Bill 27 - An Act Respecting the College of Physiotherapists of New Brunswick

BILL 27

An Act Respecting the College of Physiotherapists of New Brunswick

Whereas the College of Physiotherapists of New Brunswick prays that it be enacted as hereinafter set forth;

AND WHEREAS it is desirable, in the interests of the public and the members of the College of Physiotherapists of New Brunswick, to continue the College of Physiotherapists of New Brunswick as a body corporate for the purpose of advancing and maintaining the standard of physiotherapy in the Province, for governing and regulating those offering physiotherapy services and for providing for the welfare of members of the public and members of the College;

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 This Act may be cited as the Physiotherapy Act.

Definitions

2 The following definitions apply in this Act, unless the context otherwise requires.

“client” means a recipient of physiotherapy services and includes a patient, individual, group or organization. (client)

“College” means the College of Physiotherapists of New Brunswick. (Collège)

“complaint” means any allegation made, issue raised or information provided by any body corporate, association, the Registrar, the Council, or any other person regarding the conduct, actions, competence, character, fitness, health or ability of a present or former member or professional corporation; or the present or former employees of a member or professional corporation. (plainte)

“Court” means The Court of Queen’s Bench of New Brunswick. (Cour)

“health professional” means a person who provides a service related to:

(a) the preservation or improvement of the health of individuals; or

(b) the diagnosis, treatment or care of individuals who are injured, sick, disabled or infirm,

and who is registered or licensed under an Act of the Province of New Brunswick with respect to the provision of the services and includes a social worker registered under the New Brunswick Association of Social Workers Act, 1988. (professionnel de la santé)

“incapacitated” means in relation to a member, that the member is suffering from a physical or mental condition or disorder that makes it desirable in the interest of the public that the member no longer be permitted to practise or that the member’s practice be restricted, and “incapacity” has a corresponding meaning. (frappé d’incapacité)

“incompetence” means in relation to a member, that the member’s professional care of a client displays a lack of knowledge, skill or judgement or disregard for the welfare of the client of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member’s practice should be restricted. (incompétence)

“member” means a member of the College in good standing, and for the purpose of disciplinary action and investigations under this Act, includes a person whose membership is suspended, revoked or expired, or a member who has resigned. (membre)

“Minister” means the Minister of Health. (ministre)

“physiotherapy” and “practice of physiotherapy” means the scientific application of physiotherapy knowledge, skill and judgement in optimizing functional independence and mobility, preventing and managing pain, and promoting health and wellness based on the art and science of therapeutic movement and through an evidence-based approach to assessment, identification of a physiotherapy diagnosis, intervention, and outcome evaluation including:

(a) the selective application of a broad range of physical and physiological interventions including therapeutic exercise, massage and manipulation, radiant, mechanical, and electrical energy or acupuncture;

(b) the planning, administration and evaluation of preventive, therapeutic and health maintenance programs; and

(c) the provision of consultation, education, research and other physiotherapy services. (physiothérapie; exercice de la physiotherapy)

“previous Act” means the Physiotherapy Act 1985, chapter 74 of the Acts of New Brunswick, 1985. (Loi précédente)

“professional misconduct” means a digression from established or recognized professional standards or rules of practice of the profession of physiotherapy and, without limiting the generality of the foregoing, includes:

(a) conviction for an offence that is relevant to the member’s suitability to practise;

(b) a finding by the governing body of a health profession in a jurisdiction other than New Brunswick that the member committed an act of professional misconduct that would, in the opinion of the Complaints Committee or the Discipline Committee, be an act of professional misconduct as defined in this Act and the regulations;

(d) failure to comply with a term, condition or limitation on the member’s right to practise under this Act or the regulations;

(e) refusal to give an undertaking or the violation or failure to comply with an undertaking given under this Act or the regulations;

(f) sexual abuse of a client;

(g) failure to file a report under subsection 39(1);

(h) failure to comply with the College’s Code of Ethics and Standards of Practice established by regulation; and

(i) failure of the member to submit to an examination under section 48. (faute professionnelle)

“registers” means the register and subregisters established under this Act and the regulations applying to members. (registres)

“Registrar” means the person holding the office of Registrar pursuant to subsection 9(2). (registraire)

“registration” means the entry of the name of a person in the register as a member of the College. (inscription)

“subregister” means a portion of the register maintained by the Registrar and includes those subregisters set out in the regulations. (sous-registre)

The College

3(1) The College of Physiotherapists of New Brunswick, formerly known as the New Brunswick Association of Physiotherapists, continued by the Physiotherapy Act 1985, chapter 74 of the Acts of New Brunswick 1985, as amended by chapter 56 of the Acts of New Brunswick, 1998, is hereby continued as a body corporate and, subject to this Act, has the capacity and powers of a natural person.

3(2) The College shall have perpetual succession and a common seal, with power to acquire, hold, lease, mortgage and otherwise dispose of real and personal property, and may sue and be sued.

3(3) The head office of the College shall be as the Council designates.

Objects

3(4) The objects of the College are:

(a) to regulate the practice of physiotherapy and govern its members in accordance with this Act and the regulations;

(b) to establish, maintain and develop standards of competence among its members;

(d) to establish, maintain and develop standards of professional ethics among its members;

(e) to administer this Act and perform such other duties and exercise such other powers as are imposed or conferred on the College by or under any Act; and

(f) such other objects, relating to physiotherapy, as the Council considers desirable,

in order that the public interest may be served and protected.

Powers

3(5) In addition to any other power conferred by this or any other Act, the College may do such things as it considers appropriate to advance the objects of the College and in particular, but not so as to limit the foregoing, the College may:

(a) purchase, take in, lease, exchange, hire, construct and otherwise acquire and hold, sell, mortgage, hypothecate, lease out or otherwise deal with any real or personal property;

(b) draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, warrants and other negotiable and transferable instruments;

(d) expend the monies of the College in the advancement of its objects and the interests of the physiotherapy profession in such manner as may seem expedient;

(e) establish and maintain such offices and agencies as need be;

(f) invest and deal with any monies or funds of the College which are not immediately required, in such manner as may seem expedient;

(g) improve, manage, develop, exchange, dispose of, turn to account or otherwise deal with the real or personal property of the College;

(h) borrow money for the use of the College on its credit, limit or increase the amount to be borrowed, issue bonds, debentures, stock and other securities on the credit of the College, and pledge or sell such securities for such sums or at such prices that may be deemed expedient;

(i) enter into cooperative arrangements and agreements with other professional bodies, governments and client advocate or interest groups and organizations in any jurisdiction whatsoever;

(j) participate in programs for public relations, advertising and public and professional education; and

(k) do such other things that are incidental or are necessary to the exercise of these powers.

Annual Meeting

4 There shall be an annual meeting of the College at such time and place as the Council may determine.

The Council

5(1) There shall be a Council of the College to be constituted as provided in section 8.

Regulations

5(2) The Council shall, subject to this Act, govern, control and administer the affairs of the College and the practice of physiotherapy, and the management of the business and powers of the College shall be vested in the Council, and, without limiting the generality of the foregoing, the Council may make regulations:

(a) providing for the management of the College, including the keeping of the register and subregisters required;

(b) fixing the time, place, calling, and conduct of annual and special meetings of the College or the Council;

(c) respecting the appointment, composition, powers and duties of such committees as may be appointed by the Council, including the Council, and providing for the holding and conduct of meetings of such committees;

(d) respecting the powers and duties of the Registrar, and the officers, servants and employees of the College;

(e) establishing one or more categories of membership and determining the rights, privileges and obligations of members of each category;

(f) prescribing fees payable by applicants for registration, and, if deemed advisable, designating different categories of applicants and prescribing different fees for different categories;

(g) establishing the method of prescribing annual registration fees payable by members of the College;

(h) prescribing the fees and allowances of the members of the Council and committees, and providing for the payment of necessary expenses of the Council and committees and of volunteers and others acting on behalf of the College;

(i) respecting the recognition of physiotherapy education programs, training and examinations as prerequisites to registration;

(j) respecting the registration and qualifications of members;

(k) prescribing examinations and other processes for examination as deemed appropriate by the Council to be successfully completed by applicants for registration and by members respecting credentialing requirements, or extended or specialized practice;

(l) respecting conflict of interest of members;

(m) respecting the continuing competency of members;

(n) requiring professional liability insurance or requiring the entering into of arrangements for indemnity for professional liability of members, including professional corporations as requirements for registration;

(o) respecting the disciplining of members and related reporting and publication of decisions in disciplinary matters;

(p) respecting the adoption by the College of a Code of Ethics and Standards of Practice;

(q) regulating advertising, promotion and marketing by members;

(r) prescribing the records and accounts to be kept by members with respect to their practice, and providing for the production, inspection and examination of such records and accounts;

(s) prescribing the seal of the College;

(t) providing for the execution of documents by the College;

(u) prescribing forms and providing for their use;

(v) providing procedures not inconsistent with this Act for the making, amending and revoking of regulations;

(w) providing that the registration of a member may be suspended without notice or investigation upon contravention of any regulation which requires the member to pay a fee, file a document or do any other act by a specified or ascertainable date, and providing for the reinstatement of any registration so suspended; and

(x) respecting and governing such other subjects, matters and things as may be required to give the effect of the objects of the College and the provisions of this Act.

5(3) Regulations relating to matters described in paragraphs (2)(b), (c), and (e) shall not be effective or be acted upon until confirmed by an ordinary resolution at an annual or special meeting of the College and where a regulation is amended by ordinary resolution at such a meeting, it becomes effective in the form in which it is amended.

5(4) Regulations relating to matters described in paragraphs (2)(j), (k), (m), and (o) shall not be determined or become effective or be acted upon until consultation has occurred with members.

5(5) The Registrar shall cause the text of any new regulation enacted by the Council to be sent to all members.

5(6) No act or thing done in reliance upon, right acquired under or pursuant to, a regulation that is subsequently repealed or amended shall be prejudicially affected by such repeal or amendment.

5(7) Notwithstanding the Regulations Act, the College shall not be required to publish or file its regulations, but all the regulations of the College shall be available for inspection by any person, free of charge, at the head office of the College, at all reasonable times during business hours.

5(8) A certificate purporting to be signed by the Registrar stating that a certain regulation or provision of a regulation of the College was:

(a) approved by the Minister under section 6, or

(b) on a specified day or during a specified period, in full force and in effect,

constitutes prima facie evidence of the facts stated in the certificate in any proceeding under this Act or the regulations, or in any court, without proof that the person who signed the certificate is the Registrar, or that it is her or his signature.

5(9) A resolution in writing, or counterparts of a resolution, signed by a majority of all members entitled to vote thereon at a meeting of the College shall be as valid and effective as if duly passed at a meeting of the members of the College.

5(10) A resolution in writing, or counterparts of a resolution, signed by a majority of all members entitled to vote thereon at a meeting of the Council or a committee of the Council shall be as valid and effective as if duly passed at a meeting of the members of the Council or the committee of the Council as the case may be.

5(11) A member of the Council, or of a committee of the Council or the College, may participate in any meeting of the Council or the committee, as the case may be, by telephone or other communication facilities that permit all persons participating in a meeting to communicate with each other, and a member participating in a meeting by such means is deemed to be present at the meeting.

5(12) A meeting of the Council, or of a committee of the Council or College, may be held by a conference telephone call or other communication facilities that permit all persons participating in the meeting to communicate with one another, and all members participating in the meeting by such means are deemed to have been present at the meeting.

5(13) Where a member appears at a meeting of the Council, or at a meeting of a committee of the College or the Council, relating to her or his alleged professional misconduct, subsections (11) and (12) apply to such meetings if the member consents.

6(1) A regulation or provision of a regulation, or a regulation amending or replacing a regulation or provision of a regulation, made or enacted by the Council which:

(a) provides for continuing competency requirements for members;

(b) establishes qualifications for registration of a person as a member of the College; or

is not effective until approved by the Minister.

6(2) Regulations relating to matters described in paragraphs 5(2)(i), (j), (k), (l), (m) and (n) shall not be effective or be acted upon until approved by the Minister.

6(3) For the purposes of subsection (1), “conflict of interest” means a conflict of interest resulting from:

(a) the member being a member of a committee or other body of the College, a health care facility or government agency having decision making authority or acting in an advisory capacity with respect to matters that may benefit the member, directly or indirectly, in the practice of physiotherapy of the member;

(b) the member receiving a financial or other benefit from the member’s direct or indirect ownership of an interest in a commercial enterprise that provides a product or service that may be prescribed or recommended by the member for a client or in the member’s practice of physiotherapy; or

(c) the member receiving financial or other benefit, directly or indirectly, in circumstances that may conflict with the member’s professional responsibilities as a member or in the practice of physiotherapy of the member.

6(4) This section does not apply to the repeal or replacement of a regulation or a provision of a regulation resulting from a consolidation of a regulation or regulations.

Rules

7 Unless the Act or the regulations otherwise provide, the Council may by resolution make any rules not contrary to the regulations regulating any of the aspects, subjects or matters of the business or affairs of the College as may be governed by regulation and any such rule shall be binding and effective from the date of the resolution of the Council until amended or repealed by an ordinary resolution at an annual or special meeting of the College called for the purpose of considering the same.

The Council

8(1) The Council shall consist of:

(a) not less than 5 and not more than 7 members of the College elected or appointed in the manner provided by regulation; and

(b) a maximum of 2 persons to represent the public, who are not members of the College, who shall be appointed by the Council after nomination by the Council and approval by the Minister.

8(2) The number of the Council members, their respective terms of office and their qualifications shall be established and governed by the regulations and the rules of the College.

8(3) Notwithstanding subsection (1), the persons who at the coming into force of this Act make up the Board of the College of Physiotherapists of New Brunswick constituted under the previous Act shall constitute the Council until the election or appointment of members under subsection (1) is completed.

9(1) The officers of the Council shall include a President and such other officers with duties as may be provided by the regulations and the rules.

9(2) The Council shall appoint a Registrar, who shall hold office during the pleasure of the Council, at such salary or other remuneration as the Council may decide.

9(3) The Council may appoint an acting Registrar, who shall exercise the powers and duties of the Registrar in the event of the death or incapacity of the Registrar, or during her or his absence from the Province.

9(4) The Council may appoint such other officers, servants or employees at such salary or other remuneration, and for such term of office as the Council considers necessary to assist it in carrying out its duties under this Act.

10 The Council may appoint annually such committees from among members of the Council or the College as the Council considers necessary to assist it in carrying out its duties under this Act.

11(1) Subject to subsection (2), the President shall preside at all meetings of the Council of the College.

11(2) If the President is absent from a meeting, the Vice-President, or in her or his absence, some other member to be chosen from the members present, shall preside at the meeting.

11(3) Except in the event of an equal number of votes being given for and against a resolution at any meeting, the President or other presiding officer shall not vote.

12(1) There shall be a standing committee of the Council designated as the Executive Committee consisting of the President, Vice-President and Secretary-Treasurer.

12(2) Between meetings of the Council, the Executive Committee has all the powers of the Council with respect to any matter that, in the Executive Committee’s opinion, requires immediate attention, other than the power to make, amend or revoke a regulation.

12(3) If the Executive Committee exercises a power of the Council under subsection (2), it shall report on its actions to the Council at the Council’s next meeting.

12(4) Any action of the Executive Committee in exercise of its powers under subsection (2) is deemed to be an action of the Council for all purposes of the Act.

12(5) The Executive Committee shall act as the Human Resources and Compensation Committee of the College.

Membership and Registration

13(1) The categories of membership, and the rights and privileges allocated to each category of membership in the College, shall be as provided by regulation.

13(2) Every person who qualifies for registration under the provisions of this Act and the regulations may, upon payment of the prescribed fee, be registered as a member of the College.

Registration Committee

14(1) There shall be a standing committee of the Council designated as the Registration Committee consisting of a minimum of 3 persons appointed by the Council.

14(2) The Registration Committee shall, at the request of the Registrar, review and consider applications for membership in the College and shall make recommendations in writing with reasons, where applicable, to the Council:

(a) rejecting an application for registration as a member of the College;

(b) approving an application for registration as a member of the College, without terms, conditions or limitations; or

(c) approving an application for registration as a member of the College, subject to any terms, conditions or limitations as set out in the Committee’s recommendation to the Council.

14(3) The Registration Committee may, in reviewing and considering applications for registration as a member of the College under subsection (2):

(a) consider the matter summarily; or

(b) conduct or authorize any person to conduct, an investigation.

14(4) An applicant for registration as a member of the College in respect of whom a review and consideration is being made under subsection (3) shall produce documents and disclose information to the Registration Committee that is within the applicant’s possession or power and that the Registration Committee considers relevant.

14(5) Where the Registration Committee conducts an investigation under paragraph (3)(b), it may, by written notice, require the applicant for registration as a member of the College to appear before it to answer questions or provide additional information relevant to the application for registration as a member of the College.

Application for Registration

15(1) An application for registration as a member of the College shall be made to the Registrar in the form prescribed by the Council and supported with documents or documentation, and including the payment of fees required by the regulations or rules.

15(2) The Registrar shall review the application for membership and, where appropriate, shall refer the application to the Registration Committee for review and recommendation.

15(3) All applicants for registration must meet the following general registration requirements in addition to the specific requirements for the applicable membership category as prescribed by subsections (4), (5), (6), (7) and (8):

(a) establishes a record of good character, and, if required, evidence of previous professional character and practice;

(b) has Canadian citizenship, permanent resident status, or authorization under the Immigration and Refugee Protection Act (Canada); and

15(4) The Council, upon the recommendation of either the Registrar or the Registration Committee, may approve for registration as a member of the College a person who:

(a) establishes graduation from and holds an appropriate degree from an approved school of physiotherapy or the equivalent;

(b) has successfully completed the registration examination prescribed by regulation or has been registered as a physiotherapist and actively engaged in the practice of physiotherapy in a Canadian jurisdiction prior to the coming into force of this Act, or has previously been registered and practised as a physiotherapist in New Brunswick;

(c) has actively practised physiotherapy in a Canadian jurisdiction without a period of inactivity as prescribed by regulation immediately preceding application for registration;

(d) establishes that he or she has professional liability insurance that meets the requirements as prescribed by regulation; and

(e) pays the prescribed fees.

15(5) The Council, upon the recommendation of either the Registrar or the Registration Committee, may approve for registration as a provisional member of the College a person who does not meet the requirements as outlined in subsection (4) and qualifies for membership with specific terms, limitations, and conditions attached as prescribed by regulation.

15(6) The Council, upon the recommendation of either the Registrar or the Registration Committee, may approve for registration as a temporary member of the College a person who is registered to practise physiotherapy in another jurisdiction and remains a member in good standing in that jurisdiction and qualifies for time-limited membership with specific terms, conditions or limitations attached as prescribed by regulation.

15(7) Notwithstanding subsection (4), the Council upon the recommendation of either the Registrar or the Registration Committee, may approve for registration as a member of the College a person who is applying for membership under exceptional circumstances.

15(8) The Council may impose such terms, conditions or limitations on a person being approved as a member of the College as the Council may deem appropriate and may vary or remove such terms, conditions or limitations.

15(9) Every person who is, on the coming into force of this Act, registered as a member of the College shall, provided that they meet the specific membership requirements as required by the Act and regulations, be registered as a member of the College.

Registers

16(1) The Registrar shall keep or cause to be kept a register, and subregisters, in which shall be entered the name and address of every person who has met the qualifications for registration under any membership categories pursuant to this Act, the regulations and the rules and is thereby entitled to engage in the practice of physiotherapy with any terms, conditions or limitations recorded pursuant to this Act, the regulations or the rules.

16(2) On entering the name and address of the person in the register with the required practice information, the Registrar shall issue a certificate of registration to the registrant.

Title and Designation

17(1) No person other than a member of the College shall be entitled to engage in the practice of physiotherapy or use the title “Physiotherapist”, or any words or letters indicative of such designation.

17(2) A member of the College who is entitled to engage in the practice of physiotherapy shall use the title “Physiotherapist” or “Physical Therapist” and may use such titles in association with the designation “PT”.

Right to Practise

18(1) No person shall practise physiotherapy in New Brunswick unless registered to practise under the provisions of this Act and the regulations.

18(2) No employer shall knowingly cause or permit any person to practise physiotherapy in the Province unless that person is a member of the College.

18(3) A corporation may be permitted to practise physiotherapy as provided under section 19.

18(4) Any person who is enrolled as a student physiotherapist at an approved physiotherapy education program may perform the tasks, duties and functions constituting part of the course of study, subject to any terms, conditions or limitations as may be prescribed by the regulations or rules.

18(5) The provisions of this Act and regulations shall apply to the practice of physiotherapy by a person or corporation.

18(6) In addition to any other remedy it may have, the College may apply to the Court for:

(a) an injunction prohibiting any person who is not a member of the College from practising physiotherapy in the Province; or

(b) an injunction prohibiting any employer or other person from permitting any person who is not a member of the College to practise physiotherapy in the Province in the employ or on behalf of such employer or other person.

Professional Corporations

19(1) The Registrar shall keep a register called the Corporations Register.

19(2) The Council may make regulations:

(a) requiring the filing of periodic returns by corporations registered in the Corporations Register;

(b) providing for the annual renewal of licences issued under this section, and prescribing the terms and conditions upon which renewals may be granted; and

(i) a professional corporation;

(ii) a partnership of two or more professional corporations; or

(iii) a partnership of one or more professional corporations and one or more individual members,

may be known.

19(3) The Council may direct the Registrar to enter in the Corporations Register the name and address of any corporation which:

(a) submits to the Registrar an application in the form prescribed by the Council;

(b) pays the prescribed fees;

(d) satisfies the Registrar that the articles or other constituting documents of the corporation do not prevent the corporation from rendering the same services to the public that an individual member of the College of Physiotherapists of New Brunswick is authorized to render;

(e) satisfies the Registrar that the name of the corporation contains the words “Professional Corporation”, “Prof. Corp.” or “P.C.” or appropriately depicts that it is engaged in the practice of physiotherapy;

(f) satisfies the Registrar that the legal and beneficial ownership of 75% of the issued voting shares and all rights incidental to the ownership of the voting shares of the professional corporation are vested exclusively in one or more members of the College and that all of the directors of the professional corporation are at all times members of the College; and

(g) satisfies the Registrar that the persons who will carry on the practice of physiotherapy on behalf of the professional corporation are members of the College.

19(4) Upon receiving a direction from the Council pursuant to subsection (3), the Registrar shall:

(a) enter the name and address of the professional corporation named therein, in the Corporation Register; and

(b) register such professional corporation for such period, and upon such conditions as the Council may direct.

19(5) Registration issued under subsection (4) expires on December 31^st of the year for which it was issued.

19(6) Where any of the conditions specified in subsection (3) no longer exist, the Registrar may revoke the registration issued under subsection (4) or withhold its renewal.

19(7) Subject to subsection (8), where a professional corporation ceases to fulfill any of the conditions specified in subsection (3) within 90 days after receiving a request from the Registrar to do so, then the Registrar shall revoke the registration of the professional corporation.

19(8) The Registrar in her or his discretion may extend the time for the fulfilling of the conditions specified in subsection (3) beyond 90 days if an application for an extension of time with reasons therefore is filed with the Registrar prior to the expiry of the 90 days referred to in subsection (7).

19(9) A professional corporation to which registration is granted under this section may practise physiotherapy in its own name, subject to any conditions or limitations contained in such registration.

19(10) Where the registration of a professional corporation is revoked, or its renewal withheld pursuant to this section, the Registrar shall endorse the Corporations Register accordingly and send notice of same by ordinary mail to the last known address of the corporation and for all purposes the corporation shall be deemed to be no longer licensed as of the 14^th day after the mailing of notice.

19(11) The relationship of a member to a professional corporation, whether as a shareholder, director, officer or employee, does not affect, modify or diminish the application of the provisions of this Act and the regulations to the member.

19(12) The liability for professional services rendered by any persons carrying on the practice of physiotherapy is not affected by the fact that the practice of physiotherapy is carried on by such person as an employee of or on behalf of a professional corporation.

19(13) All provisions of this Act and the regulations applicable to a member apply with any necessary modifications to a professional corporation.

Complaints Committee

20(1) There shall be a standing committee of the College designated as the Complaints Committee composed of:

(a) not less than 3 and not more than 5 members of the College appointed in the manner provided by regulation; and

(b) one person, who is not a member of the College, who shall be appointed by the Council after approval by the Council and whose name shall be sent to the Minister.

20(2) Members of the Complaints Committee shall be appointed to the Committee for a term of 3 years renewable for 2 consecutive terms of 3 years each to a maximum of 9 years.

20(3) In the event that a member of the Complaints Committee is unable or unwilling to act with respect to the complaint or matter under investigation, or for any reason ceases to be a member of the Committee, the Council shall appoint a replacement who shall replace the member during all proceedings relating to the complaint or matter under investigation.

20(4) No person who is a member of the Complaints Committee shall be appointed a member of the Discipline Committee.

20(5) Three members of the Complaints Committee constitutes a quorum for the transaction of the business of the Committee and a decision shall be made by a majority vote.

Complaints

21(1) A person may make a complaint to the Registrar regarding the conduct, competency or capacity of a member.

21(2) Upon receipt of a complaint under subsection (1), the Registrar shall immediately refer the complaint to the Complaints Committee for investigation.

Investigation by Complaints Committee

22(1) The Complaints Committee shall consider and investigate complaints regarding the conduct, competency or capacity of a member, but no action shall be taken by the Committee under subsection (2) unless:

(a) a written complaint has been filed with the Registrar and the member being investigated has been notified of the complaint and given at least 30 days in which to submit in writing to the Committee any explanations or representations the member may wish to make concerning the complaint; and

(b) the Committee has examined or has made every reasonable effort to examine relevant information and documents relating to the complaint.

22(2) After completion of the investigation, and after considering the submission of the member under subsection (1), if any, the Complaints Committee may:

(a) direct that no further action be taken if, in its opinion, the complaint is frivolous or vexatious or there is insufficient evidence of professional misconduct, incompetence or incapacity;

(b) refer in whole or in part, the allegations of professional misconduct, incompetence or incapacity to the Discipline Committee;

(c) caution the member and, if it considers it appropriate, require an undertaking by the member in respect of a specific act or omission; or

(d) take such other action as it considers appropriate in the circumstances to resolve the complaint as long as such is not inconsistent with this Act or the regulations.

22(3) The Complaints Committee shall give a summary of its findings and decision in writing to the Registrar to deliver or send to the complainant and the member complained against.

22(4) When investigating and deciding a complaint, the Complaints Committee is not required to conduct a hearing, but may interview the complainant and the member complained against to obtain information and explanations of the position of each, including the possibility of settling the complaint.

22(5) In the event the Complaints Committee conducts a hearing, the provisions of section 27.1 with any necessary modifications shall apply to the hearing before the Complaints Committee.

Requests for Review of Complaint by the Council

23(1) A complainant who is not satisfied with the disposition of the complaint by the Complaints Committee may apply to the Council within 30 days of receipt of the decision of the Committee for a review of the treatment of the complaint.

23(2) Upon a review under subsection (1) the Council may by resolution:

(a) adopt the treatment of the complaint by the Complaints Committee;

(b) dismiss the complaint;

(c) refer the complaint back to the Complaints Committee with such instructions as it considers necessary with respect to further investigation and disposition under subsection 22(2);

(d) direct the Discipline Committee to hold a hearing and determine any allegation of professional misconduct, incompetence or incapacity on the part of a member that the Council considers appropriate; or

(e) take such other action as it considers appropriate in the circumstances to resolve the complaint as long as such is not inconsistent with this Act or the regulations.

Discipline Committee

24(1) There shall be a standing committee of the College designated as the Discipline Committee composed of not less than 5 and not more than 7 members appointed in the manner provided by regulation, one of whom is not a member of the College, and who shall be appointed by the Council after approval by the Council and whose name shall be sent to the Minister.

24(2) Not less than 3 members of the Discipline Committee shall be appointed to the Committee for a term of 3 years renewable for 2 consecutive terms of 3 years each to a maximum of 9 years, one of whom shall not be a member of the College, and shall be appointed by the Council and whose name shall be sent to the Minister.

24(3) All decisions of the Discipline Committee require the vote of the majority of the members present at the hearing.

24(4) Where the Discipline Committee commences a hearing and not more than one member becomes unable to act, the remaining members may complete the hearing and shall have the same authority as the full Committee.

Hearing by Discipline Committee

25(1) The Discipline Committee shall hold a hearing respecting the allegations of professional misconduct, incompetence or incapacity of a member that have been referred to it by the Complaints Committee under paragraph 22(2)(b) or by the Council under paragraph 23(2)(d).

25(2) Subject to subsection (3), the Discipline Committee shall commence a hearing as soon as possible, but not later than 60 days after the date on which the Committee received the complaint unless otherwise directed by the Compaints Committee or Council.

25(3) The Discipline Committee shall, not less than 30 days before the date set for the hearing, serve on the College, the member against whom the complaint has been made, and the complainant, if any, a notice of hearing setting out the date, time and place of the hearing.

26(1) Members of the Discipline Committee holding a hearing shall not have taken part before the hearing in any investigation of the subject matter of the hearing, and shall not communicate directly or indirectly in relation to the subject matter of the hearing with any person or with any party or representative of any party, except upon notice to and opportunity for all parties to participate, but the Committee may seek legal advice.

26(2) No member of the Discipline Committee shall participate in the decision of the Committee unless the member was present throughout the hearing and heard the evidence and argument of the parties.

Notice of Hearing

27(1) Notice to the member against whom the complaint has been made shall describe the subject matter of the hearing and advise the member that the Discipline Committee may proceed with the hearing in the absence of the member.

27(2) The Discipline Committee may at any time permit a notice of hearing of allegations against a member to be amended to correct errors or omissions of a minor or clerical nature if it is of the opinion that it is equitable to do so and it may make any order it considers necessary to prevent prejudice to the member.

27(3) The Discipline Committee, on proof of service of the notice of hearing on the member against whom a complaint is made, may:

(a) proceed with the hearing in the absence of the member; and

(b) without further notice to the member, take any action that is authorized to be taken under this Act or the regulations.

27(4) If any other matter concerning the conduct or actions of the member against whom the complaint has been made arises during the course of the hearing, the Discipline Committee may investigate and hear the matter, but not before advising the parties of its intention to do so and shall ensure that the member is given a reasonable opportunity to respond to the matter.

Open Hearings

27.1(1) Subject to subsection (2), a hearing is open to the public.

27.1(2) The Discipline Committee may make an order that the public, in whole or in part, be excluded from a hearing or any part of it if the Discipline Committee is satisfied that:

(a) financial or personal or other matters may be disclosed at the hearing of such a nature that the harm created by disclosure would outweigh the desirability of adhering to the principle that hearings be open to the public;

(b) a person involved in a criminal proceeding or in a civil suit or proceeding may be prejudiced; or

27.1(3) Where it thinks fit, the Discipline Committee may make orders it considers necessary to prevent public disclosure of matters disclosed at a hearing, including orders prohibiting publication or broadcasting of those matters.

27.1(4) No order shall be made under subsection (3) that prevents the publication of anything that is contained in the registers and available to the public.

27.1(5) The Discipline Committee may make an order that the public be excluded from the part of the hearing dealing with a motion for an order under subsection (2).

27.1(6) The Discipline Committee may make any order necessary to prevent the public disclosure of matters disclosed in the submission relating to any motion described in subsection (5), including prohibiting the publication or broadcasting of those matters.

27.1(7) The Discipline Committee shall state, at the hearing, its reasons for any order made under this section and any such order and the reasons for it shall be made available to the public in writing.

27.1(8) Where the Discipline Committee makes an order under subsection (2), wholly or partly, because of the desirability of avoiding disclosure of matters in the interest of a person affected, the Committee:

(a) shall allow the parties, the complainant and their legal and personal representatives to attend the hearing; and

(b) may allow such other persons as the panel considers appropriate to attend the hearing.

Sanctions by the Discipline Committee

28(1) On the completion of a hearing, the Discipline Committee may:

(a) dismiss the complaint; or

(b) find that the member has committed an act of professional misconduct, is incompetent or incapacitated or any combination of them.

28(2) If the Discipline Committee finds that the member has conducted an act of professional misconduct, or finds that the member is incompetent or incapacitated, it may, by order, do one or more of the following as in its opinion it considers appropriate to the circumstances:

(a) reprimand the member;

(b) require the member to waive, reduce or repay a fee for services provided by the member that, in the opinion of the Committee, were not provided or were improperly provided;

(d) impose specific terms, conditions or limitations on the member’s right to practise for a specified period of time or until specified conditions are satisfied, including the requirement to successfully complete specified courses of study or requiring that the member:

(i) engage in the practice of physiotherapy only under the personal supervision and direction of another member;

(ii) not alone engage in the practice of physiotherapy;

(iii) accept periodic inspections by the Committee, or its delegate, of the books, accounts, records and work of the member in connection with the member’s practice;

(iv) report to the Registrar or to such other committee of the Council as the Committee may specify, on such matters with respect to the member’s practice for such period and times, and in such form, as the Committee may specify;

(e) suspend the member’s membership for a specific period of time or until specific criteria are satisfied;

(f) revoke the member’s membership in which case the Discipline Committee may order that the member not be permitted to apply for reinstatement before a period of time it specifies has elapsed;

(g) direct the Registrar to give public notice of any order by the Committee that the Registrar is not otherwise required to give under this Act;

(h) where the Registrar is not otherwise required to do so, direct the Registrar to enter the results of the proceeding before the Discipline Committee in the records of the College and to make the result available to the public;

(i) fix the costs of any investigation or procedures by the Complaints Committee and the Discipline Committee to be paid by the member to the College, including the College’s:

(i) legal costs on a solicitor and client basis and expenses;

(ii) costs and expenses incurred in investigating the matter; and

(iii) costs and expenses in conducting the hearing; or

(j) make such other order as the Committee considers appropriate.

Costs against the College

28(3) The Discipline Committee, if it is of the opinion that the hearing was unwarranted, may order the College to pay all or part of the member’s legal costs to be determined by agreement or to be assessed in accordance with Rule 59 of the Rules of Court.

Decision

29(1) The Discipline Committee shall state in writing its findings, the grounds for its findings and the penalty imposed, and shall serve a copy of its decision on the parties and the complainant, if any, along with a statement of the rights of the parties to appeal the decision to the Court.

29(2) Subject to section 31, an order of the Committee under section 28 takes effect immediately, or at such time as the Committee may direct, notwithstanding that an appeal has been taken from the order.

Suspension on Failure to Pay Fine and Costs

30 Where a member fails to pay a fine or costs imposed under subsection 28(2) within the time ordered, the Registrar may suspend the membership of the member until the fine or costs are paid and shall serve the member with notice of the suspension.

Suspension for Violation of the Order

31(1) The Council, if it is satisfied that a member has violated or failed to comply with an order of the Discipline Committee, may, without notice to the member, revoke or suspend the member’s membership.

32(2) The Registrar shall send the member a written notice of the revocation or suspension under subsection (1).

Decision and Record to Registrar

32(1) The Discipline Committee shall forward to the Registrar:

(a) its written decision; and

(b) the record of the hearing and all documents and other things put into evidence.

32(2) Within a reasonable time after the matter in issue has been finally determined, the Registrar shall release documents and other things put into evidence at a hearing on the request of the person who produced them.

Discipline Procedure

33(1) In a hearing before the Discipline Committee, the College and the member against whom a complaint is made are parties to the hearing and may be represented by legal counsel.

33(2) The Discipline Committee shall have the proceedings and the evidence recorded by a sound recording machine.

33(3) For the purposes of subsection (2), “sound recording machine” means any device, machine or system approved by the Minister of Justice under the Recording of Evidence Act for the purpose of making a record of voice or other sound.

33(4) If a party requests a copy of the transcript of the hearing before the Discipline Committee or any part thereof, it shall be furnished at that party’s expense.

33(5) Evidence against a member against whom a complaint has been made is not admissible at a hearing of the Discipline Committee unless the member is given, at least 10 days before the hearing:

(a) in the case of documentary or written or video or audio evidence, an opportunity to examine the documents, writing, video or audio;

(b) in the case of evidence of an expert, disclosure of the identity of the expert, a summary of the expert’s qualifications, a copy of the expert’s written report or, if there is no written report, a written summary of the evidence of the expert; and

(c) in the case of evidence of a witness, the identity of the witness and a written summary of the evidence of the witness.

33(6) Evidence on behalf of a member is not admissible at a hearing of the Discipline Committee unless the College or its legal counsel is given, at least 10 days before the hearing:

(a) in the case of documentary or written or video or audio evidence, an opportunity to examine the documents, writing, video or audio;

(c) in the case of evidence of a witness on behalf of the member, the identity of the witness and a written summary of the evidence of the witness.

33(7) The Discipline Committee may, in its discretion, allow the introduction of evidence that is or may be otherwise inadmissible under subsections (5) and (6) and may make or give any directions it considers necessary to ensure that the member or the College is not prejudiced by the admission or introduction of the evidence.

33(8) In the conduct of a hearing before the Discipline Committee:

(a) the parties shall be allowed to call evidence and to cross-examine witnesses;

(b) the Committee, subject to this Act, may determine its own rules of procedure;

(d) the Committee may adjourn the hearing from time to time at the request of the parties upon reasonable grounds being shown;

(e) the burden of proof is the same as in civil cases;

(f) the member against whom the complaint is made is a compellable witness;

(g) a witness shall not be excused from answering any question on the grounds that the answer:

(i) tends to incriminate;

(ii) might subject the witness to punishment under this Act; or

(iii) might tend to establish liability in a civil proceeding or liability to prosecution.

33(9) A complainant, if any, may attend the hearing before the Discipline Committee in its entirety with or without counsel, and may make a written or oral submission, personally or through her or his counsel, to the Committee.

33(10) A complainant attending a hearing before the Discipline Committee shall not be considered a party to the hearing and he or she or her or his counsel shall not be permitted to call evidence or to examine or cross-examine witnesses.

33(11) At the request of a witness whose testimony is in relation to allegations of a member’s misconduct of a sexual nature involving the witness, the Discipline Committee may exclude a complainant from the portion of the hearing that receives the testimony of the witness.

33(12) In subsection (11), “allegations of a member’s misconduct of a sexual nature” means allegations that the member sexually abused the witness when the witness was a client of the member.

Attendance of Witnesses

34(1) The Discipline Committee, or someone designated by the Discipline Committee to act on its behalf, may by summons in a prescribed form on the written request of any party to the proceedings, require the attendance before it of any person whose evidence may be material to the subject matter of the hearing and may order any person to produce such records, reports or other documents as appear necessary for the purpose of the hearing.

34(2) A person served with a summons shall attend and answer all questions concerning the matters being inquired into at the hearing and shall produce to the Discipline Committee all records, reports or other documents that are under the person’s custody or control.

34(3) The testimony of a witness may be taken under oath or affirmation administered by the chairperson of the Discipline Committee or any person designated to do so on the chairperson’s behalf.

34(4) If a person on whom a summons has been served, either personally or by leaving a copy of the summons with an adult person at the person’s last known or most usual place of residence or place of business, fails to appear before the Discipline Committee or upon appearing refuses to be sworn or refuses without sufficient cause to answer any question relevant to the hearing, the Committee may, by application to the Court, cause the person to be cited for contempt under the provisions of the Rules of Court in the same manner and to the same extent as if the alleged contempt took place in proceedings before the Court.

34(5) If the person referred to in subsection (4) is a member, the failure or refusal to attend and give evidence constitutes professional misconduct.

34(6) A person, other than the member whose conduct is the subject of the hearing, who is served with a summons under this section shall be tendered the same fees as are payable to a witness in an action in The Court of Queen’s Bench of New Brunswick at the time the summons is served.

Appeal

35(1) A party to proceedings before the Discipline Committee may appeal within 30 days from the date of the decision or order of the Committee to the Court by way of Notice of Application in accordance with the Rules of Court.

35(2) When requested by a party intending to appeal, and on payment of any reasonable expenses relating to the request, the Registrar shall provide the party with a copy of the record of the proceedings, including the documents received in evidence and the decision or order being appealed.

35(3) An appeal under this section shall be based on the record of the proceedings before the Discipline Committee and its decision and may be on questions of law or fact, or mixed fact and law.

35(4) On an appeal from the decision of the Discipline Committee the Court may:

(a) affirm, vary or reverse the decision of the Committee;

(b) exercise all powers of the Committee;

(d) refer the matter back to the Committee for rehearing in whole or in part, in accordance with such directions as the Court considers proper; or

(e) make any order it considers appropriate with respect to costs.

Notice of Discipline

36(1) The Registrar shall give public notice of the suspension or revocation of a member’s membership as a result of proceedings before the Discipline Committee.

36(2) Public notice under subsection (1) shall state the finding of the Discipline Committee and the penalty imposed and, in the case of a finding of professional misconduct, a brief description of the nature of the professional misconduct, and shall be given within 2 weeks after the finding of the Committee.

Records to be made available to the Public

37(1) The Registrar shall forthwith enter in the records of the College:

(a) the decision of every proceeding before the Discipline Committee that:

(i) resulted in the suspension or revocation of membership; or

(ii) was directed to be entered in the records of the College and made available to the public; and

(b) where the decision under paragraph (a) is appealed, a notation that it is under appeal.

37(2) Where an appeal of a finding of the Discipline Committee is finally disposed of, the notation referred to in paragraph (1)(b) shall be removed and the records adjusted accordingly.

37(3) The Registrar shall provide the information contained in the records referred to in subsection (1) to any person who inquires about a member or former member:

(a) for an indefinite period if the member or former member was found to have sexually abused a client; and

(b) for a period of 5 years following the conclusion of the proceeding referred to in subsection (1) in all other cases.

37(4) The Registrar, upon payment of a reasonable fee, shall provide a copy of a statement of the information contained in the records referred to in subsection (1) that pertain to a member or former member to a person who requests a copy.

37(5) For the purpose of paragraph (1)(a), “decision”, when used in reference to proceedings before the Discipline Committee, means the Committee’s findings and the penalty imposed, and in the case of professional misconduct, a brief description of the nature of the professional misconduct.

Sexual Abuse of Client

Definition

38(1) Sexual abuse of a client by a member means:

(a) sexual intercourse or other forms of physical sexual relations between the member and the client;

(b) touching, of a sexual nature, of the client by the member; or

38(2) For the purposes of subsection (1), “sexual nature” does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.

Reporting Sexual Abuse

39(1) A member who, in the course of practice, has reasonable grounds to believe that another health professional has sexually abused a client and who fails to file a report in writing with the Registrar or governing body of the relevant profession within 21 days after the circumstances occur that give rise to the reasonable grounds for the belief commits an act of professional misconduct.

39(2) No action or proceeding shall be taken against a member who in good faith files a report under subsection (1).

39(3) A report filed under subsection (1) shall contain the following information:

(a) the name of the member filing the report;

(b) the name of the health professional who is the subject of the report, if known;

(d) subject to subsection (4), if the grounds of the member filing the report are related to a particular client of the health professional who is the subject of the report, the name of the client.

39(4) The name of a client who may have been sexually abused shall not be included in a report unless the client or, if the client is incapable, the client’s representative consents in writing to the inclusion of the client’s name.

39(5) Section 38 applies with the necessary modifications to sexual abuse of a client by another health professional.

Measures to Prevent Sexual Abuse

40(1) The College shall undertake measures for prevention of the sexual abuse of clients by its members.

40(2) Such measures referred to in subsection (1) shall include:

(a) education of members about sexual abuse;

(b) guidelines for the conduct of members with clients;

(d) informing the public as to the complaint procedures under this Act.

40(3) Measures referred to in subsection (2) may, where appropriate, be taken jointly with other organizations or associations of health professionals.

Council to Report to Minister

41(1) The Council shall report to the Minister within 2 years after the commencement of this section and within 30 days at any time thereafter at the request of the Minister, respecting the measures it is taking and has taken to prevent and deal with the sexual abuse of clients by members of the College.

41(2) The Council shall report to the Minister respecting all complaints received during the calendar year respecting sexual abuse of clients by members or former members of the College.

41(3) A report under subsection (2) shall be made within 2 months after the end of each calendar year and shall contain the following information:

(a) the number of complaints received during the calendar year for which the report is made and the date each complaint was received;

(b) with respect to each complaint received during the calendar year for which the report is made:

(i) a description of the complaint in general non-identifying terms;

(ii) the decision of the Council with respect to the complaint and the date of the decision;

(iii) if allegations are referred to the Discipline Committee, the findings and decisions of the Committee and the date of the decision; and

(iv) whether an appeal was made from the findings and decision of the Discipline Committee and the date and outcome of the appeal;

(c) with respect to each complaint reported in a previous calendar year, a report of the status of the complaint if the proceedings initiated as a result of the complaint were not finally determined in the calendar year in which the complaint was first received.

Power to Investigate and Appointment and Powers of Investigator

42(1) In the absence of a complaint, the Council, if it has a reason to believe that the conduct or actions of a member may constitute professional misconduct, incompetence or incapacity, may investigate the member with respect to the misconduct, incompetence or incapacity.

42(2) The Council may appoint one or more investigators to assist in an investigation under subsection (1), or to assist the Complaints Committee in any investigation it is required to conduct under this Act.

42(3) An investigator appointed by the Council may at any reasonable time, and upon producing proof of appointment, enter and inspect the business premises of a member and examine anything found there that the investigator has reason to believe will provide evidence in respect of the matter being inspected.

42(4) Subsection (1) applies notwithstanding any provision of any Act relating to the confidentiality of health records.

Search Warrant

43(1) The Court may, upon the application of an investigator, issue a warrant authorizing the investigator to enter and search a place and examine anything that is relevant to the investigation, if the Court is satisfied that the investigator has been properly appointed and there are reasonable grounds for believing that:

(a) the member being investigated has committed an act of professional misconduct, is incompetent or incapacitated; and

(b) there is something that the investigator has reason to believe will provide evidence in respect to the matter being investigated.

43(2) An investigator entering and searching a place under the authority of a warrant issued under subsection (1) may be assisted by other persons and may enter a place by force.

43(3) An investigator entering and searching a place under the authority of a warrant issued under subsection (1) shall produce identification and a copy of the warrant, upon request, to any person at that place.

43(4) A person conducting an entry or search who finds anything not described in the warrant, that the person believes on reasonable grounds will provide evidence in respect of the matter being investigated, may seize and remove that thing.

Copy and Removal of Documents

44(1) An investigator may copy, at the expense of the College, any document that the investigator may examine under subsection 42(3) or under the authority of a warrant under subsection 43(1).

44(2) An investigator may remove any document referred to in subsection (1) if it is not practicable to copy it in the place where it is examined or a copy is not sufficient for the purposes of the investigation and may remove any object that is relevant to the investigation and shall provide that person in whose possession it was with a receipt for the document or object.

44(3) An investigator, where a copy can be made, shall return the document removed under subsection (2) within a reasonable time.

44(4) A copy of a document certified by an investigator to be a true copy shall be received in evidence in any proceeding to the same extent and shall have the same evidentiary value as the document itself.

45 An investigator shall report the results of the investigation to the Council in writing.

Responsibilities of Member

46(1) A member who is being investigated under this Act shall cooperate with the Council and the investigator, and shall produce all documents and disclose to the Council or the investigator all information that may be relevant to the investigation.

46(2) No persons shall obstruct, or cause to be obstructed, an investigator while the investigator is performing duties under this Act.

46(3) No persons shall withhold, conceal or destroy, or cause to be withheld, concealed or destroyed, anything that is relevant to an investigation under this Act.

46(4) A member who violates subsection (1), (2) or (3) commits an act of professional misconduct.

Action by the Council to Protect the Public

47(1) If the Council considers it necessary for the protection of the public during an investigation of a member or pending the conduct and completion of proceedings under this Act in respect of a member, the Council may:

(a) direct the Registrar to impose specified terms, limitations and conditions on the member’s right to practise; or

(b) direct the Registrar to suspend the member’s right to practise.

47(2) Where the Council intends to take action under subsection (1), it shall notify the member of its intentions in writing and give the member 10 days after the notice is received by the member to make representation to the Council in respect of the matter.

47(3) Where the Council takes action under subsection (1), it shall notify the member of its decision in writing and of the reasons for the decision.

47(4) A decision under subsection (1) is not effective until 5 days after the notice is mailed by prepaid or registered mail to the member at the last recorded address of the member in the College’s records.

47(5) A member against whom action is taken under subsection (1) may apply to the Court for an order staying the action of the Council.

Examination of Member

48(1) Where the Council has reasonable grounds to believe that a member who is the subject of an investigation is incapacitated, it may require the member to submit to physical or mental examinations, or both, by one or more health professionals selected by the Council and, subject to subsection (3), may make an order directing the Registrar to suspend the member’s right to practise until the member submits to the examinations.

48(2) Where the Council has reasonable grounds to believe that a member who is the subject of an investigation is incompetent, the Council may require the member to submit to such examinations as the Council may require to determine whether the member has adequate skill and knowledge to practise physiotherapy and, subject to subsection (3), may make an order directing the Registrar to suspend the member’s right to practise until the member submits to the examinations.

48(3) No order shall be made with respect to a member by the Council unless the member has been given:

(a) notice of the intention of the Council to make the order; and

(b) at least 10 days to make written submissions to the Council after receiving the notice.

48(4) A person who conducts an examination pursuant to this section shall prepare and sign an examination report containing the findings and facts on which they are based, and shall deliver the report to the Council.

48(5) The Council shall forthwith deliver the examination report to the member who is the subject of the examination.

48(6) A report prepared and signed by a person under subsection (4) is admissible as evidence at a hearing without proof of its making or of the person’s signature if the party introducing the report gives the other party a copy of the report at least 10 days before the hearing.

48(7) The Council, at any time after requiring a member to submit to examinations under this section, may refer the matter of the member’s alleged incapacity or incompetence to the Discipline Committee.

General

49(1) No action or other proceeding for damages or any other remedy lies against the Registrar, a member of the Council, a member of the Executive Committee, the Complaints Committee, the Discipline Committee or any other committee of the Council or any officer or employee of the College:

(a) for any act or failure to act, or any proceeding initiated or taken, in good faith under this Act, or in carrying out their duties or obligations as an officer, employee or member under this Act; or

(b) for any decision or order made or enforced in good faith under this Act.

49(2) No action or other proceeding for damages or any other remedy may be brought against the Council, or any other person including a member, who, in good faith, makes a complaint to the College:

(a) that a member is guilty of professional misconduct; or

(b) that a member is incompetent or incapacitated.

Limitation Period

50 No action shall be brought against a member or former member for negligence, malpractice, breach of contract or otherwise by reason of professional services requested, given or rendered except within:

(a) two years from the day when, in the matter complained of, such professional services terminated;

(b) one year after the person commencing the action knew or ought to have known the facts upon which the person alleges negligence, malpractice or breach of contract; or

(c) where the person entitled to bring the action is, at the time the cause of action arose, a minor, a person who is mentally incompetent or a person of unsound mind, one year from the date when such person becomes of full age or sound mind, as the case may be,

whichever is the longer.

Notices

51(1) Service of any notice, order or other document made under this Act or the regulations may be made:

(a) upon a member by registered letter addressed to such member at her or his address as provided to the College; and

(b) upon any other person by registered letter.

51(2) If service is made by registered letter, service shall be deemed to be made on the third day after the notice, order or other document is mailed, and proof that the notice, order or other document was addressed and posted in accordance with subsection (1) is proof of service.

52 Service of any document on the College may be made by service on the Registrar.

Offences

53(1) Any person who is not a member of the College and registered to practise physiotherapy or whose membership is revoked or suspended, and who:

(a) practises as a Physiotherapist;

(b) uses the title of “Physiotherapist”, or makes use of any abbreviation of such title, or any name, title or designation which may lead to the belief that the person is a Physiotherapist; or

commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category H offence.

53(2) Any person who procures or attempts to procure admission to the College for that person or another person by making, or causing to be made, any false or fraudulent representation or declaration, either oral or written, or who makes any false statement in any application, declaration or other document under this Act or the regulations, commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category H offence.

54 Where an offence under this Act is committed by a corporation, including a professional corporation, every director, manager, secretary or other officer of that corporation who has assented to the commission of the offence is a party to the offence.

55 In any prosecution under this Act, it shall be sufficient proof of an offence if it is proved that the accused has done or committed a single act of unlawful practice, or has committed on one occasion any of the acts prohibited by this Act.

56 Any information alleging an offence under this Act may be laid in accordance with the Provincial Offences Procedure Act in the name of the College on oath or solemn affirmation of the Registrar or of a person authorized by the Council.

57(1) Where an offence under this Act continues for more than one day:

(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues; and

(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.

57(2) All fines recoverable under this Act shall be paid to the College, and shall form part of its funds.

58(1) The Court may, on application by the College and on being satisfied that there is reason to believe that a person has violated or will violate this Act or a regulation, or has been charged with or convicted of an offence, and it is probable that the person will in future commit or continue to commit the offence, grant an injunction restraining the person from committing or continuing to commit such acts and, pending disposition of the application seeking the injunction, the Court may grant an interim injunction.

58(2) An injunction granted under this section may be enforced in the same manner as an injunction granted to enjoin a civil wrong.

58(3) A contravention may be restrained under subsection (1) whether or not a penalty or other remedy has been provided by this Act or the regulations made under this Act.

59 Nothing in this Act prohibits or prevents:

(a) the practice of physiotherapy by a physiotherapist employed by the Government of Canada in the course of employment by that Government;

(b) the furnishing of first aid or emergency assistance in the case of an emergency, if such aid or assistance is given without hire, gain or hope of reward;

(d) the carrying on of any occupation, calling or profession authorized by an Act of the Province;

(e) the practice of nursing or the practice of a nurse practitioner by a person authorized to carry on such practice under the Nurses Act;

(f) the practice of a nursing assistant by a person authorized to carry on such practice under the Licensed Practical Nurses Act;

(g) the practice of denturology by a person authorized to carry on such practice under the Denturists’ Act;

(h) the practice of a dispensing optician by a person authorized to carry on such practice under the Opticians Act;

(i) the practice of medicine by a person authorized to carry on such practice under the Medical Act;

(j) the practice of dentistry by a person authorized to carry on such practice under the New Brunswick Dental Act, 1985;

(k) the practice of optometry by a person authorized to carry on such practice under the Optometry Act, 2004;

(l) the practice of occupational therapy by a person authorized to carry on such practice under the Occupational Therapy Act;

(m) the practice of psychology by a person authorized to carry on such practice under The College of Psychologists Act;

(n) the practice of chiropractic by a person authorized to carry on such practice under The Chiropractors Act, 1997;

(o) the practice of pharmacy by a person authorized to carry on such practice under the Pharmacy Act;

(p) the practice of radiology technology by a person authorized to carry on such practice under the Medical Radiation Technologists Act;

(q) the practice of dental technology by a person authorized to carry on such practice under The Dental Technicians Act, 1957;

(r) the practice of speech-language pathology or audiology by a person authorized to carry on such practice under the Speech-Language Pathology and Audiology Act;

(s) the practice of medical laboratory technology by a person authorized to carry on such practice under the Medical Laboratory Technology Act;

(t) the practice of paramedicine by a person registered under the Paramedic Act;

(u) the practice of cardiology technology by a person authorized to carry on such practice under the Cardiology Technologists Act;

(v) the practice of respiratory therapy by a person authorized to carry on such practice under the Respiratory Therapy Act.

Transition

60(1) All persons who are members of the College on the day this Act comes into force shall continue as members under this Act.

60(2) All committees in effect on the day this Act comes into force shall continue to act under the Physiotherapy Act 1985, chapter 74 of the Acts of New Brunswick, 1985, until replaced or reconstituted under the provisions of this Act.

60(3) All applications for membership in the College and all disciplinary proceedings in progress on the day this Act comes into force, shall be continued and disposed of under the Physiotherapy Act 1985, chapter 74 of the Acts of New Brunswick, 1985.

60(4) All complaints and investigations concerning matters of discipline, incompetence or incapacity received after this Act comes into force shall be dealt with under this Act notwithstanding when the subject matter of the complaint arose.

61(1) Notwithstanding subsection (2), all regulations made under the provisions of the Physiotherapy Act 1985, chapter 74 of the Acts of New Brunswick, 1985, and in effect at the time of its repeal, shall continue in effect, with such modifications as the circumstances require, until repealed, amended, or replaced by regulations enacted under the provisions of this Act.

61(2) The Physiotherapy Act 1985, chapter 74 of the Acts of New Brunswick, 1985, is repealed.