Bill 552 — Dispensing Opticians Act, 2005 (45th General Assembly, 2nd Session)
Bill 552
Newfoundland and Labrador — Bills
Second
Session, 45th General Assembly
Elizabeth II, 2005
BILL 52
AN ACT RESPECTING
DISPENSING OPTICIANS
Received and Read the First Time ...................................................................................................
Second Reading .................................................................................................................................
Committee ............................................................................................................................................
Third Reading .....................................................................................................................................
Royal Assent ......................................................................................................................................
HONOURABLE
JOHN OTTENHEIMER
Minister
of Health and Community Services
Ordered
to be printed by the Honourable House of Assembly
EXPLANATORY NOTES
This Bill would revise the law
respecting the regulation of dispensing opticians.
In particular, the Bill would
establish a clear separation between advocacy on behalf of the professional
group and the responsibility of the governing body of the professional group to
establish and enforce qualifications for licensure or registration in the
interest of the protection of the public.
The second principal focus of the
Bill is the establishment of a disciplinary regime that fully incorporates the
developed principles of administrative law respecting impartiality, fairness,
and the right to be heard.
A BILL
AN ACT RESPECTING DISPENSING OPTICIANS
Analysis
Short title
Definitions
Application of Act
Board
Appointed members
Meetings of the board
Fees
By-laws
Annual report
Licence
Duties of registrar
Definitions
Committees
Allegation
Effect of filing allegation
Complaints authorization committee
Adjudication tribunal
Hearing
Copies of books, etc. as evidence
Guilty plea by respondent
Powers of adjudication tribunal
Filing and publication of decisions
De-registration and suspension
Failure to comply
Reinstatement and readmission
Costs of the board
Collection of fine
Appeal to Trial Division
Protection from liability
Regulations
Fees and forms
Prescription necessary
Contact lenses
Offence
Penalty
Effect of the Optometry Act, 2004
Transition
RSNL1990 cD-25 Rep.
Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
Short title
1. This
Act may be cited as the Dispensing
Opticians Act, 2005.
Definitions
2. In
this Act
(a) "board" means the Dispensing
Opticians Board referred to in
section 4 ;
(b) "dispensing optician" means a
natural person licensed under this Act to practise optical dispensing;
(c) "dispensing optician in training"
means a person registered under this Act who is being trained to become a
dispensing optician;
(d) "licence" means a licence to
practise as a dispensing optician issued under this Act;
(e) "minister" means the minister
appointed under the Executive Council Act
to administer this Act;
(f) "optical appliances" means lenses,
spectacles, eye glasses, contact lenses or parts connected or attached to these
for the relief or correction of a visual or muscular error or defect of the
eyes;
(g) "optical dispensing" means
(
i) the supplying, repairing and dispensing of
optical appliances,
(ii) the
interpretation of prescriptions of
optometrists and medical practitioners, or
(iii) the fitting, adjusting and adapting of optical
appliances to the human face and eyes in accordance with the prescriptions of
optometrists and medical practitioners;
(h) "register" means the register of
dispensing opticians; and
(i) "registrar" means the Registrar of
Dispensing Opticians designated under this Act.
Application of
Act
3. This
Act does not apply
(
a) to optometrists registered under the Optometry Act, 2004 or medical
practitioners licensed under the Medical
Act, 2005; or
(
b) to the sale of non-corrective protective
lenses for industrial purposes, coloured lenses that are not optical
appliances, goggles or magnifying lenses that are not designated for the
relief, prevention or correction of visual or ocular anomalies of the eyes.
Board
(1) The
Dispensing Opticians Board is continued as a corporation without share capital
for the purposes of
Part XXI of the Corporations
Act .
(2) The board shall consist of:
(a) 5 persons elected from and by dispensing
opticians in accordance with the by-laws; and
(b) 2 persons appointed under
section 5 who are not dispensing opticians.
(3) The board shall elect from among the elected
members a chairperson and a registrar.
(4) A member of the board may be elected for a
term set by the by-laws which shall not exceed 3 years and is eligible to be
re-elected, but shall not be a member of the board for more than 9 consecutive
years.
(5) An elected member may resign from the board by
written notice to the board.
(6) Where an elected member resigns, dies or
becomes incapable of performing his or her duties, the remaining members shall
appoint a replacement to serve until the next annual general meeting.
(7) Elected members shall serve without payment
for their services, but their travel and other expenses associated with their
duties as members may be paid by the board, in accordance with the by-laws.
(8) The board may pay the registrar for performing
his or her duties under this Act, in accordance with the by-laws.
Appointed members
(1) The
minister shall appoint 2 members of the board who are not dispensing opticians
who are suitable to represent the public interest.
(2) A person appointed under subsection (1) holds
office for a term of 3 years and is eligible to be re-appointed.
(3) Where a person appointed under subsection
(1) holds office for a period of 9 consecutive years the person is not eligible for
appointment as a member of the board until the expiration of 12 months from the
end of the year in which he or she was last a member of the board.
(4) Where the term of office of a person appointed
under this
section expires, he or she may continue to be a member of the board
until re-appointed or replaced.
(5) The board shall pay the expenses of a person
appointed to the board under this
section in accordance with guidelines
established by the Lieutenant-Governor in Council.
(6) A person appointed under subsection (1) may be
removed from office by the minister before the expiration of his or her term of
office and no compensation shall be paid to him or her other than an amount
owing under subsection (5).
(7) A person appointed under subsection (1) may
resign from the board by written notice to the minister.
Meetings of the
board
(1) A
quorum of the board is 4 members, one of whom is an appointed member.
(2) Except where prohibited in the by-laws, a
member of the board may, where all the members consent, participate in a
meeting of the board by means of the telephone or other telecommunication
device that permits all persons participating in the meeting to communicate
with each other.
(3) Where a quorum under subsection (1) exists, a
majority of that number is sufficient to make a decision, and in the event of a
tie the chairperson of the meeting shall cast the deciding vote.
(4) In the absence of the chairperson, the members
of the board in attendance at a meeting may appoint another member to chair
that meeting.
(5) The board shall hold an annual general
meeting, to which all licensed dispensing opticians shall be invited, to elect
the members of the board.
(6) At the annual general meeting the board shall
appoint an auditor to audit the accounts of the board and report on the
financial statement prepared by the board.
(7) The board may in its by-laws provide for
voting at a meeting of the board or in an election of members by mail or
electronic means.
Fees
(1) In
prescribing the fees payable under this Act, the board shall, so far as it is
practicable, ensure that the amount of fees is sufficient to enable it to
discharge its duties under this Act.
(2) All money received by the board shall be
applied by it to its duties under this Act.
By-laws
(1) The
board may make by-laws not inconsistent with this Act respecting
(
a) the holding and procedure of its meetings;
(
b) the appointment of committees and the duties
and responsibilities of those committees;
(
c) the election of members of the board under
subsection 4 (2) and setting the terms of
office;
(
d) the payment of travel and other expenses of
elected members of the board;
(
e) the employment and remuneration of staff and
consultants;
(
f) a code of ethics which may include
(
i) a definition of "professional
misconduct" and "conduct unbecoming" for the purposes of
sections 12 to 28 ,
(ii) provisions respecting conflict of interest,
and
(iii) rules respecting methods of advertising;
(
g) the remuneration and payment of travel
expenses of members of adjudication tribunals;
(
h) the participation of members at a meeting of
the board by telephone or other telecommunications device under
section 6 ; and
(
i) voting by dispensing opticians by mail or electronic
means.
(2) A by-law may be made, amended or repealed at a
meeting of the board provided that 30 days notice, in writing, of the making,
amendment or repeal of the by-law and of the meeting are given to members of
the board.
(3) The board shall have its by-laws available for
inspection by the public on reasonable notice and at reasonable hours.
(4) The by-laws of the Dispensing Opticians Board
in operation at the coming into force of this Act shall be the by-laws
governing the board until revoked or amended by the board in accordance with
this section.
Annual report
(1) The
board shall prepare and submit to the minister before
July 1,
(
a) a report on the activities of the board; and
(
b) the board's audited financial statements.
(2) Where the board fails to comply with
subsection (1), the board is guilty of an offence and on
summary conviction may
be fined $1,000.
Licence
(1) A
person may apply to the registrar in the form set by the board to be licensed
as a dispensing optician where he or she
(
a) has
(
i) successfully completed a course in optical
dispensing recognized by the board and has received practical training in
optical dispensing from a dispensing optician or optometrist for a period of at
least one year,
(ii) successfully completed at least 3 years
training in optical dispensing under the direct supervision of a dispensing
optician or optometrist, and has completed a study course in optical dispensing
recognized by the board, or
(iii) another combination of practical experience
and training in optical dispensing that is satisfactory to the board; and
(
b) meets the other requirements prescribed by
regulation.
(2) The registrar shall issue a licence to a person
who applies under subsection (1) and enter his or her name on the register and
may renew a licence of a dispensing optician where the applicant or dispensing
optician
(
a) pays the licensing fee set by the board;
(
b) proves that he or she has obtained
professional liability insurance coverage in a form and amount satisfactory to
the board;
(
c) establishes that he or she is not suspended or
restricted from working as a dispensing optician by a board or equivalent body
governing dispensing opticians in a jurisdiction outside the province; and
(
d) pays outstanding fines, penalties or fees,
which are owed to the board.
(3) The board may approve the issuance of temporary
licences, without examination, to persons for the purpose of providing the services
of dispensing opticians to under-serviced areas of the province.
Duties of
registrar
(1) The
registrar shall maintain a register of dispensing opticians in which he or she
shall enter the names of all persons licensed to practise as dispensing opticians
in the province and other information the board may require.
(2) The registrar shall maintain a register of
dispensing opticians in training in which he or she shall enter the names and
other information the board may require of all persons in training to become
dispensing opticians.
(3) The registrar shall make the registers of the
board available for inspection by the public on reasonable notice and at
reasonable hours.
(4) The registrar shall perform the duties of the
registrar in respect of discipline under sections 12
to 28 .
Definitions
(1) In
this
section and sections 13 to 28 ,
(a) "allegation" means a written
document alleging that a person has engaged in conduct deserving of sanction;
(b) "complainant" means a person making
an allegation described in
section 14 ;
(c) "conduct deserving of sanction"
includes
(
i) professional misconduct,
(ii) professional incompetence,
(iii) conduct unbecoming a dispensing optician, and
(iv) acting in breach of this Act, the regulations,
or a code of ethics made under
section 8 ;
(d) "costs incurred by the board"
includes
(
i) out of pocket expenses incurred by or on
behalf of the board,
(ii) amounts paid by the board to adjudication
tribunal members as remuneration and for expenses, and
(iii) the actual cost of legal counsel for the board
and the adjudication tribunal;
(e) "disciplinary panel" means the panel
of persons appointed under
section 13 from
which the members of an adjudication tribunal are chosen; and
(f) "respondent" means a dispensing
optician or a former dispensing optician against whom an allegation is made.
Committees
(1) The
board shall appoint at least 3 of its members, at least one of whom was
appointed by the minister to represent the public interest, to constitute a complaints
authorization committee.
(2) The board shall appoint the chairperson and
vice-chairperson of the complaints authorization committee from the persons
appointed under subsection (1).
(3) The registrar is not eligible to be a member
of the complaints authorization committee.
(4) The board shall appoint at least 5 dispensing
opticians who are not members of the board, one of whom shall be appointed to
serve as chairperson, and the minister shall appoint at least 2 persons, who
are not dispensing opticians, to represent the public interest, who shall
together constitute a disciplinary panel.
(5) Of the members first appointed to the
disciplinary panel, one half shall be appointed for a term of 2 years and the
remainder for a term of 3 years and all subsequent appointments of members to
the disciplinary panel shall be for a term of 3 years.
(6) Notwithstanding the expiry of his or her term,
a member of the disciplinary panel may continue to be a member until he or she
is re-appointed or his or her replacement is appointed.
(7) Persons appointed to the disciplinary panel
may be reappointed.
(8) Members of the disciplinary panel shall serve
on the panel without payment for their services, but may be remunerated for
services as a member of an adjudication tribunal and paid their travel and
other expenses associated with the work of that tribunal by the board, in accordance
with and at the rates set by the by-laws.
(9) The complaints authorization committee and an
adjudication tribunal appointed under
section 17
and a person appointed by either of them may summon a respondent or other
person and require the respondent or other person to give evidence, orally or
in writing, upon oath or affirmation, and produce the documents and things that
either of them considers necessary to the full investigation and hearing of an
allegation or complaint and shall have the powers, privileges and immunities
that are conferred on a commissioner appointed under the Public Inquiries Act.
Allegation
(1) An
allegation shall be in writing and signed by the complainant or his or her
solicitor, and filed with the registrar.
(2) The registrar may on his or her own motion
make an allegation and file it, and the allegation shall have the same effect
as an allegation referred to in subsection (1).
(3) Where the registrar has been informed that a
respondent has been convicted of an offence under the provisions of the Criminal Code or a similar penal statute
of another country or has been suspended by a governing body of dispensing
opticians in another province or territory of Canada or another territory or
country for reason of professional misconduct, conduct unbecoming a dispensing
optician or professional incompetence, the information shall be dealt with by
the registrar as an allegation.
(4) For the purpose of subsection (3), a certified
copy of the record of a conviction or findings made or the action taken by an
external regulatory body constitutes proof, in the absence of evidence to the
contrary, of the conviction or findings made or the action taken by that body,
without proof of the signature of the convicting justice or person purporting
to have signed on behalf of that body.
Effect of filing
allegation
(1) Where
it appears to the registrar after notifying the respondent of the allegation
that the allegation may be resolved satisfactorily and where the complainant
and the respondent consent, the registrar may attempt to resolve the matter.
(2) Where the allegation is not satisfactorily
resolved by the registrar under subsection (1), the registrar shall refer the
allegation and all other allegations to the complaints authorization committee.
(3) The registrar shall inform a complainant and a
respondent of the referral of the allegation to the complaints authorization committee.
Complaints authorization
committee
(1) After
an allegation has been submitted to the complaints authorization committee, the
committee may exercise one or more of the following powers:
(
a) refer the allegation back to the registrar for
an investigation or alternative dispute resolution in accordance with the regulations;
(
b) conduct an investigation itself or appoint a
person to conduct an investigation on its behalf; and
(
c) require
the respondent to appear before it.
(2) Where the complaints authorization committee
is of the opinion there are no reasonable grounds to believe the respondent has
engaged in conduct deserving of sanction, the committee shall dismiss the
allegation and give notice in writing of the dismissal to the complainant.
(3) Where the complaints authorization committee
is of the opinion that there are reasonable grounds to believe that a
respondent has engaged in conduct deserving of sanction, the allegation shall
be considered as constituting a complaint, and the committee may
(
a) counsel or caution the respondent; or
(
b) instruct the registrar to file the complaint
against the respondent and refer it to the disciplinary panel; and
(
c) recommend to the board that
(
i) the respondent's licence be suspended or restricted,
(ii) the registrar conduct an investigation of the
respondent's practice, and where the board approves an investigation the
registrar shall conduct it,
at any time before a final determination by
the adjudication tribunal.
(4) A person conducting an investigation under
paragraph (1)(a), (
b) or subparagraph (3)(c)(ii) may require
(
a) the respondent to
(
i) undergo an examination he or she considers necessary
and as arranged by the registrar, and
(ii) permit the registrar or a member of the complaints
authorization committee or a person appointed by the complaints authorization
committee to inspect and copy the records of the respondent and other documents
relating to the subject matter of the investigation; and
(
b) another person to permit the registrar or a
member of the complaints authorization committee or a person appointed by the
complaints authorization committee to inspect and copy records and other
documents relating to the subject matter of the investigation held by that
person,
and the respondent or other person shall
comply.
(5) An action for damages does not lie against a dispensing
optician or another person to whom a request is made solely because he or she
provides information requested of him or her under subsection (4).
(6) Where the registrar, a member of the complaints
authorization committee or a person appointed by the complaints authorization
committee requires that a respondent or another person provide information
under subsection (4), that information shall be provided within 7 days of
receipt of the request or a different period as specified.
(7) Where the complaints authorization committee
recommends to the board that a respondent's practice be suspended, restricted
or investigated under paragraph (3)(c), the board may
(
a) decide not to act on the recommendation; or
(
b) suspend, restrict or investigate the
respondent's practice.
(8) A complainant whose allegation is dismissed by
the complaints authorization committee under subsection (2) may within 30 days
after receiving notice of the dismissal appeal the dismissal to the Trial
Division by filing a notice of appeal with the Registrar of the Supreme Court.
(9) Subsections (4), (5) and (6) apply to the
Crown.
Adjudication tribunal
(1) For
the purpose of dealing with complaints referred to the disciplinary panel, the
chairperson of the disciplinary panel shall appoint from it an adjudication
tribunal consisting of 3 persons, of whom 2 shall be dispensing opticians and
one shall be a member of the panel appointed to represent the public interest.
(2) The chairperson of the disciplinary panel
shall appoint one of the dispensing opticians on an adjudication tribunal to be
the chairperson.
Hearing
(1) Where
a complaint has been referred under paragraph 16 (3)(b),
an adjudication tribunal shall hear the complaint.
(2) The parties to a hearing are the board and the
respondent and a party may be represented by his or her counsel at a hearing.
(3) A hearing shall be conducted in public but an
adjudication tribunal may exclude the public from a hearing, or from part of
it, where it considers the desirability of protecting a party to the complaint
or another person against the consequences of possible disclosure of personal
matters outweighs the desirability of holding the hearing in public.
Copies of books,
etc. as evidence
19. A
copy or extract of a book, record, document or thing certified by
(
a) a member of the complaints authorization
committee; or
(
b) a person authorized under subsection 16 (4) to conduct an inspection,
who made the copy or extract under
subsection 16 (4) is admissible in evidence in
an action, proceeding or prosecution, in the absence of evidence to the
contrary, as evidence of the original book, record, document or thing and its
contents.
Guilty plea by
respondent
(1) Where
a respondent pleads guilty to one or more of the charges set out in a
complaint, the adjudication tribunal shall, without calling evidence or hearing
witnesses, unless the tribunal believes it is appropriate to do so, hear
submissions from the parties.
(2) Where a respondent pleads guilty, and
following submissions under subsection (1), the adjudication tribunal may
(
a) reprimand the respondent;
(
b) order that the respondent be suspended for a
fixed period that it considers appropriate, until conditions which it may
impose are fulfilled, or until further order of the adjudication tribunal;
(
c) allow or direct the respondent to surrender
his or her licence to the board upon those conditions that may be considered
appropriate and strike the respondent's name from the register;
(
d) impose a fine not to exceed $10,000 to be paid
to the board;
(
e) order that the respondent pay the costs or a
part of the costs incurred by the board in the investigation and hearing of the
complaint;
(
f) order that the registrar publish a
summary of
the decision including the information set out in subsection 22 (4) and other information that the tribunal may
specify; and
(
g) order that the respondent comply with one or
more of the following:
(
i) make restitution to the complainant or other
person affected by the conduct of the respondent,
(ii) obtain medical treatment,
(iii) obtain counselling,
(iv) obtain substance abuse counselling or
treatment, until the respondent can demonstrate to the board or other body or
person designated by the adjudication tribunal that a condition related to
substance abuse rendering the respondent incapable or unfit to practise has
been overcome,
(
v) engage in continuing education programs,
(vi) complete a course of studies or obtain
supervised clinical experience, or both, to the satisfaction of the board or
another body or person designated by the adjudication tribunal,
(vii) report on his or her compliance with an order
made under this
section and authorize others involved with his or her treatment
or supervision to report on it,
(viii) restrict his or her professional practice or
continue his or her practice under specified conditions,
(ix) permit periodic inspection of his or her
practice,
(
x) permit periodic inspection of records relating
to his or her practice, or
(xi) impose other requirements that are just and
reasonable in the circumstances.
(3) The costs incurred by the board to ensure the
compliance of a respondent with an order or direction of an adjudication
tribunal under this
section shall be borne by the respondent.
Powers of adjudication
tribunal
(1) Upon
the hearing of a complaint, an adjudication tribunal shall decide whether or
not a respondent is guilty of conduct deserving of sanction.
(2) Where an adjudication tribunal decides that a
respondent is not guilty, it shall dismiss the complaint and may, where it
believes that the submission of the complaint to the tribunal for a hearing was
unreasonable,
(
a) order that those costs that the tribunal
considers appropriate be paid by the board to the respondent; and
(
b) make another order that it considers
appropriate.
(3) Where an adjudication tribunal decides that a
respondent is guilty, it may
(
a) reprimand the respondent;
(
b) order that the respondent be suspended for a
fixed period that it considers appropriate, until conditions which it may
impose are fulfilled, or until further order of the adjudication tribunal;
(
c) allow or direct the respondent to surrender
his or her licence to the board upon those conditions that may be considered
appropriate and strike the respondent's name from the register;
(
d) impose a fine not to exceed $10,000 to be paid
to the board;
(
e) order that the respondent pay the costs or a
part of the costs incurred by the board in the investigation or hearing of the
complaint;
(
f) order that the registrar publish a
summary of
the decision including the information set out in subsection 22 (4) and other information that the tribunal may
specify; and
(
g) order that the respondent comply with one or
more of the following:
(
i) make restitution to the complainant or other
person affected by the conduct of the respondent,
(ii) obtain medical treatment,
(iii) obtain counselling,
(iv) obtain substance abuse counselling or
treatment, until the respondent can demonstrate to the board or other body or
person designated by the adjudication tribunal that a condition related to
substance abuse rendering the respondent incapable or unfit to practise has
been overcome,
(
v) engage in continuing education programs,
(vi) complete a course of studies or obtain
supervised clinical experience, or both, to the satisfaction of the board or
other body or person designated by the adjudication tribunal,
(vii) report on his or her compliance with an order
made under this
section and authorize others involved with his or her treatment
or supervision to report on it,
(viii) restrict his or her professional practice or
continue his or her practice under specified conditions,
(ix) permit periodic inspection of his or her
practice,
(
x) permit periodic inspection of records relating
to his or her practice, or
(xi) impose other requirements that are just and
reasonable in the circumstances.
(4) The costs incurred by the board to ensure the
compliance of a respondent with an order or direction of an adjudication
tribunal under this
section shall be borne by the respondent.
Filing and publication
of decisions
(1) An
adjudication tribunal shall file a decision or order made under subsection 20 (2) or 21 (3) with
the registrar and provide a copy to the complainant and the respondent and the
respondent's employer.
(2) The registrar shall maintain a copy of a
decision or order filed under subsection (1) for a minimum of 5 years after the
day the decision is filed and shall upon receiving a request to view the
disciplinary records in relation to a dispensing optician permit a person to
view a
summary of a decision where that dispensing optician was the respondent,
prepared in accordance with subsection (4).
(3) The registrar shall publish a
summary of a
decision or order of an adjudication tribunal in a newspaper of general
circulation in or nearest to the community in which the respondent practises
within 14 days of the filing of the decision or order, where the decision or
order
(
a) suspends the respondent;
(
b) allows or directs the respondent to surrender
his or her licence;
(
c) restricts the respondent's practice;
(
d) specifies conditions for the continuing
practice of the respondent; or
(
e) requires that a
summary of the decision or
order be published.
(4) The
summary of the decision published under
subsection (3) shall include
(
a) the name of the respondent and the address
where he or she practises;
(
b) the date, location and a brief description of
the conduct of the respondent that was found to be deserving of sanction;
(
c) the name of the complainant, unless the
complainant has requested that his or her name be withheld;
(
d) the contents of the order in relation to the
actions referenced in paragraphs (3)(
a) to (d); and
(
e) other information specified for publication in
the decision or order.
(5) Where a decision published under this
section
is varied or set aside, the registrar shall within 14 days of the filing of the
subsequent decision or order publish a
summary of the decision or order and
subsections (3) and (4) apply, with the necessary changes.
De-registration
and suspension
(1) Where
a respondent is struck off the register, his or her rights and privileges as a
dispensing optician cease.
(2) Where a respondent is suspended, his or her
rights and privileges as a dispensing optician cease for the period of suspension.
(3) Where conditions or restrictions have been
imposed upon a respondent's ability to carry on his or her practice, his or her
rights and privileges as a dispensing optician shall be limited to the extent
specified by the conditions or restrictions.
Failure to comply
(1) On
application by the board to the disciplinary panel, an adjudication tribunal
may make an order suspending the rights and privileges of a respondent where it
determines that the respondent has failed to comply with a decision or an order
under sections 12 to 28 .
(2) The parties to the application are the board and
the respondent.
(3) An order of an adjudication tribunal under
this
section may suspend the rights and privileges of the respondent for a
fixed period that the adjudication tribunal may consider appropriate, or until
conditions which it may impose are fulfilled, or until further order of the
adjudication tribunal.
Reinstatement and
readmission
(1) Where,
in a decision or order, an adjudication tribunal
(
a) suspends the respondent;
(
b) allows or directs the respondent to surrender
his or her licence;
(
c) restricts the respondent's practice; or
(
d) specifies conditions for the continuing
practice of the respondent,
and where the respondent alleges that new
evidence has become available or a material change in circumstances has
occurred since the making of the decision or order, the respondent may apply to
the complaints authorization committee for a supplementary hearing to discharge
or vary the decision or order based on the new evidence or material change in
circumstances.
(2) An application under subsection (1) shall be
made not more than 90 days after the new evidence becomes available or the
material change in circumstances has occurred.
(3) Where an application is made to the complaints
authorization committee under subsection (1), and the committee is of the opinion
that new evidence has become available or that a material change in
circumstances has occurred, as alleged by a respondent, the matter shall be
referred to an adjudication tribunal as if it were a matter referred under
paragraph 16 (3)(
b) and sections 18 to 23 apply, with
the necessary changes, to the referred matter.
(4) The parties to a supplementary hearing under
this
section are the respondent and the board.
(5) For the purpose of this section, in addition
to an order that an adjudication tribunal may make under
section 21 , a tribunal may
(
a) vary the original decision or order made under
section 21 ; or
(
b) discharge the original decision or order, with
or without conditions.
Costs of the
board
(1) Where
a person who was ordered to pay the costs of the board under paragraph 20 (2)(
e) or 21(3)(
e) fails to pay in the time required,
the board may suspend the registration of that person until the costs are paid.
(2) Costs ordered to be paid under paragraph 20 (2)(
e) or 21(3)(
e) are a debt due to the board and
may be recovered by the board by a civil action.
Collection of
fine
(1) Where
an order is made under
section 20 or 21 imposing a fine on a respondent, the board may
issue a certificate stating the amount of the fine due and remaining unpaid and
the name of the person by whom it is payable, and file the certificate with the
Registrar of the Supreme Court.
(2) Where a certificate is filed with the
Registrar of the Supreme Court under subsection (1), it has the same effect and
all proceedings may be taken on the certificate as if it were a judgment of the
Trial Division for the recovery of the amount stated in the certificate against
the person named in the certificate.
(3) A person named in a certificate filed under this
section may, within 30 days after the certificate is filed, apply to a judge of
the Trial Division for a review, on a question of law or jurisdiction, of the
certificate.
(4) On an application under subsection (3), the
judge may make an amendment to the certificate that is necessary to make the
certificate accord with the judge's decision.
(5) There is no appeal from a decision of a judge
made under this section.
(6) A certificate filed under this
section may
also be filed in the judgment enforcement registry on the expiration of the 30
day period referred to in subsection (3) in accordance with
Part III of the Judgment Enforcement Act and be enforced
in accordance with that Act.
Appeal to Trial
Division
(1) The
board or the respondent may, within 30 days after receiving notice of a
decision or order of an adjudication tribunal under this Act, appeal the
decision or order to the Trial Division by filing a notice of appeal with the
Registrar of the Supreme Court.
(2) An appeal under this
section does not stay the
decision or order being appealed unless the Trial Division orders otherwise.
Protection from
liability
29. An
action for damages does not lie against the registrar, an officer or employee
of the board, a member of a disciplinary panel, adjudication tribunal or the
individual members of those bodies, a person appointed by the complaints
authorization committee to conduct an investigation, another agent of the board
or the board as a corporation for
an act or failure to act or a proceeding initiated
or carried out in good faith under this Act, or for carrying out duties or
obligations authorized under this Act or for a decision or order made or
enforced in good faith under this Act.
Regulations
(1) The
board may, subject to the approval of the minister, make regulations
(
a) providing for the examination of persons who
wish to become dispensing opticians and prescribing the content and conduct of
that examination;
(
b) providing for the issuance and renewal of a
licence or temporary licence to act as a dispensing optician;
(
c) prescribing the courses in optical dispensing
recognized by the board;
(
d) providing for the certification of dispensing
opticians qualified to dispense contact lenses;
(
e) respecting alternative dispute resolution for
the purposes of sections 12 to 28 and the procedure for that resolution; and
(
f) prescribing time limits for events in the
disciplinary process in sections 12 to 28 , including time limits for:
(
i) the filing of an allegation,
(ii) the resolution of an allegation by the registrar,
(iii) the conduct of an investigation under
section 16 ,
(iv) consideration of an allegation by the
complaints authorization committee following completion of an investigation,
(
v) responding to a complainant and respondent at
each stage of the process,
(vi) the conduct of a practice investigation under
subparagraph 16 (3)(c)(ii),
(vii) the appointment of an adjudication tribunal
under
section 17 ,
(viii) the conduct of a hearing and the filing of a
decision or order by an adjudication tribunal following completion of the
hearing, and
(ix) generally to give effect to the purpose of
this Act.
(2) Notwithstanding subsection (1), the minister
may make regulations to prescribe time limits for events in the disciplinary process
under sections 12 to 28
where the board does not do so in a time period the minister considers
reasonable.
Fees and forms
31. The
board may set fees and prescribe forms for the purpose of this Act.
Prescription necessary
(1) An
optical appliance shall only be supplied by a dispensing optician upon and in
accordance with a prescription of a licensed medical practitioner or registered
optometrist.
(2) A duplication of an optical appliance may be
dispensed by a dispensing optician without a further prescription by a medical
practitioner or optometrist.
Contact lenses
33. Contact
lenses shall only be fitted by a dispensing optician
(
a) who holds a certificate from the board
authorizing him or her to do so;
(
b) under the direction of a licensed medical
practitioner or registered optometrist; and
(
c) upon a prescription of a licensed medical
practitioner or registered optometrist that specifically prescribes contact
lenses.
Offence
34. A
person shall not engage in optical dispensing unless he or she is licensed as a
dispensing optician under this Act or employs a dispensing optician licensed
under this Act who is in full-time supervision of the optical dispensing
portion of that person's business.
Penalty
35. A
person who contravenes this Act is guilty of an offence and is liable on
summary conviction to a fine not exceeding $1,000.
Effect of the Optometry
Act, 2004
36. The Optometry Act, 2004 does not apply to a
dispensing optician licensed under this Act who practises optical dispensing
within the meaning of this Act.
Transition
(1) The
members of the Dispensing Opticians Board on the day before this Act comes into
force are continued as members of the board until an election is held under
section 6.
(2) An election to elect the 5 members of the
board referred to in paragraph 4(2)(
a) shall be held within 12 months after the
day this Act comes into force.
(3) The minister shall make appointments under
section 5 within 30 days of the election held under subsection (2).
(4) Of the members of the board first elected
under
section 6,
(a) 3 shall be elected for a term of 3 years; and
(b) 2 shall be elected for a term of 2 years.
RSNL1990 cD-25
Rep.
38. The Dispensing
Opticians Act is repealed.
Earl G. Tucker, Queen's Printer