Bill 34 - Massage Therapy Act

BILL 34

Massage Therapy Act

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

AND WHEREAS it is desirable, in the interests of the public and the members of the College of Massage Therapists of New Brunswick, to continue the College of Massage Therapists of New Brunswick as a body corporate for the purpose of advancing and maintaining the standard of massage therapy services in the Province, for governing and regulating massage therapy services provided to the public and for providing for the welfare of members of the public;

THEREFORE, His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART 1

INTERPRETATION

1( 1) The following definitions apply in this Act, unless the context otherwise requires.

“Board” means the Board of Directors of the College constituted under section 3. (Conseil)

“by-law” means any by-law made under this Act. (règlement administratif)

“College” means the College of Massage Therapists of New Brunswick continued under section 2. (Collège)

“Complaints Committee” means the Complaints Committee constituted under subsection 37(1). (Comité des plaintes)

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

“Executive Director” means the person holding the office of Executive Director under subsection 8(1). (directeur général)

“health professional” means a person who provides a service related to (professionnel de la santé)

(a) the preservation or improvement of the health of individuals, or

(b) the diagnosis, treatment or care of individuals who are injured, sick, disabled or infirm,

and who is regulated under an Act of the Legislature with respect to the provision of the service and includes a social worker registered under the New Brunswick Association of Social Workers Act.

“Hearing Committee” means the Hearing Committee constituted under subsection 39(1). (Comité d’audience)

“incapacity” means a physical or mental condition, addiction or disorder suffered by a member of such nature and extent that it is desirable in the interests of the public, the College or the member that the member no longer be permitted to carry on the practice of massage therapy or that the member’s practice be suspended or subjected to conditions, limitations or restrictions. (incapacité)

“incompetence” means acts or omissions on the part of a member in the member’s professional practice that demonstrate a lack of knowledge, skill or judgment, or disregard for the interests of a patient of such a nature and to such an extent as to render the member unfit to carry on the practice of massage therapy without conditions, limitations or restrictions. (incompétence)

“licence” means a licence to practise massage therapy under this Act. (licence)

“massage therapy” and “the practice of massage therapy” means the assessment of the soft tissues and joints of the body and the treatment and prevention of physical dysfunction and pain of the soft tissues and joints by mobilization or other methods generally accepted as part of the practice of massage therapy to develop, maintain, rehabilitate or augment physical function, or relieve pain, and does not include manipulation or movement of the spine or the joints of the body beyond an individual’s usual physiological range of motion using a high-velocity, low-amplitude thrust. (massothérapie) (exercise de la massothérapie)

“member” means a registered massage therapist and any person whose name is entered in the register, temporary register or in any of the rosters established and maintained under this Act, the by-laws or the rules. (membre)

“Minister” means the Minister of Health and includes any person designated by the Minister to act on the Minister’s behalf. (ministre)

“patient” or “client” means a recipient of the services of a registered massage therapist. (patient) (client)

“prescribed” means prescribed by by-laws or rules made under this Act by the Board. (réglementaire)

“previous Act” means the Massage Therapy Act, chapter 49 of the Acts of New Brunswick, 2013. (loi antérieure)

“professional corporation” means a corporation, the name of which is entered in the professional corporations register. (corporation professionnelle)

“professional corporations register” means the register kept under paragraph 10(1)(c). (registre des corporations professionnelles)

“professional misconduct” means a serious digression from established or recognized professional standards or rules of practice of the College or the profession, the acts and omissions specified in this Act as constituting professional misconduct and a breach of a code of ethics or standards of practice, and includes, but is not limited to: (faute professionnelle)

(a) a member having pleaded guilty to or been found guilty of an offence that, in the opinion of the Hearing Committee, is relevant to the member’s suitability to practise;

(b) the governing body of a health profession in a jurisdiction other than New Brunswick having found that a member committed an act that would, in the opinion of the Hearing Committee, constitute professional misconduct under this Act, the by-laws or the rules;

(d) violation or failure to comply with this Act, the by-laws or the rules;

(e) violation or failure to comply with a term, condition, limitation or restriction imposed on the member’s licence or registration;

(f) failure to submit to an examination, inspection or audit, or to deliver records and documents, ordered by the Complaints Committee or the Hearing Committee;

(g) sexual abuse of a patient; or

(h) failure to file a report under section 46.

“register” means the register kept under paragraph 10(1)(a). (registre)

“registered massage therapist” means a person whose name is entered in the register kept under paragraph 10(1)(a). (massothérapeute accrédité)

“Registrar” means the Registrar of the College appointed under subsection 8(2). (registraire)

“registration” means the entry of a name of a person in a register or roster under this Act. (immatriculation)

“roster” means one of the rosters kept under paragraph 10(1)(d). (tableau)

“temporary register” means the register kept under paragraph 10(1)(b). (registre temporaire)

1( 2) The words, initials or expressions “registered massage therapist”, “RMT”, “massage therapist”, “duly qualified massage therapist”, “licensed massage therapist”, “MT”, “massage practitioner”, “registered massage practitioner” or any like words, initials or expressions used alone or in combination with other words or expressions connoting a person recognized by law as a registered massage therapist or person entitled to carry on the practice of massage therapy or connoting a member of the College, when used in any provision of an Act of the Legislature or any regulation, rule, order or by-law made under an Act or used in any public document, shall be read as including a person whose name is entered in the register, temporary register or roster as a registered massage therapist.

PART 2

THE COLLEGE

2 The College of Massage Therapists of New Brunswick incorporated by the previous Act is hereby continued as a body corporate without share capital and, subject to this Act, has the capacity, rights, powers and privileges of a natural person.

Board of College

3( 1) A Board of the College consisting of not fewer than 5 and not more than 12 directors shall be responsible for the administration of this Act and shall control, govern and manage, or supervise the control, government and management of, the business and affairs of the College and all aspects of the practice of massage therapy.

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

3( 3) When the Board consists of eight directors or fewer, at least one director, who shall be a layperson, shall be appointed by the Board in the manner provided for in the by-laws, and when the Board consists of more than eight directors, at least two laypersons shall be appointed by the Board in the manner provided for in the by-laws.

3( 4) The powers, duties and operations of the Board are not affected in any way by

(a) the fact that an appointment has not been made under subsection (3),

(b) the resignation, death or disqualification of a director appointed under subsection (3), or

(c) the failure, for any reason, of a director appointed under subsection (3) to attend any meeting of the Board or to participate in the manner contemplated by this Act, the by-laws or the rules.

By-laws

4( 1) Unless this Act or the by-laws otherwise provide, the Board may by resolution make, amend or repeal by-laws not inconsistent with the provisions of this Act regulating the business or affairs of the College and the practice of massage therapy and, without restricting the generality of the foregoing,

(a) governing and regulating

( i) the admission, suspension, expulsion, removal, discipline and reinstatement of members, the conditions precedent and continuing conditions for registration and membership in the College,

( ii) the registration, licensing and renewal, suspension, cancellation, revocation and reinstatement of registration and licensing of members, including the imposition of conditions, limitations and restrictions on any membership, registration or licence issued or granted under this Act, and

( iii) the registration or membership of persons having significant experience but not having educational qualifications usually required for registration or membership,

(b) establishing one or more categories of membership, determining the rights, privileges and obligations of the members of each category and dividing the register or a roster into parts with respect to such categories,

(d) determining the method of setting fees payable to the College annually or otherwise, including without limiting the foregoing, fees for admission, membership, registration, insurance and testing or examinations and providing for the collection thereof,

(e) providing for the election or appointment, removal and remuneration of and establishing the powers and duties of officers, officials, employees and agents of the College or the Board,

(f) creating and governing committees for the carrying out of the business and affairs of the Board and the College and for regulating and governing the practice of massage therapy,

(g) delegating to directors, officers, officials, employees or committees any of the duties, powers and privileges of the Board and the College, except the power to make, amend or repeal by-laws, rules, a code of ethics or standards of practice,

(h) fixing and regulating the quorum, time, place, calling, conduct and business of annual, special and general meetings of the College, the Board and committees of the College or the Board, establishing the method of voting by any means and establishing the qualifications of persons entitled to vote at the meetings,

(i) developing, establishing, maintaining and administering

( i) standards for education programs leading to registration and for continuing education, professional development and the participation therein of registered massage therapists,

( ii) standards for the practice of massage therapy, and

( iii) codes of professional conduct and ethics for registered massage therapists,

(j) respecting and governing the management and disposition of trust, charitable or benevolent funds committed to the care of the College,

(k) setting the fiscal year of the College and determining the place where the head office of the College shall be located and the place or places where other offices of the College shall be located,

(l) determining the aspects, subjects or matters of the business and affairs of the College and the practice of massage therapy that may be regulated and governed by rules of the Board,

(m) authorizing the making of co-operative or affiliation arrangements with any institution, organization or professional body in any jurisdiction,

(n) providing for the establishment and payment of scholarships, fellowships and other educational incentives, benefits and awards by the College,

(o) regulating advertising,

(p) requiring any member to have as a condition of registration professional liability insurance and prescribing the amounts of such insurance,

(q) respecting and governing such other subjects, matters and things as the Board considers appropriate to administer this Act, including to define any terms not defined in this Act, or to advance or protect the interests of the public or the College,

and such by-laws shall be valid, binding and effective from the date they are passed by the Board until amended or repealed by an ordinary resolution at an annual, or special or general meeting of the College called for the purpose of considering the same.

4( 2) Any amendment or repeal of a by-law by the Board shall be made by by-law.

4( 3) By-laws relating to matters described in paragraphs (1)(a), (b), (c) and (i) shall not be effective or be acted upon until approved by the Minister.

4( 4) The Board may, from time to time, in such amounts and on such terms as it considers expedient

(a) borrow money upon the credit of the College,

(b) issue, reissue, sell or pledge debt obligations of the College,

(c) charge, mortgage, hypothecate, pledge or otherwise create a security interest in all or any currently owned or subsequently acquired, moveable or immoveable property of the College to secure any debt obligation or any money borrowed or other debt or liability of the College, or

(d) give a guarantee on behalf of the College to secure performance of an obligation of another person.

4( 5) The Board may, from time to time, delegate to one or more of the directors and officers of the College as may be designated by the Board, all or any of the powers conferred on the Board in subsection (4), to such extent and in such manner as the Board shall determine at the time of each such delegation.

Rules

5( 1) Unless this Act or the by-laws otherwise provide, the Board may by resolution make any rules not contrary to the by-laws regulating any of the aspects, subjects or matters of the business or affairs of the College and the practice of massage therapy as may be governed by by-law, and any such rule shall be valid, binding and effective from the date of the resolution of the Board.

5( 2) Any amendment or repeal of a rule by the Board shall be made by a rule.

6 No act or thing done in reliance on, or right acquired under, a by-law or rule that is subsequently repealed or amended shall be prejudicially affected by such repeal or amendment.

Public access to by-laws and rules

7 All the by-laws and the rules of the College or the Board shall be available electronically for inspection by any person at the head office of the College at all reasonable times during business hours, free of charge.

Executive Director / Registrar

8( 1) The Board may appoint an Executive Director of the College who shall hold office during the pleasure of the Board.

8( 2) The Board shall appoint a Registrar who shall hold office during the pleasure of the Board.

8( 3) The offices of Registrar and Executive Director may both be held by one person at the same time.

Executive Committee

9( 1) There shall be an Executive Committee of the Board composed of members of the Board that, between meetings of the Board or at such other times as may be prescribed, may carry out any of the duties and exercise any of the powers and privileges of the Board, and the Executive Committee shall carry out such other duties as may be assigned to it from time to time by the Board, the by-laws or the rules.

9( 2) The number of members of the Executive Committee, their respective terms of office, the manner of their appointment or election and their qualifications shall be established and governed by the by-laws.

PART 3

REGISTRATION AND MEMBERSHIP

10( 1) The Registrar shall keep or cause to be kept:

(a) a register in which shall be entered the name and address of every person who has met the qualifications for registration as a registered massage therapist under this Act, the by-laws and the rules;

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

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

(d) rosters of members in which shall be entered the name and address of every person who is entitled to membership in any category of membership established by the by-laws or the rules, other than persons whose names are entered in the register or the temporary register.

10( 2) The register, temporary register, professional corporations register and rosters may be divided into such parts as may be prescribed in which shall be entered the names of persons qualified under the by-laws and the rules for such categories, classifications and levels of registration, membership or practice as may be prescribed.

10( 3) Every person who qualifies for registration under the provisions of the by-laws and the rules may, upon payment of the prescribed fee, have their name entered in the register, the temporary register, the professional corporations register or a roster or the appropriate part thereof upon providing to the Registrar satisfactory evidence of that person’s qualifications and experience.

11( 1) No registered massage therapist shall engage in the private practice of massage therapy without first providing the Registrar with proof of valid professional liability insurance in the minimum amount prescribed and providing proof of renewal of such insurance each year thereafter.

11( 2) Subject to the exemptions set out in subsection 24(3), no person shall practise massage therapy or hold themselves out as a registered massage therapist unless that person’s name is entered in the register, the temporary register or a roster, and persons so registered may practise or hold themselves out as registered massage therapists only to such extent as is authorized by this Act, the by-laws and the rules.

11( 3) No person shall bring an action in any court to collect fees, compensation or other remuneration for services performed as a registered massage therapist unless registered under this Act.

12 The register, temporary register and professional corporations register shall be available electronically for inspection by any person at the head office of the College at all reasonable times during regular business hours, free of charge.

13( 1) Persons whose names are entered in the register or in the temporary register are entitled, subject to any conditions, limitations and restrictions set out in the by-laws or the rules, to practise as registered massage therapists in New Brunswick, to hold themselves out as registered massage therapists and to use such titles and designations as are prescribed.

13( 2) A corporation that has its name entered in the professional corporations register and that has complied with the terms and conditions of the by-laws and the rules, subject to any conditions, limitations or restrictions as may be prescribed or set out in its certificate, shall be entitled to engage in the practice of massage therapy.

13( 3) Subject to the exemptions set out in subsection 24(3), persons whose names are not entered in the register, the temporary register or a roster shall not practise massage therapy or practise as registered massage therapists or hold themselves out as registered massage therapists in the Province, or take or use the designations “registered massage therapist”, “licensed massage therapist”, “registered massage therapist”, “duly qualified massage therapist”, “massage practitioner”, “registered massage practitioner” or the initials or abbreviations “RMT” or “MT” or other titles, names, initials or designations, either alone or in combination with other words, letters or descriptions, that imply they are entitled to practise massage therapy.

13( 4) No person or corporation shall carry on, purport to carry on or advertise the carrying on of the practice of massage therapy by, through or in the name of a corporation or a professional corporation unless registered as a professional corporation under this Act, the by-laws or the rules.

14 A statement certified under the hand of the Registrar respecting the registration status of a person is admissible in evidence as prima facie proof of the facts therein specified respecting the registration status of that person under this Act and is prima facie proof of any conditions, limitations or restrictions set out in the statement, if any, as applicable to that person.

15( 1) Nothing in this Act prohibits the practice of massage therapy in New Brunswick or the recovery of fees or compensation for professional services rendered as a registered massage therapist by a person registered in good standing with a massage therapy regulatory body in another country, state, territory or province and whose engagement requires that person to help a patient in New Brunswick during the period of the engagement, if that person does not represent or hold themselves out as a person licensed or registered under the provisions of this Act, for such limited period and subject to such conditions, limitations and restrictions as may be set out in the by-laws or the rules.

15( 2) Any person who was entitled to practise massage therapy or entitled to use any designation indicating that person was a member of a massage therapy regulatory body under the laws governing or concerning the practice of massage therapy in any other jurisdiction and who has been suspended from or otherwise restricted in or disqualified from practising massage therapy or using any such designation in another jurisdiction by reason of illness, incapacity, professional misconduct, dishonesty or incompetence shall not be entitled to apply for registration or to be registered under the provisions of this Act until such time as the suspension, restriction or disqualification has been removed in the other jurisdiction.

16 Any person who is enrolled as a student in an approved education program may perform the tasks, duties and functions constituting part of the student’s course of study, subject to such conditions, limitations and restrictions as may be prescribed.

17( 1) The Registrar shall cause the name of a member to be removed from the register, the temporary register or a roster:

(a) at the request of or with the written consent of the member;

(b) where the name has been incorrectly entered;

(d) where the registration of the member has been revoked or suspended; or

(e) when a person no longer meets the requirements for continued registration.

17( 2) The Registrar may remove or cause the removal of the name of any person from the register, temporary register, professional corporations register or roster who fails to meet or maintain the qualifications and standards for entry in such register or roster.

17( 3) The registration of a registered massage therapist shall terminate and cease to have effect when the registered massage therapist’s name is removed from the register in accordance with this Act, the by-laws or the rules.

17( 4) Where the name of a member is removed from the register, the temporary register or a roster, the Registrar shall forthwith notify the member that the member’s name has been removed from the register, temporary register, or roster.

17( 5) On such grounds and subject to such conditions as may be prescribed, the name of a person removed from the register, the temporary register or a roster may be restored upon payment to the College of:

(a) all amounts owing by the person to the College; and

(b) such additional sums as may be prescribed.

17( 6) The Registrar shall cause a licence or renewal thereof to be issued annually or at such other times as may be prescribed in electronic form or other form as the Board may, from time to time, determine to every person whose name is entered in the register or temporary register or corporations register, and the licence shall state the date upon which it expires, the type of licence and any conditions, limitations or restrictions imposed on the person or professional corporation to whom the licence is issued.

Employer obligations

18( 1) Every person, other than a patient or any person acting on behalf of a patient without expectation or hope of monetary compensation, who engages a person to act as a registered massage therapist and every agency or registry that procures employment or work for a person as a registered massage therapist

(a) shall ensure at the time of engagement and at least once each year thereafter if such engagement is continuing, that the person is the holder of a current registration and licence under this Act, and

(b) where a person’s engagement as a registered massage therapist is terminated because of dishonesty, incompetence or incapacity, shall forthwith report the matter to the College and provide a copy of the report to the person whose engagement is terminated.

18( 2) No person making a report under paragraph (1)(b) shall be subject to liability as a result of making such a report unless it is proved that the report was made maliciously.

PART 4

PROFESSIONAL CORPORATIONS

19( 1) No corporation shall be entitled to have its name entered in a register other than the professional corporations register.

19( 2) No professional corporation shall be entitled to vote at any meeting of the College.

19( 3) All the provisions of this Act, the by-laws and the rules applicable to a member apply with all necessary modifications to a professional corporation unless otherwise expressly provided.

19( 4) The Board may make by-laws

(a) prescribing the types of names, designations or titles by which the following may be known:

( i) a professional corporation;

( ii) a partnership of two or more professional corporations; or

( iii) a partnership of one or more professional corporations and one or more registered massage therapists, and

(b) regulating the practice of massage therapy by professional corporations and requiring the filing of such reports, information and returns the Board considers necessary.

20( 1) The articles of incorporation, articles of continuance or other constating documents of each professional corporation shall not prevent the professional corporation from

(a) engaging in every phase and aspect of rendering the same massage therapy services to the public that a registered massage therapist is authorized to render, and

(b) having the capacity and exercising the rights, powers and privileges of a natural person as may be necessary or incidental or ancillary to the rendering of massage therapy services, including without restricting the foregoing, the power

( i) to purchase, lease or otherwise acquire and to own, mortgage, pledge, sell, assign, transfer or otherwise dispose of, and to invest in, deal in or deal with, real or personal property,

( ii) to contract debts and borrow money, issue and sell or pledge bonds, debentures, notes and other evidences of indebtedness and execute such mortgages, transfers of corporate property and other instruments to secure the payment of corporate indebtedness as required, and

( iii) to enter into a partnership, consolidate or merge with or purchase the assets of another corporation or individual rendering the same type of professional services.

20( 2) The legal and beneficial ownership of a majority of the issued shares of a professional corporation shall be vested in one or more members and shall entitle such member or members to elect all the directors of the professional corporation.

20( 3) The legal and beneficial ownership of all issued shares of a professional corporation other than those referred to in subsection (2) shall be vested in the persons prescribed.

20( 4) No member who is a shareholder of a professional corporation shall enter into a voting trust agreement, proxy or any other type of agreement vesting in a person who is not a member the authority to exercise the voting rights attached to any or all the member’s shares, and every shareholder who does so commits an offence.

20( 5) The practice of massage therapy on behalf of a professional corporation shall be carried on by registered massage therapists.

20( 6) For the purposes of subsection (5), the practice of massage therapy shall be deemed not to be carried on by clerks, secretaries, assistants and other persons employed by the professional corporation to perform services that are not usually and ordinarily considered by law, custom or practice to be services that may be performed only by a registered massage therapist.

20( 7) The registration of a professional corporation may be revoked, or its renewal withheld, by the Registrar where any of the conditions specified in subsection (1), (2), (3), (4) or (5) no longer exist.

20( 8) Where a professional corporation ceases to fulfill any condition specified in subsection (2), (3) or (4) by reason only of

(a) the death of a member,

(b) the striking off or other removal from the register of the name of a member, or

the professional corporation has 180 days, or such longer period as the Board may permit, after the date of the death, striking off, removal, suspension or revocation, as the case may be, in which to fulfill the condition, failing which the Registrar shall revoke the registration of the professional corporation.

21 A professional corporation may offer massage therapy services in its own name, subject to any conditions, limitations or restrictions as may be prescribed or as set out in its registration or licence.

22 The relationship of a member to a professional corporation, whether as a shareholder, director, officer or employee, does not affect, modify or diminish the application of the provisions of this Act, the by-laws or the rules to the member.

23( 1) Nothing contained in this Act, the by-laws or the rules respecting professional corporations shall affect, modify or limit any ethical obligation of a registered massage therapist.

23( 2) A member of the College who, while practising massage therapy for a professional corporation, acquires information relating to a patient that is confidential shall ensure that such information is not disclosed to a shareholder of the professional corporation who is not a member of the College.

PART 5

OFFENCES AND ENFORCEMENT

24( 1) Except as provided in this Act, the by-laws or the rules, no person other than a person whose name is entered in the register, the temporary register or a roster shall

(a) publicly or privately, whether or not for hire, gain or hope of reward, hold themselves out in any way as being a registered massage therapist or as being entitled to practise massage therapy,

(b) assume or use any title, name, designation, initials or description, including those referred to in this Act, that could lead the public to believe that person is a member of the College or a registered massage therapist, or

24( 2) A person who violates or fails to comply with subsection (1) commits an offence.

24( 3) Subject to the conditions set out in the paragraphs below, subsection (1) does not apply to

(a) massage therapy students, provided that they use the title or description of services “massage therapy student” or other prescribed titles or descriptions of services which clearly indicate their student status,

(b) professors of massage therapy while carrying out their teaching and research duties, so long as they use a title, or description of services, that clearly indicates their professor of massage therapy status, or

( i) who is authorized to practise massage therapy, or to use a title relating to the practice of massage therapy, by a professional regulatory body in another jurisdiction recognized by the Board, provided that person indicates the title and the regulatory body which granted that title, and

( ii) whose practice of massage therapy in the Province consists only of the provision of educational workshops or courses and does not exceed one week or such longer period as the Board may permit in a calendar year.

24( 4) Any person authorized to practise as a registered massage therapist or hold themselves out as a registered massage therapist under the provisions of this Act who practises massage therapy in violation of any condition, limitation or restriction imposed upon that person’s registration or membership or who fails to inform that person’s employer of any such condition, limitation or restriction commits an offence.

25 Any professional corporation that breaches or permits the breach of any condition, limitation or restriction imposed upon its registration commits an offence, and an officer, director, agent or shareholder who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is guilty of the offence and liable to the punishment provided for the offence, whether or not the professional corporation has been prosecuted or convicted.

26 Any person who knowingly furnishes false or misleading information in or in respect of any application made under this Act, the by-laws, or the rules, or in any statement or return required to be furnished under this Act, the by-laws or the rules, commits an offence.

27( 1) A person who commits an offence under this Act is liable on conviction

(a) for a first offence, to a fine of not less than $240 and not more than $10,200, or

(b) for a subsequent offence,

( i) to a fine of not less than $240 and not more than $10,200, and

( ii) to a term of imprisonment of not more than 30 days if no other sentence will deter the person from repeating the offence.

27( 2) All fees, fines and penalties payable under this Act shall be paid to the College and belong to the College.

27( 3) An information with respect to an offence under this Act shall be laid by the Registrar or a member authorized by the Board.

27( 4) The prosecution of an offence under this Act shall be conducted by the Board or a person authorized by the Board, unless the Attorney General or an agent of the Attorney General intervenes.

28 Where a member or former member or an applicant for registration does or attempts to do anything contrary to the provisions of this Act, the by-laws or the rules, the doing of such thing may be restrained by an injunction of the Court at the instance of the Board acting in the name of the College.

29 Where any person other than a person described in section 28 does or attempts to do anything contrary to the provisions of this Act, the doing of such thing may be restrained by an injunction of the Court at the instance of the Board acting in the name of the College.

30( 1) No prosecution for an offence under this Act shall be commenced after the expiration of one year after the date of the last act that is part of the alleged offence.

30( 2) Where an offence under this Act continues for more than one day, the offender commits a separate offence for each day that the offence continues.

30( 3) For the purposes of this Act, proof of the performance of one act in the practice of massage therapy on one occasion is sufficient to establish that a person has engaged in the practice of massage therapy.

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

(a) the practice of medicine under the Medical Act;

(b) the practice of nursing or the practice of a nurse practitioner under the Nurses Act;

(d) the practice of physiotherapy under the Physiotherapy Act;

(e) the practice of podiatry under the Podiatrists Act;

(f) the practice of chiropractic under The Chiropractors Act, 1997;

(g) the practice of occupational therapy under the Occupational Therapy Act; or

(h) the carrying on of any profession, calling or occupation by a person authorized to carry on such profession, calling or occupation by any public or private Act of the Legislature.

PART 6

COMPLAINTS

32( 1) The following definitions apply in this Part.

“complaint” means any complaint, report or allegation in writing and signed by the complainant regarding the conduct, actions, competence, character, fitness, capacity or health of a member and includes a request referred to in subsection (2). (plainte)

“member” includes a registered massage therapist, former registered massage therapist, former member or professional corporation. (membre)

32( 2) In the absence of a complaint, if the Registrar has reason to believe that the conduct or actions of a member may constitute professional misconduct or incompetence or that the member is suffering from incapacity or other conduct referred to in subsection (1), the Registrar may file a complaint with the Complaints Committee.

32( 3) For all purposes under this Act, the complaint referred to and to be dealt with in accordance with the provisions of this Act, the by-laws and the rules is the original complaint defined in subsection (1) or the complaint under subsection (2), and there shall be no requirement that any person prepare any summary of the complaint or any charges with respect to such complaint.

33( 1) The Registrar shall

(a) conduct or provide for the conduct of investigations on behalf of the Complaints Committee,

(b) provide for the processing of complaints before the Complaints Committee and Hearing Committee,

(d) prepare necessary documents and notices of hearing,

(e) ensure that all decisions of the Complaints Committee and the Hearing Committee are implemented and take whatever action is necessary to see that this is done, including referring the matter back to the appropriate committee, and

(f) perform such other functions as required in carrying out the responsibilities of the Registrar or as directed by the Board.

33( 2) When a complaint is referred to the Complaints Committee, the Registrar shall provide the Committee with a full report of the results of any investigation, the complaint, the member’s reply and any documentation and information relevant to the complaint.

Registrar and review of complaints received

34( 1) The Registrar shall upon receiving a complaint

(a) take further action as required in this Part if the complaint in substance alleges that

( i) a member’s conduct constitutes:

( A) professional misconduct;

( B) conduct unbecoming a member, including any conduct that might adversely affect the standing or good name of the profession or the College;

( C) incompetence;

( D) dishonesty;

( E) any conduct in breach of the provisions of this Act, the by-laws or the rules; or

( F) any conduct rendering the member unfit or incapable, or demonstrating that the member is unfit or incapable, to practise massage therapy, or

( ii) the member is suffering from any ailment, incapacity or condition rendering the member unfit or incapable to practise massage therapy,

(b) if necessary, obtain additional information from the complainant and other persons and carry out such preliminary investigation, as the Registrar considers necessary,

( i) a copy of the complaint, and

( ii) the date by which a reply and all relevant documents requested by the Registrar must be filed with the Registrar, which date shall be at least 14 days after a copy of the complaint is provided to the member,

(d) make such enquiries and obtain such information as the Registrar considers necessary in order to determine whether the complaint meets the requirements of this Act and in substance warrants further consideration in respect of the conduct, actions or capacity of the member and, in making such decision, shall consider:

( i) whether the complaint is vexatious;

( ii) whether there is insufficient evidence of the actions, conduct or incapacity of the member to warrant referral of the complaint; and

( iii) whether the complaint is primarily concerned with the fees and financial charges of the member;

and if the Registrar determines any of the above circumstances apply, the Registrar may dismiss the complaint and so advise the member and the complainant of the Registrar’s decision.

34( 2) The Registrar shall refer all complaints received to the Complaints Committee unless dismissed under paragraph (1)(d).

Complainant’s right of review of Registrar’s decision

35( 1) A complainant who is dissatisfied with the decision of the Registrar to dismiss a complaint may request in writing a review by the Complaints Committee within 30 days after the date of the decision.

35( 2) Upon receipt of a request under subsection (1), the Complaints Committee may confirm the decision of the Registrar to dismiss the complaint or process the complaint in accordance with this Act, the by-laws and the rules.

35( 3) The Registrar shall advise the complainant and the member in writing of the disposition of a complaint under subsection (2).

36 A member who is the subject of a complaint shall cooperate with the Registrar in the investigation of the complaint, including the production of all documents and disclosure of all information that may be relevant to the complaint.

Complaints Committee

37( 1) The Board shall maintain a standing committee known as the Complaints Committee.

37( 2) The Complaints Committee shall be composed of members in good standing, and at least one person who is not a member shall be appointed by the Board to represent the public, and none of the Complaints Committee members shall be a director of the College or a member of the Hearing Committee.

37( 3) The quorum, number of Complaints Committee members, their terms of office, qualifications and the manner of their appointment shall be established and governed by the by-laws, and the by-laws may regulate the procedures, functions and operations of the Complaints Committee and may permit the establishment of panels of the Complaints Committee to act for and to carry out and exercise any and all the duties and powers of the Complaints Committee.

37( 4) The Board shall appoint one of the members of the Complaints Committee who shall be a member of the College to be the Chair of the Complaints Committee.

37( 5) The Complaints Committee shall conduct its proceedings in accordance with its own rules of procedure and may do all things and engage such persons, including legal counsel, it considers necessary to provide for the processing, hearing and consideration of any complaint, and in no case is the Complaints Committee bound to follow the rules of evidence or procedure applicable in judicial proceedings.

37( 6) The Complaints Committee shall consider all complaints referred to it, shall consider only written evidence and may do one or a combination of the following:

(a) cause such investigation or further investigation of the complaint as it considers necessary;

(b) dismiss the complaint, in which case it shall give its reasons in writing to the complainant and the member;

(c) issue a written caution or warning to the member in circumstances considered by the Complaints Committee not to justify other forms of sanction;

(d) refer the whole or part of the complaint to the Hearing Committee;

(e) settle or informally resolve the complaint;

(f) take such other action, consistent with its responsibilities under this Act, the by-laws or the rules, as it considers necessary in the public interest, in which case it shall give its reasons in writing to the complainant and the member;

(g) perform such other duties as may be assigned to it by the Board, the by-laws or the rules;

(h) without hearing suspend the registration, licence or membership of a member if the Complaints Committee has reasonable and probable grounds for believing that the member in question has been convicted of any criminal or other offence of such kind or type that the Complaints Committee is of the opinion that the continued registration, licensing or membership of the member in question would affect the good name of the College or the profession or would be contrary to the interests of the public or the member’s patients, and upon the Complaints Committee ordering the suspension, the Complaints Committee shall immediately refer the matter to the Hearing Committee; or

(i) on the application of the member and on cause being shown, rescind or vary any suspension order made by the Complaints Committee.

37( 6.1) For the purposes of subsection (6), “evidence” includes any document which may be presented to the Complaints Committee.

37( 7) When the Complaints Committee refers a matter to the Hearing Committee, the Complaints Committee may, at any time after receipt of a complaint, if it considers it probable that the continued practice of the member will be harmful to the public or to the member’s patients, pending final disposition of the matter, make an order

(a) suspending the member, or

(b) placing conditions, limitations or restrictions on the practice, licence or membership of the member.

37( 8) No order shall be made by the Complaints Committee under subsection (7) unless the member has been given

(a) notice of the Complaints Committee’s intention to make the order, and

(b) at least 14 days to make written representations to the Complaints Committee in respect of the matter after receiving the notice.

37( 9) Where the Complaints Committee takes action under subsection (7), the Complaints Committee shall notify the member of its decision in writing and of the reasons for the decision.

37( 10) An order under subsection (7) continues in force until the matter is disposed of by the Hearing Committee unless the order is stayed pursuant to an application under subsection (11).

37( 11) A member against whom action is taken under subsection (7) may, within ten days after receiving notice of the order made by the Complaints Committee, apply to the Court for an order staying the action of the Complaints Committee.

37( 12) If an order is made by the Complaints Committee under subsection (7) in relation to a complaint referred to the Hearing Committee, the College and the Hearing Committee shall act expeditiously in relation to the complaint.

38 Despite any other provision in this Act, if at any time a member admits any allegation in a complaint alleging a matter set out in paragraph 34(1)(a), and the member waives in writing the right to any other or further hearing or proceedings under this Part, the Complaints Committee may

(a) agree to cancel all hearings or proceedings and to accept the member’s resignation on such terms and conditions as the Complaints Committee may specify, or

(b) make any order, finding or decision that may be made under subsection 37(6) or 39(12).

Hearing Committee

39( 1) The Board shall maintain a standing committee known as the Hearing Committee.

39( 2) The Hearing Committee shall be composed of members in good standing and at least one person who is not a member shall be appointed by the Board to represent the public, and none of the Hearing Committee members shall be a director of the College or a member of the Complaints Committee.

39( 3) The quorum, number of Hearing Committee members, their terms of office, qualifications and the manner of their appointment shall be established and governed by the by-laws, and the by-laws may regulate the procedures, functions and operations of the Hearing Committee and may permit the establishment of panels of the Hearing Committee to act for and to carry out and exercise all the duties and powers of the Hearing Committee.

39( 4) The Board shall appoint one of the members of the Hearing Committee who shall be a member of the College to be the Chair of the Hearing Committee.

39( 5) The College may engage legal counsel, including a prosecutor, in respect of a complaint and shall have the right to appear and participate in any proceedings of the Hearing Committee or in any appeal.

39( 6) The Hearing Committee shall:

(a) conduct its proceedings in accordance with its own rules of procedure and may do all things and engage such persons, including legal counsel, it considers necessary to provide for the processing, hearing and consideration of any complaint, and in no case is the Hearing Committee bound to follow the rules of evidence or procedure applicable in judicial proceedings;

(b) hear and consider all complaints referred to it; and

39( 7) The Hearing Committee

(a) shall consider the complaint, hear the evidence, ascertain the facts and make a decision with respect to the merits of each complaint and as to whether the allegations respecting a matter described in subparagraph 34(1)(a)(i) have been established, or whether the member is suffering from an ailment, incapacity or condition described in subparagraph 34(1)(a)(ii), in such manner as it considers fit,

(b) in its absolute discretion at any time after the receipt of a complaint if it considers it necessary or advisable, may without hearing require the member in respect of whom a complaint is made to submit to physical or mental health examinations by such qualified person or persons as the Hearing Committee may designate, and if the member fails to submit to any such examination, the Hearing Committee may without further notice suspend the member’s registration, licence or membership until the member does so,

(c) in its absolute discretion at any time after the receipt of a complaint if it considers it necessary or advisable, may without hearing require the member in respect of whom a complaint is made to undergo such practice or other examinations as the Hearing Committee may designate in order to determine whether the member has adequate skill and knowledge to practise massage therapy, and if the member fails to submit to any such examination, the Hearing Committee may without further notice suspend the member’s registration, licence and membership until the member does so,

(d) in its absolute discretion at any time after the receipt of a complaint if it considers it necessary or advisable, may without hearing require any member to produce records and documents of any kind, written or recorded in any format or by any means, including clinical, therapeutic, administrative and financial records and documents in the member’s possession or custody or under the member’s control or in the possession or custody or control of any professional corporation of which the member is a director, officer or shareholder, and if a member fails to produce such records and documents, the Hearing Committee may without further notice suspend the member’s registration, licence or membership until the member does, unless the member is prohibited by law from producing such records and documents, and

(e) in its absolute discretion at any time after the receipt of a complaint if it considers it necessary or advisable, may without hearing require any member or professional corporation to submit to an audit or other inspection or examination of the practice, business, affairs, accounts, books and records of the member or professional corporation, including all records and documents of any kind, written or recorded in any format or by any means, including clinical, therapeutic, administrative and financial records and documents of the member or professional corporation, by such person or persons as the Hearing Committee may designate, and if the member or professional corporation fails to submit to such audit, inspection or examination, the Hearing Committee may without further notice suspend the member’s or professional corporation’s registration, licence or membership until the member or professional corporation does so.

39( 8) Any person who conducts an examination under this section shall prepare and sign an examination report containing the findings of the examination and the facts on which they are based and shall deliver the report to the Hearing Committee, a copy of which shall be forthwith delivered to the member who is the subject of the complaint, and such report is admissible as evidence at a hearing without proof of its making or of the person’s signature if the party introducing the report gives the other party a copy of the report at least ten days before the hearing.

39( 9) No order shall be made by the Hearing Committee under paragraph (7)(b), (c), (d) or (e) unless the member has been given

(a) notice of the Hearing Committee’s intention to make the order, and

(b) at least 14 days to make written representations to the Hearing Committee in respect of the matter after receiving the notice.

39( 10) Where the Hearing Committee takes action under paragraph (7)(b), (c), (d) or (e), the Hearing Committee shall notify the member of its decision in writing and of the reasons for the decision, and an order under paragraph (7)(b), (c), (d) or (e) continues in force until the matter is disposed of by the Hearing Committee unless the order is stayed pursuant to an application under subsection (11).

39( 11) A member against whom action is taken under paragraph (7)(b), (c), (d) or (e) may, within ten days after receiving notice of the order made by the Hearing Committee, apply to the Court for an order staying the action of the Hearing Committee.

39( 12) After reviewing all the evidence presented to it, the Hearing Committee may as part of its decision with respect to the merits of any complaint

(a) order that the member’s registration, licence or membership is suspended for a specific period during which the member’s name shall be removed from the register, temporary register or professional corporations register or any roster in which the name may be entered, and the member shall be prohibited from carrying on the practice of massage therapy,

(b) order that the member’s registration, licence or membership is suspended pending the satisfaction and completion of such conditions as may be ordered by the Hearing Committee,

(c) order that the member’s registration, licence or membership is revoked and that the member’s name be removed from the register, temporary register or professional corporations register or any roster in which it may be entered, and may specify a period before which the former member may not apply for reinstatement,

(d) order that the member’s practice, registration, licence or membership is restricted pending compliance with stipulated conditions, in which case the Hearing Committee shall notify the member’s employer, if any, of such decision,

(e) order that conditions, limitations or restrictions are imposed on the member’s practice, registration, licence or membership and so inform the member’s employer, if any,

(f) issue a reprimand,

(g) dismiss the complaint,

(h) impose such fine as the Hearing Committee considers appropriate not exceeding $20,000 to be paid by the member to the College for the use of the College,

(i) order that the member cease or refrain from using any names, designations, titles, words, symbols, initials or expressions, including those set out in subsection 13(3), which connote that the person is a member of the College or is entitled to carry on the practice of massage therapy,

(j) order that the decision of the Hearing Committee or notice thereof be published in such manner as the Hearing Committee considers fit,

(k) order that the imposition of any penalty be suspended or postponed for such period and upon such terms and conditions as the Hearing Committee considers appropriate,

(l) order that the costs of any investigation, proceeding or hearing be paid by the member to the College,

(m) make any one or more of the orders it may make under paragraphs (a) to (l) against any professional corporation of which the member is a director, officer or shareholder,

(n) attempt to resolve informally any complaint if the Hearing Committee considers it appropriate, or

(o) make such other order as it considers just, including without limitation, an order combining two or more of the orders set out in paragraphs (a) to (m).

39( 13) A member who fails to submit to and cooperate with an examination, inspection or audit under paragraph (7)(b), (c) or (e) or to produce records and documents under paragraph (7)(d) commits an act of professional misconduct.

39( 14) Despite any other provision of this Act, if at any time the Hearing Committee considers it appropriate that a complaint be resolved by an alternate dispute resolution process, and the member is in agreement with the referral of the complaint to such process, the Hearing Committee may enter into an agreement with the member providing for the resolution of the complaint by an alternate dispute resolution process set out in the agreement which may provide that any order, finding or decision that may be made under this Act may be made as part of the dispute resolution.

40( 1) Upon the request of any party to a hearing by the Hearing Committee, the Chair of the Hearing Committee or legal counsel for the College or the Hearing Committee, and on payment of any fees prescribed, the Registrar may sign and issue summonses for the purpose of procuring and compelling the attendance and evidence of witnesses and the production of things relating to matters in question before the Hearing Committee.

40( 2) On application to the Court by the Hearing Committee, a person who fails or refuses to comply with a summons issued under subsection (1) is liable to be punished for contempt as if in breach of an order or judgment of the Court.

40( 3) The testimony of witnesses shall be taken under oath or solemn affirmation which any member of the Hearing Committee is authorized to administer.

40( 4) The Hearing Committee may provide that oral evidence presented at a hearing is recorded and, if so, that copies of the transcript of the hearing are available to a party on the party’s request and at that party’s expense.

41 The standard of proof in all proceedings before the Hearing Committee is on the balance of probabilities.

42( 1) Subject to subsection (2), a hearing of the Hearing Committee shall be open to the public.

42( 2) The Hearing Committee may make an order that the public, in whole or in part, be excluded from a hearing or any part of it if the Hearing Committee is satisfied that:

(a) financial, personal or other matters may be disclosed at the hearing of such a nature that the harm created by disclosure would outweigh the desirability of adhering to the principle that hearings be open to the public;

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

42( 3) Where it thinks fit, the Hearing Committee may make orders it considers necessary to prevent public disclosure of matters disclosed at a hearing, including orders prohibiting publication or broadcasting of those matters.

42( 4) No order shall be made under subsection (2) or (3) that prevents the publication of anything that is contained in the registers and available to the public.

42( 5) The Hearing Committee may make an order that the public be excluded from the part of the hearing dealing with a motion for an order under subsection (2) or (3).

42( 6) The Hearing Committee may make any order necessary to prevent the public disclosure of matters disclosed in the submission relating to any motion described in subsection (5), including prohibiting the publication or broadcasting of those matters.

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

42( 8) Where the Hearing Committee makes an order under subsection (2), wholly or partly, because of the desirability of avoiding disclosure of matters in the interest of a person affected, the Hearing Committee:

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

(b) may allow such other persons as the Hearing Committee considers appropriate to attend the hearing.

Member’s rights in proceedings before the Hearing Committee

43 In all proceedings before the Hearing Committee, the member against whom a complaint has been made

(a) shall receive prompt notice that a complaint has been received along with a copy of the complaint,

(b) may present evidence or make representations in either English or French,

(d) shall be entitled to a full right to examine, cross-examine and re-examine witnesses,

(e) shall be entitled to receive copies of all documents presented to the Hearing Committee in connection with the complaint unless such documents are privileged by law,

(f) shall be entitled to at least 14 days’ written notice of the date of the first hearing of the Hearing Committee, and

(g) shall receive prompt notice of and a copy of the decision rendered.

General

44( 1) Before the hearing is completed, the Hearing Committee may, upon such terms as are just, permit further allegations to be brought or amendments to existing allegations in the complaint to be made with respect to the member.

44( 2) No member of the Hearing Committee shall communicate outside the hearing with a party or the party’s representative in relation to the subject matter of the hearing unless the other party has been given notice of the subject matter of the communication and an opportunity to be present during the communication.

44( 3) Subsection 30(1) does not apply to any discipline proceeding under Part 6 or appeal under Part 7 of this Act.

44( 4) Any person whose right to practise, registration or membership is revoked, suspended or subjected to conditions, limitations or restrictions shall without demand forthwith deliver to the Registrar any licence, registration, certificate or validation seals issued under this Act to such person.

44( 5) Members of the Complaints Committee, the Hearing Committee or the Board are not compellable as witnesses to testify in relation to the basis on which a decision was reached, any aspect of the decision or the decision-making process.

Sexual abuse

45( 1) A member who sexually abuses a patient commits an act of professional misconduct.

45( 2) “Sexual abuse” of a patient by a member means

(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,

(b) touching, of a sexual nature, of the patient by the member, or

45( 3) For the purposes of subsection (2), “sexual nature” does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.

Reporting sexual abuse

46( 1) A member who, in the course of practising the profession, has reasonable grounds to believe that another health professional has sexually abused a patient or client and who fails to file a report in writing in accordance with subsection (4) with the governing body of the health professional within 21 days after the circumstances occur that give rise to the reasonable grounds for the belief commits an act of professional misconduct.

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

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

46( 4) A report filed under subsection (1) shall contain the following information:

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

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

(d) subject to subsection (5), if the grounds of the member filing the report are related to a particular patient or client of the health professional who is the subject of the report, the name of the patient or client.

46( 5) The name of a patient or client who may have been sexually abused shall not be included in a report unless the patient or client or, if the patient or client is incapable, the patient’s or client’s representative, consents in writing to the inclusion of the patient’s or client’s name.

46( 6) Subsections 45(2) and (3) apply with the necessary modifications to sexual abuse of a patient or client by another health professional.

46( 7) No member filing a report under subsection (1) shall be subject to any liability as a result thereof unless it is proved that the report was made maliciously.

PART 7

APPEALS

47( 1) If

(a) a member against whom a complaint has been made is dissatisfied with a decision of the Hearing Committee, or

(b) an applicant for registration is dissatisfied with a decision made by the person or body empowered by by-law to make such decision with respect to their application

such person may, by serving a written notice of appeal on the Registrar within 30 days after the date on which notice of said decision was given to that person, appeal the decision to the Court.

47( 2) There shall be no appeal from any decision, order or finding of the College, the Registrar, the Board or any committee, officer, employee or agent of the College or the Board or any other person or body authorized to make decisions, orders or findings under this Act, the by-laws or the rules, as the case may be, except appeals authorized or mentioned in subsection (1).

48( 1) In any appeal under this Act, the Registrar shall obtain a transcript or such other record as exists of the evidence presented to the person or body from whom the appeal is taken and shall prepare a record on appeal to the Court consisting of the transcript or such other record as exists, all exhibits and the order or other document evidencing the decision being appealed.

48( 2) The Registrar shall provide the appellant and any other person entitled by the by-laws to participate in the appeal with a copy of the record on appeal upon payment by the appellant or such other person of the costs and disbursements of producing such copy.

49 On appeal, the Court may upon granting special leave, and only where it is shown that such evidence was not previously available, receive further evidence.

50 After reviewing the record on appeal and hearing any evidence or argument presented, the Court may

(a) draw inferences of fact and make any finding, decision, determination or order that in its opinion ought to have been made,

(b) vary the decision appealed from,

(d) confirm the decision appealed from, or

(e) make such decision or order as it may consider appropriate.

51( 1) An appeal to the Court under this Act shall be on any ground of appeal that involves a question of law alone or a question of mixed fact and law.

51( 2) The notice of appeal shall set forth the grounds of appeal and the relief sought and shall be served upon the Registrar and the Clerk of the Court for the judicial district in which the head office of the College is located.

52( 1) The record on appeal to the Court shall be the record prepared by the Registrar.

52( 2) The Rules of Court governing civil appeals to The Court of Appeal of New Brunswick that are not inconsistent with this Act shall apply with the necessary modifications to appeals to the Court under this Part, and the College shall be a party and have standing to appear and participate in any appeal to the Court.

53 Despite that an appeal to the Court may have been instituted in respect of a decision or order, that decision or order shall continue to be valid and binding and no stay of proceedings may be granted prior to the hearing of the appeal.

PART 8

INVESTIGATIONS

54( 1) In this Part, “member” means a member as defined in subsection 32(1).

54( 2) The Registrar may appoint one or more investigators to investigate whether the acts or conduct of a member constitutes an act or conduct described in subparagraph 34(1)(a)(i) or whether the member is suffering from an ailment, incapacity or condition rendering the member unfit to carry on or incapable of carrying on the practice of massage therapy if the Complaints Committee has received a complaint about the member and the Chair of the Complaints Committee has requested the appointment.

54( 3) An employee or member of the College may be appointed an investigator under subsection (2).

Power to investigate

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

55( 2) Subsection (1) applies despite any provision in any Act or regulation relating to the confidentiality of records.

55( 3) No person shall, without reasonable excuse, obstruct or cause to be obstructed an investigator while the investigator is performing duties under this Act.

55( 4) No person shall withhold, conceal or destroy, or cause to be withheld, concealed or destroyed, any thing that may be relevant to an investigation under this Act.

55( 5) A person who violates or fails to comply with subsection (3) or (4) commits an offence under this Act.

Search warrant

56( 1) Upon the ex parte application of an investigator, the Court may issue a warrant authorizing the investigator to enter a building, receptacle or place and search for and examine or remove any thing described in the warrant if it is satisfied on information by oath or solemn affirmation that the investigator has been properly appointed, that the application has been authorized by the Chair of the Complaints Committee and that there are reasonable grounds for believing that

(a) the acts or conduct of the member being investigated if proven could constitute acts or conduct described in subparagraph 34(1)(a)(i) or the member is suffering from an ailment, incapacity or condition rendering the member unfit to carry on or incapable of carrying on the practice of massage therapy, and

(b) there is in a building, receptacle or place any thing that will provide evidence in respect of the matter being investigated.

56( 2) An investigator entering and searching a place under the authority of a warrant issued under subsection (1) may be assisted by other persons and may enter a place by force.

56( 3) An investigator entering and searching a place under the authority of a warrant issued under subsection (1) shall produce identification and a copy of the warrant, upon request, to any person at that place.

56( 4) A person conducting an entry or search under the authority of a warrant issued under subsection (1) who finds any thing not described in the warrant that the person believes on reasonable grounds will provide evidence in respect of the matter being investigated may seize and remove that thing.

Copy and removal of documents

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

57( 2) An investigator may copy, at the expense of the College, a document that the investigator may examine under subsection 55(1) or under the authority of a warrant under subsection 56(1).

57( 3) An investigator may remove a document referred to in subsection (2) if it is not practicable to copy it in the place where it is examined or if a copy is not sufficient for the purposes of the investigation, may remove any object that is relevant to the investigation and shall provide the person in whose possession it was with a receipt for the document or object removed.

57( 4) An investigator, where a copy can be made, shall return a document removed under subsection (3) as soon as possible after the copy has been made.

57( 5) A copy of a document certified by an investigator to be a true copy shall be received in evidence in any proceeding to the same extent and shall have the same evidentiary value as the document itself.

Report

58 An investigator shall report the results of an investigation to the Registrar in writing, and the Registrar shall forward a copy of the report to the Complaints Committee.

PART 9

GENERAL

Costs

59( 1) The Hearing Committee or, on appeal, the Court may order that the costs of any investigation, proceeding, hearing or appeal under any provision of this Act be paid to any one or more of the College or the parties, in whole or in part,

(a) by the member against whom the complaint was made, except where the complaint is dismissed without any other decision, finding or order adverse to that member, or

(b) by the complainant where the Hearing Committee or the Court is of the opinion that the complaint was unwarranted, and

may make it a condition of the registration and licence of any member or professional corporation that such costs be paid forthwith.

59( 2) The costs payable under subsection (1), the amount of a fine under paragraph 39(12)(h) and the costs of conducting an inspection, examination, audit, investigation or review of the practice of a member or professional corporation payable by a member or professional corporation may be certified by the Registrar as between solicitor and client, and upon filing the Registrar’s certificate with the Clerk of the Court in the judicial district in which the head office of the College is located and upon payment of any required fees, judgment shall be entered by the Court for such amounts so certified in Form A of this Act with necessary modifications.

59( 3) Before hearing an appeal, the Court may order that security for costs be paid to the College or the Court by the appellant in such amount and upon such terms as the Court may consider just.

59( 4) For the purposes of this Act, “costs” includes

(a) all costs, expenses and disbursements and all legal and other expenses of any kind incurred by the College, Complaints Committee or Hearing Committee, the Registrar or the Board in relation to an investigation, proceeding, hearing or appeal,

(b) honoraria and expenses paid to members of the Complaints Committee, the Hearing Committee or the Registrar in relation to an investigation, proceeding, hearing or appeal, and

(c) the legal costs, expenses and disbursements on a solicitor and client basis incurred by any other party to an investigation, proceeding, hearing or appeal.

Meetings

60 The Board and any committee of the Board or of the College may conduct meetings by telephone or other communication facilities in the manner and on the terms and conditions established by the by-laws or the rules, and persons participating in a meeting by such means shall be deemed to be present in person at that meeting.

Resolutions

61 A resolution, report, recommendation, decision, finding or order of the Board or any committee of the Board or of the College in writing and signed or electronically signed by all members or persons entitled to vote on the resolution, report, recommendation, decision, finding or order, or signed or electronically signed in counterparts thereof, is as valid as if passed, enacted, determined or made at a meeting of the Board or the committee, and may be transmitted by facsimile, email or other electronic means.

Liability

62 None of the College, the Board, any of the committees of the Board or of the College, or any committee or member of the Board, officer, director, employee or agent of any of the foregoing bodies or appointee of the Registrar shall be liable for any loss or damage of any kind suffered or incurred by any person as a result of anything done or not done, any proceedings taken or any order made or enforced by it or them in good faith in the administration of or under this Act, the by-laws or the rules.

Notice

63 Whenever notice is required or permitted to be made or given under this Act, the by-laws or the rules:

(a) the notice may be given in writing by personal delivery, ordinary mail, facsimile, email or other electronic means;

(b) if mailed, the notice shall be deemed to have been received seven days after the mailing by ordinary mail of any such notice to the last known address of the person to whom it is directed; and

(c) if transmitted by facsimile, email or other electronic means, the notice shall be deemed to have been received on the day of its transmission if that day is a business day and, if its transmission is not made on a business day, on the next business day.

Public notice

64 The Registrar shall give public notice of the suspension or revocation of a member’s registration as a result of proceedings before the Hearing Committee.

College records available to public

65( 1) The Registrar shall forthwith enter into the records of the College

(a) the result of every proceeding before the Hearing Committee that

( i) resulted in the suspension or revocation of a registration, or

( ii) resulted in an order under paragraph 39(12)(j), and

(b) where the findings or decision of the Hearing Committee that resulted in the suspension or revocation of the registration or the direction are appealed, a notation that they are under appeal.

65( 2) Where an appeal of the findings or decision of the Hearing Committee is finally disposed of, the notation referred to in paragraph (1)(b) shall be removed and the records adjusted accordingly.

65( 3) For the purpose of paragraph (1)(a), “result”, when used in reference to a proceeding before the Hearing Committee, means the committee’s findings and the penalty imposed and, in the case of a finding of professional misconduct, a brief description of the nature of the professional misconduct.

65( 4) The Registrar shall provide a copy of the information contained in the records referred to in subsection (1) to any person who enquires about a member or former member

(a) for an indefinite period if the member or former member was found to have sexually abused a patient, and

(b) for a period of five years, or such longer period as may be prescribed, following the conclusion of the proceedings referred to in subsection (1) in all other cases.

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

65( 6) Despite subsection (5), the Registrar may provide, at the College’s expense, a written statement of the information contained in the records in place of a copy.

Registrar’s report

66 The Registrar shall submit a written report annually to the Board containing a summary of the complaints received during the preceding year by source and type of complaint and the disposition of such complaints.

Measures to prevent sexual abuse

67( 1) The College shall undertake measures for prevention of the sexual abuse of patients by its members.

67( 2) Measures referred to in subsection (1) shall include

(a) education of members about sexual abuse,

(b) guidelines for the conduct of members with patients,

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

67( 3) Measures referred to in subsection (2) may, where appropriate, be taken jointly with other organizations or associations of health professionals.

Report to Minister

68( 1) The College shall report to the Minister, within 30 days on the request of the Minister, respecting the measures the College is taking and has taken to prevent and deal with the sexual abuse of patients by its members.

68( 2) The College shall report annually to the Minister respecting any complaints received during the calendar year respecting sexual abuse of patients by members or former members of the College.

68( 3) A report under subsection (2) shall be made within 60 days after the end of each calendar year and shall contain the following information:

(a) the number of complaints received during the calendar year for which the report is made and the date each complaint was received;

(b) with respect to each complaint received during the calendar year for which the report is made,

( i) a description of the complaint in general non-identifying terms,

( ii) the decision of the Complaints Committee with respect to the complaint and the date of the decision,

( iii) if complaints are referred to the Hearing Committee, the decision of the committee and the penalty imposed, if any, and the date of the decision, and

( iv) whether an appeal was made from the decision of the Hearing Committee and the date and outcome of the appeal, if any; and

(c) with respect to each complaint reported in a previous calendar year, a report on the status of the complaint in accordance with paragraph (b) if the proceedings initiated as a result of the complaint were not finally determined in the calendar year in which the complaint was first received.

Duty of member to report

69( 1) Every member who believes that the conduct of another member constitutes professional misconduct or incompetence or that the member is suffering from a physical or mental condition or disorder of a nature and extent making it desirable and in the interests of the public that the member no longer be permitted to practise as a registered massage therapist or that the member’s practice be restricted shall disclose to the Registrar the name of such member together with the particulars of the professional misconduct or incompetence or the condition or disorder, and any failure by a member to comply with this subsection shall be deemed to be professional misconduct.

69( 2) Subsection (1) does not apply to information obtained by a member which is confidential by reason of a registered massage therapist-patient relationship, unless the patient consents to such disclosure.

69( 3) A person disclosing information under subsection (1) is not subject to any liability as a result thereof except where it is proved that such disclosure was made maliciously.

PART 10

TRANSITIONAL PROVISIONS AND REPEAL

Members

70 The name and address of every person who at the commencement of this Act is a member recorded in the membership records of the College shall be entered in the register or the temporary register, or one of the rosters, and in such part or parts thereof as may be designated by the Board.

Powers of College

71( 1) Nothing in this Act shall affect the powers and duties, tenure of office or terms of remuneration of any director or officer of the College or any committee appointed before the commencement of this Act, or anything done or suffered, or any right, title or interest acquired before the commencement of this Act, or any legal proceedings or remedy in respect of any such thing, right, title or interest.

71( 2) Until repealed, altered or amended under this Act, any by-law or rule made or fees prescribed by the College of Massage Therapists of New Brunswick constituted under the previous Act shall, despite any conflict with this Act, continue in force and have effect as if made under this Act.

Repeal of previous Act

72 The Massage Therapy Act, chapter 49 of the Acts of New Brunswick, 2013, is repealed.

External form

Form A