In a series of blogs (here), I wrote about the dumb laws that used to exist which prevented Ontario dentists from legally treating their spouses – or face an automatic 5 year license suspension. Thankfully, last year, laws were changed and the Royal College opted dentists out of those laws. Other regulate health professionals are still bound by those laws.
Ontario dentists celebrated. And you’d figure that was the last we’d hear about that topic… Well, apparently, the issue has just come to public light in B.C., where the regulator and the province seem to be pointing fingers at each other when it comes to this very issue (which really shouldn’t be an issue at all).
So can dentists legally treat their spouses in B.C.?
In British Columbia, dentistry falls within the umbrella of the Health Professions Act, R.S.B.C. 1996. The College of Dental Surgeons of B.C. is a health profession college continued under that Act and charged with (among other things) establishing a “patient relations program to prevent professional misconduct of a sexual nature.” Here, the Act defines “professional misconduct” to include “sexual misconduct”.
So…OK… The provincial legislation (and provincial government) leaves it up to the College to create patient relations programs concerning sexual misconduct… So how does the College interpret this? Apparently, according to this Vancouver Sun article, the College took the stance that any sexual relations between dentists and patients was inappropriate (i.e. spouses too!). And there were no plans to create an exemption for treating spouses – although no dentists have been disciplined by the College for doing so. I’m not making this stuff up. That’s what the Vancouver Sun article says.
So the College in B.C. wouldn’t do what the College in Ontario fought so hard for years to do… hmmmm…
But what does the B.C. government say about this? Well, again, according to the Vancouver Sun article, they seem to be saying that the College’s interpretation is JUST PLAIN WRONG and that if the College came out with bylaws allowing dentists treated their spouse, it WOULD NOT be in violation of the Act. Now, here’s the problem: the government and the Act seem clear, but the government can only make suggestions since it’s ultimately up to the College (which regulates dentists) to apply those laws. Because the Act says “A college has the following objects: to establish a patient relations program to seek to prevent professional misconduct of a sexual nature”. So the government doesn’t want to step on the College’s toes by telling them what program they ought to have.
Interestingly enough, not all regulated health professions governed by the Act came to the same conclusion as the College of Dental Surgeons. Again, according to the Vancouver Sun article, the chiropractor college and the college of dietitians makes exceptions to their members treating spouses in certain circumstances. So why did the College take such a narrow view?
C’mon B.C… look at what happened in Ontario! Let patients make the determination of who should be their dentist. That’s their right / freedom to choose.
Don’t have an office policy dealing with sexual harassment? You could be setting yourself up for costly legal troubles. Many dentists might be thinking: it doesn’t happen in my office. But do you know what sexual harassment is? Did you realize that you’re responsible for sexual harassment committed by your employees? Are you willing to risk having to appear before the Human Rights Tribunal? Why wouldn’t you take some basic steps now to avoid a potentially devastating situation (human rights proceedings are public and expensive to defend against!). If you want to learn more about sexual harassment and you’re obligations, read on…
The Human Rights Code (the “Code“) and the Occupational Health and Safety Act (the “Act“) define harassment as engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
Examples of sexual harassment include:
Sexual harassment “at work” includes job interviews, volunteer work, internships, working interviews and includes work outings and after hours events which are off business premises.
Section 7(2) of the Code states that “Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee”.
Individuals who commit sexual harassment and companies who condone or mishandle cases of sexual harassment at work may be liable to the person being harassed.
The Code provides for monetary and non-monetary remedies for victims of sexual harassment including compensation for lost wages. Section 46.2(1) states that individuals who are in breach of the Code, including those responsible for sexual harassment in the workplace (meaning employers) may be guilty of an offence and upon conviction may be liable to a fine up to $25,000.
In a recent Human Rights Tribunal case, Horner v. Peelle Company Ltd, 2014 HRTO 1211, the Tribunal awarded a victim of sexual harassment $78,219. The harassment in question was perpetrated by the employer who, honestly believing there was a romance blossoming between them, asked the employee for a kiss. The request was denied by the employee but the behaviour of the employer following the denial was held to amount to reprisal (being a form of unwarranted punishment). The employee was awarded $28,000 for injury to dignity, feelings and self-respect due to the violation of her rights and $50,219 for loss of earnings.
The Code does not mandate a sexual harassment policy, but employers can prevent many cases of sexual harassment by having a clear, comprehensive and anti-sexual harassment policy in place. Furthermore, the Human Rights Tribunal, when making decisions on sexual harassment, considers the following:
The Act requires employers with 5 or more employees to prepare internal policies with respect to workplace violence and harassment, which includes sexual harassment (see section 25(2)(j)). Such policy must be reviewed at least annually and a written copy of the policy must be posted in the workplace.
It is also not good enough that the employer have a no-harassment policy. Employers must also develop and maintain a program to implement the policy (see section 32.06). For example, the employer must include procedures for how employees can make complaints and how those complaints will be handled.
Section 50 of the Act says that no employee may be fired, disciplined, have a penalty imposed on them or be intimidated or coerced because of complying with the Act, seeking to enforce the Act or giving evidence in a proceeding having to do with the Act.
If an employer is found to have breached the Act, they will be found to be guilty of an offence and on conviction will be liable to a fine up to $25,000 or imprisonment for a term of not more than 12 months. If the employer is a corporation and is convicted for breaching the Act, it may be liable for a fine up to $500,000.
Employees who are punished in contravention of section 50 (see above) may seek payment of lost wages, reinstatement and payment of any other financial losses the employee may have suffered as a result of the employer’s breach.
If you are a dentist employer who has more than 5 employees, you MUST have an employee harassment policy including systems for dealing with harassment complaints. A harassment policy serves to protect you and gives you the opportunity to develop guidelines for best practices in situations of harassment. Having this policy is worthwhile, even if you have less than 5 employees. For a sample sexual harassment policy you can visit this webpage: http://www.ohrc.on.ca/en/policy-preventing-sexual-and-gender-based-harassment-0
If you need help constructing your own sexual harassment policy and becoming / remaining compliant with the Act, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team.
That’s right! If you’re a dentist, you no longer have to treat your spouse on weekends and evenings (when the office is closed and the shades are pulled down) or travel to Manitoba (this assumes you can practice there) to avoid losing your license for 5 years! You don’t have to fear reprisal from disgruntled staff who have known about your dirty little secret! Because it’s not so dirty after all – to treat your own spouse. To allow spouses to be able to choose their own dentist puts them at par with everyone else in Ontario!
Yesterday – being July 10, 2014, after years of complaining and lobbying against this stupid law, the relatively new Ontario Government accepted regulations to exempt dentists from the harsh application of this law.
Looking back in time…
February 2013: I wrote an article about this dumb law and how it still applied to dentists. But there was hope with a private member’s bill and a strong lobbying effort by the RCDSO and the ODA.
October 2013: I wrote an article about proposed amendments to the Regulated Health Professions Act had passed 3rd reading (becoming more of a reality). All that was left was for regulations to be passed by the RCDSO and approved by the Government.
November 2013: I was quoted in a National Post article about this topic.
March 5, 2014: the RCDSO passed regulations for dentists to be exempt. Now, the Ontario Government just had to approve them. But we had an election call!
May 2014: I gave a quick update on the status of the exemptions (at that time, the regulations hadn’t been approved).
July 2014: the RCDSO published the following statement on their website (indicating that the law has changed and dentists can now treat their spouses):
Now Legal for Ontario Dentists to Treat Spouses
July 10, 2014
As President of the College, I am delighted to announce that we have just received confirmation from government officials that the regulation passed by Council to allow for treatment of spouses by Ontario dentists is formally approved. This means that any College member can now legally provide dental treatment to his/her spouse.
The College is extremely grateful to the Minister of Health and Long-Term Care, Dr. Eric Hoskins, and the government of Premier Kathleen Wynne for their tremendous support.
From the very beginning, Council has shown leadership on this important issue. Our robust advocacy has helped win the day. There is no question that this positive outcome is also due to the tireless efforts of many individual dentists and of the broader dental community, including our colleagues at the Ontario Dental Association.
The College has been unwavering in its focus to move this matter forward, from its appearances before the Health Professions Regulatory Advisory Council (HPRAC) to its personal meetings with the previous Minister of Health and Long-Term Care and with the chair of HPRAC. Once Bill 70 – the bill that would amend the Regulated Health Professions Act – was passed in early November 2013 by the Ontario Legislature, Council did everything in its power to expedite the rest of the legislative process.
Council held a special meeting on January 24, 2014 to pass the regulation needed to enact the legislation. Then the College spent countless hours in working with government to move the regulation along as quickly as possible through the Ministry of Health. On March 5, College representatives – I and Registrar Irwin Fefergrad – signed the official copy of the regulation and had it hand delivered the same day to Ministry officials.
Now the final step in this arduous voyage is complete.
Dr. Peter Trainor
HAPPY TIMES!!! 😉
So the other day, a dentist asked me: is it legally permissible for me to have a “consensual encounter” with a patient who is not my spouse? The answer, technically, is that this would amount to ‘sexual abuse’ under the present law and could land you in hot water (automatic 5 year suspension of your license if you’re discovered / complained about and the allegations are proven). For more on this, please read my previous blogs.
What’s happening with dentists treating spouses?
When we last off (you can read this blog), the RCDSO had to pass a regulation that would permit dentists to treat their spouses. And on March 5, 2014, that’s exactly what happened. This is the second last step that’s needed before the new law takes effect. All that’s left is for provincial Cabinet (after a political party wins, takes office, and appoints a Cabinet) to approve the regulation. This is more of a ceremonial act. There’s nothing that can be done to stop or make changes to the law.
I was fortunate enough to be interviewed by the Toronto Sun about the changes to the law concerning dentists being able to treat their spouses. Stay tuned for when the article comes out (it will be posted here in case you miss it).
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or email@example.com.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or firstname.lastname@example.org.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or email@example.com.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or firstname.lastname@example.org.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or email@example.com.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or firstname.lastname@example.org.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.