Second

Session, 45th General Assembly

Elizabeth II, 2005

BILL 55

AN ACT RESPECTING THE

PRACTICE OF

MASSAGE THERAPY

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 massage therapists.

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 THE PRACTICE OF MASSAGE

THERAPY

Analysis

Short title

Definitions

Board continued

Appointed directors

Meetings of board

Functions and duties

Fees and audit

Annual report

Prohibition

Registration and licence

Registrar

Proof of registration

Definitions

Complaints and disciplinary panel

Allegation

Effect of filing allegation

Complaints authorization committee

Adjudication

Hearing

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 college

Collection of fine

Appeal to Trial Division

Copies of books, etc. as evidence

Regulations

By-laws, fees and forms

Protection from liability

Offence

Transition

SNL2001 cM-1.1 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 Massage Therapy

Act, 2005 .

Definitions

2. In

this Act

(a) "association" means the Newfoundland and

Labrador Massage Therapists' Association Inc., incorporated under the Corporations Act ;

(b) "board" means the governing board of

the college;

(c) "chairperson", unless the context

requires otherwise, means the chairperson of the board of the college;

(d) "college" means the college

continued under

section 3 ;

(e) "licence" means a licence to practise

massage therapy issued under this Act;

(f) "massage therapist" means a person

who is registered and holds a licence;

(g) "massage therapy" means the

assessment of the soft tissue and joints of the body and the treatment and

prevention of physical dysfunction and pain of the soft tissues and joints by

manipulation to develop, maintain, rehabilitate or augment physical function or

to relieve pain or to promote health;

(h) "member" means a member in good

standing of the college who is a massage therapist;

(i) "minister" means the minister

appointed under the Executive Council Act

to administer this Act; and

(j) "registrar" means the registrar of

massage therapists elected or appointed under subsection 11 (1).

Board continued

(1) The

Newfoundland and Labrador Massage Therapists' Board is continued under the name

College of Massage Therapists of Newfoundland and Labrador as a corporation

without share capital for the purposes of

Part XXI of the Corporations Act .

(2) A person who is registered and holds a licence

under

section 10 is a member of the college.

(3) There shall be a board responsible for

governing the college, which consists of

(a) 5 directors elected from and by members in

accordance with the by-laws; and

(b) 2 directors appointed under

section 4 who are not members.

(4) The board governs the college and may exercise

in the name and on behalf of the college its powers.

(5) A member of the board of directors of the

association is ineligible to be a director of the board established under this

section.

(6) The board shall elect from the directors a

chairperson.

(7) The chairperson shall chair all meetings of

the board and the annual general meeting of members required under

section 5 .

(8) A director 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 hold the office of director for more than 9 consecutive years.

(9) An elected director may resign the office of

director by written notice to the board.

(10) Where an elected director resigns, dies or

becomes incapable of performing the duties of a director, the remaining

directors shall appoint a replacement to serve until the next annual general

meeting.

Appointed

directors

(1) The

minister shall appoint as directors of the board 2 persons who are not massage

therapists 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 director.

(4) Where the term of an appointed director

expires, he or she continues to be a director until re-appointed or replaced.

(5) The college shall pay the expenses of an

appointed director in accordance with guidelines established by the

Lieutenant-Governor in Council.

(6) A person appointed under subsection (1) may

resign the office of director by written notice to the minister.

Meetings of board

(1) The

board shall hold at least one annual general meeting at a time and place that

it determines or at a place that is set in the by-laws and may hold other

general meetings upon the request of the chairperson, the registrar or 2

members of the board.

(2) Four members of the board, including one

member who is not a massage therapist, shall constitute a quorum for a meeting of

the board.

(3) A decision of the majority of members in

attendance at a meeting shall be the decision of the board and, in the event of

a tie, the chairperson, or the person acting as chairperson, shall have a

second deciding vote.

(4) Except where prohibited by the by-laws, a

director may, where all the directors consent, participate in a meeting of the

board by means of the telephone or other telecommunications device that permits

all persons participating in the meeting to communicate with each other.

(5) A member of the board who participates in a

meeting by the means described in subsection (4) is, for the purpose of this

Act, present and in attendance at that meeting.

(6) The college shall hold, in accordance with the

by-laws, an annual general meeting of members at which

(

a) the election for directors shall be held; and

(

b) an auditor shall be appointed to audit the

accounts of the board and report on the financial statements prepared by the

board.

(7) Members of the board shall serve without

remuneration but may be paid travelling and other expenses.

(8) Notwithstanding subsection (6), where the

registrar is also a director, the board may decide, by a majority vote, to

remunerate the registrar.

Functions and

duties

6. The

college may

(

a) examine all degrees, diplomas, licences and

other credentials of an applicant for a licence to determine if the applicant

should receive a licence and be registered to practise under this Act;

(

b) prescribe continuing education, examinations

or other requirements necessary in order to maintain registration and a licence

under this Act;

(

c) fix and collect fees;

(

d) approve registration and issue licences to

persons who meet the requirements of the Act and the regulations; and

(

e) carry out duties and tasks in accordance with

this Act and the regulations.

Fees and audit

(1) The

college shall ensure that the fees payable under this Act are sufficient to

enable it to discharge its duties under this Act.

(2) All money received by the college shall be applied

by it to the exercise of its functions and duties under this Act.

Annual report

(1) The

college shall prepare and submit to the minister before July 1

(

a) a report on the activities of the college; and

(

b) the college's audited financial statements.

(2) Where the college fails to comply with

subsection (1), the college is guilty of an offence and on

summary conviction

may be fined $1,000.

Prohibition

(1) A

person shall not be registered as a massage therapist and issued a licence

under this Act unless he or she satisfies the requirements for registration and

licensing established by this Act and the regulations.

(2) A massage therapist who is registered and

licensed under and complies with this Act is entitled to

(

a) use the title "massage therapist",

"registered massage therapist", "licensed massage

therapist" and the designation "R.M.T."; and

(

b) engage in the practice of massage therapy for

fee, commission, payment or profit.

(3) A person other than a massage therapist

registered and licensed under this Act shall not use the title "massage

therapist" or an abbreviation or variation of that title.

(4) A person shall not hold himself or herself out

as being a massage therapist entitled to practise or perform massage therapy in

the province unless he or she is registered and holds a licence under this Act.

(5) Notwithstanding subsection (4), a person who

carries out massage therapy

(

a) as part of a course of or training in massage

therapy that is approved by the board; or

(

b) in connection with an examination that is

arranged by the board

is not required to be registered and

licensed under this Act.

Registration and

licence

(1) For

the purposes of registration and the issuance of a licence under this Act, the college

shall recognize and approve examinations and schools of or pertaining to

massage therapy and shall make provisions for the holding of examinations as it

may consider necessary for those purposes, but the standards of the

examinations and schools recognized and approved and of the examinations held

shall not be lower than the standards prescribed by the Canadian Massage

Therapy Alliance.

(2) The authority of the college under subsection

(1) to recognize and approve schools of massage therapy does not include

authority to determine whether or not an educational institution may offer

courses or training related to the practice of massage therapy.

(3) The college shall register as a massage

therapist and issue a licence to practise massage therapy to a person who

(

a) pays the required fee;

(

b) has a diploma, degree or certification and has

passed the examinations recognized and approved by the college under subsection

(1);

(

c) provides proof that he or she has obtained

professional liability insurance coverage in a form and amount satisfactory to

the college; and

(

d) meets other requirements that may be

prescribed by regulation.

(4) A person who is issued a licence under this

Act shall, within 30 days after being granted a licence, become a member of the

association.

(5) The licence of a person who does not comply

with subsection (3) shall be considered to be revoked.

(6) The registrar shall annually renew the

registration and licence of a person who meets the requirements of this Act and

the regulations.

(7) Notwithstanding paragraph (3)(b), where a

person

(

a) has practised massage therapy in the province

for not fewer than 7 years immediately before June 1, 2002 ;

and

(

b) while practising massage therapy in the

province, has been a member of the association; and

(

c) has completed courses of instruction and has

practical experience that the college considers to be equivalent to the requirements

of paragraph (3)(b),

the board may register that person as a

massage therapist and issue a licence to practise massage therapy to him or

her.

Registrar

(1) The

board may elect a director as registrar or may appoint a person from outside

the board to be the registrar.

(2) The registrar shall

(

a) be secretary to the college;

(

b) register and issue licences on the direction of

the college to persons who meet the requirements for registration and licensing

under this Act and the regulations;

(

c) maintain a register of massage therapists

containing the names of all persons who hold a licence under this Act and other

information that may be required by the college;

(

d) collect fees;

(

e) control all matters relating to the finances

of the college; and

(

f) perform other duties that the college may

require.

(3) The registrar shall make the register

available for inspection by the public on reasonable notice and at reasonable

times.

Proof of

registration

12. A

certificate signed or purporting to be signed by the registrar stating that the

name of a person was or was not entered in the register on a date or for a

specified period shall be admissible in evidence without proof of the signature

of the registrar and the contents of that certificate shall be, in the absence

of evidence to the contrary, evidence of the facts stated on it.

Definitions

13. In

this

section and sections 14 to 29

(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 under

section 15 ;

(c) "conduct deserving of sanction"

includes

(

i) professional misconduct,

(ii) professional incompetence,

(iii) conduct unbecoming a massage therapist, and

(iv) acting in breach of this Act, the regulations

or a code of ethics made under

section 31 ;

(d) "costs incurred by the college"

includes

(

i) out of pocket expenses incurred by or on

behalf of the college,

(ii) amounts paid by the college to adjudication

tribunal members as remuneration and for expenses, and

(iii) the actual cost of legal counsel for the

college and the adjudication tribunal;

(e) "disciplinary panel" means the panel

of persons appointed under

section 14 from

which the members of an adjudication tribunal are chosen; and

(f) "respondent" means a person who

holds or who has held a licence under this Act and against whom an allegation

is made.

Complaints and

disciplinary panel

(1) The

board shall appoint at least 3 members of the board, at least one of whom shall

be a member of the board who was appointed to represent the public interest, to

constitute a complaints authorization committee.

(2) The registrar is not eligible to be a member

of the complaints authorization committee.

(3) The board shall appoint the chairperson and

vice chairperson of the complaints authorization committee from the persons

appointed under subsection (1).

(4) The board shall appoint at least 10 members of

the college who are not directors, one of whom shall be appointed to serve as

chairperson, and the minister shall appoint at least 3 persons who are not

members of the college to represent the public interest, who shall together

constitute a disciplinary panel.

(5) Of the persons 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 of

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 continues to be a member until he or she is

re-appointed or his or her replacement is appointed.

(7) Members appointed to the disciplinary panel

may be reappointed.

(8) The complaints authorization committee and an

adjudication tribunal appointed under

section 18

and a person appointed by either of them for the purpose may summon a

respondent or other person and require him or her to give evidence orally or in

writing upon oath or affirmation, and produce the documents and things that he

or she considers necessary to the full investigation and hearing of allegations

and complaints and shall have the powers, privileges and immunities that are

conferred on commissioners appointed under the Public Inquiries Act.

(9) A member of the disciplinary panel shall serve

as a member of the panel without payment for his or her services, but may be

remunerated for services as a member of an adjudication tribunal and paid his

or her travel and other expenses associated with the work of the tribunal by

the college, in accordance with the rates set by the by-laws.

Allegation

(1) An

allegation shall be in writing and signed by the complainant or his or her

solicitor, and filed with the registrar of the college.

(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

massage therapist has been convicted of an offence under the provisions of the Criminal Code (Canada) or a similar

penal statute of another country or has been suspended by a governing body of

massage therapists in another province or territory of Canada or in another

country for reason of professional misconduct, conduct unbecoming to a massage

therapist 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 an allegation may be resolved satisfactorily, and where the complainant

and the respondent consent, the registrar may attempt to resolve the matter.

(2) Where an 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

massage therapist against whom the allegation is made of the referral of the

allegation to the complaints authorization committee.

Complaints authorization

committee

(1) After

an allegation has been referred 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 college that

(

i) the respondent's practice be suspended or

restricted, or

(ii) the registrar conduct an investigation of the

respondent's practice, and where the college 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)(

b) or subparagraph (3)(c)(ii) may

(

a) require a respondent to

(

i) undergo an examination or assessment he or she

considers necessary and as arranged by the registrar or the college, and

(ii) permit the registrar or a director or another

person appointed by the college to inspect and copy the records of the

respondent and other documents relating to the subject matter of the investigation;

and

(

b) require another person to permit the registrar

or a director or another person appointed by the college 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) Where the registrar, a director or another

person requires that a respondent or another person provide information under

subsection (4), that information shall be provided, as requested, within 7 days

of receipt of the request or a different period as specified in the request.

(6) An action for damages does not lie against a

massage therapist or another person to whom a request is made solely because he

or she provides information requested of him or her under subsection (4).

(7) Where the complaints authorization committee

recommends to the college that a respondent's practice of massage therapy be suspended,

restricted or investigated, the college may

(

a) decide not to act on the recommendation; or

(

b) suspend, restrict or investigate the

respondent's practice of massage therapy.

(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

(1) For

the purpose of dealing with a complaint referred to the disciplinary panel, the

chairperson of the disciplinary panel shall appoint from the disciplinary panel

an adjudication tribunal consisting of 3 persons, of whom 2 shall be massage

therapists and one shall represent the public interest.

(2) The chairperson of the disciplinary panel

shall appoint one of the massage therapists on an adjudication tribunal to be

the chairperson of that tribunal.

Hearing

(1) Where

a complaint has been referred under paragraph 17 (3)(b),

an adjudication tribunal shall hear the complaint.

(2) The parties to a hearing are the college 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 witness or a party to

the complaint against the consequences of possible disclosure of personal

matters outweighs the desirability of holding the hearing in public.

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 may consider 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 college upon those conditions that may be considered

appropriate and strike the respondent's name from the register;

(

d) impose a fine to be paid to the college, not

to exceed $10,000;

(

e) 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;

(

f) order that the respondent pay the costs or a

part of the costs incurred by the college in the investigation and hearing of

the complaint; 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, or

(ix) impose other requirements that are just and

reasonable in the circumstances.

(3) The costs incurred by the college 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 disciplinary panel for a

hearing was unreasonable,

(

a) order that those costs that the panel

considers appropriate be paid by the college 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 may consider 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 college upon those conditions that may be considered

appropriate and strike the respondent's name from the register;

(

d) impose a fine to be paid to the college, not

to exceed $10,000;

(

e) 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;

(

f) order that the respondent pay the costs or a

part of the costs incurred by the college in the investigation and hearing of

the complaint; 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, or

(ix) impose other requirements that are just and

reasonable in the circumstances.

(4) The costs incurred by the college 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 massage therapist permit a person to view

a

summary of a decision where that massage therapist 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 massage therapist is struck off the register, his or her rights and

privileges as a massage therapist cease.

(2) Where a massage therapist is suspended, his or

her rights and privileges as a massage therapist cease for the period of suspension.

(3) Where conditions or restrictions have been

imposed upon a massage therapist's ability to carry on his or her practice of

massage therapy, his or her rights and privileges to practice or perform

massage therapy shall be limited to the extent specified by the conditions or restrictions.

Failure to comply

(1) On

application by the college to the disciplinary panel, an adjudication tribunal

may make an order suspending the rights and privileges of a respondent where it

determines that he or she has failed to comply with a decision or an order made

under

section 20 or 21 .

(2) The parties to the application are the college

and the respondent who is the subject of the application.

(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 registration;

(

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, the matter shall be referred to an adjudication

tribunal as if it were a matter referred under paragraph 17 (3)(

b) and sections 19

to 24 apply, with the necessary changes, to the

referred matter.

(4) The parties to a supplementary hearing under

this

section are the respondent and the college.

(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 college

(1) Where

a person who was ordered to pay the costs of the college under paragraph 20 (2)(

e) or 21 (3)(

e) fails to pay in the time required, the college may suspend the licence of that

person until those costs are paid.

(2) Costs ordered by the adjudication tribunal

under this

section are a debt due to the college and may be recovered by the

college in a civil action.

Collection of

fine

(1) Where

an order is made under

section 20 or 21 imposing a fine on a respondent, the college 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

college 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.

Copies of books,

etc. as evidence

29. 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 17 (4) to conduct an inspection,

who made the copy or extract under

subsection 17 (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.

Regulations

(1) The

college may, with the approval of the minister, make regulations

(

a) prescribing conditions and requirements for

the registration and licensing of persons who practise massage therapy;

(

b) respecting continuing education courses and

other programs for the purpose of maintaining and improving professional

standards of members;

(

c) respecting alternative dispute resolution and

the procedure for that resolution;

(

d) within the limits set by subsection 10 (2), approving colleges or universities that offer

courses and programs in massage therapy;

(

e) prescribing, scheduling or adopting

examinations and determining the circumstances when examinations are required;

(

f) prescribing time limits for events in the

disciplinary process in sections 13 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 17 ,

(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 17 (3)(c)(ii),

(vii) the appointment of an adjudication tribunal

under

section 18 , and

(viii) the conduct of a hearing and the filing of a

decision or order by an adjudication tribunal following completion of the hearing;

and

(

g) 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 13 to 28 where the board does not do so in a time period

the minister considers reasonable.

By-laws, fees and

forms

(1) The

college may make by-laws

(

a) providing for the holding and procedure of its

meetings;

(

b) providing for the election of directors under

section 3 and setting the term of office;

(

c) limiting the participation of directors in a

meeting of the board by telephone or other telecommunications device;

(

d) providing for payment of travel and other

expenses of elected directors;

(

e) setting the rates of remuneration for members

of an adjudication tribunal;

(

f) providing for voting at a meeting of members

of the college by mail or electronic means;

(

g) setting a location for the annual general

meeting of the college;

(

h) establishing a code of ethics which may

include a definition of "professional misconduct" and "conduct

unbecoming a massage therapist" for the purposes of paragraph 13 (c); and

(

i) generally, to assist in the administration of

this Act and the regulations.

(2) The college shall have its by-laws available

for inspection by the public on reasonable notice and at reasonable hours.

(3) The college may set fees and establish forms

for the purposes and administration of this Act and the regulations.

Protection from

liability

32. An

action for damages does not lie against the registrar, a member, officer or

employee of the board, a person designated by the board, a member of a panel,

tribunal or committee authorized under this Act, 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 as the registrar, a member, officer, employee, designate, agent or

tribunal, panel or committee member authorized under this Act or for a decision

or order made or enforced in good faith under this Act.

Offence

(1) A

person who contravenes this Act or the regulations commits an offence and is

liable on

summary conviction to a fine not exceeding $1,000 or to imprisonment

for a term not exceeding one month in default of payment or to both a fine and

imprisonment.

(2) Each day that an offence is committed under

this Act shall be considered to be a separate offence.

Transition

(1) The

members of the Newfoundland and Labrador Massage Therapists' Board on the day before this Act

comes into force are continued as directors of the college until an election is

held under

section 5 .

(2) An election to elect the 5 directors referred

to in paragraph 3 (3)(

a) shall be held within

one year after the day this Act comes into force.

(3) The minister shall make appointments under

section 4 within 30 days of the election

referred to in subsection (2).

(4) Of the directors first elected under

section 5,

(a) 3 shall be appointed for a term of 3 years;

and

(b) 2 shall be appointed for a term of 2 years.

SNL2001 cM-1.1 Rep.

35. The Massage

Therapy Act is repealed.

Earl G. Tucker,

Queen's Printer