Bill 19 - An Act Respecting the New Brunswick Association of Occupational Therapists

BILL 19

An Act Respecting the New Brunswick Association of Occupational Therapists

WHEREAS the New Brunswick Association of Occupational Therapists prays that it be enacted as hereinafter set forth;

AND WHEREAS it is desirable, in the interest of the public and the registrants of the New Brunswick Association of Occupational Therapists, to continue the New Brunswick Association of Occupational Therapists as a body corporate for the purpose of advancing and maintaining the standard of occupational therapy in the Province, for governing and regulating occupational therapy practice and services provided to the public and for providing for the welfare of the public and registrants of the New Brunswick Association of Occupational Therapists;

THEREFORE, His 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 Occupational Therapists Act, 2025.

PART 1

INTERPRETATION

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

“Admissions Committee” means the Admissions Committee appointed under this Act. (Comité des admissions)

“Association” means the New Brunswick Association of Occupational Therapists. (Association)

“client” means a recipient of occupational therapy services and includes an individual, group or organization and includes a substitute decision-maker for the recipient or intended recipient of occupational therapy services. (client)

“competence” means the ability to integrate and apply competencies in a designated role and practice setting. (compétence)

“competencies” means the knowledge, skills and judgement required to practise safely and ethically. (champ de compétence)

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

“conduct unbecoming the profession” means conduct in a registrant’s personal or private capacity that tends to bring discredit upon registrants or the occupational therapy profession. (conduite indigne de la profession)

“conflict of interest” means a conflict of interest resulting from: (conflit d’intérêt)

(a) the registrant being a member of a committee or other body of the Association, 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 registrant, directly or indirectly, in the practice of occupational therapy of the registrant;

(b) the registrant receiving a financial or other benefit from the registrant’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 registrant for a client or in the registrant’s practice of occupational therapy;

(c) the registrant receiving financial or other benefit, directly or indirectly, in circumstances that may conflict with the registrant’s professional responsibilities as a registrant or in the practice of occupational therapy of the registrant; or

(d) any other situation where an individual’s personal, professional or financial interest could compromise decision-making in the public interest.

“continuing-competence program” means a program approved by the Council that focuses on promoting and enhancing the competence of registrants throughout their careers. (programme de maintien de la compétence)

“costs” includes (frais)

(a) expenses incurred by the Association for investigating and deciding a matter,

(b) costs of competence assessments, other assessments, audits and examinations conducted by the Association in the course of addressing a matter,

(c) the Association’s solicitor and client costs, including disbursements and goods and services tax, including those of Association counsel and counsel for a committee,

(d) fees for retaining a court reporter and preparing transcripts,

(e) travel costs and reasonable expenses of a witness, including an expert witness,

(f) honoraria for committee members and travel costs and reasonable expenses of committee members, and

(g) such other costs as may be prescribed by the regulations or by-laws or as prescribed by Council from time to time.

“Council” means the Council of the Association constituted under section 8. (Conseil)

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

“electronic means” means the use of telephone, facsimile, television, video conferencing, cable, internet, intranet or other form of electronic or computerized communication. (moyen électronique)

“expanded scope of practice” means those services not presently in the scope of practice of a particular designation, but within the scope of practice of the occupational therapy profession, approved by the Council for practice by registrants who have completed education approved for that purpose by the Council. (champ de pratique élargi)

“hearing” means a process before a Statutory Committee, other than the Complaints Committee, Admissions Committee, or the Professional Conduct Committee, in which the parties may lead evidence, but does not include the consideration by the Professional Conduct Committee of a settlement agreement or an application for consent revocation. (audience)

“incapacity” means the status whereby a registrant has or had a physical or mental condition or disorder that renders or rendered the registrant unable to practise with competence or that endangers or may have endangered the health or safety of clients, making it desirable in the interests of the public that the registrant no longer be permitted to practise or that their practise be restricted. (incapacité)

“incompetence” means, in relation to a registrant, a lack of competence demonstrated in the registrant’s care of a client or delivery of occupational therapy services that, having regard to all the circumstances, rendered the registrant unsafe to practise at the time of such care of the client or delivery of occupational therapy services or that renders the registrant unsafe to continue in practice without remedial assistance. (incompétence)

“individual scope of practice” means the services for which a registrant is educated, authorized and competent to perform. (champ de pratique individuel)

“licence” means a licence issued under this Act to a registrant authorizing the registrant to engage in practice in accordance with the terms of the licence and includes a conditional licence and such other category of licence as may be set out in the regulations and by-laws. (permis)

“licensing” means the process by which a person who has qualified for registration is assessed to determine whether the person meets the criteria for a licence under this Act, the regulations and the by-laws. (délivrance de permis)

“licensing sanction” means: (sanction visant le permis)

(a) the imposition of conditions or restrictions on a licence by the Complaints Committee or the Professional Conduct Committee or an equivalent body from another jurisdiction but does not include conditions or restrictions imposed through the interim process set out in subsections 33(1) to (7) or through an informal resolution process under this Act;

(b) a consent reprimand ordered by the Complaints Committee or an equivalent body from another jurisdiction;

(d) a fine ordered by the Professional Conduct Committee;

(e) a suspension of a licence by the Professional Conduct Committee or an equivalent body from another jurisdiction; or

(f) a revocation of registration or licence by the Professional Conduct Committee or an equivalent body from another jurisdiction but does not include a caution.

“licensing year” means the 12-month period established by the Council for the term of a licence. (année de délivrance de permis)

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

“occupational therapist” means a person who is duly authorized to practise occupational therapy under this Act and includes a professional corporation. (ergothérapeute)

“occupational therapy” means the application of occupational therapy knowledge, skills and judgment to optimize occupational performance in the areas of self care, productivity and leisure and may include, but is not limited to: (ergothérapie)

(a) the application and interpretation of procedures designed to evaluate occupational function;

(b) the planning, administration and evaluation of developmental, rehabilitative, maintenance, preventative and educational programs; and

“prior Act” means the Occupational Therapy Act, chapter 76 of the Acts of New Brunswick, 1988. (loi antérieure)

“Professional Conduct Committee” means the Professional Conduct Committee appointed under this Act. (Comité de déontologie)

“professional conduct procedure” means the professional conduct procedure set out in this Act, the regulations and the by-laws. (procédure de déontologie)

“professional misconduct” includes such conduct or acts relevant to the practice of occupational therapy that, having regard to all the circumstances, would reasonably be regarded as disgraceful, dishonourable or unprofessional, including: (faute professionnelle)

(a) failing to maintain the standards of practice;

(b) failure to comply with this Act, the regulations or the by-laws;

(d) a registrant having pleaded guilty to or having been found guilty of an offence that is relevant to the registrant’s suitability to practise;

(e) a finding by the governing body of a health profession in a jurisdiction other than New Brunswick that the registrant committed an act of professional conduct that would, in the opinion of the Complaints Committee or the Professional Conduct Committee, be an act of professional misconduct as defined in this Act, the regulations and the by-laws;

(f) failure to comply with a term, condition or limitation on the registrant’s right to practise under this Act, the regulations or the by-laws;

(g) a refusal to give an undertaking or the violation or failure to comply with an undertaking given under this Act, the regulations or the by-laws;

(h) abusing a person verbally, physically, emotionally or sexually;

(i) failure to report sexual abuse under subsection 50(1);

(j) misappropriating personal property, drugs or other property belonging to a client or an employer;

(k) inappropriately influencing a client to make or change a legal document;

(l) abandoning a client;

(m) neglecting to provide care to a client;

(n) failing to exercise appropriate discretion with respect to the disclosure of confidential information;

(o) falsifying records;

(p) inappropriately using licensing status for personal gain;

(q) promoting for personal gain any drug, device, treatment, procedure, product or service that is unnecessary, ineffective or unsafe;

(r) publishing, or causing to be published, any advertisement that is false, fraudulent, deceptive or misleading;

(s) engaging or assisting in fraud, misrepresentation, deception or concealment of a material fact when applying for or securing registration or a licence to practise or taking any examination provided for in this Act, including using fraudulently procured credentials;

(t) taking or using a designation or a derivation or abbreviation thereof, or describing the person’s activities as “occupational therapy” in any advertisement or publication, including business cards, websites or signage, unless the referenced activity falls within the practice of occupational therapy;

(u) failure to submit to an examination under subsections 31(9) and (10);

(v) discrimination and discriminatory conduct that is prohibited under the Human Rights Act and that is undertaken in connection to this Act, the regulations and the by-laws unless undertaken for a prescribed purpose; and

(w) other such conduct or acts as may be prescribed by regulation or by-law.

“register” means the registers and sub-registers established under this Act, the regulations and the by-laws. (registre)

“registrant” means a person whose name is entered in a register. (personne inscrite)

“Registrar” means the person holding the office of the Registrar pursuant to subsection 16(2). (registraire)

“registration” means the procedure by which a person who is not registered is assessed to determine whether the person meets the criteria for registration under this Act and the regulations. (immatriculation)

“settlement agreement” means an agreement that resolves a complaint after a matter has been referred for hearing by the Complaints Committee. (entente de règlement)

“spouse” means (conjoint)

(a) a person who is the registrant’s spouse as defined in the Family Law Act, or

(b) a person who has lived with the registrant in a conjugal relationship outside of marriage continuously for a period of not less than one year.

“standard of practice” means the minimal professional practice expectations for a registrant of a particular designation in a setting or role, approved by the Council. (norme d’exercice)

“Statutory Committee” means the Admissions Committee, the Executive Committee, the Complaints Committee or the Professional Conduct Committee, as the context requires. (comité statutaire)

PART  2

THE ASSOCIATION

3 The Association incorporated by An Act to Incorporate the New Brunswick Association of Occupational Therapists, chapter 58 of the Acts of New Brunswick, 1977, and merged with the New Brunswick Society of Occupational Therapists and continued by the prior Act, is hereby continued as a body corporate and, subject to this Act, has the capacity, rights, powers and privileges of a natural person.

4 The head office of the Association shall be as the Council designates.

5 The Association shall have a common seal in a form approved by regulation or by-law.

6 English and French are the official languages of the Association.

PART 3

OBJECTS OF THE ASSOCIATION

7( 1) The objects of the Association are to:

(a) serve and protect the public interest in the practice of occupational therapy;

(b) subject to the public interest, preserve the integrity of the practice of occupational therapy; and

7( 2) In order to effectively carry out the objects of the Association, the Association shall

(a) regulate the practice of occupational therapy and govern its registrants in accordance with this Act, the regulations and the by-laws,

(b) establish, maintain, develop and enforce standards of qualification and practice for the practice of occupational therapy,

(d) establish, maintain and develop standards of professional ethics among its registrants,

(e) promote public awareness of the role of the Association and the scope of practice of occupational therapists and communicate and co-operate with other professional organizations for the advancement of the best interests of the Association, including the publication of books, papers and journals,

(f) advance and promote the provision of occupational therapy services,

(g) establish such other objects relating to the practice of occupational therapy as the Council considers desirable, and

(h) administer this Act and perform such other lawful acts and things as are incidental to the attainment of the objects of the Association.

PART 4

COUNCIL OF THE ASSOCIATION

8( 1) The Council of the Association shall be responsible for the administration of this Act and shall control, govern and manage, or supervise the control, governance and management of, the business and affairs of the Association and all aspects of the practice of occupational therapy.

8( 2) The Council shall consist of:

(a) not less than five persons and not more than as prescribed by the regulations or by-laws of the Association elected or appointed in the manner provided by regulation or by-law; and

(b) a minimum of one person to represent the public, who is a resident of New Brunswick and who is not an occupational therapist or former occupational therapist, as prescribed by the regulations or by-laws of the Association elected or appointed in the manner provided by regulation or by-law.

8( 3) The number of Council members, their respective terms of office, the manner of their appointment or election and their qualifications shall be established and governed by the by-laws of the Association, and such by-laws may provide for alternate members, for the filling of vacancies and for the appointment of additional members of Council.

8( 4) Despite subsection (2), the persons who at the coming into force of this Act make up the Council of the Association under the prior Act shall constitute the Council until the election or appointment of members under subsection (2) is completed.

8( 5) The powers, duties and operations of the Council are not affected in any way by:

(a) the fact that an election or appointment has not been made pursuant to subsection (2);

(b) the resignation, death or disqualification of a member of Council elected or appointed pursuant to subsection (2); or

(c) the failure, for any reason, of a member of Council elected or appointed pursuant to subsection (2) to attend any meeting of the Council or to participate in the manner contemplated by section 14.

Publication

9( 1) The Registrar or designate shall ensure that all by-laws are published and made available to the public and registrants in an accessible format, including by publication on the Association’s website.

9( 2) The Council shall publish such records of its meetings as required by the by-laws.

Required Publication

10( 1) The Registrar or designate shall publish on the Association’s website:

(a) the name and registration number of all registrants;

(b) with respect to a particular registrant,

( i) the name of the register in which a registrant is registered,

( ii) the licence held,

( iii) any conditions or restrictions that are not covered by a publication ban, and

( iv) any licensing sanctions not covered by a publication ban;

(c) a record of all registrants authorized to engage in an expanded scope of practice, the nature of the expanded scope and any conditions or restrictions respecting that expanded scope; and

(d) such other information as may be set out in the by-laws.

Records

11( 1) The Registrar shall keep separate records for each category of licence established in the regulations.

11( 2) The records kept under subsection (1) must include:

(a) the name of the registrant who meets the criteria for the category of licence;

(b) the register in which the registrant’s name is entered;

(d) the issuance and expiry dates of the registrant’s licence;

(e) any conditions or restrictions on the licence;

(f) any licensing sanctions imposed on the registrant; and

(g) such other information as may be set out in the by-laws.

11( 3) The Registrar shall annotate the record for a category of licence when:

(a) there is a licensing sanction;

(b) the registrant resigns;

(d) there are conditions or restrictions agreed upon or imposed under this Act or the regulations, that are not subject to a publication ban;

(e) the licence expires;

(f) the Registrar determines the registrant no longer meets the criteria for the category of licence issued to the registrant;

(g) there is an error in the record; and

(h) in such other circumstances as determined by the Registrar.

PART 5

POWERS

12 In addition to any other power conferred by this or any other Act, the Council may do such things as it considers appropriate to advance the objects of the Association and in particular, without limiting the foregoing, the Council 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;

(c) expend the monies of the Association in the advancement of its objects and the interests of the occupational therapy profession in such manner as may seem expedient;

(d) engage such employees as may, from time to time, be considered expedient;

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

(f) invest and deal with any monies or funds of the Association 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 Association;

(h) borrow money for the use of the Association on its credit, limit or increase the amount to be borrowed, issue bonds, debentures, stock and other securities on the credit of the Association and pledge or sell such securities for such sums or at such prices that may be considered 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 necessary to the exercise of these powers.

PART 6

ANNUAL MEETING

13 There shall be an annual general meeting of the Association at such time and place, and by such means, as the Council may determine.

PART 7

REGULATIONS

14( 1) Unless this Act otherwise provides, the Council may, by resolution, make, amend or repeal regulations regulating the business or affairs of the Association, the practice of occupational therapy and the practice of occupational therapists and, without restricting the generality of the foregoing,

(a) providing for the governance of the Association, and the management and conduct of its affairs;

(b) respecting the keeping of the register required, and providing what information contained in the register may be made public;

(c) respecting the time, place, calling, practice, procedure, quorum and conduct of annual and special meetings of the Association, including the means by which such meetings can be held;

(d) respecting the nomination, election, appointment, composition, powers and duties of the Council, including the number of registrants on the Council, the terms of office, the qualifications, the conditions disqualifying registrants from sitting on the Council or under which a registrant shall cease to hold office as a member of the Council and the filling of vacancies, and providing for the time, place, calling, practice, procedure, quorum and conduct of the meetings of the Council, including the means by which such meetings can be held;

(e) respecting the nomination, election, appointment, composition, powers and duties of such committees as may be appointed by the Council, and providing for the time, place, calling, practice, procedure, quorum and conduct of meetings of such committees, including the means by which such meetings can be held;

(f) respecting the holding of votes on any matter relating to the Association, including voting by mail or by any other method;

(g) respecting the appointment, powers and duties of the Registrar, the officers, employees and volunteers of the Association;

(h) respecting the registration of registrants, including the issuing, renewal, suspension, revocation, cancellation and reinstatement of registration and licence;

(i) establishing one or more categories of licence and determining the rights, privileges and obligations of registrants of each category;

(j) respecting the qualifications of applicants or registrants as to education, training, character, experience and practice as prerequisites for registration, renewal and reinstatement of a licence or for return to practice;

(k) respecting the recognition of occupational therapy education programs, training and examinations as prerequisites for registration, renewal and reinstatement of a licence or for return to practice;

(l) prescribing examinations and other processes for examination as considered appropriate by the Council to be successfully completed by applicants for registration and by registrants for credentialing requirements, or extended or specialized practice, or for renewal or reinstatement of a licence or for return to practice;

(m) respecting the continuing-competence programs;

(n) determining the processes for verification of a registrant’s compliance with the continuing-competence programs;

(o) prescribing all fees, assessments and fines to be paid by applicants and registrants for registration, licensing, examinations, continuing education, professional conduct and as may otherwise be required for the purposes of the Association, including due dates for payment of such fees, assessments and fines, provisions for instalment payments, penalties for late payment, and the consequences on licensing for late payment or nonpayment;

(p) designating, if considered advisable, different categories of applicants for registration, and prescribing different fees for different categories;

(q) establishing the method of prescribing annual registration fees payable by registrants of the Association;

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

(s) respecting the keeping of a professional conduct record for registrants and former registrants;

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

(u) requiring as a condition of continued registration the maintenance of licensing in specified associations of occupational therapists;

(v) respecting the professional conduct of registrants and related reporting and publication of decisions or the revocation or suspension of a registration and licence in professional conduct matters;

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

(x) establishing when a registrant is deemed to be in good standing;

(y) respecting conflict of interest of registrants;

(z) regulating advertising, promotion and marketing by registrants;

(aa) respecting the treatment of confidential or privileged information;

(bb) requiring professional liability insurance or requiring the entering into of arrangements for indemnity for professional liability of registrants, including professional corporations as a requirement for registration;

(cc) respecting the adoption by the Association of a code of ethics and standards of practice;

(dd) prescribing definitions of professional misconduct in addition to that defined in section 2;

(ee) establishing the conditions for collaborative agreements with other health professions;

(ff) respecting membership of the Association in a national organization with similar functions, the payment of an annual assessment and provisions for representatives at meetings;

(gg) providing for the establishment and payment of scholarships, fellowships and other educational initiatives, benefits and awards by the Association;

(hh) prescribing the seal of the Association;

(ii) providing for the execution of documents by the Association;

(jj) prescribing forms and providing for their use;

(kk) providing for banking and finance;

(ll) fixing the financial year of the Association and providing for the audit of the accounts and transactions of the Association;

(mm) respecting the submission of reports by the Registrar to the Council;

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

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

14( 2) Any amendment or repeal of a regulation by the Council shall be made by regulation.

14( 3) The Council shall cause a copy of the regulation made under subsection (1), or any amendment or repeal under subsection (2), to be forwarded to each registrant with the notice of the next following annual meeting or with the notice of any special or general meeting called for considering the same, and at such meeting the regulation may be confirmed, rejected, repealed or amended by ordinary resolution.

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

14( 5) 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 shall be as valid and effective as if duly passed at a meeting of the members of the Council.

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

14( 7) The Registrar shall cause a notice of the text of any new regulation enacted to be published as the Registrar considers necessary in order to inform the public.

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

(a) approved by the Minister under subsection (9) or (10), or

(b) on a specified day or during a specified period, in full force and 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 the Registrar’s signature.

14( 9) 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 shall not come into effect until approved by the Minister if it

(a) provides for the qualifications and eligibility of a person to be registered as a registrant of the Association, or

(b) deals with or is related to professional codes of conduct.

14( 10) Regulations relating to matters described in paragraphs (1)(b), (k), (l), (m), (n), (o), (z) and (dd) shall not be effective or be acted upon until approved by the Minister.

14( 11) 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.

PART 8

BY-LAWS

15 Unless this Act or the regulations otherwise provide, the Council may, by resolution, make any by-laws not contrary to the regulations regulating any of the aspects, subjects or matters of the business or affairs of the Association as may be governed by regulation, and any such by-law 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 Association called for the purpose of considering the same.

PART 9

OFFICERS OF THE COUNCIL

16( 1) The officers of the Council shall include a President and Vice-President elected or appointed in the manner provided by regulation or by-law, but no member of the Council representing the public pursuant to paragraph 8(2)(b) may hold the office of President or Vice-President.

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

16( 3) The Council may appoint an acting Registrar, who shall have all of the powers of the Registrar and shall act in the absence of the Registrar, or when the Registrar is unable or fails to act, or as directed by the Council.

16( 4) The Council may, by resolution, require that the offices of the Registrar and the acting Registrar be held by an occupational therapist.

16( 5) Despite subsections (1) and (2), the persons who prior to the commencement of this Act have been elected or appointed as officers of the Council and as Registrar shall be deemed to have been elected or appointed in accordance with this Act and shall hold office until the election or appointment of the officers of the Council or the Registrar under subsections (1) and (2) is completed.

16( 6) The Council may appoint such other officers, employees or volunteers 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.

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

16( 8) Subject to subsection (9), the President shall preside at all meetings of the Council.

16( 9) If the President is absent from a meeting, the Vice-President, or in the Vice-President’s absence, some other member to be chosen from the members present, shall preside at the meeting.

16( 10) 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.

PART 10

EXECUTIVE COMMITTEE

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

17( 2) Between meetings of the Council, the Executive Committee may exercise all the powers and shall perform all the duties of the Council with respect to any matters that the Council may delegate to it or that, in the opinion of the Executive Committee, require immediate attention, other than the power to make, amend or revoke a regulation or by-law.

17( 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.

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

PART 11

REGISTRATION AND LICENSING

Application for Registration and Licensing

18( 1) An application for registration as a registrant of the Association shall be made to the Registrar in the form prescribed by regulation and supported with documentation, including the payment of fees required by the regulations and by-laws.

18( 2) An application for a practising licence must be submitted to the Registrar in the form prescribed and supported with:

(a) the payment of applicable fees within the time required by the regulations and by-laws;

(b) satisfactory proof that the applicant continues to meet the criteria for registration set out in the regulations and by-laws;

(c) satisfactory proof that the applicant has professional liability insurance or other form of malpractice coverage or liability protection in the form and amount set by the Council;

(d) satisfactory proof that the applicant has no prohibitions, conditions, agreements or restrictions on the applicant’s ability to practise from any registration or licensing authority; and

(e) proof that any such additional criteria as may be set out in the regulations and by-laws has been met by the applicant.

18( 3) In assessing whether an applicant meets the criteria for a practising licence under subsection (2), the Registrar may

(a) require an applicant to satisfactorily complete such competence assessment, continuing-competence program and bridging program as determined by the Registrar, and

(b) limit the duration of or impose conditions or restrictions on a licence for non-compliance with a continuing-competence program.

18( 4) After receiving the information required from an applicant for registration or licensing or for renewal of the applicant’s licence, the Registrar shall

(a) approve the application and issue the registration, licence or renewal of licence if the Registrar determines that the applicant meets the criteria,

(b) deny the application if the Registrar determines that the applicant does not meet the criteria,

(c) impose conditions or restrictions on the registration, licence or renewal of licence if the Registrar determines that the objects of the Association require the imposition of such conditions or restrictions, or

(d) refer the application to the Admissions Committee if the Registrar determines that there is an issue regarding whether the applicant meets the criteria for registration, licensing or renewal of licence or whether conditions or restrictions should be imposed.

18( 5) When issuing a licence under this section, the Registrar shall decide the effective term of the licence.

18( 6) Where the Registrar denies the application or imposes conditions or restrictions on the registration, licence or renewal of licence, the Registrar shall notify the applicant by

(a) providing the applicant with a written decision with reasons, and

(b) informing the applicant of the applicant’s right to have the decision reviewed by the Admissions Committee.

18( 7) Where the Registrar issues the registration, licence or renewal of licence under paragraph (4)(a) or (c), the Registrar shall record the name of the registrant in the relevant register and in the record for the category of licence.

Duties of Registrants

19( 1) A registrant shall

(a) comply with this Act, the regulations, by-laws, code of ethics and standards of practice,

(b) co-operate with the Association, the Registrar and any committees of the Association with respect to any regulatory process or requirements under this Act, the regulations and the by-laws,

(d) maintain a record of practice hours,

(e) maintain such professional liability insurance or other form of malpractice coverage or liability protection as required by the Association when holding a practising licence,

(f) practise only within

( i) the registrant’s individual scope of practice and scope of practice of the designation held by that registrant,

( ii) any terms, conditions or restrictions of the registrant’s licence, and

( iii) any expanded scope of practice authorized for the registrant in accordance with this Act, regulations and the by-laws,

(g) report to the Registrar if the registrant has reasonable grounds to believe that another registrant

( i) has engaged in professional misconduct, incompetence or conduct unbecoming the profession,

( ii) is incapacitated, or

( iii) is practising in a manner that otherwise constitutes a danger to the public,

(h) report to the regulator of another health profession if the registrant has reasonable grounds to believe that a member of that health profession

( i) has engaged in professional misconduct, incompetence or conduct unbecoming the profession as those terms apply to that health profession,

( ii) is incapacitated, or

( iii) is practising in a manner that otherwise constitutes a danger to the public.

19( 2) Despite anything contained in this Act or the regulations, where a person

(a) has been charged with, pleaded guilty to or been convicted of any offence in or out of Canada that is inconsistent with the proper professional behaviour of a registrant, including a conviction under

( i) the Criminal Code (Canada),

( ii) the Controlled Drugs and Substances Act (Canada), or

( iii) such other legislation as may be prescribed in the regulations,

(b) has been found guilty of a disciplinary finding in another jurisdiction,

(d) is the subject of an investigation or disciplinary process in any jurisdiction,

and the person is a registrant or applies for registration or a licence or the renewal of a licence, the Registrar may, by such notice as the Registrar prescribes, require the person to attend a meeting before the Complaints Committee or, where the person is not a registrant, the Admissions Committee, to fully disclose the facts and circumstances of any of the matters referred to in this subsection.

19( 3) Paragraph (2)(a) does not apply to a person in respect of a matter for which a pardon has been issued or a record suspension has been ordered.

19( 4) After hearing from the person under subsection (2), the committee may take any of the actions authorized to be taken by the committee under this Act or the regulations.

19( 5) For the purpose of subsection (2), a certificate of conviction of a person is conclusive evidence that the person has committed the offence stated in the certificate, unless it is proved that the conviction has been quashed or set aside.

19( 6) Where any of the criteria set out in subsection (2) apply to a registrant or to a person seeking registration or a licence or the renewal of a licence, the registrant or person seeking registration or a licence shall report the matter to the Registrar immediately.

19( 7) No action for damages or other relief lies against a registrant for any report made under paragraph (1)(g) or (h) if such report was made in good faith.

19( 8) The Registrar shall keep or cause to be kept:

(a) a register in which shall be entered the name and address of every person who has met the qualifications for registration as an occupational therapist pursuant to this Act and the regulations and is thereby entitled to engage in the practice of occupational therapy along with any specialist status, terms, conditions or limitations attached to the registration, and every revocation, suspension and cancellation of a licence or recognition of specialist status;

(b) a temporary register in which shall be entered the name and address of every person who is permitted to carry on the practice of occupational therapy in the Province under such circumstances and with such licensing conditions, limitations and restrictions and for such temporary and limited periods of time as are prescribed;

(c) a professional corporations register in which shall be entered the name and address of every professional corporation which offers occupational therapy services under this Act or the regulations, and the names and addresses of the officers and directors of such professional corporations; and

(d) rosters of registrants in which shall be entered the name and address of every person who is entitled to a licence in any category of licence established by the regulations other than persons whose names are entered in the register or the temporary register.

19( 9) The register, temporary register, professional corporations register and rosters may be divided into such parts as may be prescribed in which shall be entered the names and addresses of persons qualified pursuant to the by-laws for such categories, classifications and levels of registration, licensing or practice as may be prescribed.

19( 10) The Registrar shall issue or cause to be issued annually or otherwise a licence to persons whose names are entered in the register, and each such licence shall state the date on which it expires and any terms, conditions or limitations imposed on the licence of the licence holder.

19( 11) Every person who qualifies for registration under the provisions of the by-laws may, upon application in the prescribed form to the Registrar for registration under this Act and upon payment of the prescribed fee, have their name entered in the register or temporary register upon providing to the Registrar satisfactory evidence of that person’s qualifications and experience.

19( 12) A registrant may resign from the register and any relevant category of licence by filing with the Registrar a resignation in writing, and the registration and licence is thereupon revoked subject to the continuing jurisdiction of the Association in respect of any disciplinary action or investigation under this Act.

19( 13) The register shall be open for inspection by the public at all reasonable times, free of charge.

19( 14) A statement certified under the hand of the Registrar respecting the records of the Association or the registration of a person is admissible in evidence in any proceeding as prima facie proof of the facts set out in such certificate relating to the registration or non-registration of any such person and any term, condition or limitation in respect of the registration and licence of any such person.

19( 15) A registrant who holds a practising licence may:

(a) attend, participate and vote at meetings of the Association; and

(b) enjoy such other privileges as set out in the regulations and by-laws.

Admissions Committee

20( 1) There shall be a standing committee of the Council designated as the Admissions Committee consisting of such number of registrants as the Council determines.

20( 2) The Council shall appoint the Chair of the Admissions Committee.

20( 3) The Admissions Committee shall, at the request of the Registrar, review and consider applications for registration and licensing and may:

(a) reject an application for registration and licensing;

(b) approve an application for registration and licensing, without terms, conditions or limitations; or

(c) approve an application for registration and licensing, subject to any terms, conditions or limitations as prescribed by the Committee.

20( 4) The Admissions Committee may, in reviewing and considering applications for registration and licensing under subsection (3):

(a) consider the matter summarily; or

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

20( 5) An applicant for registration and licensing in respect of whom a review and consideration is being made under subsection (3) shall produce documents and disclose information to the Admissions Committee that is within the applicant’s possession or power and that the Admissions Committee considers relevant.

20( 6) Where the Admissions Committee conducts an investigation under paragraph (4)(b), it may, by written notice, require the applicant for registration and licensing to appear before it to answer questions or to provide additional information relevant to the application for registration and licensing.

20( 7) The Admissions Committee shall review applications for reinstatement of a licence following revocation of the licence of a registrant and shall perform such other duties as set out in this Act and the regulations.

20( 8) Applications for reinstatement must proceed in accordance with the process set out in the regulations.

20( 9) The decision of the Admissions Committee shall be served on the applicant and shall be final unless the applicant appeals on any point of law from the findings of the Admissions Committee to the Court.

20( 10) The notice of appeal shall be served on the Registrar and the applicant.

20( 11) The record on appeal from the findings of an Admissions Committee shall consist of a copy of the transcript of the proceedings, the decision of the Committee and the evidence before the hearing, certified by the chair of the Committee.

Continuing-competence Program

21 Registrants shall complete such mandatory continuing-competence programs as prescribed by the regulations or by-laws as a condition of licensing or renewal of a licence for the category for which a licence is sought.

Fees

22( 1) On or before a date set by Council each year, every registrant shall pay to the Association the annual fee required as set out by Council.

22( 2) A licence may be suspended for non-payment of any prescribed fee, in the manner prescribed by the regulations or by-laws, and subject to the continuing jurisdiction of the Association in respect of any disciplinary action or investigation under this Act.

22( 3) Where a licence has been suspended for non-payment of fees or has been suspended or revoked for any other cause and the registrant applies for re-registration, the registrant shall pay any additional fees required by the regulations or by-laws.

22( 4) A registrant whose licence is suspended is not entitled to a refund of any part of the applicable prescribed fee for the period of the suspension and shall pay the applicable prescribed fee when it is due.

22( 5) A registrant whose licence is revoked is not entitled to a refund of any part of the applicable prescribed fee paid before the revocation of the registrant’s licence.

22( 6) A registrant whose licence is suspended or in arrears respecting the payment of any money owing to the Association is not in good standing.

PART 12

TITLE

23( 1) No person other than a registrant of the Association shall be entitled to engage in the practice of occupational therapy or use the title “occupational therapist” or any words or letters indicative of such designation.

23( 2) A registrant of the Association who is entitled to engage in the practice of occupational therapy may use the title “occupational therapist”, “OT” or any other like word, title or designation, abbreviated or otherwise, or an equivalent in another language, designated as acceptable to the Council, to indicate that the person is engaged in the practice of occupational therapy.

23( 3) Students who practise occupational therapy under the supervision of a registrant in accordance with the Canadian Association of Occupational Therapists may use the title “student occupational therapist” or “occupational therapy student”.

PART 13

RIGHT TO PRACTISE

24( 1) No person shall practise occupational therapy in New Brunswick, either privately or employed by another, unless registered to practise under the provisions of this Act, the regulations and the by-laws.

24( 2) No person shall hold themselves out in any way to be entitled to practise occupational therapy in New Brunswick unless registered to practise under the provisions of this Act, the regulations and the by-laws.

24( 3) No person is entitled to receive a fee, reward or remuneration for

(a) professional services rendered to any person in the practice of occupational therapy, or

(b) occupational therapy appliances supplied to any person in the practice of occupational therapy,

unless registered to practise under the provisions of this Act, the regulations and the by-laws at the time the services were provided or the appliances were rendered.

24( 4) No employer shall knowingly cause or permit any person to practise occupational therapy in the Province unless that person is a registrant of the Association.

24( 5) A corporation may be permitted to practise occupational therapy as provided under subsection 26(3).

24( 6) Any person who is enrolled as a student occupational therapist at an approved occupational therapy 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 by-laws.

24( 7) The provisions of this Act, the regulations and the by-laws apply to the practice of occupational therapy by a person, including a corporation.

Waiver of Criteria for Registration or Licensing

25 The Council and the Admissions Committee may waive any of the criteria for registration or renewal of a licence if it is required by law or it is consistent with the objects of the Association.

PART 14

PROFESSIONAL CORPORATIONS

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

26( 2) The Council may make regulations:

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

(b) providing for the issuance of a licence and the annual renewal of its licence issued under this Part, and prescribing the terms and conditions upon which the issuance or renewals of licences may be granted;

( 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.

26( 3) The Corporations Register shall contain the name and contact information of a professional corporation that:

(a) submits to the Registrar an application in the form prescribed by regulation or by-law;

(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 registrant of the Association is authorized to render;

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

(f) satisfies the Registrar that a majority 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 registrants of the Association; and

(g) satisfies the Registrar that the persons who will carry on the practice of occupational therapy on behalf of the professional corporation are registrants of the Association.

26( 4) The Council, Registrar or Admissions Committee may impose conditions on the registration of the professional corporation under this Act, the regulations or the by-laws.

26( 5) The Council may refuse to issue a licence to the professional corporation where:

(a) the corporation has previously had its licence issued under subsection (6) suspended or revoked; or

(b) a shareholder of the corporation was a shareholder of a corporation that previously had its licence issued under subsection (6) revoked.

26( 6) Upon receiving a direction from the Council, the Registrar shall:

(a) enter the name and contact information of the professional corporation named therein in the Corporations Register;

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

26( 7) The issued licence under subsection (6) expires on such date as prescribed by regulation or by-law.

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

26( 9) Subject to subsection (10), where a professional corporation ceases to fulfil 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 and licence of the professional corporation.

26( 10) The Registrar 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 is filed with the Registrar prior to the expiry of the 90 days referred to in subsection (9).

26( 11) Where the licence 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 registered as of the fourteenth day after the mailing of the notice.

26( 12) No shareholder of a professional corporation who is a registrant shall enter into a voting trust agreement, a proxy or any other type of agreement or instrument vesting in a person who is not a registrant of the Association the authority to exercise the voting rights attached to any or all of that registrant’s shares or restraining the registrant from freely exercising the voting rights attached to any or all of that registrant’s shares in the professional corporation.

26( 13) A professional corporation to which a licence is granted under this section may practise occupational therapy in its own name, subject to any conditions or limitations contained in such licence.

26( 14) A professional corporation shall not practise occupational therapy unless it holds a valid licence under this Part.

26( 15) The relationship of a registrant 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, the regulations and the by-laws to the registrant.

26( 16) The liability for professional services rendered by any person carrying on the practice of occupational therapy is not affected by the fact that such person carries on the practice of occupational therapy as an employee of or on behalf of a professional corporation.

26( 17) Nothing in this Part affects, modifies or limits the confidential or ethical relationships between an occupational therapist and the person receiving the services of that occupational therapist.

26( 18) The relationship between a professional corporation carrying on the practice of occupational therapy and a person receiving the services of that professional corporation is subject to all applicable laws relating to the confidential and ethical relationships between an occupational therapist and a client.

26( 19) All rights and obligations pertaining to communications made to, or information received by, an occupational therapist apply to a professional corporation’s shareholders, directors, officers and employees.

26( 20) A shareholder, director, officer or employee of an incorporated entity engaged in the practice of occupational therapy is a compellable witness in any proceedings under this Act.

26( 21) Where the conduct of a registrant is the subject of a complaint, investigation or inquiry and the registrant was an officer, director, shareholder or employee of an incorporated entity at the time the conduct occurred, any power of inspection, investigation or inquiry that may be exercised with respect to the registrant or the registrant’s records may be exercised with respect to the incorporated entity or its records.

26( 22) All provisions of this Act, the regulations and the by-laws applicable to a registrant apply with any necessary modifications to a professional corporation.

PART 15

PROFESSIONAL CONDUCT

27( 1) In accordance with the objects of the Association, the professional conduct procedure must seek to address professional misconduct, issues of incapacity, conduct unbecoming the profession and incompetence by investigating such matters on the Registrar’s initiative or on the complaints of others and, where appropriate, disposing of matters in accordance with the regulations.

27( 2) The Association shall investigate, on its own initiative or on the complaint of a person, alleged instances of professional misconduct, incapacity, conduct unbecoming the profession or incompetence and, where appropriate, dispose of the matter in accordance with this Act, the regulations or the by-laws.

27( 3) Except where considered prejudicial to the attainment of the objects of the Association, the professional conduct procedure must take into account the potential for the rehabilitation of the respondent.

27( 4) The Council, the investigators, the Complaints Committee, the Professional Conduct Committee, the Admissions Committee and the chairs of such committees shall perform such functions and have such authority as is set out in this Act, the regulations or the by-laws.

27( 5) Where a person ceases to be registered or licensed by the Association for any reason, such person remains subject to the jurisdiction of the Association for the purpose of the professional conduct procedure if the subject-matter of the professional conduct procedure arose out of the person’s conduct while registered or licensed.

Complaints

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

28( 2) A complaint shall be in writing or by electronic means and shall include the complainant’s name and mailing address.

28( 3) A complaint shall be made to the Registrar in the form prescribed by regulation and supported with documentation submitted by the complainant, as required by the regulations or by-laws.

28( 4) Upon receipt of a complaint under subsection (1), the Registrar shall provide a copy of the complaint to the respondent, and the respondent shall have 15 days to provide a response, which shall be sent to the complainant.

28( 5) Upon receipt of the respondent’s response, the complainant shall have 15 days to provide a response.

28( 6) After the expiration of the 15 days for the complainant to respond pursuant to subsection (5), the Registrar may refer the complaint to the Complaints Committee for investigation.

28( 7) The Registrar shall dismiss the complaint and notify the complainant and the respondent of this disposition if the Registrar decides that

(a) the complaint is not within the jurisdiction of the Association,

(b) the complaint cannot be substantiated,

(d) the complaint constitutes an abuse of process, or

(e) the facts alleged, even if proven, do not constitute professional misconduct, conduct unbecoming the profession, incompetence or incapacity, or would not merit a caution, or the processing of the complaint would not advance the objects of the Association.

28( 8) Upon receipt of a complaint under subsection (1), the Registrar may:

(a) informally resolve the complaint if the Registrar considers that it may be satisfactorily resolved consistent with the objects of the Association;

(b) refer the matter to the Complaints Committee; or

28( 9) Where the Registrar dismisses the complaint, the Registrar may provide written advice relevant to the complaint to:

(a) the respondent;

(b) the complainant; and

28( 10) The Registrar shall provide a copy of any written advice provided under paragraph (9)(b) or (c) to the respondent.

28( 11) No later than 30 days after a complainant is notified of a dismissal by the Registrar under subsection (7), the complainant may submit a written request for review of the dismissal to the Registrar.

28( 12) Upon receipt of a request under subsection (11), the Registrar shall send the request to:

(a) the respondent; and

(b) the Chair of the Complaints Committee.

28( 13) On receipt of a request for review of a complaint dismissal under subsections (11) and (12), the Complaints Committee shall review the dismissal.

28( 14) After reviewing the complaint referred under subsection (13), any other material considered by the Registrar when making the decision to dismiss and the Registrar’s decision, the Complaints Committee may:

(a) confirm the dismissal of some or all of the complaint; or

(b) overturn the dismissal of some or all of the complaint, and

( i) order an investigation of any aspects of the complaint that have not been dismissed, and

( ii) refer the matter to be considered by a differently constituted Complaints Committee panel.

28( 15) The Complaints Committee shall render its decision on a review under subsection (14), in writing and with reasons, and provide a copy of the decision as soon as practicable to:

(a) the Registrar;

(b) the complainant; and

28( 16) A decision of the Complaints Committee under subsection (15) is final.

28( 17) The Registrar may refer a complaint to the Complaints Committee at any time during an investigation for the Complaints Committee to:

(a) provide direction with regard to the investigation; or

(b) exercise any of the powers conferred upon it under this Act, the regulations and the by-laws.

Complaints Committee

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

(a) at least two registrants of the Association; and

(b) at least one public representative who is not an occupational therapist or former occupational therapist.

29( 2) The number of members of the Complaints Committee and their appointments, terms of office and qualifications shall be established and governed by the regulations and the by-laws.

29( 3) No person who is a member of the Complaints Committee shall be appointed a member of the Admissions Committee or the Professional Conduct Committee or hold office on Council.

29( 4) Where the membership or the term of office of a member of the Complaints Committee expires before the committee concludes a matter before it, the member shall continue in office until the matter is concluded by the Complaints Committee.

29( 5) Subject to subsection (4), in the event that a member of the Complaints Committee is unable or unwilling to act with respect to a 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.

29( 6) A number of members of the Complaints Committee as prescribed by the by-laws shall constitute a quorum for the transaction of the business of the committee, and a decision shall be made by a majority vote.

29( 7) The Complaints Committee may set its own procedure for investigations and the review of complaints and may determine whether further investigation is required.

29( 8) Once a matter is referred to the Complaints Committee, the Committee may ask the Registrar to investigate.

29( 9) Once a matter is referred to the Complaints Committee, the Committee retains jurisdiction over it until such time as

(a) a hearing commences before the Professional Conduct Committee,

(b) the Complaints Committee recommends a settlement agreement to the Professional Conduct Committee, or

Request by Council or Registrar for Investigation

30 In the absence of a complaint, if the Council or the Registrar has reason to believe that the conduct or actions of a registrant may constitute professional misconduct, conduct unbecoming the profession, incompetence or incapacity, the Council or the Registrar may request the Complaints Committee to investigate the registrant.

Investigation by Complaints Committee

31( 1) The Complaints Committee shall consider and investigate complaints regarding professional misconduct, conduct unbecoming the profession, competency or capacity of a registrant, but no action shall be taken by the committee under subsection (4) unless:

(a) the registrant being investigated has been notified of the complaint and given 15 days in which to submit in writing to the Complaints Committee any explanations or representations the registrant may wish to make concerning the complaint; and

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

31( 2) When investigating a complaint, the Complaints Committee, Registrar or investigator may

(a) require the registrant to provide a written or oral response to the matters under investigation within such time as directed,

(b) request documents and written or oral explanations from the complainant, the respondent or third parties,

(d) with the respondent’s consent,

( i) where the Complaints Committee has reasonable or probable grounds to believe that the respondent has an issue of incapacity, require the respondent to submit to physical or mental examinations by a qualified person or persons designated by the Complaints Committee, and authorize the reports from the examinations to be given to the Complaints Committee,

( ii) order a review or audit of the respondent’s practice by a qualified person or persons designated by the Complaints Committee, and authorize a copy of the review or audit to be given to the Complaints Committee, and

( iii) complete a competence assessment to determine whether the respondent is competent to practise, and authorize the assessment report to be given to the Complaints Committee.

31( 3) An investigator, the Registrar or the Complaints Committee may investigate any matter relating to the respondent that arises in the course of the investigation, in addition to the complaint, that may constitute

(a) professional misconduct,

(b) conduct unbecoming the profession,

(d) incapacity.

31( 4) After completion of the investigation, and after considering the response of the registrant under paragraph (1)(a), if any, the Complaints Committee may:

(a) dismiss a complaint if, in its opinion, the complaint is frivolous or vexatious or there is insufficient evidence of professional misconduct, conduct unbecoming the profession, incompetence or incapacity;

(b) refer, in whole or in part, the allegations of professional misconduct, conduct unbecoming the profession, incompetence or incapacity to the Professional Conduct Committee;

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

(d) enter into a settlement agreement with the registrant; or

(e) take such other action as it considers appropriate in the circumstances to resolve the complaint as long as such is consistent with this Act, the regulations and the by-laws.

31( 5) The Complaints Committee shall give a summary of its findings and decision in writing to the Registrar to deliver or send by registered or certified mail to the complainant, if any, and the registrant complained against.

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

31( 7) In the event the Complaints Committee conducts a hearing, the provisions of section 38 with any necessary modifications shall apply to the hearing before the Committee.

31( 8) Where the Complaints Committee has reasonable grounds to believe that a registrant who is the subject of an investigation by the Committee is incapacitated, the Committee may recommend to the Registrar that the registrant submit to physical or mental examinations or both by one or more qualified persons selected by the Committee, and, subject to subsection (10), the Complaints Committee may make an order directing the Registrar to suspend the registrant’s licence and right to practise until the registrant submits to the examinations.

31( 9) Where the Complaints Committee has reasonable grounds to believe that a registrant who is the subject of an investigation by the Committee is incompetent, the Committee may recommend to the Council that the registrant submit to such examinations as the Committee may require to determine whether the registrant has adequate skill and knowledge to practise occupational therapy, and, subject to subsection (10), the Council may make an order directing the Registrar to suspend the registrant’s licence and right to practise until the registrant submits to the examinations.

31( 10) No order for the examinations of a registrant under subsections (8) and (9) shall be made by the Council unless the registrant has been given:

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

(b) at least ten days to make a written submission to the Council after receiving the notice.

31( 11) A person who conducts an examination under this section shall prepare and sign an examination report containing their findings and the facts on which they were based and deliver the report to the Complaints Committee.

31( 12) The Complaints Committee shall deliver a copy of the examination report to the registrant who is the subject of the examination.

31( 13) A report prepared and signed by a person under subsection (11) 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 ten days before the hearing.

31( 14) A registrant who is the subject of an investigation by the Complaints Committee shall cooperate with the Committee in the investigation, including by producing all documents and disclosing all information relevant to the complaint, and by participating in interviews and examinations.

31( 15) Failure to comply with subsection (14) constitutes professional misconduct.

Settlement Agreement

32( 1) Where a matter has been referred to the Professional Conduct Committee under subsection 31(4)(b), the Association or the respondent may submit a proposed settlement agreement to the other party for consideration as a means of resolving the matter.

32( 2) A proposed settlement agreement must include

(a) sufficient facts to provide context for the admissions of the respondent,

(b) an admission by the respondent to one or more of the matters referred to the Professional Conduct Committee,

(c) the respondent’s consent to a specified disposition, conditional upon the acceptance of the settlement agreement by the Professional Conduct Committee assigned to review the proposed settlement agreement, and

(d) an agreement on the amount of costs to be paid and the timing for such payment.

32( 3) Where the respondent and the Council agree to the proposed terms of a settlement agreement, the proposed agreement must be processed in accordance with the procedure set out in the regulations.

32( 4) The Complaints Committee and the Professional Conduct Committee have the authority to address the proposed settlement agreement as set out in the regulations.

32( 5) Where a matter is resolved by a settlement agreement, a summary of the decision may be modified to align with the terms of the settlement agreement.

32( 6) The Council shall be responsible for establishing the procedure for processing and addressing settlement agreements.

Interim Suspension

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

(a) direct the Registrar to impose specified terms, limitations and conditions on the registrant’s licence; or

(b) direct the Registrar to suspend the registrant’s licence.

33( 2) Where the Council intends to take action under subsection (1), notice shall be given to the registrant of its intentions in writing, and the registrant shall have ten days after the notice is received to make representation to the Council in respect of the matter.

33( 3) Where the Council takes action under subsection (1), after the Council has received representations from the registrant, it shall notify the registrant of its decision to do so in writing.

33( 4) A decision under subsection (1) continues in force until the matter is disposed of unless the decision is stayed pursuant to an application under subsection (5).

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

33( 6) The Council may, on the application of the registrant and on cause being shown, rescind or vary the decision made under subsection (1).

33( 7) Where the Council takes action under subsection (1), the Association, the Complaints Committee and the Professional Conduct Committee shall act expeditiously in relation to the matter.

Request for Review of Complaint by Council

34( 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 after receipt of the decision of the Committee for a review of the treatment of the complaint.

34( 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 section 31;

(d) direct the Professional Conduct Committee to hold a hearing and determine any allegation of professional misconduct, conduct unbecoming the profession, incompetence or incapacity on the part of a registrant 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, the regulations or the by-laws.

Professional Conduct Committee

35( 1) There shall be a standing committee of the Association designated as the Professional Conduct Committee composed of:

(a) at least two registrants of the Association; and

(b) at least one person who is not an occupational therapist or former occupational therapist.

35( 2) The number of members of the Professional Conduct Committee, their appointments, terms of office and qualifications shall be established and governed by the regulations and the by-laws.

35( 3) No person who is a member of the Professional Conduct Committee shall be appointed as a member of the Admissions Committee or the Complaints Committee or hold office on Council.

35( 4) The Professional Conduct Committee shall sit in panels of at least three, which shall include a person who is not an occupational therapist or former occupational therapist, and decisions of a panel shall be by majority vote.

35( 5) A panel of the Professional Conduct Committee has jurisdiction to decide all questions of fact and law, including the admissibility of evidence, and, subject to this Act, may determine its own procedure.

35( 6) The Professional Conduct Committee shall submit a written report every six months to the Council containing a summary of the origin, nature and disposition of any complaints considered by it during the preceding six months and the characteristics of the registrant or registrants involved by location, experience and areas of speciality, if appropriate.

Hearing by Professional Conduct Committee

36( 1) The Professional Conduct Committee shall hold a hearing respecting the allegations of professional misconduct, incompetence or incapacity of a registrant that have been referred to it by the Complaints Committee under paragraph 31(4)(b) or by the Council under paragraph 34(2)(d), and perform such other duties as are assigned to it by the Council.

36( 2) Subject to subsection (1), the Professional Conduct Committee shall commence a hearing as soon as possible but no later than 60 days after the date on which the Committee received the complaint unless otherwise directed by the Complaints Committee or Council or unless the parties agree otherwise.

36( 3) Members of the Professional Conduct 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 the party, except upon notice to and opportunity for all parties to participate.

36( 4) Despite subsection (3), the members of the Professional Conduct Committee may communicate directly or indirectly in relation to the subject matter of the hearing with the Committee’s counsel to obtain legal advice.

36( 5) No member of the Professional Conduct 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.

36( 6) Where the licence or the term of office of a member of the Professional Conduct Committee expires before the Committee concludes a matter before it, the member shall continue in office until the matter is concluded by the Committee.

36( 7) Subject to subsection (5), in the event that a member of the Professional Conduct Committee is unable to act for the completion of the matter before the Committee after the commencement of a hearing, and the Committee is left with a majority who have been present throughout the hearing, the Committee may complete the matter as if fully constituted.

Notice of Hearing

37( 1) The Professional Conduct Committee shall, not less than 30 days before the date set for the hearing, serve on the Association, the registrant against whom the complaint has been made and the complainant, if any, a notice of hearing in a form prescribed by regulation or by-law setting out the date, time and place of the hearing.

37( 2) The notice to the registrant against whom the complaint has been made shall describe the subject matter of the hearing and advise the registrant that the Professional Conduct Committee may proceed with the hearing in the absence of the registrant.

37( 3) The Professional Conduct Committee may at any time permit a notice of hearing of allegations against a registrant to be amended to correct errors or omissions of a minor or clerical nature if it is of the opinion that it is just and equitable to do so, and it may make any order it considers necessary to prevent prejudice to the registrant.

37( 4) The Professional Conduct Committee, on proof of service of the notice of hearing on the registrant against whom a complaint is made, may:

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

(b) without further notice to the registrant, take any action that is authorized to be taken under this Act, the regulations and the by-laws.

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

Open Hearings

38( 1) Subject to subsection (2), Professional Conduct Committee hearings shall be open to the public.

38( 2) The Professional Conduct Committee may order that the public, in whole or in part, be excluded from a hearing or any part of a hearing if it is satisfied that:

(a) financial, personal or other matters that would otherwise be disclosed are of such a nature that it is within the public interest that they not be disclosed;

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

38( 3) The Professional Conduct Committee may make whatever order it considers necessary to prevent public disclosure, including orders prohibiting publication, broadcasting or any other means of communication that the Committee considers may risk disclosure.

38( 4) No order shall be made under subsection (3) that prevents the publication of anything that is otherwise available to the public.

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

38( 6) The Professional Conduct Committee may make any order it considers necessary to prevent the public disclosure of matters disclosed in a submission relating to any motion under this section, including prohibiting the publication or broadcasting of those matters.

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

38( 8) Where the Professional Conduct Committee makes an order pursuant to subsection (2), it:

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

(b) may allow such other persons as it considers necessary to attend all or part of the hearing.

38( 9) Despite anything contained in this section, public attendance at a hearing does not constitute authorization to take photographs, record sound, videotape or otherwise mechanically, electronically or by any other means record the proceedings, and no such recording is permitted unless specifically authorized by the Professional Conduct Committee.

38( 10) It is professional misconduct for any registrant to disclose or in any way facilitate the disclosure of matters ordered by the Professional Conduct Committee not to be disclosed.

Professional Conduct Procedure

39( 1) In a hearing before the Professional Conduct Committee, the Association and the registrant against whom a complaint is made are parties to the hearing and may be represented by counsel.

39( 2) During a hearing, the Professional Conduct Committee may order the respondent to:

(a) submit to physical or mental examinations, or both, by a qualified person or persons designated by the Committee and authorize the reports from the examinations to be given to the Committee;

(b) submit to a review or audit of the respondent’s practice by a qualified person or persons designated by the Committee and authorize a copy of the review or audit to be given to the Committee;

(c) complete a competence assessment as directed by the Committee to determine whether the respondent is competent to practise and authorize the assessment report to be given to the Committee; and

(d) produce records or documents kept about the respondent’s practice that the Committee considers relevant.

39( 3) Where a respondent fails to comply with a requirement under subsection (2), the Professional Conduct Committee may suspend the respondent’s licence or ability to apply for a licence until the respondent complies.

39( 4) Expenses incurred by a respondent to comply with a requirement under subsection (2) must be paid by the Association but may be awarded as costs against the respondent under paragraph 41(2)(i).

39( 5) The Professional Conduct Committee may have the proceedings and the evidence recorded by audio recording apparatus.

39( 6) For the purposes of subsection (5), “audio recording apparatus” means audio recording apparatus as defined in the Recording of Evidence Act.

39( 7) If a party requests a copy of the transcript of the hearing before the Professional Conduct Committee or any part thereof, it shall be furnished, if available, at that party’s expense.

39( 8) Evidence against a registrant against whom a complaint is made is not admissible at a hearing of the Professional Conduct Committee unless the registrant or the registrant’s legal counsel is given, at least ten 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.

39( 9) Evidence on behalf of a registrant is not admissible at a hearing of the Professional Conduct Committee unless the Association or its legal counsel is given, at least ten 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, the identity of the witness and a written summary of the evidence of the witness.

39( 10) The Professional Conduct Committee may, in its discretion, allow the introduction of evidence that is or may be otherwise inadmissible under subsections (8) and (9) and may make or give any directions it considers necessary to ensure that the registrant or the Association is not prejudiced by the admission or introduction of that evidence.

39( 11) In the conduct of a hearing before the Professional Conduct Committee:

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

(b) the Committee, subject to this Act, is the master of its own procedure and may give directions about processes and procedures that it considers appropriate in the circumstances while ensuring procedural fairness to all parties;

(d) the Committee may adjourn the hearing 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 registrant against whom the complaint is made is a compellable witness;

(g) a witness shall not be excused from answering any question on the ground 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.

39( 12) The complainant, if any, may attend the hearing before the Professional Conduct Committee in its entirety with or without counsel and may make a written or oral submission, personally or through the complainant’s counsel, to the Professional Conduct Committee.

39( 13) A complainant attending a hearing before the Professional Conduct Committee shall not be considered a party to the hearing, and the complainant and the complainant’s counsel shall not be permitted to call evidence or to examine or cross-examine witnesses.

39( 14) Despite subsection (12), at the request of a witness whose testimony is in relation to allegations of a registrant’s misconduct of a sexual nature involving the witness, the Professional Conduct Committee may exclude a complainant from the portion of the hearing that receives the testimony of the witness.

39( 15) In subsection (14), “allegations of a registrant’s misconduct of a sexual nature” means allegations that the registrant sexually abused the witness when the witness was a client of the registrant.

Attendance of Witnesses

40( 1) The Professional Conduct Committee, or someone designated by it to act on its behalf, may, by summons in a form prescribed by regulation or by-law, 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.

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

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

40( 4) If a person on whom a summons has been served, either personally or by leaving a copy with an adult person at the person’s last or most usual place of residence or business, fails to appear before the Professional Conduct 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.

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

40( 6) A person, other than the registrant 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 at the time the summons is served.

Sanctions by Professional Conduct Committee

41( 1) On the completion of a hearing, the Professional Conduct Committee may:

(a) dismiss the complaint; or

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

41( 2) If the Professional Conduct Committee finds that the registrant has committed an act of professional misconduct or finds that the registrant 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 registrant and direct that the reprimand be recorded in the records of the Association;

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

(c) impose a fine not exceeding an amount prescribed by regulation or by-law to be paid by the registrant to the Association;

(d) impose specified restrictions or conditions or both on the registrant’s right to practise for a specified period or until specified conditions are satisfied, including the requirement to successfully complete specified courses of study, competence assessments or require that the registrant:

( i) engage in the practice of occupational therapy only under the personal supervision and direction of another registrant;

( ii) not alone engage in the practice of occupational therapy;

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

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

(e) suspend the registrant’s licence or withdraw the recognition of specialist status or both for a specified period or until specified criteria are satisfied;

(f) revoke the registrant’s licence or withdraw the recognition of specialist status or both, in which case the Committee may order that the registrant not be permitted to apply for reinstatement before a period 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 result of the proceeding before the Committee in the records of the Association and to make the result available to the public;

(i) fix the costs of any investigation or procedures by the Admissions Committee, the Complaints Committee and the Professional Conduct Committee to be paid by the registrant to the Association, including the Association’s:

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

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

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

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

41( 3) Where the respondent is found not guilty of conduct deserving sanction by a panel of the Professional Conduct Committee and the panel is of the opinion that the hearing was unwarranted, it may order that the Association pay all or part of the registrant’s legal costs to be determined by agreement or to be assessed in accordance with Rule 59 of the Rules of Court.

Decision

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

42( 2) An order of the Professional Conduct Committee under subsection 41(2) takes effect immediately, or at such other time as the Committee may direct, despite the fact that an appeal has been taken from the order.

Suspension on Failure to Pay Fine and Costs

43 Where a registrant fails to pay a fine or costs imposed under paragraphs 41(2)(c) and 41(2)(i) within the time ordered, the Registrar may, without notice to the registrant, suspend the licence of the registrant until the fine or costs are paid and shall serve the registrant with notice of the suspension.

Suspension for Violation of Order

44( 1) The Registrar, if satisfied that a registrant has violated or failed to comply with an order of the Professional Conduct Committee, may revoke or suspend the registrant’s licence without notice to the registrant.

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

Decision and Record to Registrar

45( 1) The Professional Conduct 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.

45( 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 at the request of the person who produced them.

Appeal

46( 1) A party to a proceeding before the Professional Conduct Committee may, within 30 days after the date of the decision or order of the Committee, appeal to the Court by way of Notice of Application in accordance with the Rules of Court for civil appeals, with such modifications as the circumstances require.

46( 2) Upon the request of a party desiring 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.

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

46( 4) On an appeal from the decision of the Professional Conduct 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 other order it considers appropriate with respect to costs.

46( 5) The Registrar shall give public notice of the suspension or revocation of a registrant’s licence or withdrawal of the recognition of specialist status as a result of the professional conduct procedure.

46( 6) Public notice under subsection (5) shall state the finding of the Professional Conduct 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 two weeks after the finding of the Committee.

46( 7) Subject to subsection (8), the result of all decisions of the Professional Conduct Committee in which there is a finding of conduct deserving sanction shall be published in the official communications of the Association to its registrants as provided in the regulations or by-laws.

46( 8) If, in the opinion of the Professional Conduct Committee, there are circumstances, including a possible violation of client confidentiality, that outweigh the interest in the publication of the result of its decision, it may order that the result of its decision not be published.

Records to be Made Available to the Public

47( 1) The Registrar shall enter forthwith in the records of the Association:

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

( i) resulted in the suspension or revocation of a licence; or

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

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

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

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

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

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

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

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

Criminal Proceedings

48 Where criminal proceedings are commenced or are likely to be commenced with respect to a registrant’s conduct, any proceeding under this Act may be deferred or stayed until the criminal proceedings have been disposed of by a court of competent jurisdiction.

PART 16

SEXUAL MISCONDUCT AND SEXUAL ABUSE

Definition

49( 1) Subject to subsections (2) and (3), a registrant commits an act of sexual misconduct if the registrant does any of the following with respect to a client or a person within a prescribed class of persons:

(a) engages with the client or person in sexual intercourse or another physical act of a sexual nature;

(b) touches the client or person, directly or indirectly, if the touching is of a sexual nature;

(d) engages in an act of a sexual nature in the client’s or person’s presence;

(e) manipulates or exploits the client or person for sexual purposes, including offering or accepting services in exchange for acts of a sexual nature, whether or not the services are health services;

(f) harasses the client or person, if the harassment is of a sexual nature;

(g) engages in communication of a sexual nature with the client or person, including requesting communication or sharing media containing sexual content;

(h) builds a relationship of trust or emotional connection with the client or person and uses or attempts to use that relationship to abuse, manipulate or exploit the client or person for sexual purposes;

(i) engages in any other activity of a sexual nature with or in relation to the client or person, whether or not the activity occurs within the health service environment or in the course of providing health services.

49( 2) Subject to subsection (3), an act referred to in paragraph (1)(a), (b), (c), (d), (g) or (i) is not sexual misconduct for the purposes of this Act if

(a) the client or person is the registrant’s spouse and that spouse consents to the act, and

(b) the registrant is not engaged in the practice of occupational therapy at the time the act occurs.

49( 3) A registrant commits an act of sexual abuse if the registrant engages in an act referred to in subsection (1) without the client’s or person’s consent, whether or not that client or person is the registrant’s spouse.

49( 4) 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 Misconduct and Sexual Abuse

50( 1) A registrant 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 30 days after the circumstances occurred that gave rise to the reasonable grounds for the belief commits an act of professional misconduct.

50( 2) A registrant is not required to file a report pursuant to subsection (1) if the registrant does not know the name of the health professional who would be the subject of the report.

50( 3) If the reasonable grounds for filing a report under subsection (1) have been obtained from one of the registrant’s clients, the registrant shall use their best efforts to advise the client that the registrant is filing the report before doing so.

50( 4) A report referred to in subsection (1) shall contain the following information:

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

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

(d) subject to subsection (5), if the grounds of the registrant 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.

50( 5) 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.

50( 6) No action or proceeding shall be taken against a registrant who in good faith files a report under subsection (1).

Measures to Prevent Sexual Misconduct and Sexual Abuse

51( 1) The Association shall undertake measures to prevent sexual misconduct and sexual abuse of clients by its registrants.

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

(a) education of registrants about sexual abuse;

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

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

51( 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

52( 1) The Council shall report to the Minister within two 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 registrants of the Association.

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

52( 3) A report under subsection (2) shall be made within two 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 Registrar’s decision;

( iii) if allegations were referred to the Complaints Committee, the decision of the Complaints Committee with respect to the complaint and the date of the decision;

( iv) if allegations were referred to the Professional Conduct Committee, the findings and decision of the Committee and the date of the decision; and

( v) if an appeal was made from the decision of the Professional Conduct Committee, and the date and outcome of the appeal; and

(c) with respect to each complaint reported in a previous calendar year, a report on the status of the complaint in accordance with paragraph (b) 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.

PART 17

INVESTIGATIONS

Power to Investigate and Appointment and Powers of Investigator

53( 1) The Registrar may appoint one or more investigators to assist the Complaints Committee in any investigation it is required to conduct under this Act.

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

53( 3) This section applies despite any provision in any Act relating to the confidentiality of health records.

Search Warrant

54( 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 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 registrant being investigated has committed an act of professional misconduct or is incompetent or incapacitated; and

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

54( 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.

54( 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.

54( 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

55( 1) In this section, “document” means a record of information in any form and includes any part of it.

55( 2) An investigator may copy, at the expense of the Association, any document that the investigator may examine under subsection 53(2) or under the authority of a warrant under subsection 54(1).

55( 3) 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 the person in whose possession it was with a receipt for the document or object.

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

55( 5) 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.

Report of Investigator

56 An investigator shall report the results of the investigation to the Complaints Committee in writing.

Responsibilities of Registrant

57( 1) A registrant who is being investigated shall cooperate with the investigator and shall produce all documents and disclose all information relevant to the investigation.

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

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

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

PART 18

OFFENCES AND PENALTIES

58( 1) Any person who is not a registrant of the Association and who is not registered to practise occupational therapy, or whose registration is revoked or suspended, and who

(a) practises as an occupational therapist,

(b) uses the title of “occupational therapist”, 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 an occupational therapist, or

commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.

58( 2) Any person who procures or attempts to procure admission to the Association for that person or another 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, the regulations or the by-laws, commits an offence punishable under Part 2 of the Provincial Offences Procedure Act as a category F offence.

58( 3) 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.

58( 4) 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.

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

58( 6) 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.

58( 7) All fines recoverable under this Act shall be paid to the Association and shall form part of its funds.

Injunction

59( 1) In the event of a threatened or continuing violation of this Act or the regulations, the Association may apply to the Court for an injunction to restrain the person from committing or continuing the violation and the Court, where it considers it to be just, may grant such an injunction.

59( 2) The Court may, on application, grant an interim injunction pending the hearing of an application for an injunction under subsection (1) if the Court is satisfied that there is reason to believe that a person is likely to commit or is continuing to commit a violation of this Act or the regulations.

59( 3) The Court may make such order as to costs as the Court considers appropriate in a proceeding under this section.

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

60 Nothing in this Act applies to, prohibits or prevents:

(a) 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;

(b) the manufacturing, fitting or selling of artificial limbs or similar appliances;

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

(e) the practice of a licensed practical nurse by a person authorized to carry on such practice under the Licensed Practical Nurses Act;

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

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

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

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

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

(k) the practice of physiotherapy by a person authorized to carry on such practice under the Physiotherapy Act;

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

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

(n) the practice of pharmacy by a person authorized to carry on such practice under the New Brunswick Pharmacy Act, 2014;

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

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

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

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

(s) the practice of paramedicine by a person authorized to carry on such practice under the Paramedic Act;

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

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

(v) the practice of podiatry by a person authorized to practice under the Podiatrists Act.

PART 19

GENERAL

Confidentiality

61( 1) Every person employed in the administration of this Act, including any member of the Council or the committees, shall be personally bound to secrecy with respect to all matters that come to their knowledge in the course of duties or employment, except where disclosure of such matters is required by this Act or any other Act or is consented to by the person to whom the information relates, or is required to instruct counsel.

61( 2) No individual involved in the administration of this Act or registrant of the Association or a committee of the Association, or other person who receives or has knowledge of information as a result of a regulatory process under this Act, the regulations or the by-laws, may publish, release or disclose the information, and such individual shall maintain confidentiality with respect to such information that comes to that individual’s knowledge, except:

(a) as provided by this Act, the regulations or the by-laws;

(b) to one’s own legal counsel;

(d) in the case of a participant in a regulatory process, other than a respondent, to legal counsel for the Association or to legal counsel, a union representative or other representative for the respondent in that regulatory process;

(e) where the information is otherwise publicly available;

(f) as required by law; or

(g) with the consent of the person to whom the information relates.

Permitted Disclosure

62( 1) A disclosure of otherwise confidential information under subsection (2) must be limited to the minimum amount of information necessary to achieve the purpose for which it is disclosed.

62( 2) Despite subsection 61(2) or any other section of this Act, the regulations or the by-laws, where it is consistent with the objects of the Association, the Council may disclose

(a) to the public:

( i) information that is otherwise available to the public; and

( ii) subject to the terms of a decision ordering licensing sanctions, particulars of a licensing sanction that has been imposed on a registrant or the decision of a Complaints Committee to issue an interim suspension or restriction pending completion of an investigation and any hearing that may follow,

(b) without a request for disclosure, to an extra-provincial Occupational Therapy or other regulatory body:

( i) that a complaint with respect to a registrant has been received, the particulars of the complaint and that the matter is under investigation; and

( ii) the decision of a regulatory committee that impacts the fitness or eligibility of a registrant for membership in the other regulatory body,

(d) specific information to a specific person or agency as will enable the recipient to determine whether action is required to protect the public, and

(e) to such other persons, such other information as is consistent with the objects of the Association and in the public interest.

Legal Proceedings

63( 1) A witness in a legal proceeding, whether a party thereto or not, shall not answer any question as to any proceedings of a regulatory process and shall not produce any report, statement, memorandum, recommendation or other document prepared for the purpose of the regulatory process, including any information gathered in the course of an investigation or produced for a regulatory committee.

63( 2) Subsection (1) does not apply to documents or records that have been made available to the public by the Association if permitted by this Act, the regulations or the by-laws.

63( 3) Unless otherwise determined by a court of competent jurisdiction, a decision issued pursuant to any process conducted under this Act, or any information set out in subsection (1) relevant to such decision, is not admissible in a civil proceeding other than an appeal or a process under this Act.

Information Contained in Self-Assessment Tool

64( 1) Where the information or decision set out under subsections 63(1) and (3) involves a self-assessment tool prepared by a registrant for the continuing-competence program, no person shall disclose or is required to disclose in a proceeding under this Act or the regulations any information or documents relating to the content of a registrant’s self-assessment tool without the express consent of the registrant or unless otherwise determined by a court of competent jurisdiction.

64( 2) The provision by a registrant of a copy of the registrant’s self-assessment tool to another person is not, by itself, consent for the purpose of subsection (1).

64( 3) Subject to subsection (1), a witness in a legal proceeding shall answer any question or produce any document that the witness is otherwise bound by law to answer or produce.

64( 4) Subsection (1) does not apply to the original medical and hospital records of a client.

Conflict of Interest

65 Where a registrant, or person, or a member of the Council or a committee of the Association knows or ought reasonably to know that they may be in a conflict of interest with respect to a matter before them, that individual shall:

(a) declare their interest at the outset of that meeting;

(b) refrain from voting on that matter;

(d) be excused from the meeting room; and

(e) comply with any other requirements established in the regulations or by-laws.

No Action Lies

66( 1) No action or other proceeding for damages or other remedy lies against the Association or Council, the Registrar, a member of the Council, a member of the Executive Committee, the Admissions Committee, the Complaints Committee, the Professional Conduct Committee or any other committee or subcommittee of the Association, any registrant or any officer, employee, investigator, contractor or agent of the Association or anyone acting on the instruction of any of them for:

(a) any act or failure to act, or any proceeding initiated or taken, in good faith under this Act, the regulations or the by-laws, or in carrying out their duties or obligations as an employee or registrant under this Act, the regulations or the by-laws;

(b) any decision or order made or enforced in good faith under this Act, the regulations or the by-laws; or

66( 2) No registrant of the Association or member of the Council, committees or subcommittees of the Association or Council, or any officer, agent or employee thereof is personally liable for any of the debts or liabilities of the Association, unless the person expressly agrees to be liable.

66( 3) The Association shall indemnify any person referred to in subsection (1) for any costs or expenses incurred in any legal proceeding taken against that person for anything done or not done by that person in good faith under the provisions of this Act, the regulations or the by-laws.

66( 4) No registrant shall be personally liable for any debt of the Association beyond the amount of that registrant’s unpaid dues, fees or other amounts for which a registrant may become liable under this Act, the regulations or the by-laws.

Complaint in Good Faith

67 No action or other proceeding for damages or any other remedy may be brought against the Council or any other person, including a registrant, who, in good faith, makes a complaint to the Association.

No Action Lies for Activities Under Prior Act

68( 1) No action or other proceeding for damages or other remedy lies against the Association or Council, the Registrar, a member of the Council, a member of the Executive Committee, the Admissions Committee, the Complaints Committee, the Professional Conduct Committee or any other committee or subcommittee constituted or appointed under the prior Act, any registrant or any officer, employee, investigator, contractor or agent appointed under the prior Act or anyone acting on the instruction of any of them for:

(a) any act or failure to act, or any proceeding initiated or taken, in good faith under the prior Act, its regulations or by-laws, or in carrying out their duties or obligations under the prior Act, its regulations or by-laws;

(b) any decision or order made or enforced in good faith under the prior Act, its regulations or by-laws; or

68( 2) No action lies against a person for making a complaint under the prior Act unless the complaint was not made in good faith.

68( 3) No member of the Association, Council, committees or subcommittees of the Association or Council constituted or appointed under the prior Act, or any officer, agent or employee thereof is personally liable for any of the debts or liabilities of the Association constituted under the prior Act, unless the person expressly agrees to be liable.

Apology

69( 1) An apology made by or on behalf of a person in connection with any matter that is or may become the subject of a complaint under this Act:

(a) does not constitute an express or implied admission of fault by the person in connection with that matter;

(b) does not, despite any wording to the contrary in any contract of insurance or indemnity and despite any other Act or law, void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with that matter; and

69( 2) Despite any other Act or law, evidence of an apology made by or on behalf of a person in connection with any matter that is or may become the subject of a complaint, including the factual admissions made in the document containing the apology, is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of the fault or liability of any person in connection with that matter.

69( 3) Despite subsection (2), if a person makes an apology while testifying at an out-of-court examination in the context of the civil proceeding, at an administrative proceeding or at an arbitration, this section does not apply to the apology for the purposes of that proceeding or arbitration.

Certificate by Registrar

70 A certificate that relates to the administration of the affairs of the Association and purports to contain the signature of the Registrar shall, in the absence of evidence to the contrary, be proof of the contents of the certificate.

PART 20

TRANSITIONAL PROVISIONS AND REPEAL

71( 1) All persons who are registrants of the Association on the day this Act comes into force shall continue as registrants under this Act.

71( 2) All committees in effect on the day this Act comes into force shall continue to act under the prior Act, until replaced or reconstituted under the provisions of this Act.

71( 3) All applications for registration and licensing in the Association, and all disciplinary proceedings in progress on the day this Act comes into force, shall be continued and disposed of under the prior Act.

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

71( 5) The prior Act is repealed, provided that all regulations and by-laws made under the provisions of that Act, 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 and by-laws enacted under the provisions of this Act.