In March of this year, Deb Matthews, the Minister of Health and Long-Term Care (the "Minister") ordered an operational review and audit of the activities of the College of Denturists of Ontario (the "CDO"). In a letter dated March 9, 2011 (the "Letter"), the Minister notified the CDO of the operational review and audit, stating that her decision stemmed from the "troubling" volume and nature of concerns that came to the attention of the Minister, emanating from both organizations and individuals. These "grave" concerns regarded the way in which the CDO had carried out its mandate pursuant to the Regulated Health Professions Act, S.S.O 1991, c. 18 (the "RHPA") and the Denturism Act, S.O. 1991, CHAPTER 25, which according to the Minister, more specifically included, but were not limited to:
- the fairness of the administration of the CDO's entry to practice exams;
- the CDO's handling of specific Council elections;
- procedural fairness in the context of the CDO's complaints and discipline processes;
- Council members being in conflicts of interest;
- intimidation of members and applicants by CDO staff; and
- the manner in which the CDO chose to implement its proposed professional liability insurance program.
The CDO sent a letter of response to the Minister expressing its shock at receiving the Letter, but affirming its willingness to co-operate with the Minister. The CDO contended in its letter that the Ministry staff were aware of all of the actions taken by the CDO with respect to its liability insurance program, and also, that despite close contact between the Minister's staff and the CDO in the month's leading up to the Letter, none of the Ministry's staff had expressed any concern to the CDO regarding its administration.
Interestingly, in ordering the operational review and "audit", the Minister chose to rely on the powers set out at sections 5(1)(b) and (d) of the RHPA, rather than section 6(7) of the RHPA. Section 6(7) of the RHPA explicitly provides for the appointment of an auditor:
"[th]e College and the Advisory Council shall be subject, at any time, to any other audits [emphasis added] in addition to the annual audited financial statements submitted to the Minister relating to any aspect of its affairs as the Minister may determine to be appropriate, conducted by an auditor appointed by or acceptable to the Minister."
Unlike section 6(7), section 5(1)(b) does not contain any explicit reference to an "audit" or "auditor"; instead, this provision permits the Minister to "review" a Council's activities. Likewise, section 5(1)(d) does not explicitly reference an "audit" or "auditor", but rather enables the Minister to require the Council to "do anything that, in the opinion of the Minister, is necessary or advisable to carry out the intent of [the RHPA], the health professions Acts, the Drug and Pharmacies Regulation Act or the Drug Interchangeability and Dispensing Fee Act."
It has been speculated that the Minister relied on sections 5(1)(b) and (d), as opposed to section 6(7), as a step towards invoking section 5.0.1(1) of the RHPA.
Section 5.0.1(1) of the RHPA enables the Lieutenant Governor in Council (the "LGIC") to appoint a supervisor to a College. However, such an appointment must only occur on the recommendation of the Minister, in circumstances where the Minister deems it appropriate or necessary and where it is the Minister's belief that a Council has not complied with a requirement under Section 5(1). Accordingly, any failure of the CDO to comply with any aspect of the Minister's operational review and audit could be used by the Minister to ground a recommendation to the LGIC to appoint a supervisor to the College. In fact, the Minister informed the CDO that failure to comply with the requirements set out in the Letter could result in the appointment of a college supervisor.
Moreover, relying on sections 5(1)(b) and (d) as opposed to section 6(7), allows the Minister to conduct a more comprehensive review of the CDO's operations and thus, will be more apt to provide the Minister with information relevant to the decision of whether to appoint a supervisor.
The RHPA sets out some of the information/factors to be considered by the Minister when considering whether to appoint a supervisor; these are:
- the quality of the administration and management, including financial management, of the College;
- the administration of this Act or the health profession Act as they relate to the health profession; and
- the performance of other duties and powers imposed on the College, the Council, the committees of the College, or persons employed, retained or appointed to administer this Act, the health profession Act, the Drug and Pharmacies Regulation Act or the Drug Interchangeability and Dispensing Fee Act.
The Minister's decision not to use her powers under section 6(7) means that the provision has still yet to be used since the RHPA was amended in 2009 to allow the Minister to order an audit of any aspect of a College's affairs at any time. This audit power is unique with respect to the powers that are granted to Ministers vis-à-vis self-regulated professional colleges in that Ministers that interact with other non-health professional colleges do not possess this same authority. This provision is, however, similar to the provision in the Public Hospitals Act, R.S.O. 1990, CHAPTER P.40 (the "PHA") that gives cabinet the power to appoint a person to investigate and report on nearly any matter related to a public hospital if it is in the public interest to do so. However, unlike under the PHA, under the RHPA the Minister has the authority to demand reports from a college before appointing an auditor.
The RHPA does not contain a time limit for the duration of any review of the Council's activities or the submission of any related reports. In fact, it was not until May 31, 2011, almost four months after the original Letter was sent to the CDO, that the Minister confirmed that the firm of PricewaterhouseCoopers ("PwC") would conduct the operational review and audit of the College.
Neither section 5 nor section 6(7) of the RHPA gives a college an automatic right to respond to a report which is made pursuant to the section invoked or have such a response ultimately included with the report. The RHPA is also silent on whether any of the results of the Minister's review of a college pursuant to section 5 or an auditor's report stemming from section 6(7) must be made public. In this case, the Minister required the CDO to post her order prominently on its website and to circulate it to all its members through the CDO newsletter. The Minister has not indicated whether she intends to publish the auditor's final report.
The provisions empowering the LGIC to appoint a supervisor were added in 2009 at the same time as the auditing powers outlined above were added to the RHPA. Similar to section 6(7), the LGIC has yet to invoke its authority under section 5.0.1(1) to appoint a supervisor of a health regulatory college. Consequently, any such appointment by the LGIC would be novel.
The Minister's move to order an operational review and audit of the CDO is highly unusual (although not unheard of). Observers will likely be interested to know the process that PwC follows in conducting the review and audit given the absence of any process in the RHPA. Also of interest will be the results of the operational review and audit and whether they serve to validate the concerns that were outlined by the Minister in her Letter. The looming question is whether the appointment of PwC is a first step towards a supervisor being appointed to the CDO. It is therefore likely that stakeholders will be keeping a close watch on the actions of the Minister, the LGIC, and the CDO during the remaining phases of the actions directed by the Minister.