July 2014

OHA BACKGROUNDER

Bill 8, Public Sector and MPP Accountability

and Transparency Act, 2014

On July 8, 2014, the government introduced Bill 8, the Public Sector and MPP Accountability and Transparency Act, 2014. The bill reintroduces near-identical legislation from the previous legislative session – Bill 179. The main difference is that Bill 8 includes amendments to the Ambulance Act that were the subject-matter of a different bill.

Bill 8 is designed to strengthen political accountability, enhance oversight, and increase transparency in the government and the broader public sector. The bill would introduce the Broader Public Sector Executive Compensation Act, 2014 which would authorize the creation of executive compensation frameworks in broader public sector organizations including hospitals. In addition, the bill would amend a number of pieces of legislation including the Broader Public Sector Accountability Act (BPSAA), the Excellent Care for All Act (ECFAA), and the Freedom of Information and Protection of Privacy Act (FIPPA) amongst others. Click here to see Bill 8.

Structure of the bill Bill 8 is expansive and if passed, will make modifications to a significant number of existing pieces of legislation. The bill itself only includes three sections, followed by a number of schedules that would introduce new legislation and would make amendments to various other pieces of legislation. Section 2 of Bill 8 provides that the bill would come into force on Royal Assent subject to specific coming into force provision set out in each of the schedules. Each individual schedule provides that it would come into force via proclamation. See the chart below for a brief description of each of the 11 Schedules.

Schedule Description

Schedule 1 This schedule would enact the Broader Public Sector Executive Compensation Act, 2014 which would allow the government to implement compensation frameworks across the broader public sector.

2

Schedule 21 Schedule 2 would amend the Ambulance Act adding a section respecting “designated air ambulance services”. It would provide specific governance and supervisory powers to the Ministry of Health and Long-Term Care as well as whistleblower protections for employees.

Schedule 3 Schedule 3 would make amendments to the BPSAA regarding disclosure of business plans, and other business and/or financial documents.

Schedule 4 This schedule would amend the Cabinet Ministers’ and Opposition Leaders’ Expenses Review and Accountability Act, 2002. The amendments target the expenses of Cabinet Ministers and Opposition Leaders, and delineate the information that would be required to be disclosed and made available to the public.

Schedule 5 This schedule would amend ECFAA to broaden Health Quality Ontario’s (HQO) mandate regarding patient relations and to put in place the office of the Patient Ombudsman, including setting out his or her powers and responsibilities, etc.

Schedule 6 Schedule 6 would amend FIPPA and the Municipal FIPPA to provide for an additional obligation for Heads to retain records. It would also add new offence provisions.

Schedule 7 This schedule would amend the Legislative Assembly Act. The amendments would require that expenses paid to MPPs would be posted on a website and would require an archive of the expenses to be maintained.

Schedule 8 This schedule would amend the Lobbyists Registration Act to streamline and strengthen lobbyist reporting requirements, and to enhance oversight of lobbyists by the Integrity Commissioner.

Schedule 9 This schedule would amend the Ombudsman Act to extend the Ombudsman’s jurisdiction to municipalities, universities, colleges and school boards. (Health care organizations and Children’s Aid Societies would receive oversight from the Patient Ombudsman and the Provincial Advocate for Children and Youth respectively.)

Schedule 10 Schedule 10 would amend the Provincial Advocate for Children and Youth Act, 2007 to expand the Provincial Advocate’s jurisdiction to investigate complaints and matters that come to her attention regarding Children’s Aid Societies.

Schedule 11 This schedule would amend the Public Sector Expenses Review Act, 2009. The proposed amendments would provide the Integrity Commissioner with discretion to review the expense claims of particular

1 Schedule 2 is a new addition to the Public Sector and MPP Accountability and Transparency Act. It did not form part of

the original Bill 179 but was the subject of its own bill – Bill 11, Ambulance Amendment Act (Air Ambulances), 2013.

3

public entities (these are designated by regulation), rather than the current framework that requires disclosure from every public entity each year.

As currently drafted, Schedules 1, 3, 5, and 6 will be of particular interest to hospitals. Applicable Schedules Executive Compensation: Broader Public Sector Executive Compensation Act, 2014 (Schedule 1) As noted above, Schedule 1 of Bill 8 would enact the Broader Public Sector Executive Compensation Act (BPSECA). This proposed Act authorizes the government to set compensation frameworks for designated executives in the broader public sector. As of the date that any compensation framework becomes effective with respect to a designated employer, the compensation restraint measures in the BPSAA, that is, Part II.1 of the BPSAA, which includes the compensation arrangement provisions put into place in 2012 through Bill 55, would cease to apply as of the date that any compensation framework becomes effective with respect to a designated employer. It is important to note that the BPSAA would continue to apply until such time as a compensation framework comes into effect under the BPSECA. Applicability of BPSECA BPSECA would have a similar application as Part II.1 of the BPSAA. As currently drafted, it includes the same set of employers that are included under the current compensation restraint provisions, with the notable addition of community care access corporations (CCAC). These would be termed “designated employers.” It does not apply to municipalities, other municipal bodies or for-profit organizations. Individuals who are represented by enumerated collective bargaining agents and have collectively bargained with respect to their terms and conditions of employment, including compensation, would be excluded from the application of the BPSECA. BPSECA would also apply to a similar set of executives as Part II.1 of the BPSAA. It would apply to “designated executives” who meet two criteria. First, the person is the head of a designated employer regardless of title; or is a vice-president, chief administrative officer, chief operating officer or any other executive regardless of title.2 Second, the person is entitled to receive or could potentially receive $100,000 or more in cash compensation in a given calendar year. The term “cash compensation” has the same meaning as under Part II.1 of the BPSAA and would mean compensation that is the sum of salary and non-discretionary and discretionary payments, including performance pay, incentive pay, bonuses and allowances. If a person works only a portion of a year, their cash compensation is calculated for the whole year as if they would have been paid at the same rate or level at which they were paid for the portion of the year during which they worked.

2 BPSECA also includes directors of education or supervisory directors from Boards of Education in the list.

4

BPSECA includes several definitions that are identical to those under Part II.1 of the BPSAA. These include: “cash compensation” means compensation that is the sum of salary and non-discretionary and discretionary payments, including, but not limited to, performance pay, incentive pay, bonuses and allowances; “compensation” means anything paid or provided, directly or indirectly, to or for the benefit of a person who performs duties and functions that entitle him or her to be paid, and includes salary, benefits, perquisites and all forms of non-discretionary and discretionary payments; “compensation plan” means the provisions, however established, for the determination and administration of a person’s compensation;

The government would be able to designate additional individuals as “designated executives” by regulation and the BPSECA would apply to these newly designated executives. Schedule 1 of Bill 8 also would provide that a reference to “employer” under the BPSECA does not create an employment relationship between the designated executive and a designated employer. Ability to collect information regarding compensation The BPSECA would empower the Management Board of Cabinet to issue directives requiring designated employers to provide information relating to compensation and any other payments to designated executives or other employees or office holders. The scope of these directives is potentially quite broad and the directive may require provision of information respecting:

salaries, salary ranges, benefits, perquisites, discretionary and non-discretionary payments, payments payable on or in connection with termination, performance plans, incentive plans, bonus plans, allowances and any other form of remuneration;

agreements between an employer and one or more employees or office holders relating to anything mentioned above;

compensation policies, plans, guidelines and programs; and

compensation studies. Disclosure of this information would be considered to be in compliance with freedom of information legislation because such disclosure would be deemed to be for the purpose of complying with a provincial statute, or a treaty, agreement or arrangement under that statute. Where an organization that provides information is not an “institution” under FIPPA or the Municipal FIPPA; and the organization is not-for-profit or has received less than $10,000,000 from the government in funding in the previous fiscal year, the Minister and any other person in receipt of the information would be required to keep it in confidence and could only disclose it in accordance with a Management Board of Cabinet directive. Such directives would be able to authorize disclosure to government ministers, ministers’ staff, Ontario public servants, and consultants or advisors retained regarding compensation matters. These provisions would supersede FIPPA and the Municipal FIPPA.

5

Designated employers would be required to comply with applicable directives. Directives would be able to be general or specific and would be able to provide for different classes and categories. Directives would be able to provide requirements relating to form, manner and timing for compliance. The notice provisions regarding disclosure of information under FIPPA and the Municipal FIPPA would not apply to personal information collected or disclosed pursuant to a directive. Directives would be required to be publically available on a public website. Compensation Frameworks The Lieutenant Governor in Council (LGIC) would be able to set one or more compensation frameworks by regulation governing designated employers and designated executives. These regulations setting out compensation frameworks would be able to address all, classes of, and/or specific designated employers and designated executives. The frameworks would govern any compensation provided by designated employers to designated executives. Specifically, the frameworks would be able to provide for and limit compensation and payments (or elements of them) to designated executives. If BPSECA is passed, the frameworks could address elements including salaries, salary ranges, benefits, perquisites, discretionary and non-discretionary payments, payments payable on or in connection with termination, performance plans, incentive plans, bonus plans, allowances and any other form of remuneration. Effective dates for the compensation frameworks would be set out in the specific framework and could provide for different designated employers or classes of them, or different designated executives or classes of them. Designated employers would be under an obligation to comply with the compensation frameworks that have been set and would be prohibited from providing compensation, with respect to any element of compensation that the framework governs, greater than that authorized by the framework to any designated executive. Designated executives would not be entitled to receive compensation beyond the amounts authorized by an applicable compensation framework. Also, the BPSECA would render any provisions in agreements between designated employers and designated executives requiring compensation, in excess of that authorized in an applicable compensation framework, void and inoperative. Where a person becomes a designated executive on or after the effective date in an applicable compensation framework, his or her compensation plan would not be permitted to provide compensation greater than that authorized under the applicable compensation framework. This treatment would also be extended to current designated executives who change positions and remain designated executives, that is, his or her new compensation plan would not be permitted to provide compensation greater than that authorized under the applicable compensation framework. Designated employers would be prohibited from altering the title of a position or office, carrying out any other restructuring and/or amending compensation plans for the purpose of circumventing any parameters or limits set out in an applicable compensation framework or so as to result in a compensation framework not applying to designated executives to which it otherwise would have applied absent the restructuring. Such restructuring would be

6

permitted where there is a bona fide purpose for the restructuring that is not the purpose of preventing a compensation framework from applying. Transition to a new compensation framework (Grandfathering) It is important to note that the effect of compensation frameworks will be grandfathered. Current designated executives would not have their compensation clawed back so that it accords with any newly set compensation frameworks. Bill 8 provides that, where a designated executive holds his or her position immediately before the effective date of an applicable compensation framework and he or she continues in that position under the same contract or agreement or a renewal of it, the compensation plan in effect immediately before the effective date would remain in effect even if it provides for compensation that is greater than that authorized in the framework. However, any increase in an element of compensation provided for in the compensation plan, but that has not been implemented on or before the effective date of the compensation framework, would not be valid or payable to the extend it is inconsistent with the applicable compensation framework. Compliance and enforcement The Minister responsible for the legislation would be empowered to issue directives requiring designated employers to submit reports concerning compliance with compensation frameworks and the information required to be contained within those reports. The designated employer’s highest ranking officer would be required to include a signed statement attesting to compliance with any applicable compensation framework. The Minister would be able to appoint public accountants to audit records of designated employers to determine whether compensation is being provided in accordance with applicable compensation frameworks and the results of the audit would be submitted to the Minister. Designated employers would be required to cooperate fully with such audits. Notice under FIPPA and the Municipal FIPPA would not be necessary with respect to information disclosed or collected under the authority of an audit. Additionally, all obligations under the proposed legislation would be deemed to be obligations under every agreement or funding arrangement with the government of Ontario or any of its agencies (e.g. local health integration networks (LHINs)). New Enforcement Mechanism Further, Bill 8 would add a new enforcement mechanism. Every payment to a designated executive from a designated employer that exceeds what would be permitted under a compensation framework would be considered an overpayment. An amount equivalent to the overpayment would, after the Minister has provided written notice that an overpayment exists and that repayment of the amount is required, become a debt due to the government of Ontario. The debt would then be able to be recovered by reducing the amount of any future grant, transfer payment, or any other funding arrangement provided to the designated employer; or through any remedy or procedure available to the government of Ontario for the enforcement of a debt.

7

A designated employer would then be able to reclaim the overpayment from the designated executive to whom the overpayment was made through any remedy or procedure available in law for the enforcement of a debt. The bill also would require designated employers to endeavour to minimize the impact on the provision of services to the public of any overpayment action. It would be an offence under the proposed legislation to wilfully fail to: provide a report, statement or attestation; to wilfully make a false report statement or attestation; or wilfully obstruct an accountant/auditor. Persons breaching these requirements would be liable to fines of up to $5,000. Rights and liabilities The proposed legislation includes a number of provisions that would clarify legal rights and liabilities as they would apply vis-à-vis the proposed compensation frameworks and other requirements of the proposed statute. The BPSECA would not reduce rights and entitlements under the Human Rights Code, the Employment Standards Act in relation to pay equity, or the Pay Equity Act. Designated employers would not be considered to have constructively dismissed any employee by virtue of their compliance with the proposed legislation. No proceeding of any kind would be able to proceed against the government of Ontario (or its ministers, employees, agents, etc.) or against designated employers as a direct or indirect result of the enactment or repeal of the proposed legislation, regulations or directives made under it or anything done or not done to comply with the proposed legislation. Further, no person is entitled to any compensation because of loss or damages arising out of the enactment or application of the proposed legislation. The proposed legislation provides that it would supersede the provisions of any compensation plan and that compensation plans are inoperative where there is a conflict. The bill also provides that the BPSECA would prevail over any other Act. No compensation framework would impact the status of the designated employer as the employer of the designated executive and no compensation framework would create an employment relationship between a designated executive and the government of Ontario. Regulations Schedule 1 also includes regulation-making powers that would be necessary for carrying out the purposes of the proposed statute, including regulations providing for any matters that the legislation refers to as being provided for by regulation and regulations defining expressions in the proposed legislation that have yet to be defined. Corollary amendment to ECFAA Schedule 1 of the bill would also make a modification to the performance based compensation provisions in ECFAA. ECFAA currently requires that hospitals ensure that

8

executive compensation is linked to achieving performance targets in the hospital’s Quality Improvement Plan. Health care organizations (i.e. hospitals) would be exempt from the ECFAA provisions where there is a conflict with the terms of a compensation framework under the proposed legislation. Amendments to the BPSAA (Schedule 3) Amendments to the BPSAA itself are also proposed through Bill 8. The bill, if passed, would amend the BPSAA to include a Part V.1 relating to the disclosure of business plans and other business or financial documents. Directives regarding disclosure of business plans and financial documents Bill 8 would allow the Management Board of Cabinet to issue Directives requiring the preparation and publication of business plans and any other business or financial documents specified in the Directives. Designated broader public sector organizations, including hospitals, would be obligated to comply with such Directives. As with other directives under the BPSAA, these business plan disclosure directives would be deemed contractual obligations under accountability agreements and any other agreements with the Government of Ontario. The bill would also allow the Management Board of Cabinet to make guidelines regarding the preparation and publication of business plans and other business or financial documents for all entities that receive public funds. These publically funded organizations are defined generally under the BPSAA but the definition provides for a number of exclusions. Also, regulations may be made under the BPSAA to specify that additional entities are not considered publically funded organizations. Attestations The bill would also require additional attestations on the part of both LHINs and hospitals. LHIN CEOs would have to attest to the compliance with any directives that have been set regarding the preparation and publication of business plans and other business or other financial documents. Hospital administrators would also have this obligation and such an attestation would be required to be approved by the hospital’s board of directors. These attestations would be in addition to the attestations already required under the BPSAA. Patient Ombudsman: Amendments to ECFAA (Schedule 5) Bill 8 amends the ECFAA and proposes to create an office for a Patient Ombudsman at Health Quality Ontario (HQO). Definitions It is important to highlight one of the new definitions set out in Bill 8’s proposed amendments to ECFAA. Schedule 5 includes a definition of the term “health sector organization”; specifically, this term would be defined as public hospitals, CCACs, licensees under the Long-Term Care Homes Act and any other organization as set out in regulations. This should be contrasted with “health care organization” which is currently included under the

9

ECFAA and is currently restricted to only hospitals.3 The proposed provisions in Schedule 5 deal exclusively with the broader group of health sector organizations. New authority for HQO To support the new Patient Ombudsman, the bill would provide for additional functions for HQO. In particular, HQO would be mandated to monitor and report on health sector organization’s performance vis-à-vis patient relations. HQO’s additional functions would include promoting patient relations through the development of indicators and benchmarks for patient relations in health sector organizations and through the development of quality improvement supports and resources for health sector organizations. Further, HQO would be required to support the Patient Ombudsman in his or her functions. Patient Ombudsman: Office and Function Bill 8 would require the LGIC to appoint a person to be the Patient Ombudsman and the LGIC would also set the Patient Ombudsman’s salary and/or other remuneration, benefits, and term, if one is specified. HQO would be required to employ the Patient Ombudsman so-appointed, would be required to remunerate the Patient Ombudsman as specified by the LGIC and would be required to terminate the Patient Ombudsman’s employment when the appointment expires or is revoked by the LGIC. The Patient Ombudsman would be able to delegate any or all of his or her powers to other employees at HQO. The functions of the Patient Ombudsman as set out in Bill 8 would be:

to receive and respond to complaints from patients and former patients of health sector organizations;

to facilitate the resolution of any complaints received from patients and former patients;

to investigate complaints made by patients and former patients, and to investigate health sector organizations on the patient ombudsman’s own initiative;

to make recommendations to health sector organizations after completing investigations; and

to do anything else provided for in the regulations. The bill also specifies who would be included as “patients and former patients” and they would be: a patient or former patient of a hospital; a resident or former resident of a long-term care home; a client or former client of a CCAC; any other person specified by regulation; or, where any of the above individuals is or was incapable, their substitute decision-maker pursuant to the Health Care Consent Act.4 Jurisdiction over patient complaints Bill 8 would allow patients to make complaints in writing to the Patient Ombudsman regarding actions or inactions of health sector organizations relating to patient care or the health care

3 The term “health care organization” may also be expanded through regulations but, no such regulations have been filed at this point. 4 N.B. the Health Care Consent Act includes a hierarchy of individuals who may act as a person’s substitute decision-maker.

10

experience. The Patient Ombudsman would be mandated to first work with the complainant, the health sector organization, and the relevant LHIN, where appropriate, to facilitate the resolution of such complaints. However, the Patients Ombudsman would not be required to act on complaints where in his or her opinion:

the complaint is within the jurisdiction of another person or body or is the subject of a proceeding;

the complaint is trivial;

the complaint is frivolous or vexatious;

the complaint is not made in good faith;

the complainant has not sought to resolve the complaint directly with the health sector organization; or

the complainant does not have a sufficient personal interest in the complaint.

This process seems to replicate the “early resolutions” function of the Ontario Ombudsman. This will allow the Patient Ombudsman to address complaints informally as a first step or to refer patients or complaints to the proper forum before beginning formal investigations. Importantly, subsection 13.2(2) suggest that patients would be required to address their complaints with the health sector organization before making a complaint to the Patient Ombudsman. This would give hospitals the opportunity to resolve complaints within their organizations before any complaint would be reviewed by the Patient Ombudsman.

If the Patient Ombudsman determines that he or she will not facilitate the resolution of a complaint, he or she would have to notify the complainant in writing and state the reasons why he or she will not proceed. Where the Patient Ombudsman determines that a complaint is within the jurisdiction of another person or body, he or she would be required to refer the complainant to that other person or body. “Proceeding” is quite broadly defined in this section also. As such, the Patient Ombudsman would not act on complaints where the matter is also before a court, a tribunal, a commission, a justice of the peace, a coroner, a committee of a Regulated Health Professionals College, a committee of the Board of Directors for Drugless Therapy, a committee of the Ontario College of Social Workers and Social Service Workers, an arbitrator or a mediator. Patient Ombudsman investigations Bill 8 would provide the Patient Ombudsman with extensive investigation powers. After attempting to facilitate a resolution of a complaint and where the Patient Ombudsman believes that a complaint should be investigated, the Patient Ombudsman would be empowered to investigate. However, the Patient Ombudsman would also be able to choose not to investigate or to stop an investigation for any reason he or she could decide not to act on a complaint initially (e.g. the complaint is within the jurisdiction of another person or body; it is trivial; frivolous or vexatious; etc. See the full list above). Where the Patient Ombudsman makes a decision not to investigate or to stop an investigation, he or she must notify the complainant in writing and provide the reasons for the decision.

11

The Patient Ombudsman would also be provided with the authority to begin investigations into the actions or inactions of health sector organizations relating to patient care or the health care experience on his or her own initiative, that is, without receiving a complaint first, where the Patient Ombudsman believes the matter should be investigated. However, this power would not be able to be exercised where the matter is within the jurisdiction of another person or body, or is the subject matter of a proceeding. Before beginning any investigation, the Patient Ombudsman would be required to inform the relevant health sector organization and the complainant who made the complaint leading to the investigation (if any) of the Patient Ombudsman’s intent to commence the investigation. Investigations would be required to be conducted in private but, the Patient Ombudsman would be permitted to disclose information obtained during an investigation if it relates to issues within the jurisdiction of another person or body and to that other person or body. The Patient Ombudsman would be permitted to hear or obtain information from anyone or make any other inquiries as he or she sees fit. Also, the Patient Ombudsman would be empowered to require any officer, employee, director, shareholder or member of a health sector organization or any other person who provides services through or on behalf of a health sector organization to furnish the Patient Ombudsman with information relating to any matter being investigated and/or produce documents or things that relate to the matter being investigated and that may be in the person possession. The Patient Ombudsman would also be given the authority to summon individuals and examine individuals under oath. Any person summoned or required to produce documents or things would be under an obligation to comply. The proposed provisions explicitly allow individuals to provide personal information and personal health information that they would normally be prohibited from providing under FIPPA and the Personal Health Information Protection Act to the Patient Ombudsman. No person would be permitted to wilfully obstruct, hinder or resist the Patient Ombudsman in the performance of his or her duties without a lawful justification or excuse. While the Patient Ombudsman is not required to conduct hearings and no person has a general right to be heard by the Patient Ombudsman, the Patient Ombudsman would be required to provide a person or entity with the opportunity to make submissions where there are sufficient grounds to make a report or recommendation that would adversely affect the person or entity. Any person required to be present before the Patient Ombudsman would be entitled to the fees, allowances, and expenses as if he or she were a witness in the Ontario Superior Court of Justice. The Patient Ombudsman would also be given the power to enter on any of the premises of health sector organizations when conducting an investigation at any time. To exercise this power, the Patient Ombudsman would require the consent of a health sector organization or a warrant or, if an individual lives on the premises, the consent of the resident or a warrant. Warrants would be able to be issued by a Justice of the Peace where, on the evidence, there are reasonable grounds to believe that it is necessary to enter on the premises.

12

Information Provided Not Admissible as Evidence The proposed amendments would also offer for protection for those individuals complying with Patient Ombudsman investigations. Every person retains the same privileges that witnesses would enjoy in court. Except for perjury charges related to a person’s sworn testimony, no statement made or answer given in the course of a Patient Ombudsman investigation would be admissible in evidence in any court, at any inquiry or in any other proceeding. Also, no evidence in respect of proceedings before the Patient Ombudsman would be permitted to be given against any person. Individuals giving statements or answers in the course of a Patient Ombudsman investigation would be required to be informed of their right to object to self-incrimination. Further, under the proposed legislation, no person would be able to be prosecuted for any offence by reason or his or her compliance with requirements of the Patient Ombudsman. Recommendations and Reports Bill 8 would provide the Patient Ombudsman with powers to make recommendations and reports. After an investigation, the Patient Ombudsman would be empowered to make any recommendations the Patient Ombudsman sees fit to the health sector organization that was the subject of the investigation. The Patient Ombudsman would be required to provide the complainant with a copy of the recommendations. All personal information or personal health information of individuals other than the complainant would be required to be redacted. The Patient Ombudsman would be required to make annual reports to the Minister of Health and Long-Term Care regarding the Patient Ombudsman’s activities and recommendations. Additional reports to the Minister would be allowed to be made as the Patient Ombudsman considers appropriate. Similarly, the Patient Ombudsman would be required to make reports to LHINs regarding the Patient Ombudsman’s activities and recommendations as the Patient Ombudsman considers appropriate. Reports would be required to be made public on HQO’s website and via other means as deemed appropriate. Reports would not be permitted to include personal information or personal health information. Other Provisions The proposed amendments also include additional provisions related to collection, use and disclosure of personal health information; immunity and other legal provisions; and regulation-making powers. HQO is allowed to collect, use and disclose personal health information for purposes related to the Patient Ombudsman but must not collect, use or disclose that information if other information will do and must restrict collection, use and disclosure to what is reasonably necessary for the purpose. The Patient Ombudsman and HQO staff would be immune in legal proceedings to the extent that the proceedings relate to acts or omissions done in good faith relating to the functions of the Patient Ombudsman. Also, neither the Patient Ombudsman nor HQO staff would be able to testify in civil proceedings in connection with any patient complaint, investigations, recommendations or reports.

13

The proposed legislation would also add additional regulation-making powers in relation to the Patient Ombudsman and further defining the individuals from which the Patient Ombudsman can hear complaints. FOI: Amendments to FIPPA (Schedule 6) Bill 8 proposes amendments to the FIPPA (and matching amendments to the Municipal FIPPA). The proposed amendments would add an additional obligation for FIPPA heads to ensure reasonable measures for the preservation of records are developed, documented and put into place. These measures would be required to be in accordance with recordkeeping and/or records retention requirements, rules or policies, irrespective of how they are established. The bill would also add additional offences to FIPPA. If passed, Bill 8 would make it an offence to alter, conceal or destroy records with the intention of denying a right under FIPPA to access a record or the information contained within that record. To prosecute this offence, the permission of the Attorney General of Ontario would be required and prosecutions would not be able to proceed if more than two years have passed since the offence was discovered. Bill 8 also proposes additional powers for courts to protect sensitive information where prosecutions are being conducted.

The impetus for the FIPPA amendments stems from the recent report by the Information and Privacy Commissioner (IPC) regarding information retention practices.5 The proposed amendments respond to three of the IPC’s recommendations by elevating records retention policy to the force of law and strengthening enforcement and offence provisions regarding alternation, destruction and/or concealment of records.

Patient Relations Process Regulations Concurrent to the introduction of the former Bill 179, the government posted a proposed new regulation under the ECFAA. This proposed regulation is designed to strengthen hospitals’ patient relations processes and would provide some minimum requirements regarding the patient complaint process, including retaining certain information on complaints, keeping the patient/complainant informed, and ensuring a hospital has a specific patient relations process delegate. Click here for a link to the OHA Backgrounder on the proposed Patient Relations Regulation. Additional Comments Bill 8 is only in the early stages of the legislative process and has currently undergone First Reading in the Legislature. We anticipate that the bill will receive substantive debate and will be passed in the Fall.

For additional information, please contact Jeffrey Bagg, Legislative Advisor at jbagg@oha.com or 416-205-1374.

5 Deleting Accountability: Record Management Practices of Political Staff - A Special Investigation Report, Ann Cavoukian,

Information & Privacy Commissioner, Ontario (June 05, 2013).