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ACCESS TO INFORMATION AND THE APPEAL PROCESS UNDER FIPPA AND MFIPPA

Posted on July 24, 2015 at 8:00 AM Comments comments (1)

In Ontario, citizens have the right to request access to information held by government, including information about individual citizens such as yourself. The right to request access is provided by two pieces of legislation: Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) and Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) (the Acts). The flip side of course is that the Acts also allow the same public institutions to refuse access to certain kinds of information.


The Acts apply to public institutions (provincial ministries, agencies, universities and hospitals, for example) and local government institutions such as municipalities, police services, and school boards.


One must keep in mind the various timelines involved in the process. For example, the public institution has 30 calendar days from the date your request was received to provide you with their decision. If the access to the information you requested is denied by the public institution, then you may appeal that decision and the appeal is made to the Office of the Information and Privacy Commissioner of Ontario (IPC). Some of the grounds for an appeal include:


 

  • denial of access to the information requested;
  • you requested that your personal information be corrected but the request was denied;
  • you did not receive a decision regarding your request within the time frame required (30 calendar days);
  • the public institution advised you of the necessity to extend the 30 calendar day time period and you disagree with this extension;
  • a party, other than yourself, has requested personal information about you from the public institution and the institution decided to release the information but you disagree with that decision.


The appeal must be filed within 30 calendar days of receiving the public institution’s decision by completing the appropriate form, or writing a letter outlining your case, and including the appropriate fee. If you fall under the last bullet above, then you do not have to pay the fee.


If the appeal is accepted to proceed, then the file is forwarded either to a mediator to be settled by a mediation process (if possible) and or to an adjudicator for resolution.


Karim Bhaloo, BSc, MLT is a paralegal and Principal at KB Legal Services, a firm specializing in representing self-regulated professionals and citizens of Ontario at various tribunals. He can be reached at 416-549-8085 or by e-mail at [email protected] 

Protecting Condominium Owners Act, 2015

Posted on June 5, 2015 at 10:20 AM Comments comments (0)

On May 27, 2015 the Ontario government introduced the Protecting Condominium Owners Act, 2015. This purpose of this Act is to one, amend the current Condominium Act, 1998, two, to enact the Condominium Management Services Act, 2015 and three, to amend other Acts with respect to condominiums.


The Protecting Condominium Owners Act, 2015 is aimed at approximately 1.3 million people who live in about 700,000 condominiums in Ontario and consists of Schedule 1 and Schedule 2. 


Schedule 1


Schedule 1 outlines the amendments to the current Condominium Act, 1998. Highlights include:


 

  • Creation of a condominium authority (CA). This arms length not-for-profit corporation will have the power to administer certain provisions and regulations made under the Act. The CA will not be a Crown agency and therefore the individuals comprising the CA will not be Crown employees.
  • The CA will be self-funded by having condominium corporations and owners pay a fee set by the CA.
  • The establishment of a Condominium Authority Tribunal (CAT) to handle disputes, prescribed by the regulation, between condominium corporations and owners (or mortgagees). The chair, vice-chair and members of the CAT will be appointed by the CA. Certain disputes will be excluded from this process such as those involving liens, ownership, and the determination of title to real property.
  • The CAT will have exclusive jurisdiction to exercise it powers and parties can appeal the decisions on questions of law to the Divisional Court.
  • The CA will provide annual and other reports to the Auditor General who will also set the competency criteria for the board members.
  • The requirement of condominium corporations to file tax returns with the Condominium Registrar and to notify the Registrar should there be any changes in directors. The Registrar and deputy Registrars will be appointed, if given the authority, by the CA otherwise they will be appointed by the Minister.
  • A condominium corporations has an outstanding fees and other charges against it will not be entitled to a proceeding before the CAT or in an Ontario court except with the permission of the court.
  • Condominium corporations will have to follow a prescribed procurement process otherwise they will not be able to enter into certain contracts.
  • Candidates for director positions, in addition to qualifying under the existing rules, have an additional disclosure obligations and must undergo training.

 


Schedule 2


 

  • Enacts the Condominium Management Services Act, 2015 and makes complementary amendments to the Condominium Act, 1998 and the Licence Appeal Tribunal Act, 1999.
  • Condominium managers and condominium management providers must now be licensed.
  • A complaint about a licensee can now be made to the Registrar and the Act establishes a discipline and an appeal committee. A breach of the code of ethics by a licensee will be fined up to $25,000 or a lesser prescribed amount.
  • Establishes certain fraud-prevention mechanisms.

 


It appears that after many years, we may, in time, have a piece of legislation with some teeth that may help condominium owners and prevent potential fraud from being perpetrated.


Karim Bhaloo, BSc, MLT is a paralegal and Principal at KB Legal Services, a firm specializing in representing self-regulated professionals and citizens of Ontario at various tribunals. He can be reached at 416-549-8085 or by e-mail at [email protected]

Self-Regulation -What is it and What Does it Mean for the Trade Profession?

Posted on May 6, 2015 at 9:20 AM Comments comments (0)

Self-regulation is a mechanism put in place by the government when it feels that the profession in question is mature enough to be able to self-police, and the profession has agreed to have its members’ activities be regulated. A profession is able to self-regulate when a piece of legislation is passed by the government. For the trade profession, that piece of legislation is called the Ontario College of Trades and Apprenticeship Act, 2009 (OCTAA). The Act creates the Ontario College of Trades (OCOT), a regulatory body with a legal authority to regulate the members of the profession and by extension, protect the public. The OCTAA consists of 16 parts – from registration, duties of the complaints, discipline and fitness to practise committees to Registrar’s powers of investigations and the appeal process. The following regulations, made under OCTAA, are also part of the rules members have to abide by:


• O. Reg. 278/11 – Scope of Practice (trades in the service sector)

• O. Reg. 277/11 – Scope of Practice (trades in the motive power sector)

• O. Reg. 276/11 – Scope of Practice (trades in the industrial sector)

• O. Reg. 275/11 – Scope of Practice (trades in the construction sector)

• O. reg. 175/11 – Prescribes trades and related matters


As members of a self-regulating profession you should be aware that because the primary objective of the College is public protection, the College, under Part VIII of the OCTAA which outlines the Registrar’s powers of investigation and inspection, may appoint, under section 53(1), one or more investigators to investigate a matter provided that the appointment has been approved by the Executive Committee under section 53(2). Members should also be cognizant of section 53(4-5) that deals with evidentiary matter and section 59, the submission, by the Registrar, of the investigator’s report to one or more of the committees listed under that section. In addition, Part VII would also be of importance as it outlines the appeal, by a member, of the decision or order of the committee involved to the Divisional Court on questions of law or fact or both.


When a profession becomes self-regulated, it tells the service recipients that the members are experts in their respective fields and are professionals. Members should view self-regulation as an opportunity to control their profession and attain the same level of respect as the doctors and lawyers.


Karim Bhaloo, BSc, MLT is a paralegal and Principal at KB Legal Services, a firm specializing in representing self-regulated professionals and citizens of Ontario at various tribunals. He can be reached at 416-549-8085 or by e-mail at [email protected]

Personal Health Information

Posted on May 5, 2015 at 6:30 PM Comments comments (0)

Effective delivery of health care requires that patients share personal sensitive information with their health care professional. In exchange, patients expect health care professionals, and or institutions, to protect such information from falling into the wrong hands and at the same time use it in the best interest of the patient. This level of trust must not be broken because the alternative option of forsaking privacy and appropriate health care is not acceptable1.


The journey of privacy legislation in Ontario was led by Mr. Justice Krever and the Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario. This resulted in the publication of Report of the Commission of Inquiry into the Confidentiality of Health Information, also known as the Krever Report1.


Some twenty years later, Honourable Roy Romanov, Q.C. was appointed as Commissioner by the Canada Privy Council to examine the future of our publicly funded health care system. The Romanow Report, as it was known, highlighted similar concerns outlines in the Krever Report1.


Even though privacy is not expressly mentioned in the Canadian Charter of Rights and Freedoms, it has had an impact on health information. The Supreme Court of Canada has held that right to privacy, through several sections in the Charter, is recognized and protected. The Supreme Court of Canada has recognized privacy rights in cases such as R v. Mills and R. v. Dyment1.


Over twenty years after the release of the Krever Report, several Ontario legislations were updated to reflect the need for handling patient information, including the Regulated Health Professions Act, 1991 (RHPA). However a better model was needed because this was seen as patchwork of rules without much consistency1.


The imminent arrival of the federal legislation known as the Personal Information Protection and Electronic Documents Act (PIPEDA) was seen as being uneven in its application to the health care sector by the provinces thus encouraging the provinces to come up with a provincial legislation to handle personal health information1.


On December 17, 2003 the Ontario government introduced the Personal Health Information Protection Act, 2000 (PHIPA) in the legislature. The act received wide acceptance from the stakeholders in the health care system. PHIPA is part of Bill 31, the Health Information Protection Act, 2004 (HIPA) and appears as schedule A. Quality of Care Information Protection Act, 2004 (QCIPA) is also part of that Act (HIPA) and appears as schedule B. An interesting and important feature of QCIPA is that any “quality of care information”, as defined under QCIPA, that is generated with the aim of improving health care within the health care institution is protected from disclosure in other proceedings. The purpose of this is to allow a frank discussion between health professionals that would hopefully lead to better health care delivery1.


Part V of PHIPA outlines the steps individuals must follow in order to gain access to their personal health information that is in the custody of a health information custodian. This right of access may be denied if one of the exclusions or exceptions outlined in the Act applies1.


If the records, being sought by a patient, are collected in order to comply with the quality assurance program of a regulatory college as defined in the RHPA, then access will be denied. Similarly, if the personal health information is used strictly for research purposes and the research plan is approved under PHIPA then access will be denied. In some cases, access may be denied if the information that is in the custody or control of a laboratory with respect to the test(s) requested by a health care practitioner is used for the purposes of providing health care to the patient. This exclusion reinforces the practice that has been in place for many years. It is worthwhile to note two important points. First, if the laboratory decides, in its sole discretion, to provide the patient with access to this information then it can do so and will not be violating this provision of PHIPA. Second, that O. Reg. 752/93 (professional misconduct) made under the MLT Act states that it is professional misconduct for a medical laboratory technologist to fail “to provide, when requested, within a reasonable length of time, to a patient or the patient’s authorized representative a copy of a patient’s laboratory record, unless the member believes on reasonable grounds, that providing the copy may result in harm to the patient or to another person”. Other situations where access may be denied include those where the personal health information forms part of the quality of care information as defined under QCIPA, or when it is part of the raw data from a standardized psychological test or assessments1.


This brief glimpse into PHIPA illustrates the complexities involved in maintaining confidentiality of personal records while at the same time making it readily available for the provision of appropriate health care. In addition, health care professionals must be allowed to disclose information for other supporting functions within the health care system such as payment by OHIP, investigation by a regulatory body for professional misconduct, to protect public health and effective planning and management of the health care system for all citizens of Ontario1.


REFERENCE

Parun, H., Orr, M. & Dimitriadis, F. (2005). Guide to the Ontario Personal Health Information Protection Act. Irwin Law Inc.


Karim Bhaloo, BSc, MLT is a paralegal and Principal at KB Legal Services, a firm specializing in representing self-regulated professionals and citizens of Ontario at various tribunals. He can be reached at 416-549-8085 or by e-mail at [email protected]

Regulated Health Professions Act, 1991 - A Refresher

Posted on April 26, 2015 at 6:05 PM Comments comments (0)

As the Regulated Health Professions Act, 1991 (RHPA) continues to evolve and update with the addition of new professions, it would be a good idea to refresh ourselves with what this piece of legislation does and what its purposes are.


The RHPA and the corresponding profession-specific Acts govern the existing framework for regulating various health professions. The main purpose of the RHPA is to protect the public from harm but it also provides a mechanism to improve quality of care, provides the citizens of Ontario a free choice in accessing a health professional, establishes a framework for what kind of work a health professional can do, and provides a system of self-governance.


The key features of the Act include the establishment of the scope of practise, controlled acts, regulatory colleges (which regulates the practise of the profession, governs the profession and its members according to the Act), and the Health Professions Regulatory Advisory Council (HPRAC). HPRAC is an independent advisory body to the Minister of Health and Long-Term Care with a mandate to advise the Minister on number of matters including which professions should be regulated, which professions should no longer be regulated, any amendments to the RHPA, a health profession Act or regulations under those Acts, quality assurance and patient relations programs of the College and any other matters referred to it by the Minister. The other independent body established is the Health Professions Appeal and Review Board (HPARB) whose mandate is to review the decisions made by the Inquiries, Complaints and Reports Committee (ICRC) of the various health regulatory Colleges, hold hearings with regards to a physician’s hospital privileges under the Public Hospitals Act, and conduct reviews and hearings of orders originating from the Registration Committees of the health regulatory Colleges.


One can think of the RHPA as the skeleton while the meat of the legislation is provided by the Health Procedural Code (HPC) being Schedule 2 of the Act. This Schedule sets out the rules for various Colleges on things such as:

 

  •  Member registration;
  • Handling complaints;
  • carrying out discipline hearings;
  • Appointing and conducting investigations;
  • Setting up a patient relation program;
  • Handling mandatory reports;
  • Quality assurance programs;
  • Policies and procedures for victims of sexual abuse by members;
  • An appeal process regarding the decisions of the ICRC.

 

Currently, there are 25 RHPA Colleges that regulate over 300,000 health care professionals in Ontario. Four Colleges regulate more than one profession and these are the College of Audiologists & Speech Language Pathologists of Ontario, the College of Chiropodists of Ontario which also regulates podiatrists, the College of Psychologists of Ontario which also regulates psychological assistants, and the Ontario College of Pharmacists which also regulates pharmacy technicians.


On April 1, 2015, the Homeopath Act, 2007 and the Psychotherapy Act, 2007 came into force establishing the College of Homeopaths of Ontario (CHO) and the College of Registered Psychotherapists and Registered Mental Health Therapists of Ontario (CRPO). Currently, the College of Naturopaths of Ontario continues as a Transitional Council.


Karim Bhaloo, BSc, MLT is a paralegal and Principal at KB Legal Services, a firm specializing in representing self-regulated professionals and citizens of Ontario at various tribunals. He can be reached at 416-549-8085 or by e-mail at [email protected]


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