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Sale of Ophthalmic Lenses Online: the Québec Court of Appeal Decides
In a unanimous decision rendered on May 16, 2016,1 the Québec Court of Appeal confirmed that the delivery of ophthalmic lenses purchased online from suppliers who are not members of the Ordre des optométristes (Order of Optometrists) (“Order”), or the Ordre des opticiens d’ordonnances (Order of Dispensing Opticians), does not violate the Optometry Act 2 (“OA”) or, by necessary extension, the Dispensing Opticians Act.3 This decision was the result of an appeal from a judgment issued on December 3, 20144 by the Superior Court, in which the Superior Court reached the same conclusion as the Court of Appeal. The facts in this case were as follows: Coastal Contacts Inc. (“Coastal”), now carrying on business as Clearly, is a company based in Vancouver with no establishment in Quebec, which sells ophthalmic lenses through its websites to purchasers in many Canadian provinces, including Quebec. Its operations are subject to and compliant with the legislation in force in British Columbia.5 Quebec purchasers can either deal directly with Coastal or instead with website operators who redirect potential customer requests directly to Coastal. Gestion Progex (“Progex”), one of the respondents in the litigation, was one such website operator. In this case, the Order contended that Coastal and Progex violated the OA by claiming they had the right to perform a professional activity that is reserved for the members of the Order of Optometrists of Quebec, or by acting in a manner that gave the impression they were authorized to do so. Essentially, the Order alleged that the sale of ophthalmic lenses in Quebec was an act reserved for optometrists under sections 16 and 25 of the OA, and for dispensing opticians under section 8 of the Dispensing Opticians Act. The Order put forward two main arguments in support of its claims. First, it claimed that section 16 of the OA should be read as follows: [translation] “The practice of optometry is an act which […] deals with […] the sale of ophthalmic lenses.” Based on this interpretation, and despite the fact that, according to the general rules of law, the contract was concluded in British Columbia, section 16 had been infringed because Coastal’s actions, including the placing of orders, payment, confirmation of the order, and delivery of the ophthalmic lenses, were performed in Quebec. On this point, the Court found that section 16 does not allow the sale of ophthalmic lenses to be broken down into various separate tangible or intangible acts so as to include them in the exclusive area of practice of optometrists. Secondly, the Order argued that the term “sale” used in section 16 of the OA should be interpreted more broadly than when it is used in the Civil Code of Québec. It contended that this broadening of the concept of “sale” was justified on the basis of the primary mission of the Order, which is to ensure the protection of the public. Therefore, according to the Order, the term “sale” must allow for the regulation of any conduct [translation] “[…] consisting of controlling the distribution of a regulated product to the public […]”.6 After reviewing the decisions in Eaton7, Celgene Corp8 and Meditrust 9, the Court held that it could not accept the interpretation put forward by the Order. The Court observed that the only act attributable to Coastal and which took place in Quebec was the delivery of the ophthalmic lenses, since the other acts identified by the Order related more to the freedom of action of the purchaser, over which the Order has no jurisdiction. As the Superior Court had also noted in a case between the Order of Optometrists and the Order of Dispensing Opticians,10 the Court of Appeal stated that the simple delivery of ophthalmic lenses is only incidental to, and not an inherent component of, the sale. In addition, the Court found that lenses are not a product whose manufacture, supply or sale are so regulated that this would justify a broad interpretation of the monopoly on sales claimed by the Order for the benefit of its members. Moreover, such an interpretation would be inconsistent with the principle that statutes which create professional monopolies should be interpreted narrowly. Following its analysis, the Court therefore held that [translation] “the mere delivery of ophthalmic lenses in Quebec […] cannot constitute either a violation of section 16 or the first paragraph of section 25, or the illegal exercise of optometry in Quebec.” 11 In light of this conclusion, the Court found that it was not necessary for it to rule on the territorial scope of section 16 of the OA. However, it reiterated the recognized legal principle that, in the absence of a contrary provision, whether express or implied, one must assume that the author of the OA intended it to apply only to individuals, places, actions and events located within the territory of Quebec. Coastal was represented in this file by members of Lavery’s Health law group. Lavery will keep you informed of any new developments in this case. Ordre des optométristes du Québec c. Coastal Contacts Inc., 2016 QCCA 837. Optometry Act, CQLR, c. O-7. Dispensing Opticians Act, CQLR, c. O-6. Ordre des optométristes du Québec c. Coastal Contacts Inc., 2014 QCCS 5886. Health Professions Act, [RSBC 1996] Chapter 183; Optometrists Regulation, B.C. Reg. 200/2012; Opticians Regulation, B.C. Reg. 118/2010. Excerpt from the factum of the Order, cited in para.  of the decision. Association pharmaceutique de la province de Québec c. T. Eaton Co. Ltd., (1931) 50 B.R. 482. Celgene Corp c. Canada (Attorney General),  1 S.C.R. 3. Ordre des pharmaciens du Québec c. Meditrust Pharmacy Services Inc.,  R.J.Q. 2833 (C.A.) (authorization for leave to appeal dismissed by the Supreme Court,  2 S.C.R. ix). Ordre des opticiens d’ordonnances du Québec c. Ordre des optométristes du Québec, 2013 QCCS 1532. Ordre des optométristes du Québec c. Coastal Contacts Inc., supra, note 1, cited in para.  of the decision.
Contracts by public entities: stay tuned on June 1, 2016
The regulation governing contracts of public bodies leaps into the digital age. The amendments, passed on April 13, 2016, and coming into force June 1, 2016, aim to clarify the rules pertaining to the results evaluation.1 Five key changes Tenders in electronic form are mandatory if so required in the tender documents —> change of computer systems will be needed to ensure the integrity of the signatures and tenders. Minor modifications to the conditions for compliance —> still not possible for the public body to specify what constitutes a minor irregularity in the tender documents. Qualitative evaluation of tenders —> it is possible to ask for the details of the evaluation in case of refusal. For supply contracts, the concept of “total acquisition cost” is introduced —> to determine the lowest price or the adjusted price, the public body may take into consideration the additional costs related to the useful life of the goods which are not included in the tenders. Adoption of a new regulation respecting information technology contracts2 —> these contracts are removed from the ordinary framework of supply and services contracts Electronic transmission of tenders Public bodies may henceforth require tenderers to transmit their tenders only through the electronic tendering system approved by the government (ETS).3 Failing to do so will then constitute a ground for automatic rejection, as well as the fact that the electronic tender “is unintelligible, infected or otherwise illegible once its integrity has been established by the electronic tendering system.”4 Moreover, only tenders whose integrity has been ascertained,5 meaning that it is possible to verify that the information which the document contains has not been altered, that the medium used provides stability and perennity to the information and that the security measures necessary to its preservation exist6may be accepted. If it is not possible to ascertain the integrity of a document at the opening of tenders, the public body must not disclose the prices, but rather send a default notice to the tenderer in question, who will then have two business days to remedy the situation, failing which the tender will be rejected.7 If integrity can be ascertained, the public body shall publish the result of the opening in the ETS within four business days.8. The public body may of course continue to accept the filing of paper tenders, exclusively or in addition to electronic tenders. In this last case, effective from May 31, 2019, in the event that a same tender is both sent electronically and on paper form, it will be deemed to constitute two separate tenders for the purpose of compliance analysis.9 Prior to May 31, 2019, it may be considered that the paper form version prevails. Evaluation of the tenders Conditions for compliance If, effective from June 1, 2016, the erasure of or correction to the tendered price which is not initialled will no longer constitute a ground for automatic rejection, grounds such as a conditional or restrictive tender, a security which does not comply with the form and conditions required, lateness in submitting a tender and non-compliance with a condition stipulated to be essential remain.10 In this respect, the regulation is more timid than the draft regulation published on November 11, 2015, which, for example, would have given the public body the authority to establish which conditions could be the subject of a correction by tenderers in the event of an irregularity. This proposed faculty was finally not retained. Results of the evaluation Regarding contracts to be awarded following a quality evaluation, whereas the public body was previously required to inform each tenderer only of the overall results of the evaluation. From June 1st, 2016, they will also be required, upon the written request to the tenderer sent within 30 days of the quality evaluation results, provide the tenderer with the results in respect of each criterion used, as well as briefly set out the reasons justifying the fact that a tender was not accepted, if such was the case. The public body is required to provide its response to the tenderer within 30 days from the date it received the tenderer’s request.11 Changes specific to supply contracts Supply contracts are the subject of particular amendments, the most important of which apply to the adjustments to be made to the tender price to determine the lowest price. The concept of “impact cost”12 disappears, to be replaced with that of “total acquisition cost,” which allows the public body to take into account the “additional costs related to the acquisition of the goods”. These costs must be identified in the tender documents. They represent quantifiable and measurable elements non included in the tendered price, the cost of which will be borne by the public body during the useful life of the goods acquired. They may include installation, maintenance, support and training costs.13 Their value must be communicated to tenderers within 15 days of the contract awarding.14 The amendments to the regulation also specify the procedure applicable for calls for tenders in two stages15 as well as the procedure pertaining to compliance tests: the public body must first test the goods proposed by successful tenderer according to the terms provided for in the call for tenders and can only resort to the other tenderers if the goods proposed by the successful tenderer fail to pass the compliance test.16 New regulation applicable to contracting in the field of information technologies In addition to the above amendments, a new regulatory framework is adopted in respect of information technologies contracts which, effective June 1, 2016, will cease to be covered by the ordinary regime regulating services and supply contracts. We simply note that if the structure of the Regulation respecting contracting by public bodies in the field of information technologies, O.C. 295 2016 generally retains that of the current regulations, it also innovates, the government seeking to reflect certain issues specific to the “acquisition of goods or the provision of services in the field of information technologies […] [which] seek[s] predominantly to ensure or enable functions of information processing and communication by electronic means, including the collection, transmission, display and storage of information”. The new regulation provides specific rules pertaining to intellectual property or cloud computing and the possibility to use a new method for awarding contracts, “competitive dialogue”. Conclusion These regulatory amendments reflect the government’s wish to make electronic tenders the norm in the medium term. They also reflect some teachings of the courts, particularly as to the importance of precise tender documentation. Lastly, particularly with respect to supply, they aim to give more flexibility to the public body in order to ensure the best possible value to the taxpayer. O.C. 292-2016, 293-2016, 294-2016 and 295-2016 dated April 13, 2016, GOQ.II.1803-1826 (April 13, 2016), respectively amending the Regulation respecting supply contracts of public bodies, CQLR c. C-65.1, r. 2 (Rrscpb), the Regulation respecting service contracts of public bodies, CQLR c. C-65.1, r. 4 (Rscpb) and the Regulation respecting construction contracts of public bodies, CQLR c. C-65.1, r. 5 (Rccpb), all three adopted under the Act Respecting Contracting By Public Bodies, CQLR c. C-65.1. Regulation respecting contracting by public bodies in the field of information technologies, O.C. 295 2016. Sec. 4(5.2.), 9.2 Rccpb, Rscpb, Rrscpb; an exception applies to supply contracts referred to in section 183 of the Act respecting health services and social services, CQLR, c. S 4.2 where the documents related to the tendered price are in the form of a price list whose scope or layout does not make it possible to identify a total price (sec. 46.2 Rrscpb). Sec. 7 para 1 (5) Rccpb, sec. 7 para 1 (4) Rscpb, sec. 7 para 1 (4) Rrscpb. Sec. 13.1 Rccpb, sec. 10.1 Rscpb, sec. 10.1 Rrscpb. An Act to Establish a Legal Framework for Information Technology, CQLR c. C-1.1, sec. 6. Sec. 7.0.1 para 1 Rccpb, Rscpb, Rrscpb. Sec. 14 para 4 Rccpb, sec. 11 para 4 Rscpb, sec. 11 para 4 Rrscpb. Sec. 7 para 3 Rccpb, Rscpb, Rrscpb. Sec. 7 para 1 Rccpb, Rscpb, Rrscpb. Sec. 32 para 5 Rccpb, sec. 28 para 4 Rscpb, sec. 26.3 para 3. Sec. 13 al. 2 Rrscpb (2008-2016). Sec. 15.1.1 and 15.1.2. Rrscpb. Sec. 15.1.2 Rrscpb. Sec. 26.1-26.3 Rrscpb. Sec. 7 para 1(5), 12 para 2 Rrscpb.
Tobacco Control and E-cigarettes: New Challenges for Businesses
Bill 44 has been adopted in the context of a major expansion of electronic cigarette sales.1 Bringing with it significant legislative reforms, this Bill regulates the use of electronic cigarettes in much the same way as it does tobacco. It also amends the Tobacco Act,2 changing its name to the Tobacco Control Act3 (hereinafter “the Act”). The Bill makes several amendments which should be of interest to those responsible for operating establishments which are subject to the Act, including employers and health and social services institutions: By November 26, 2017, certain employers must adopt a tobacco control policy; Provisions have been added the goal of which is to increase the liability of directors and officers of legal persons and partnerships; Provisions have been added which seek to facilitate the prosecution’s case in regulatory proceedings; The fines for violating the Act have been increased; The Act now applies to electronic cigarettes; Effective May 26, 2016, smoking will be prohibited in additional locations. Here are a few details regarding these amendments. OBLIGATION TO ADOPT A TOBACCO CONTROL POLICY By November 26, 2017, every health and social services institution, and every college or university-level educational institution, must adopt a tobacco control policy aimed at establishing a smoke-free environment. A copy of the policy must be sent to the Minister of Health and Social Services. In addition, every two years, the executive directors of such institutions will need to report to the board of directors with respect to the application of the policy and the institutions must send those reports to the Minister within 60 days of their being filed with the board of directors.4 INCREASED LIABILITY OF DIRECTORS AND OFFICERS OF LEGAL PERSONS AND PARTNERSHIPS Since November 26, 2015, the Act has contained new provisions which create presumptions of liability applicable to employers and to directors and officers of legal persons, partnerships, and associations without legal personality.5 Essentially, these provisions state that: In regulatory proceedings related to offences under the Act or its Regulations, evidence that the offence was committed by a representative, agent or employee of a legal person or partnership is sufficient to establish that said offence was in fact committed by that legal person or partnership; and If a legal person or a representative, agent or employee of a legal person, partnership or association without legal personality commits an offence under the Act or the Regulations, the directors or officers of the legal person, partnership or association are presumed to have committed the offence. The party who wishes to rebut these presumptions must establish that it exercised due diligence and took all necessary precautions to prevent the commission of the offence. NEW PROVISIONS LIGHTENING THE PROSECUTION’S EVIDENTIARY BURDEN IN RELATION TO OFFENCES For example, section 11 of the Act provides that the operator of a place where smoking is prohibited, such as a workplace, or a facility maintained by a health and social services institution, must not tolerate a person smoking (tobacco products or electronic cigarettes) in that area. Evidence of such tolerance exposes the operator liable to regulatory prosecution and, potentially, to a conviction and the imposition of a fine. On November 26, 2015, this provision was amended to facilitate evidence of the operator’s “tolerance”. Section 11 now states that, in regulatory proceedings, proof that a person smoked in an area where smoking is prohibited is sufficient to establish that the operator of the place or business tolerated such behaviour. An operator that wishes to rebut this presumption must establish that it exercised due diligence and took all necessary precautions to prevent its commission, in particular, by posting clearly visible notices stating that smoking is prohibited and by having no ashtrays. INCREASED FINES FOR OFFENCES Several fines for offences under the Act have been increased, including the fines for violations of section 11: BEFORENovember 26, 2015 AFTERNovember 26, 20156 FIRST OFFENCE FIRST OFFENCE $400 to $4,000 $500 to $12,500 SUBSEQUENT OFFENCE SUBSEQUENT OFFENCE $1,000 to $10,000 $1,000 to $25,000 APPLICATION OF THE ACT TO ELECTRONIC CIGARETTES Since November 26, 2015, electronic cigarettes and all other devices of that nature, including their components, are governed by the same rules as those applicable to tobacco products. Specifically, the Act’s prohibitions against “smoking” now apply to electronic cigarettes as well as tobacco products.7 NEW PROHIBITIONS AGAINST SMOKING In addition to the existing rules under the former Tobacco Act, as of May 26, 2016, the prohibition against smoking (tobacco or electronic cigarettes) will be extended to the following areas, amongst others: Motor vehicles in which a minor under the age of 16 is present; Patios of restaurants and bars; Outdoor playgrounds for children that are open to the public; Sports fields, vacation camps, skating rinks and outdoor pools used by minors and open to the public; Daycare and childcare centre grounds; and, The grounds of educational institutions providing preschool education services, elementary and secondary school instructional services, educational services in vocational training or educational services to adults in general education.8 COMMENTS Bill 44’s amendments significantly increase the scope of smoking prohibitions. They are part of the measures the government has taken to bolster tobacco control through a range of concrete and significant reforms, such as the obligation for certain employers to adopt a tobacco control policy, and the addition of presumptions of regulatory liability applicable to directors and officers of legal persons or partnerships in the event of offences under the Act. It should be noted that the validity of certain provisions of the Act has recently been challenged.9 However, the Superior Court of Québec has yet to render a decision. An Act to bolster tobacco control, Bill 44 (assented to 26 November 2015), 1st Session, 41st Legislature (hereinafter “Bill 44”). CQLR, c T-0.01. CQLR, c L-6.2 Bill 44, sections 11 and 76. Sections 57.1 and 57.1.1 of the Act. Section 43.1.1 of the Act. Section 1.1 of the Act. Bill 44, sections 5 and 76. Association québécoise des vapoteries et al. v. Procureur général du Québec, Superior Court (200-17-023732-167) (motion filed February 25, 2016).
Right to return to work: The jurisdiction of the arbitrator or of the CNESST and TAT?
On November 24, 2015, the Québec Court of Appeal rendered a much anticipated judgment in the case of Université McGill v. McGill University Non Academic Certified Association (MUNACA)1 (“McGill”). In this judgment, the Court dispelled the ambiguity that has existed for several years in the case law regarding the grievance arbitrator’s jurisdiction in disputes regarding the interpretation and application of the provisions of collective agreements as they pertain to an employee’s return to work following an industrial accident or occupational disease, within the meaning of the Act Respecting Industrial Accidents and Occupational Diseases (“AIAOD”).2 In this case, the Court had to consider the following issues: can the parties to a collective agreement provide employees with more beneficial conditions than those contained in the AIAOD? And if so, who has jurisdiction to hear and render decisions regarding disagreements arising from such contractual provisions? Finally, the Court had to determine whether the collective agreement between the parties in this case contained a provision which offers greater protection than the statute. CONTEXT OF THE McGILL CASE An employee suffered from a permanent functional disability following an employment injury. The Commission de la santé et de la sécurité du travail3 (“CSST”) found that that disability prevented him from continuing to work in the same position he held prior to the injury, and therefore identified suitable alternative employment elsewhere in the labour market, since such employment was not available with his employer. After temporarily assigning the employee to light work, the employer terminated his employment nearly five years after the CSST had identified suitable alternative employment on the grounds that such employment still did not exist within the employer’s organization. The collective agreement between the parties also provided that [TRANSLATION] “where an employee becomes able to carry on his employment again, but has a permanent functional disability that prevents him from continuing to hold his previous employment, he shall be reassigned, without a posting, to another position suitable for his health condition, based on the available positions needing to be filled.” The employee filed grievances contesting the employer’s decision to terminate his employment claiming that, notwithstanding the CSST’s finding that suitable employment did not exist within the employer’s organization, he should be offered another position. The employer raised an objection to the arbitrator’s jurisdiction, arguing that [TRANSLATION] “where the worker was the victim of an industrial accident leading to a permanent functional disability, the arbitrator does not have jurisdiction over the worker’s ability to carry on employment with his employer.”4 The parties agreed to deal with this issue as a preliminary matter and the arbitrator held that the jurisdiction conferred on him by section 244 of the AIAOD to resolve the terms of the return to work [TRANSLATION] “does not include the jurisdiction to decide on the employee’s ability to carry on employment following an employment injury — an issue that is reserved for the CSST and the Commission des lésions professionnelles (“CLP”) on appeal.”5 Therefore, he allowed the employer’s objection and declined jurisdiction, without ruling on the merits of the grievances which, among other things, contested the employee’s termination. The union sought judicial review of this decision to the Superior Court, which quashed the arbitrator’s award and referred the grievances back to him for a ruling on the merits.6 The employer appealed this judgment to the Québec Court of Appeal, which affirmed the decision of the Superior Court and dismissed the employer’s appeal. DECISION OF THE COURT OF APPEAL Like the Superior Court, the Court of Appeal found that section 4 of the AIAOD permits the parties to a collective agreement to provide more beneficial provisions for employees than those set out in statute. Section 244 of the AIAOD does not limit the possibility of doing so. Therefore, the grievance arbitrator has exclusive jurisdiction to determine whether an agreement contains a clause which confers greater benefits than those set out in the AIAOD and, if so, to interpret and apply such a clause.7 For instance, the Court noted that a collective agreement could provide for more beneficial provisions which would: Extend the time period for exercising the right to return to work set out at section 240 of the AIAOD, thereby requiring the employer to reinstate the employee to his pre-injury employment or suitable employment, beyond the period prescribed by statute;8; Require the employer to offer or create suitable employment within its organization, if no such employment exists or is available; Require the employer to offer an employee who is incapable of resuming his pre-injury employment another position which is consistent with his residual abilities, even if such a position does not constitute “suitable employment” within the meaning of the AIAOD.9 The Court noted however that in exercising his jurisdiction the arbitrator remains bound by the findings made by the CSST or the CLP, where applicable, particularly as they pertain to the existence of an employment injury, the employee’s ability to resume his pre-injury employment, his functional disability, and what constitutes suitable employment.10 These findings are the background against which the arbitration award must be made. On the other hand, if the arbitrator concludes that the collective agreement does not provide for any additional benefits to the regime created by the AIAOD, he cannot claim jurisdiction to impose additional obligations on the employer, nor can an employee who is exercising the rights conferred on him by statute demand any greater rights. In such a case, the parties are and remain bound by the findings of the CSST and the CLP, where applicable.11 COMMENTS To summarize, according to the McGill decision, the grievance arbitrator has exclusive jurisdiction, first to determine whether a collective agreement confers more benefits on an employee than those provided for in the AIAOD and, if that is the case, to interpret and apply those provisions. In exercising this jurisdiction, the grievance arbitrator cannot reject, refute or dispute the findings made by the CSST or the CLP, and his intervention must be within the boundaries of the framework created by these organizations in accordance with the AIAOD. This decision therefore dispels the ambiguity12 which could have previously arisen, particularly from such decisions as Société des établissements de plein air du Québec v. Syndicat de la fonction publique du Québec13 and Syndicat canadien des communications, de l’énergie et du papier, section locale 427 v. Tembec, usine de Matane14, in which the courts upheld the decisions of grievance arbitrators granting the employer’s preliminary objections on the grounds that the arbitrators lacked the jurisdiction to call into question the decisions rendered by the CSST and the CLP in accordance with their exclusive jurisdiction. We note that the collective agreements in these two cases did not contain more beneficial provisions than the AIAOD on the right to return to work.15 Time will tell whether the Court of Appeal’s judgment in the McGill case has an impact on the negotiation of clauses in collective agreements providing for more beneficial terms and conditions than those contained in the AIAOD. However, in our view, disputes over the return to work of employees following an industrial accident or occupational disease must also be assessed from the perspective of the Court of Appeal’s judgment in the case of Commission de la santé et de la sécurité du travail v. Caron,16 which held that where an employee exercises his right to return to work and seeks suitable employment, the employer must engage in a process of reasonable accommodation in accordance with the Charter of Human Rights and Freedoms,17 up to the point of undue hardship. 2015 QCCA 1943. As of January 4, 2016, no application for leave to appeal to the Supreme Court of Canada had been filed. We would also like to draw your attention to the following decisions rendered by the Court of Appeal on the same subject: Syndicat des cols bleus regroupés de Montréal, section locale 301 v. Beaconsfield (Ville de), 2015 QCCA 1958, and Montréal-Est (Ville de) v. Syndicat des cols bleus regroupés de Montréal, section locale 301, 2015 QCCA 1957. CQLR c A-3.001. Since the coming into force of the Act to group the Commission de l’équité salariale, the Commission des normes du travail and the Commission de la santé et de la sécurité du travail and to establish the Administrative Labour Tribunal, S.Q. 2015, c. 15, on January 1, 2016, the CSST has been replaced by the “Commission des normes, de l’équité, de la santé et de la sécurité du travail” (“CNESST”) and the CLP has been replaced by the “Tribunal administratif du travail” (“TAT”). Comments at para 56 of the arbitration award (D.T.E. 2011T-582), reproduced by the Court of Appeal in the McGill decision, at para 10. Para 103 of the arbitration award, reproduced by the Court of Appeal at para 15. 2013 QCCS 1175. McGill decision, para 95. The time period provided for at section 240 of the AIAOD is either one or two years, depending on the circumstances. See, in particular, para 51. McGill decision, paras 73 and 74. Ibid., para 78. Ibid., para. 20. 2009 QCCA 329. 2012 QCCA 179. As noted by the Court of Appeal in the McGill decision, para 60. 2015 QCCA 1048. In this regard, we refer you to our previous publication on this decision, which you can consult by clicking here. CQLR c C-12.
Three important rulings rendered in 2015 by the Tribunal administratif du Québec regarding attending physicians
Over the past year, the Tribunal administratif du Québec (TAQ) has issued several rulings dealing with oversight of the medical practice of professionals working in health and social services institutions. Several of these rulings will be of interest to institutions since they set out principles that tend to confirm the existence of a form of management rights over physicians, despite the lack of the traditional relationship of subordination between such institutions and their physicians. A physician’s refusal to take a refresher course is a sufficient reason for the institution to refuse to renew his status and privileges1 In a decision rendered on August 18, 2015, the TAQ upheld an institution’s decision not to renew the status and privileges of one of its physicians after he refused to take a refresher course to acquire the competencies necessary to his new functions. In this case, the department head had required that the physician take the refresher course so as to enable him to return to clinical practice after having previously devoted his practice exclusively to research work. In its ruling, the TAQ set out several principles that are essential to a good understanding of the internal functioning of institutions and the process for renewing a physician’s status and privileges, specifically: In the context of managing a medical service, the institution may require a physician to take a refresher course to acquire the competencies necessary to his practice; The physician’s professional privileges are not vested rights; The process for renewing a physician’s status and privileges set out in section 238 of the Act Respecting Health Services and Social Services2 is an administrative matter, distinct from the disciplinary process provided for in section 249 of the same statute. As for the review that the TAQ must conduct where a non-renewal is contested, the TAQ noted, in particular: That it must assess whether the physician’s situation justified the Board of Directors’ decision not to renew the physician’s privileges in light of the specific requirements of the institution; That it sits de novo and is therefore not limited to the facts originally at issue in the decision of the institution’s Board of Directors. Teaching: an obligation of physicians practising in a university hospital centre3 In a ruling rendered on April 30, 2015, the TAQ upheld the decision by the Board of Directors of a university hospital centre which refused to renew the status and privileges of a physician who failed to fulfill the obligations associated with the enjoyment of those privileges. At the outset, it should be noted that the clinical skills of the applicant were not at issue in this case, rather, it was the applicant’s behaviour towards teaching that was problematic. The TAQ found that the physician had always been properly informed of the complaints made against him in the area of teaching, but he had chosen to ignore them, deny they had any basis, and stubbornly refused to act upon the recommendations made to him, while employing an attitude of defiance and clearly seeking to place the blame on others. Thus, despite the numerous chances afforded to the physician, he had demonstrated very little improvement or interest. Accordingly, the institution had no other option but refuse to renew his status and privileges. The suspension of privileges imposed on a physician must be served despite the right of appeal4 In a ruling rendered on February 23, 2015, the TAQ refused a request made by a physician to grant a stay of the enforcement of a resolution adopted by a hospital imposing a suspension of her status and privileges for one month. The physician, a general practitioner with obstetric privileges at a health and social services centre, had a solo practice and delivered babies of the patients she followed. The TAQ found that the physician would suffer no different or greater prejudice than that inherent in the application of the sanction itself. In addition, the physician had not shown that she would suffer serious and irreparable harm given that, in the Tribunal’s view, the financial prejudice she would suffer was quantifiable and not irreparable. As for the prejudice suffered by the patients, the institution would be able to remedy any harm since they would be cared for by other physicians in the department in accordance with the normal procedures in place for replacing the applicant when she was away on vacation or at a conference. A. c. Centre Hospitalier A*, 2015 QCTAQ 08321 (application for internal review). CQLR, c. S-4.2. R.A. c. Centre Hospitalier A*, 2015 QCTAQ 041038 (requête en révision, 2015-06-04 (C.S.) 500-17- 088761-153). N.F. c. CSSS A, 2015 QCTAQ 02780.
Beware If You Compare: Data Protection May Stop Approval Of A New Drug Submission
Sanofi-Aventis’s ELOXATIN® had been sold in Canada since 1999 under the Special Access Program (SAP) of Health Canada, which allows for sale of a drug in exceptional cases prior to receiving regular marketing approval, i.e. prior to the issuance of a Notice of Compliance (NOC). The active ingredient is Oxaliplatin, an injectable medication for colorectal cancer chemotherapy and one of the best-selling cancer drugs in the world. On October 27, 2006, Hospira filed a new drug submission (NDS) in Canada for Oxaliplatin. This was one month before Sanofi-Aventis filed their own NDS for ELOXATIN®. Hospira’s NDS encountered difficulties and was not approved during the usual time-frame of one to two years. Meanwhile, Sanofi-Aventis leapfrogged Hospira’s application and was first to receive a NOC, in 2007. Because it was first to obtain marketing approval, it was granted Innovative Drug status and data protection, expiring on December 15, 2015. During that time, other applicants would not be allowed to refer to ELOXATIN®’s Innovative Drug data, including product monograph information or safety and efficacy data. The data protection regime is established by the Food and Drug Regulations, more precisely section C.08.004.1. Usually, data protection cannot prevent issuance of a NOC to a sponsor that does not refer to a drug currently under data protection. Thus, in most cases where an independent NDS is filed, data protection cannot be invoked. In this situation, Hospira corresponded with Health Canada for years before it finally qualified for a NOC in 2013. Hospira accomplished this by relying on new information related to Sanofi’s ELOXATIN®, including its Canadian product monograph. Unfortunately for Hospira, this attempt to move their application forward is ultimately what stopped it in its tracks. In the fall of 2013, Health Canada refused to issue a NOC to Hospira because it had made a comparison to ELOXATIN®, which was still under data protection. Hospira applied to the Federal Court to overturn the decision. On November 6, 2015, the Federal Court dismissed the case (Hospira Healthcare Corporation c. Canada (Health), 2015 FC 1205). The Court concluded that Health Canada was correct in finding that data protection applied even if the comparison to ELOXATIN® occurred as a post-filing amendment to an independent NDS. This decision demonstrates how cautious applicants must be when agreeing to make a direct or indirect comparison to a drug under data protection. Health Canada will not guide applicants through such aspects of the process, and so they may spend years breaking down a wooden door only to find a concrete wall on the other side. Please contact Serge Shahinian for more details on these issues.
A physician’s refusal to undergo refresher training is sufficient grounds for a health institution to deny the renewal of status and privileges
On August 18, 2015, the Tribunal administratif du Québec (TAQ) confirmed the decision of a health institution to not renew the status and privileges of one of its physicians after he refused to undergo refresher training to acquire skills that were necessary to perform his new duties.1 The physician in question, a hematology specialist, had been hired as a researcher several years ago. At the time, he had been unable to obtain privileges in the hematology service but privileges had been granted to him in the medical genetics service. The physician exclusively devoted his practice to his research work for many years. Although he had privileges in the medical genetics service, he did not participate in clinical practice in any way. This situation, although imperfect, was nonetheless tolerated by the institution, which considered that the physician had to have status and privileges in good standing within the institution in order to pursue his research work there. Gradually, the physician found himself unable to renew the financing related to his research work, up until the time when his work ceased completely. He therefore decided to reorient his career toward clinical practice. Considering that he had privileges in the medical genetics service, the chief offered for him to join the medical genetics clinic to perform clinical follow-up of patients at risk of developing breast or ovarian cancer. Since the physician lacked supporting, relevant clinical experience, the chief asked him to undergo refresher training relating to the breast and gynecological examinations that were required as part of the follow-up of these patients. His integration into the medical genetics clinic was conditional upon successfully completing the training. The physician refused to undergo the refresher training. The chief had the head of department and the director of professional services intervene. Despite discussions and negotiations spanning over several months, the physician persisted in refusing to undergo refresher training. Given the stalemate and the fact that the physician no longer conducted any activities at the institution, the head of department took steps internally in order for the physician’s status and privileges to not be renewed. In its decision, the TAQ lists several elements that are essential to a good understanding of the inner workings of health institutions and the process for renewing the status and privileges of physicians, including: that an institution, as part of managing a medical service, may require a physician to undergo refresher training to acquire skills necessary to his or her practice; the fact that the professional privileges of a physician do not constitute acquired rights; that the process for the renewal of the status and privileges of a physician pursuant to section 238 of the ARHSSS2 is an administrative issue that must be distinguished from the disciplinary process under section 249 of the same statute. With respect to the review that the TAQ must conduct in the case of a contested non-renewal, the TAQ adds, in particular, that: it must assess whether the situation of a physician justified the board of directors to not renew his or her privileges, taking into account the specific requirements of the institution; it sits de novo and therefore is not limited by the facts originally presented in the decision of the board of directors of the establishment. With respect to the de novo trial which the TAQ must conduct, in this case, the TAQ authorized the RAMQ to file the physician’s billing for the preceding years, despite the physician’s opposition. This request, made by counsel for the institution, aimed to conclusively demonstrate to the TAQ that the physician did not possess the necessary experience to follow the patients of the medical genetics clinic. The analysis of this new evidence by the TAQ left little doubt as to whether the refresher training was necessary in the circumstances. The non-renewal of the status and privileges of the physician was therefore confirmed by the TAQ. This decision will be final unless contested by the physician through judicial review proceedings, which have not yet been undertaken. 2015 QCTAQ 08321. An Act Respecting Health Services and Social Services, CQLR, c. S-4.2.
Education: Obligations of physicians practising in a university hospital centre
In a decision rendered on April 30, 20151, the Administrative Tribunal of Québec (the "ATQ") upheld a decision of the board of directors of a university hospital centre that refused to renew the status and privileges of a physician who failed to fulfill the obligations associated with the enjoyment of these privileges. Firstly, it should be noted that the applicant's clinical competence was not questioned in this case. Rather, it was his behaviour in relation with teaching that was problematic. In support of its decision, the board of directors of the hospital noted that the physician had breached his duty to provide supervision, guidance and availability to residents and external physicians to such an extent that the board had been forced to relieve him of his teaching duties and assign him to other functions. For several years prior to this, the physician had ceased to have the requisite skills and abilities to practise his profession in a university hospital centre, despite the institution’s numerous attempts to intervene and rectify the situation. The debate before the ATQ was centered on the interpretation of section 238, paragraph 4, of the Act Respecting Health Services and Social Services,2 namely the “criteria of qualifications, scientific competence or conduct of the physician”, with respect to “the specific requirements of the institution, and fulfilment of the obligations attached to the enjoyment of the privileges granted.” The ATQ decided that the decision not to renew the status and privileges was well founded and ought to be upheld given this physician’s obvious lack of interest in teaching, which was an essential component of his duties. Such a lack of interest was therefore found to be unacceptable considering the obligations associated with the enjoyment of the privileges of a physician practising in a university hospital centre. In an attempt to have the hospital’s decision annuled, the applicant alleged that the fact that his privileges had been renewed successively over the years showed that he must have been meeting the teaching requirements. However, the ATQ disagreed. Indeed, the evidence showed that, since 2006, despite the renewal of his privileges, this physician had received several notices from his superiors reminding him to fulfill his teaching obligations. According to the ATQ, these renewals of privileges ought rather to be seen as opportunities that were being afforded to the physician to remedy the shortcomings identified over the years. In its decision, the ATQ noted that the physician had always been informed of the complaints made against him relating to teaching, but that he had chosen to ignore them and deny their merits, and had refused to act upon the recommendations that were made to him, while visibly trying to blame others. Thus, despite having been given numerous chances, the physician had shown very little improvement or interest, giving the institution no other option but to decline his status and privilege renewal. In light of the evidence presented before the tribunal, particularly the contract of affiliation between the hospital centre and the university, it was clear that teaching was at the very heart of this institution’s medical activities and was a distinctive requirement of this university hospital centre. In this context, the ATQ agreed that such an obligation could be attached to the enjoyment of a physician’s status and privileges. Paraphrasing of its holding in the M.G. v. Centre Hospitalier A case,3, lthe ATQ held that to reinstate the physician’s privileges would be to restore him to a position in which it had been shown many times that he was incapable of fulfilling his teaching obligations because of his own choices.4 _________________________________________ 1 R.A. v. Centre Hospitalier A, 2015 QCTAQ 041038. 2 CQLR, c. S-4.2. 3 2012 QCTAQ 031173. 4 Id., par. 461.
Confinement orders: Psychiatric examination reports not automatically excluded when a patient’s fundamental rights and freedoms are violated
In a judgment handed down on January 30, 2015, the Court of Québec held that the failure to respect the prescribed time limits or the violation of a patient’s fundamental rights and freedoms does not lead to the automatic exclusion of a psychiatric examination report concluding that the patient should be confined.1 The Court clarified another decision rendered by the same court a few months earlier in which a motion for a confinement order had been dismissed for similar reasons.2 The first case3 involved a patient who had expressed a desire to leave the hospital but had undergone two psychiatric assessments which concluded that there was some danger and that she should be confined against her will. Relying on the following excerpt of the medical report, the Court held that the patient had clearly manifested her objection to the interview and that she had therefore submitted to the doctor’s “interrogation” against her will: [TRANSLATION] “ […] Patient reticent during interview. Seems apprehensive. Refuses to sit down in the office. Hostile. Denies the information in the file. Does not answer questions about her symptoms.” [References Omitted] After referring to legislative provisions recognizing that every person has a right to personal security and inviolability and setting forth the obligation to obtain a person’s consent to an examination,4 the Court held that allowing the report and using it as evidence would bring the administration of justice into disrepute. It therefore dismissed the motion for a confinement order on the grounds that the motion was based on only one report rather than the two reports required by law. In the next case,5 the patient’s attorney requested that the second psychiatric examination report be excluded on the grounds that the examination had been conducted after the expiry of the 72-hour period during which an institution may place a person under preventive confinement.6She argued that the Court had to rule on the violation of a constitutional right involving the legitimacy of consent, and that admitting the report into evidence would tend to bring the administration of justice into disrepute pursuant to article 2858 of the Civil Code of Québec7 (“C.C.Q.”). The Court held that the same steps should be followed as in the previous case.8 After hearing the patient’s testimony, the Court rules that she had cooperated in, and consented to, the examination and her fundamental rights were therefore not violated. In the Court’s view, in the absence of such a violation, there is no reason to move on to the next step and decide whether evidence gathered in violation of her rights should be struck from the record pursuant to article 2858 C.C.Q. The Court added that the violation of fundamental human rights and freedoms should not automatically lead to the exclusion of a psychiatric report that is carried out after the expiration of the applicable time limits. A balance must be struck between the respect for patients’ rights and freedoms taking into consideration an institution’s available resources and the need for society to protect itself. Finally, on the issue of deadlines, the Court simply held that it could not condone failing to meet the deadlines but, given the circumstances, it nonetheless allowed the motion. _________________________________________ 1 Centre hospitalier de l’Université de Montréal v. H.L., 2015 QCCQ 1831. 2 Centre hospitalier de l’Université de Montréal v. J.F., 2014 QCCQ 12997. 3 Id. 4 Charter of Human Rights and Freedoms, CQLR c C-12, art. 1 and 4 (the “Charter”); Civil Code of Québec, CQLR c C-1991, art. 10 and 11 (“C.C.Q.”); Act respecting health services and social services, CQLR, c S-4.2, s. 6 and 9. 5 Supra, note 1. 6 An Act respecting the protection of persons whose mental state presents a danger to themselves or to others, CQLR, c P-38.001, s. 7. 7 Supra, note 4. 8 Supra, note 2.
Recent developments on patent-eligibility of medical use claims in Canada
Last December, the Federal Court of Canada overturned a decision of the Commissioner of Patents to refuse a patent claiming a fixed dosage regimen for the drug Humira® (Adalimunab) used in rheumatoid arthritis. The Court’s decision 1 is found here: 2014 FC 1251. This Court decision was an appeal of Decision No. 1362 of the Commissioner of Patents (“the Commissioner”), refusing to grant Canadian Patent Application No. 2,385,745 (“the ‘745 application”) to AbbVie Biotechnology Ltd. (“AbbVie”) on the grounds that the claims at issue encompass an unpatentable method of medical treatment. The claims at issue, relating to the use of Humira® as a treatment using a fixed dosage (40 mg) on a fixed (bi-weekly) schedule, were deemed to be patentable by the Federal Court. Patent Appeal Board (PAB) Proceedings – Commissioner’s Decision Before the PAB, AbbVie argued that because the claims defined a fixed dose and a fixed dosing schedule, they avoided the exercise of skill or judgment of a medical professional, and thus related to patentable subject matter. However, the PAB interpreted the case law, notably the decision of Janssen Inc. v Mylan Pharmaceuticals ULC 2 (Janssen), as having established the rule “that the mere presence of these two features [i.e., a fixed dosage and fixed dosing schedule] in a claim is not always sufficient to avoid the method of medical treatment prohibition”, and asserted that the claims at issue, by placing restrictions on “how and when” the drug is to be administered, would interfere with the ability of physicians to exercise their judgment in the administration of Humira® when generic versions of this drug become available. The PAB thus concluded that the claims encompassed an unpatentable method of medical treatment. The Commissioner adopted the PAB’s recommendation, and issued a decision confirming the refusal to grant the ‘745 application. Goudreau Gage Dubuc, one of the leading intellectual property firms in Canada, joins Lavery Lawyers. The two firms have integrated their operations in order to offer their clients a complete range of legal services. The integration consolidates Lavery’s multidisciplinary approach. As the largest independent law firm in Quebec, Lavery is continuing to grow by adding the expertise brought by lawyers, patent agents and trademark agents specializing in intellectual property law, who belong to one of the most respected teams in the country. To learn more, visit www.YourIPLawyers.ca. --> Federal Court Decision AbbVie was successful upon appeal of the Commissioner’s Decision to the Federal Court of Canada, Trial Division. Justice Kane of the Federal Court acknowledged that the prohibitions against claims to methods of medical treatment and to claims relating to the exercise of professional skill have been consistently applied by Canadian Courts. However, Justice Kane remarked that such decisions are based on the specific facts of each case. Justice Kane referred to three decisions, Merck & Co Inc v Apotex Inc. 3, Merck & Co. Inc. v Pharmascience Inc. 4, and Bayer Inc. v Cobalt Pharmaceuticals Company 5, in which claims comparable to AbbVie’s claims had been found to be patent-eligible on the basis that if no professional skill or judgment is involved, the claimed invention is not a method of medical treatment. The Court noted that the Commissioner overlooked the specific facts of Janssen, more particularly that the Janssen claims involved a dosage range with several variables, and a known approach (a titration regimen), requiring a physician to monitor the patient and make adjustments. Therefore the Commissioner’s reliance on the Janssen case was not warranted. The Federal Court thus drew a clear distinction between cases where professional skill and judgment is exercised, for example where adjustments by the physician would be required, and those where no adjustments and therefore no professional skill and judgement are required, such as in this case where the claims recite a fixed dosage on a fixedschedule. Revised Examination Guidelines Taking into consideration the Federal Court Ruling, the Canadian Intellectual Property Office recently issued revised Examination practice guidelines 6 and examples of patent-eligible and patent-ineligible medical use claims 7, confirming that claims reciting features that do not involve a physician’s professional skill or judgment, such as a fixed dosage, a fixed dosage regimen, a patient sub-population or a particular administration site, are patent-eligible. Conclusion This decision and the new practice guidelines provides a welcome clarification on the patent-eligibility of claims involving dosage regimens, and indicates that medical use claims that do not entail professional skill and judgment, including those defining fixed dosages and/or dosing schedules, constitute patent-eligible subject matter under Canadian Patent law. Patent applicants would be well advised to consider this important change to Canadian patent practice when seeking patent protection in Canada. AbbVie Biotechnology Ltd. v Canada (Attorney General), 2014 FC 1251. 2010 FC 1123. 2005 FC 755. 2010 FC 510. 2013 FC 1061. PN 2015-01, issued March 18, 2015 Examples of purposive construction analysis of medical use claims for statutory subject-matter evaluation, http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03919.html, issued March 31, 2015
Time limit for handling complaints from health care consumers: the Supreme Court of Canada refuses to intervene
On February 26, 2015, the Supreme Court of Canada dismissed Dr. Gilbert Liu's application for leave to appeal a Court of Appeal decision concerning the time limit for handling complaints from users of health institutions. In a unanimous decision rendered September 4, 2014, the Court of Appeal confirmed that the 45-day time limit prescribed by the Act respecting health services and social services1, ("HSSSA") for handling complaints from users imposed on the medical examiner and the local service quality and complaints commissioner is not mandatory. The Court was of the view that the purpose of the time limit was to underscore the legislator's desire for the diligent handling of complaints2. In accordance with Supreme Court practice, the judgment does not give any reasons. However, it puts an end to the controversy over the actual scope of the Court of Appeal judgment confirming the April 2013 Superior Court decision3. The state of the law is now clear and the Court of Appeal judgment is authoritative. Currently pending cases, judicial and institutional, must now be handled in line with the conclusions of the Court of Appeal. It should be noted that the physician's position was based on an interpretation of sections 47 and 49 of the HSSSA to the effect that if, at the end of the prescribed 45 days, a medical examiner had still not dealt with a complaint and had not issued any findings with respect thereto, he or she lost jurisdiction. The complaint then expired unless the complainant exercised his or her right to submit it to the review committee. Like the Superior Court, the Court of Appeal acknowledged that the primary goal of a system for handing complaints from users is [translation:] "the simple and effective exercise of users' rights". To interpret the 45-day time limit as suggested by the physician, would penalize the complainant by depriving that person of the right to have the complaint dealt with. It would defeat the purpose sought by legislator. The finding of the Court of Appeal can be extended to all user complaints, not only those concerning physicians, dentists or pharmacists. According to the HSSSA, complaints must be dealt with within a prescribed deadline. The Court reiterated that in reality, in many instances a variety of factors could explain why a medical examiner or local service quality and complaints commissioner would be unable to formulate the conclusions sought within the 45-day time limit. These factors could be attributed to the complainant, to the person who is the subject of the complaint or to all manner of events. However, it must be emphasized that the 45-day time limit stated in the Act for handling a complaint expresses the legislator's intention that user complaints be dealt with expeditiously. The examining authorities would be well advised to document the reasons for their inability to act within that period to avoid unnecessarily contentious situations. _________________________________________ 1 CQLR, c. S-4.2. 2 Liu v. Comité de discipline du Centre de santé et de services sociaux Haut-Richelieu-Rouville, 2014 QCCA 1613. 3 Liu v Comité de discipline du Centre de santé et de services sociaux Haut-Richelieu-Rouville, 2013 QCCS 1856.
The dismissal of an emergency room employee for breach of confidentiality is confirmed
In a decision rendered on December 30, 20141, arbitrator Nathalie Faucher concluded that the dismissal imposed by a hospital centre on an employee for breach of confidentiality was well-founded. The employee, an administrative agent at the emergency room of the hospital centre, was dismissed for breaching her obligation of confidentiality. The employer stated that she had disclosed to a work colleague the fact that a patient had HIV. This colleague was a family member of the patient and had been unaware of his condition. The employer’s evidence established that the complainant had obtained the medical information through the hospital centre’s computer database, despite that she did not need to use the database in discharging her duties. It was also demonstrated that the complainant had been made aware of her confidentiality obligations and had undertaken to comply with these obligations by signing the code of ethics of the employer as well as an undertaking to preserve the confidentiality of patient’s identifying and medical information. In the reasons for her decision, the arbitrator took into account the wording of section 19 of the Act Respecting Health Services and Social Services, CQLR c S-4.2, which reads as follows: “19. The record of a user is confidential and no person may have access to it except with the consent of the user or the person qualified to give consent on his behalf. (…)” The arbitrator also took into account the fact that sections 5 and 9 of the Charter of Human Rights and Freedoms establish the right to confidentiality of information protected by professional secrecy and, therefore, the right of patients to expect that this information will be protected and cannot be disclosed to third parties. Moreover, the arbitrator considered that the nature of the information disclosed had an “extremely high degree of sensitivity”. Relying on a prior decision2, the Tribunal took the view that the fact that the breach of confidentiality had occurred internally did not make it less serious. For the arbitrator, the fault was twofold since not only did the employee breach the confidentiality of information, but she also obtained the information through the use of software which was not relevant to the discharge of her duties, particularly since the employee had already been notified that using this software constituted a fault and that she was liable to be sanctioned if she did so again. Finally, on the basis of the evidence heard, the arbitrator found that the “security” arguments advanced by the complainant to try to exonerate herself were not credible. The complainant had claimed that disclosure of the information was necessary to protect her colleague, out of concern that she may get infected while transporting the user. In conclusion, the arbitrator found that the conduct was sufficiently serious in nature to justify dismissal. Despite the complainant expressing remorse at the hearing, the arbitrator was not convinced that she understood the seriousness of her fault and that she would not repeat it. Therefore, the arbitrator saw no reason to intervene in the sanction imposed by the employer. _________________________________________ 1 Syndicat des travailleuses et des travailleurs du Centre de santé et de services sociaux de la région de Thetford (FSSS-CSN) et Centre de santé et de services sociaux de la région de Thetford (Karen Tombs), 2014 QCTA 1080. 2 Syndicat des travailleuses et travailleurs de l'Hôpital Charles-LeMoyne (CSN) et Hôpital Charles-LeMoyne, A.A.S. 2010A-104.
Dispositions ordering treatment for patients found unfit to stand trial: health institutions must provide prior consent to all components of the order, including the date of admission
On October 3, 2014, the Supreme Court of Canada, by a majority decision of 5 to 4,1 confirmed that a disposition ordering the treatment of an accused who is found unfit to stand trial requires the prior consent of the designated hospital to all the terms of the disposition order, inclusive of the date on which the treatment is to begin. In this case, the Ontario provincial court had declared the accused unfit to stand trial and was permitted, in accordance with the powers granted under the Criminal Code,2 to render an order for involuntary treatment for a period not exceeding 60 days (section 672.58). Under the applicable provisions, a court may also include in the disposition any conditions of treatment that it considers appropriate. However, before a court can render the disposition order, the designated hospital must provide its consent (section 672.62 (1)(a)). During the hearing, the court heard evidence that the accused could be admitted to the designated hospital but only after a period of six (6) days, since no bed would be available before that time. The hearing judge was mindful of the fact that the accused was psychotic, and she wished to avoid sending him to a detention facility in the intervening time. The court therefore ordered that he be brought “forthwith” for treatment at the Centre for Addiction and Mental Health or “a designate (preferably Oak Ridge).” Following the hearing, the accused was delivered to the “designate” facility and left in the corridor by court services. Both hospitals appealed the decision to the Ontario Court of Appeal, which allowed the appeal. The matter before the Supreme Court turned on the scope of the consent required by the designated hospital under the Criminal Code: is consent fulfilled once the hospital has agreed to treat the patient, or must the hospital also give its consent to the timing of the treatment order? The Supreme Court held that the relevant provisions of the Criminal Code must be interpreted as requiring the hospital’s consent to all components of the disposition ordering treatment, including any conditions of treatment that the court might consider appropriate to order. Absent such consent, the disposition order cannot be issued. A hospital may therefore withhold its consent where it lacks the personnel or facilities to safely treat the accused at the time in question. However, the Supreme Court imparts a certain nuance in indicating that the consent requirement can be limited by the courts in exceptional cases where the accused can show that the hospital’s refusal to provide immediate treatment might compromise the likelihood that he would become fit to stand trial within the 60-day window provided in the Criminal Code, thereby infringing on his Charter right to life, liberty, and security of the person. In such exceptional cases, the courts could decide that an order for immediate treatment is an appropriate and just remedy for the breach. _________________________________________ 1 R. v. Conception, 2014 SCC 60. 2 RSC 1985, c C 46.