Bottom Line: Use Em If You Got Em!
In the recent tax court case of Zhang v. Her Majesty The Queen, 2017 CarswellNat 7397, the Tax Court of Canada had to interpret the law when it came to a dentist using OR deferring the use of their education and tuition tax credits. So Dr. Hui Zhang had accumulated $52,040 in tuition and education tax credits. Dr. Zhang COULD use them for her 2014 tax year; in that year, she earned dividend income from her professional corporation. She decided NOT to use any tuition and education tax credits that year. So she figured she could use them (carry forward) in 2015. And that’s what she did: when she filed her 2015 tax return, she claimed $52,040 in tuition and education tax credits. But the CRA (Minister of National Revenue) DENIED HER CLAIM!!! According to them, she didn’t have any credits because they had been applied in her 2014 tax year. Dr. Zhang took the CRA to court.
The Tax Court of Canada looked at section 118.61(1) of the Income Tax Act, which contained a formula for determining the amount by which an individual’s unused tuition, textbook and education tax credits are to be determined. In 2013, that section said you need to use this formula:
A + (B – C) – (D + E)
On December 14, 2017 new changes to the Occupational Health and Safety Act (OHSA) came into force which pack a punch for non-compliant employers.
The most publicized aspect of the new laws was the “elevated heel” prohibition, but there are other changes all employers, including dentists, should know about!
Here are the changes that may affect you:
- Maximum fines per conviction under the OHSA have been hiked up to $1.5 million for corporations; and $100,000 for individuals
- Individuals may now be sentenced with up to 12 months of jail time for non-compliance
- Unless the employer owns the workplace, the employer must now notify the Ministry of Labour if a committee or a health and safety representative has identified potential structural inadequacies of a building or any part of a workplace as a source of danger or hazard to workers
- High heals cannot be mandated by an employer unless an “elevated heel” is required for worker safety (except in the case of employees working in the entertainment and advertising industries)
- The prosecution of non-compliant employers is now limited to 1 year of the occurrence of the last act or default or the day on which an inspector becomes aware of the alleged offence
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you need advice about the new occupational health and safety laws, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
The infection prevention and control (“IPAC”) craze has had dentists scratching their heads for quite some time wondering where to turn for answers about IPAC, Public Health Ontario (“PHO”) inspections, which of the many IPAC guidelines to follow, how to respond to inspectors, etc. If you’re out of the loop and need to find out more about the “craze” that started last summer, see our previous IPAC blogs by clicking here.
The description of the checklists on the PHO website states:
These checklists were developed to assist public health units and others during IPAC lapse investigations and can be used to conduct inspections, audits and reviews of IPAC programs in dental practice settings.
That’s helpful, right? But it appears that an inspector who comes to your practice may be using these two checklists to assist in ensuring compliance. The language is not definitive and room is left for inspectors to use other documents. What’s more, the checklists reference sources from the RCDSO guidelines and Dispatch articles, the Occupational Health and Safety Act, PHO documents, Provincial Infectious Diseases Advisory Committee (PIDAC) documents, the Centres for Disease Control and Prevention (CDC) documents, etc.
So, although instructive on the matter, the new checklists may not be the definitive answer dentists were waiting for about their IPAC obligations!
The RCDSO put out a news release early this month stating that they have worked closely with PHO to develop the new checklists.
The RCDSO also took the opportunity to confirm that the RCDSO has always and continues to suggest that dentists’ professional obligations include
following public health guidelines as well as the recommendations of manufacturers of sterilization and other dental office equipment to ensure patient safety at all times.
They also hint at “potential changes” to the RCDSO Guidelines but confirm that no changes are anticipated until at least the new year.
What’s interesting is that despite recommendation that dentists follow public health guidelines and manufacturer recommendations for sterilization, they also state the current RCDSO guidelines will remain in effect and that “We have had no reports of any dental office that follows the current Guidelines being closed” which is a confusing message to send to dentists.
Right now, dentists don’t know where to turn for authoritative IPAC information. They are pulled in every direction from PIDAC to RCDSO to CDC to CDA – each of which have their own guidelines, recommendations and IPAC documents – some of which are similar but not always the same. And with confusing and contradictory information about which document to follow for proper IPAC measures in their dental practice, no wonder there is so much head scratching going on.
Although not the definitive answer dentists were waiting for, the new checklists are certainly instructive and a step in the right direction. But it is my hope that the PHO and RCDSO continue to collaborate to create a consolidated guideline document for dental practices that will help dentists to easily access one authoritative document and then feel safe and at ease knowing that they are conducting their IPAC using the authoritative guideline on the matter.
In the meantime, dentists should be familiar with both PIDAC and RCDSO guidelines on IPAC. If you are a dentist in Ontario you should absolutely use the new checklists to conduct an internal inspection and to see if your office would comply if an inspector walked into your dental practice today! And be sure to familiarize yourself with the other documents cited in the checklists!
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you need advice about IPAC at your dental practice, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
Accommodation is a process mandated by the Ontario Human Rights Code where an employee requires some sort of modification to their schedule or duties due to disability or some other reason protected by the Human Rights Code (i.e. family obligations, addiction, religious needs, etc.).
Employers are required to accommodate employees who genuinely require accommodation to the point of undue hardship. For more on what may be considered “undue hardship” read my blog To What Extent Do Dentists Have to Accommodate Employees.
In certain circumstances, and as part of the accommodation process, employers may ask employees to provide a doctor’s note outlining the prognosis and any accommodation requirements which the employee needs to return to work. For more information on your obligations when an employee is sick, read my blog Staff On Sick Leave: What Are Your Obligations As An Employer. But what happens if that note is contradictory (i.e. says the employee does not need accommodation but you notice that the employee cannot perform their job due to the disability) or if the note is from a doctor who is unqualified (i.e. the employee brings a note from their chiropractor regarding the employee’s cancer treatment – a medical issue they are unqualified to diagnose or treat)? Well in circumstances such as these, employers may be justified in asking for a second opinion or independent medical examination (“IME”).
Recently, the Ontario Divisional Court upheld a decision by the Human Rights Tribunal which ruled that an employer may, in certain instances, require an employee to undergo an independent medical examination (“IME”) during the accommodation process without the need for specific contractual provisions (Bottiglia v. Ottawa Catholic School Board, 2017 ONSC 2517). Mr. Bottiglia had worked for the Ottawa Catholic School Board (“OCSB”) for over 40 years. He started off as a teacher and progressed to superintendent. Mr. Bottiglia became ill in 2010 and was unable to work for approximately two years. He communicated in February 2012 that he was unable to return to work and that his recovery would take a prolonged period of time. In June 2012, the OCSB received a letter from Mr. Bottiglia’s doctor stating that he was unable to attend work and that a return to the OCSB might place him at a serious risk of a relapse. Then in August 2012, the OCSB was told that Mr. Bottiglia was capable of returning to work on a limited basis sometime in the next two months. The OCSB required Mr. Bottiglia to submit to an IME with a doctor of their choosing. Mr. Bottiglia refused to do so and filed a complaint of discrimination with the Human Rights Tribunal.
The Tribunal assessed Mr. Bottiglia’s case and found it reasonable, given the significant and unexpected changes in Mr. Battiglia’s stated ability to return to work, that the OCSB would want further information about his medical condition and ability to return to work. The OCSB also found it suspect that Mr. Bottiglia’s return to work coincided with the end of his paid leave, which the Tribunal also took into consideration. Ultimately, the Tribunal found that there was no discrimination and that Mr. Bottiglia should have submitted to the IME requested by the OCSB.
The Divisional Court, when reviewing the Tribunal’s decision stated that:
In my view, the Tribunal’s decision on this issue was a reasonable one. In certain circumstances, the procedural aspect of an employee’s duty to accommodate will permit, or even require, the employer to ask for a second medical opinion. Without attempting to define all of those circumstances, they will include the circumstances that the Tribunal reasonably found existed here, where the employer had a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert. [emphasis added]
As the OHRC says in its Policy, an employer is not entitled to request an IME in an effort to second-guess an employee’s medical expert. An employer is only entitled to request that an employee undergo an IME where the employer cannot reasonably expect to obtain the information it needs from the employee’s expert as part of the employer’s duty to accommodate.
It is important to note that in August 2017 the Court of Appeal for Ontario refused Mr. Bottiglia’s application for leave to appeal, thereby confirming that the Divisional Court decision remains good law in Ontario and employers may, in some cases, be justified in requiring employees to undergo IME.
The Human Rights Commission has advice of their own (which is cited by the Court in the Bottiglia case):
While the employer is entitled to get all the information needed to make the accommodation, it must also accept accommodation requests in good faith and respect the dignity of employees. A request for a second opinion, an opinion from a specialist or an independent medical examination (IME) must be necessary to provide accommodation. Such a request should not be made to refute whether the employee has the disability in the first place or to avoid providing the accommodation.
Example: An employee provides a doctor’s note that asks for accommodation but does not state any particular diagnosis. The employee shows no observable symptoms of illness in the workplace, and the employer suspects that the employee is making up a disability to get more flexibility in her work arrangements. The employer wants to prove this by having the employee take an independent medical examination. Such an approach would not be consistent with the Code.
It is not normally advisable for an employer to second-guess the validity of an employee’s doctor’s advice, only on a suspicion that it is not objective because it is based on the employee’s own perceptions. Avoid challenging a medical note or requiring a second opinion unless there is evidence that the doctor’s recommendations are based on something other than his or her best opinion as to what is needed to make sure the patient recovers.
The legitimacy of a request for more medical information will depend on the information already received. A request for more medical information will be appropriate if there is a reasonable and objective basis for seeing the initial information as inadequate or inaccurate. Examples might be if there appears to be a problem with the degree of expertise or type of expertise of the doctor who provided the initial medical opinion, or if there is some reasonable basis to believe that the employee is not fit to do the job despite the existence of a medical report to the contrary. Document reasons for requesting more medical evidence.
Example: After a serious car accident, an employee is cleared by her doctor to return to work. On more than one occasion, she becomes dizzy at the end of her 12-hour night shift operating a machine and narrowly misses hurting herself. The employer asks for more information from her doctor about possible accommodations. Once again, the doctor’s note indicates that the employee is fit to work and that no accommodation steps are needed. The employer then asks the employee to attend an assessment by a doctor of her choosing, with expertise in workplace accommodations.
If a second opinion or independent medical exam (IME) is warranted, a good approach is to select a doctor who is acceptable to both the employee and the employer, and the union (if there is one) rather than insisting that an employee meet with a doctor that the employer has chosen. Give the employee enough information to understand the purpose of such an examination, who will conduct it and what assessments will be used.
As an employer, you are required to accommodate employees who are genuinely in need of such accommodation. However, as my colleague Jonnathan Borrelli always says, “accommodation is a two-way street” – see his blog Your Staff Must Co-Operate in Obtaining Accommodation. Employees cannot simply dictate the type and amount of accommodation they need. As an employer you can request information from a medical professional to help guide the accommodation process. In certain, albeit limited circumstances, you may have occasion to ask the employee to submit to a second opinion or an IME.
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you need advice about your obligations as an employer under the Ontario Human Rights Code, or need help with the accommodation process, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
Infection prevention and control and Public Health inspections are a hot topic! Dentists are worried about their practices and asking us for help. Here is a quick overview of what you need to know about Public Health Ontario (“PHO“) inspections.
The Health Protection and Promotion Act, RSO 1990, c H.7 (“HPPA“) provides the legislative basis on which PHO can receive complaints, conduct inspections and issue/enforce orders.
Yes. There is no protocol in place for PHO to do random inspections of dental offices. At present they only inspect in the event of:
Once a complaint is received, the inspector must notify the RCDSO and will work collaboratively with the RCDSO to conduct the inspection. If necessary, other government branches will be notified, such as the Ministry of Labour if, for example, the investigation uncovers issues under the Occupational Health and Safety Act (for more information about your duties under this Act, click here).
An inspector may enter the premises at “reasonable times” to make inquiries. If you deny entry to the inspector, they may apply to a judge for a warrant to enter and conduct the inspection provided there are reasonable and probable grounds for believing that access is necessary.
Once on the premises, the inspector has the power to do any number of things, including:
Inspectors are looking for compliance with the RCDSO guidelines, PIDAC’s best practices document, and manufacturer’s guidelines (where applicable). Here is a list of some of the infractions that inspectors have found upon entering dental and other offices:
If one or more infractions – also called infection prevention and control (“IPAC“) lapses – are found at the dental practice, then the inspector has powers to make orders to correct those lapses. An order may be made orally, on the spot, if taking the time to put the order in writing will increase the health hazard.
Orders may include:
Appeals from orders of inspectors lie with the Health Services Appeal and Review Board. However, launching an appeal does not automatically preclude you from having to comply with an inspector’s order unless the Board specifically allows it pending a hearing.
Then, the inspector or medical officer may direct its staff to carry out the order, including posting a public notice about the existence of a health hazard. If this occurs, then you will be responsible for paying for the work required plus legal costs. If you refuse to pay, then the amount will be tacked onto your property tax bill.
Failure to comply is an offence punishable by:
Note: directors, managers and officers are automatically liable for corporations under HPPA unless they can prove that they took all reasonable steps to prevent the commission of the offence.
Other remedies available to PHO if you refuse to comply include obtaining an injunction from the Superior Court of Justice which is an order by the court requiring you to comply. Refusal to comply with a court order may culminate in contempt of court plus imprisonment.
Where an investigation is undertaken due to a complaint, the complainant must be notified of the results of that investigation.
Where an investigation was undertaken and one or more IPAC lapses were identified and orders made, Each public health unit of PHO must publish both the initial report (consisting of findings and orders made) and the final report (consisting of how lapse was corrected). For your information, there are 36 public health units across Ontario and each one has their own website where lapses are posted.
Currently there are about 10 IPAC lapse reports posted about dental offices across Ontario. Here are links to the IPAC lapse reports, as found on each health unit’s website that may help you decipher what public health will be looking for if they enter your office:
Note: IPAC lapse reports are only required to be posted for 12 months. These reports will eventually be taken down (and hence you may find that some links will, in time, go stale).
Beyond the IPAC lapse reports, in some instances, the public health unit may advise patients of the lapse, if the lapse has the possibility of affecting them, as was done in the case of Guelph Dental Associates:
Also, if the media picks up on a closure or IPAC lapse, you may find yourself in the midst of a flurry of negative press, as Guelph Dental Associates has in the past few months:
If you want to avoid a complaint in the first place, you should do the following:
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you have any questions about HPPA or PHO inspections, need advice about your obligations as an employer under the OHSA, or need help coming up with and implementing a new office policy manual, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
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 firstname.lastname@example.org.
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 email@example.com.
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 firstname.lastname@example.org.
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 email@example.com.
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 firstname.lastname@example.org.
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 email@example.com.
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.