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S.M. 1992, c. 40
The Optometry Amendment Act
(Assented to June 24, 1992)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
Section 1 is amended
(a) by adding the following definitions in alphabetical order:
"association" means the Manitoba Association of Optometrists; («Association»)
"court" means the Court of Queen's Bench; («tribunal»)
"member" means a member of the association; («membre»)
(b) by striking out "society" in the definition "council" and substituting "association";
(c) by striking out "of the board of examiners" in the definition "registrar" and substituting "appointed under subsection 6(1)"; and
In the following provisions, "society" is struck out wherever it occurs in the section heading and in the provision and "association" is substituted, with such grammatical modifications as the circumstances require:
(a) section 2;
(b) subsections 5(1) and (2);
(c) subsection 6(1);
(d) clause 7(1)(a) and subsection 7(2);
(e) subsection 8(1);
(f) subsections 9(1), (2) and (3);
(g) subsections 15(1), (2), (3) and (5);
(h) subsections 16(1) and (2);
Section 4 is repealed and the following is substituted:
The French version of clause 7(1)(d) is amended
(a) by striking out "(et" and substituting "et"; and
Section 18 is repealed and the following is substituted:
The council shall appoint a complaints committee consisting of one or more members.
Any person may make a complaint in writing to the registrar about the conduct of a member.
If, after a member's certificate of registration is suspended, revoked or not renewed under this Act,
(a) a complaint is made about the former member; and
(b) the complaint relates to conduct occurring while the former member's registration was in effect;
the complaint may be dealt with if it is made within two years following the date of suspension, revocation or failure to renew as if the former member's registration were still in effect.
The registrar shall refer a complaint made under this section to the complaints committee.
When the registrar refers a complaint to the complaints committee, the committee shall
(a) notify the member named in the complaint and request that the member respond to the complaint in writing; and
(b) conduct a preliminary investigation of the complaint and attempt to resolve it informally if, in the committee's opinion, it is appropriate to do so.
When conducting a preliminary investigation, the complaints committee may require the investigated member
(a) to produce to the committee any records in the possession or under the control of the investigated member; and
(b) to attend at the preliminary investigation.
The association may apply ex parte to the court for an order
(a) directing the investigated member to produce to the complaints committee any records in his or her possession or under his or her control, if it is shown that the investigated member failed to produce them when required by the complaints committee; or
(b) directing any person to produce to the complaints committee any records that are or may be relevant to the complaint being investigated.
The complaints committee may investigate any other matter related to the professional conduct or the skill in practice of the investigated member that arises in the course of the investigation.
On conclusion of a preliminary investigation, the complaints committee may
(a) direct that no further action be taken;
(b) issue a formal written caution to the investigated member censuring the member's conduct; or
(c) direct that the matter be referred in whole or in part to the discipline committee.
The complaints committee shall notify the investigated member and the complainant of a decision made under subsection (1).
Unless it is considering the issuance of a formal caution to the investigated member, the complaints committee is not required to hold a hearing or to afford to any person an opportunity to appear or to make oral submissions before making a decision or giving a direction under this section.
A formal caution may be issued under clause (1)(b) only after the complaints committee has met with the investigated member.
On being advised of a decision of the complaints committee to issue a formal caution under clause (1)(b), the investigated member may request the complaints committee to refer the matter to the discipline committee, and in that event the matter shall be referred to the discipline committee and the complaints committee shall not proceed with the issuance of the proposed caution.
The council shall, in accordance with the by-laws, appoint an appeals committee consisting of three persons, two of whom are active members of the association and one of whom is a lay person appointed from the roster of persons appointed under subsection 18.6(2).
No person who participated in the investigation of a complaint shall be a member of the appeals committee hearing an appeal of that matter.
A complainant who receives notification under subsection 18.3(2) directing that no further action be taken in connection with the complaint may, by notice in writing mailed within 30 days of the date of notification, appeal that direction to the appeals committee.
On an appeal under subsection (3), the appeals committee shall do one or more of the following:
(a) make any decision that in its opinion ought to have been made by the complaints committee;
(b) quash, vary or confirm the decision of the complaints committee;
(c) refer the matter back to the complaints committee for further consideration in accordance with any direction that the appeals committee may make.
The appeals committee shall notify the investigated member and complainant in writing of its decision and the reasons for its decision.
The appeals committee is not required to hold a hearing or to afford to any person an opportunity to appear or to make oral submission before making a decision or giving a direction under subsection (4), but the committee shall give the complainant an opportunity to make a written submission.
Notwithstanding anything in this Act, the complaints committee may, when there is a question of serious risk to the public, suspend a member's certificate of registration pending the outcome of proceedings under sections 18 to 18.17.
The investigated member may, by filing an application with the court and serving a copy on the registrar, apply for an order of the court staying a decision of the complaints committee under subsection (1).
The council shall appoint a discipline committee consisting of not less than three persons, of whom one shall be appointed chairperson, and at least one member of the discipline committee shall be a lay person.
For the purpose of subsection (1) and subsection 18.4(1), the minister may appoint a roster of lay persons who may, in addition to the lay member appointed to the council under subsection 5(2), be appointed to the discipline committee and the appeals committee.
No person who participated in the investigation of a complaint or who considered an appeal of a complaint shall act as a member of the discipline committee considering the same matter.
On referral of a matter to the discipline committee, the discipline committee shall hold a hearing.
At least 30 days before the hearing, the discipline committee shall serve on the investigated member, either personally or by registered mail, a notice stating the date, time and place at which the discipline committee will hold the hearing.
The association and the investigated member may appear and be represented by counsel at a hearing before the discipline committee.
Except as otherwise provided in this section, a hearing of the discipline committee shall be open to the public, but there shall be no reporting in the media of anything that would disclose the identity of the investigated member, including the member's name, the business name of the member's practice or partnership, or the location of practice, unless and until the discipline committee makes an order under section 18.12 or 18.13.
The investigated member, or the complaints committee or the appeals committee referring a matter to the discipline committee under subsection 18.3(1) or 18.4(4), may request that the hearing or any part of the hearing be held in private.
When a request is made under subsection (2), the discipline committee may exclude the public from the hearing or any part of the hearing, or may direct that the investigated member or any witness be identified only by initials, if the committee is satisfied that
(a) matters involving public security may be disclosed;
(b) financial or personal or other matters may be disclosed at the hearing that are of such a nature that the desirability of avoiding public disclosure of those matters, either in the public interest or in the interest of any person affected, outweighs the desirability of adhering to the principle that meetings be open to the public;
(c) a person involved in a criminal proceeding or in a civil suit or proceeding may be prejudiced; or
(d) the safety of a person may be jeopardized.
At a hearing of the discipline committee, the oral evidence of witnesses shall be taken on oath or affirmation and there shall be a full right to cross examine witnesses and call evidence in defence and reply.
For the purpose of a hearing under this Act, the members of the discipline committee have power to administer oaths and affirmations.
The oral evidence given at a hearing of the discipline committee shall be recorded.
The investigated member and any other person who, in the opinion of the discipline committee, has knowledge of the complaint or matter being investigated are compellable witnesses in any proceeding under this Act.
The attendance of witnesses before the discipline committee and the production of records may be enforced by a notice issued by the registrar requiring the witness to attend and stating the date, time and place at which the witness is to attend and the records, if any, that the witness is required to produce.
On the written request of the investigated member or the member's counsel or agent, the registrar shall provide any notices that the person requires for the attendance of witnesses or the production of records.
Proceedings for civil contempt of court may be brought against a witness
(a) who fails to attend before the discipline committee in compliance with a notice to attend;
(b) who fails to produce any records in compliance with a notice to produce them; or
(c) who refuses to be sworn or to affirm or who refuses to answer any question he or she is directed to answer by the discipline committee.
A witness, other than the investigated member, who has been served with a notice to attend or a notice for production under subsection (2) or (3), is entitled to be paid the same fees in the same manner as are payable to a witness in an action in the court.
The discipline committee, on proof of service on the investigated member of the notice of hearing, may
(a) proceed with the hearing in the absence of the investigated member or the member's counsel or agent; and
(b) act and decide on the matter heard in the same way as if the investigated member were in attendance.
Any conduct of a member that in the opinion of the discipline committee
(a) is detrimental to the public interest;
(b) harms or tends to harm the standing of the profession of optometry generally;
(c) contravenes this Act or the regulations or by-laws; or
(d) displays a lack of knowledge of or a lack of skill or judgment in the practice of optometry;
constitutes either unskilled practice of optometry or professional misconduct, whichever the discipline committee finds.
If the discipline committee finds that the conduct of an investigated member constitutes unskilled practice of optometry or professional misconduct, or both, the committee may make one or more of the following orders:
(a) reprimand the member;
(b) suspend the member's certificate of registration for a stated period or until the member has completed, to the satisfaction of the discipline committee, one or both of the following:
(i) a course of studies or supervised practical clinical experience, or both, as specified by the committee,
(ii) a specified course of treatment for a health condition that adversely affects the member's ability to practise optometry;
(c) impose conditions on the member's entitlement to practise optometry, including conditions that the member
(i) limit his or her practice to specified areas of the practice of optometry,
(ii) practise under supervision,
(iii) permit periodic inspections of the member's practice or audits of records or both,
(iv) report to the discipline committee, registrar or council on specific matters,
(v) complete a particular course of studies or obtain supervised practical clinical experience, or both, to the satisfaction of the discipline committee,
(vi) complete, to the satisfaction of the discipline committee, a specified course of treatment for a health condition that adversely affects the member's ability to practise optometry,
and may order the member to pay any costs associated with the fulfillment of such conditions;
(d) direct the member to waive or reduce money owed to, or repay part or all of the money paid to the member that, in the opinion of the discipline committee, was unjustified for any reason;
(e) revoke the member's certificate of registration.
In order to assist the discipline committee in determining an appropriate order under this section, the committee may be advised of any formal cautions previously issued to the member under clause 18.3(1)(b) and the circumstances under which they were issued.
When a member's certificate of registration is suspended or revoked, the member shall not practise optometry during the period of the suspension or revocation.
The discipline committee may make any ancillary order that is appropriate or required in connection with an order mentioned in subsection (1) or may make any other order that it considers appropriate in the circumstances, including an order that a further or new investigation be held into any matter.
The discipline committee may, in addition to or instead of dealing with the conduct of an investigated member in accordance with section 18.12, order that the investigated member pay
(a) all or part of the costs of the investigation and hearing;
(b) a fine not exceeding $10,000.; or
(c) both costs under clause (a) and the fine under clause (b);
within the time set by the order.
If an investigated member fails to comply with an order made under subsection (1) or section 18.12, the council may suspend the member's certificate or registration until the order is complied with.
The association may file an order to pay a fine or costs made under subsection (1) or section 18.12 in the court, and on the order being filed it may be enforced in the same manner as a judgment of the court.
The discipline committee shall, following the completion of a hearing, make a written decision on the matter consisting of the reasons for its decision and a statement of any order made by it.
The decision of the discipline committee shall be served on the investigated member personally or by registered mail.
The investigated member may examine the record of the proceedings before the discipline committee and is entitled to receive, on payment of the cost of providing it, a transcript of the oral evidence given before the discipline committee.
The association may, after the expiration of any appeal period, publish
(a) the name of a member in respect of whom an order is made under section 18.12 or 18.13; and
(b) the circumstances relevant to the findings and the order of the discipline committee.
The decision of the discipline committee remains in effect pending an appeal to the court unless the court, on application, stays the decision pending the appeal.
An investigated member may appeal an order made by the discipline committee to the court.
An appeal shall be commenced
(a) by filing a notice of appeal stating the reasons for the appeal and including an undertaking to provide the court with a transcript of the oral evidence given before the discipline committee; and
(b) by giving a copy of the notice of appeal to the registrar;
within 30 days from the date on which the order of the discipline committee is served on the investigated member.
An appeal to the court shall be founded on the record of the hearing before the discipline committee.
On hearing the appeal, the court may make any order it considers just.
No action lies against the association, the council, the registrar, an employee of the association, a committee or board or member of a committee or board established under this Act or the regulations or the by-laws, or any officer or person acting on the instructions of any of them for anything done in good faith in the performance or intended performance of a duty or in the exercise or intended exercise of a power under this Act, the regulations or the by-laws or for any neglect or default in the performance or exercise in good faith of such a duty or power.
Subsection 19(7) is amended
(a) by striking out "preceeding" and substituting "proceeding"; and
(b) by striking out "society" wherever it occurs and substituting "association".
A complaint made after the coming into force of this Act that relates to conduct occurring all or partly before the coming into force of this Act shall be dealt with under this Act.
This Act comes into force on a day fixed by proclamation.