the Mental Health Act (subject to exceptions); a not-for-profit entity that operates a family health team or community mental health and addiction services; a licensee under the Long-Term Care Homes Act, 2007; a College under the Regulated Health Professions Act, 1991; a board member, director, trustee, officer, appointee, employee, or agent of a prescribed entity within this definition; etc.
  • a list of 24 items that are considered reportable transfer of values under the Act, such as cash or cash equivalents, honoraria, compensation for services, rebates and discounts, membership fees, supplies and equipment, food and beverages, travel and accommodation, personal gifts, royalties, etc.
  • the definition of intermediary – a person or entity is deemed to be providing or facilitating a transfer of value on behalf of a payor if the transfer of value originates from the payor (irrespective of whether the payor directs how the transfer of value is to be used by the intermediary or is aware of the identities of the recipients at the time the transfer of value is provided to the intermediary)
  • the monetary threshold for reporting a transfer of value set at $10 or more, and other exceptions to reporting requirements
  • other reporting requirements related to the classification of the transfer of value
  • new entities under the definition of payor, including community pharmacies and laboratories
  • the manner and frequency of reporting – every payor must report to the Minister every year, no later than June 30 in any year after 2019 for the previous calendar year.

Penalties

Penalties will be imposed on individuals and corporations for contravening the Act for each day or part of a day on which the offence occurs or continues to occur. These will range from $10,000-$25,000 for individuals and $50,000-$100,000 for corporations. However, a defence of due diligence is applicable in cases where all reasonable steps were taken to prevent the contravention, or at the time of the contravention, the person had an honest and reasonable belief in a mistaken set of facts which, if true, would have resulted in there not being any contravention.

ONCA Update

The Ontario Legislature passed Bill 154, the Cutting Unnecessary Red Tape Act, 2017, on November 14th. Bill 154 effected changes to non-profit corporate legislation in Ontario.

The Government has announced that it is working to bring Ontario’s Not-for-profit Corporations Act, 2010 (ONCA) into force and effect by early 2020. This aligns with the long-promised 2 years’ notice that the Government would give to the non-profit sector to allow the sector to prepare for ONCA’s arrival. Even once ONCA is proclaimed, non-profit corporations (now governed by the Corporations Act) will have 3 years to transition under the long-anticipated ONCA regime.

Bill 154 also made changes to the Corporations Act – some of which are beneficial to non-profits in Ontario and can be taken advantage of now, particularly related to relaxing the rules around the conduct of members’ meetings.

Bill 154’s changes to ONCA have no immediate impact. Boards are encouraged to keep ONCA on their radar – but no immediate steps are required. Keep posted.