Ontario’s Proposed Super-Agency: The Creation of Ontario Health Under Bill 74

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Fasken.com – KnowledgeHub/Health Law Bulletin
March 12, 2019.   Lynne Golding, Partner,  John Webster, Articling Student

This is the second bulletin in our series regarding Bill 74, an Act concerning the provision of health care in Ontario, which will, once passed, create the Connecting Care Act, 2019 (the “Act”). A general overview of Bill 74 and the Act is set out in our prior bulletin, Introduction of Bill 74: The People’s Health Care Act, 2019. As described in that bulletin, a number of more specific bulletins will follow, of which this is the first.

This bulletin will summarize key provisions pertaining to the proposed agency, Ontario Health (the “Agency”): its objects and powers, its board and senior management, its funding and accountability obligations and the transfer to it of certain existing operations.

Crown Agent

It is proposed that Ontario Health will be an agency of the Crown. It will not be a charity and none of its property will be held in trust unless acquired subject to specified charitable purposes (for example, in connection with a transfer described below).  Nonetheless, the Agency is to carry out its operations without the purpose of gain. All funds received by it are to be used to further its objects and for no other purpose. Since the Agency is an agent of the Crown, the government is responsible for any unpaid judgements against the Agency after it has made all reasonable efforts, including liquidating its assets, to pay amounts due.

Objects and Powers

The objects of the Agency are to:

  • manage health service needs across Ontario consistent with the health strategies of the Ministry of Health and Long-Term Care (the “Ministry”) in order to ensure the quality and sustainability of the Ontario health system;
  • plan, co-ordinate, undertake and support activities related to tissue donation and transplantation in accordance with the Trillium Gift of Life Network Act;
  • support the patient ombudsman in carrying out its functions in accordance with the Excellent Care for All Act, 2010;
  • support or provide supply chain management services to health service providers and related organizations;
  • provide advice, recommendations and information to the Minister of Health and Long Term Care (the “Minister”) and other participants in the Ontario healthcare system; and
  • promote health service integration to enable appropriate, co-ordinated and effective health service delivery.

Although the Agency will have the powers of a natural person, there are number of things that it may not do without other consents. For example, it will not be able to undertake any of the following without the approval of the Lieutenant Governor in Council: acquiring or disposing of any interest in real property, except for leasing space it reasonably requires; borrowing or lending money; investing its money; encumbering any of its personal property; creating a subsidiary; or generating revenue.

Similarly, the Agency will not be able to exercise any of the following powers without the approval of the Minster: making charitable donations (except as authorized by the Act); applying for status as a registered charity; participating in fundraising activities or programs that directly or indirectly support the Agency; or entering into agreements with persons, entities, or governments for the provision of services outside Ontario.

Pursuant to a number of consequential amendments to other statues, the Agency will be a member of the broader public sector and so subject to various provisions of the Broader Public Sector Accountability Act, including those pertaining to the use of consultants, the public posting of expenses, compensation regimes and compliance reports. It will also be subject to the Pay Equity Act.

The Agency is specifically entitled to receive personal health information from health information custodians under the Personal Health Information Protection Act, 2004 for specified funding and verification purposes.

Board of Directors

The Agency will have a board of not more than 15 members, one of whom will be the Chair of the Board and at least one other, the Vice Chair. All members will be appointed by the Lieutenant Governor in Council. Each director may hold office for a term of up to three years, subject to renewal. No person may hold office for more than six years in total other than the Chair.

The Board is responsible for the management and supervision of the management of the activities and affairs of the Agency. The Board is to appoint a chief executive officer to be responsible for such matters on a day to day basis. The CEO, who may not be a member of the Board, must be paid within the range set by the Minister, if any.

While the Board may delegate any of its powers or duties under the Act to employees of the Agency, it may not delegate its power to appoint investigators, more on which will be described in our next bulletin.

The Board has the usual rights to enact by-laws, to appoint additional officers and to create and populate committees. The Minster may require the board to submit specified by-laws to her for approval.

The directors and officers of the Agency are entitled to indemnification by the Agency so long as they act in a manner consistent with their fiduciary duties and provided that the indemnity is first approved in accordance with Section 28 of the Financial Administration Act, a requirement necessary due to its status as a Crown agency.

Funding and Accountability

The Agency is to be funded by the Minister. The Minister may adjust the funding provided each year to take into account a portion of any savings from efficiencies generated in the prior fiscal year that the Agency proposes to spend on patient care in the subsequent fiscal year.

The Agency is required to enter into an accountability agreement with the Minister, which will have a term of more than one fiscal year. The agreement is to set out the goals and objectives of the Agency; the performance standards; targets and measures; the reporting requirements; a budget; a progressive performance management process; and any other matters that may be prescribed. If the Minster and the Agency cannot agree on the terms of the accountability agreement, the Minister may set the terms.  Once signed, the accountability agreement must be posted on the website of the Agency.

Directives

The Minister is given the power issue directives to the Agency, or to any person or entity that receives funding from the Agency, provided that no such directive shall unjustifiably require any religious organization to provide a service that is contrary to its religion. Whether or not a requirement is unjustifiable shall be determined in accordance with Section 1 of the Canadian Charter of Rights and Freedoms. Any directive issued must be published on a website. In the event of a conflict between a directive and any applicable law, the law will prevail.

Transfer

The Minister will also have the power to make an order transferring all or part of the assets, liabilities, rights, obligations and employees of certain organizations to the Agency, a health service provider or an integrated care delivery system[1] (a “Transfer Order”). The organizations to which this right pertains are:

  • Cancer Care Ontario
  • eHealth Ontario
  • Trillium Gift of Life Network
  • Health Shared Services Ontario
  • Ontario Health Quality Council
  • HealthForce Ontario Marketing and Recruitment Agency
  • Any of the 14 local health integration networks
  • Any other prescribed organization

Before a Transfer Order is made, the Minister must notify the Agency and each affected transferor and transferee. In order to determine the content of such an order or potential order, the Minister may require any such organization to provide to her information relating to the operations, employees, assets, liabilities, rights and obligations of the entity. Such information may include personal information but not personal health information.

In addition to providing for the assets, liabilities, rights, obligations and employees to be transferred, the Transfer Order will specify the date on which the transfer will take effect and specify how any issues arising regarding the interpretation of the Transfer Order will be resolved. Once received, the transferor and transferee will make copies of the Transfer Order available to affected employees and their bargaining agents, and to other persons or entities whose contracts are affected by the order.  The Transfer Order will also be published online.

The transfer recipient will, pursuant to the Transfer Order, assume the operations, activities and affairs of the transferor that are provided for in the Transfer Order, including all contractual rights and interests that existed before the transfer date. All rights of third parties against the transferor will continue against the transferee.

In a manner that will eliminate the need for many third party consents, the Act provides that the transfer will not constitute a change of control of the transferor nor a breach or termination of any agreement including an employment contract or collective agreement. Similarly, the transfer will not constitute a breach of any law, an event of default or give rise to any other sort of estoppel. The transfer will not be subject to land transfer tax or to retail sales tax.

The Freedom of Information and Protection of Privacy Act will apply to the records that are transferred pursuant to a Transfer Order unless the record was, prior to the date of the Transfer Order, in the custody or control of a transferor that was not an institution within the meeting of that act. Where the transferred property was held by the transferor for a specified charitable purpose then the transfer recipient shall use it for that same specified charitable purpose.

Employees who are transferred pursuant to a Transfer Order carry with them all their years of prior service and other existing rights. The employment of such employees is not considered to have been terminated or severed, and the employees are not constructively dismissed as a result of the transfer.

Following the completion of a transfer contemplated by the Transfer Order, the Minister may make an order to dissolve the organization. The dissolution will take effect as of the date specified in the order. On that date the persons who are members, directors and officers of the organization to be dissolved will cease to be so.

No person will be entitled to compensation for any loss or damages, including loss of revenue or loss of profit arising from any Transfer Order, except for a loss resulting from a transfer of property that was not acquired with money received from the Government of Ontario, the Agency or any other agency of Government.

Engagement

The Agency is required to establish mechanisms to engage with patients, families, care givers, health sector employees and others as part of its operational planning process, including by engaging with prescribed Indigenous health planning entities, prescribed French language, health planning entities and the Minister’s Patient and Family Advisory Council, as well as any others prescribed by regulation.

In making any decisions in the public interest under the Act, the Lieutenant Governor in Council, the Minister and the Agency may consider any matter they consider relevant including: the quality of the management and administration of the Agency, health service provider, integrated care delivery system, or any other person who receives funding from the Agency; the proper management of the health care system in general; the availability of financial resources for the management of the health care system and for the delivery of the health care services; accessibility to health services; and the quality of care and treatment to patients.


[1]       As described in our previous bulletin, Introduction of Bill 74: The People’s Health Care Act, 2019, an integrated care delivery system is a person or entity or group of persons or entities designated under the Act that deliver three or more prescribed health care services

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