ACTS OF 2005
1 This Act may be cited as the Optometry Act. 2005, c. 43, s. 1.
(ii) the treatment of visual defects or abnormal conditions of the human eye or its adnexa by the use of any acceptable procedures, other than surgery, including the prescription and application of lenses or other devices, and the use of therapeutic drugs as set forth in the by-laws and regulations,
(2) The Association has perpetual succession and a common seal, with power to acquire, hold, lease, mortgage and otherwise dispose of real and personal property, and may sue and be sued. 2005, c. 43, s. 3.
(a) borrow money for the purpose of carrying on the affairs of the Association and give security for any money so borrowed on any of the real or personal property of the Association by way of mortgage, pledge, charge or otherwise;
(g) borrow money for the use of the Association on its credit, limit or increase the amount to be borrowed, issue bonds, debentures, debenture stock and other securities on the credit of the Association and pledge or sell such securities for such sums or at such prices as the Association deems expedient;
(i) act, as it deems expedient, as agent within the Province for the Canadian Association of Optometrists or other associations representing optometrists, and collect and remit fees levied by any such association;
6 (1) The Association may enter into agreements with Her Majesty in right of the Province that bind its members and, for that purpose, is constituted the sole bargaining agent for any and all optometrists and, without limiting the generality of the foregoing, the Association may enter agreements with respect to
(3) Any person who is a member of the Association under the former Act continues, on the coming into force of this Act, to be a member under this Act until that membership expires, lapses or otherwise is terminated in accordance with this Act.
8 (1) There shall be a Council of the Association consisting of the President, Vice-president, Secretary-treasurer and no fewer than four other members of the Association, who shall be elected by the membership of the Association in accordance with the by-laws and who shall, subject to this Act, control, govern and administer the affairs of the Association.
(2) The President holds office until a successor is elected and shall act as the presiding officer at the meetings of the Council and of the Association, voting only when the votes are evenly divided, and the President shall perform the duties assigned to the President by this Act and the by-laws of the Association.
(6) Notwithstanding subsection (1), the persons who were pursuant to the former Act members of the Council immediately before the coming into force of this Act continue to hold office until a new Council is elected under this Act. 2005, c. 43, s. 8.
10 (1) The Council may, subject to the approval of the members, make, amend and revoke by-laws, not inconsistent with this Act, relating to the management of the Association and, without limiting the generality of the foregoing, regarding
11 No action for damages lies against the Association, an officer or employee of the Association or a member of the Council or a committee appointed by the Council for any act or proceeding taken or entered into in good faith under this Act. 2005, c. 43, s. 11.
(3) The College has perpetual succession and a common seal, with power to acquire, hold, develop, lease, mortgage and otherwise dispose of real and personal property, and may sue or be sued. 2005, c. 43, s. 12.
13 In order that the public interest may be served and protected, the objects of the College are to regulate the practice of optometry in the Province and to govern optometrists in accordance with this Act, the by-laws and the regulations by
(4) Notwithstanding subsections (2) and (3), members of the Board hold office until such time as they are re-elected or re-appointed, or their successors are elected or appointed, even if such election or re-election, appointment or re-appointment occurs after the expiry of their specified term of office.
(5) Notwithstanding subsection (1), those persons who, immediately before the coming into force of this Act, constituted the Board of Examiners of the Association pursuant to the former Act constitute the Board until the election and appointment of members to the Board pursuant to subsection (1).
(b) fixing the time and place and procedures for regular meetings of the Board, determining by whom meetings may be called, providing for emergency meetings, determining the notice required for meetings, determining quorum requirements for meetings, and determining the manner of voting at meetings, including voting by proxy;
(h) prescribing fees payable by applicants for licences or permits and, where the College deems it advisable, designating different classes of applicants or licences and prescribing different fees for different classes;
(i) prescribing the fees and allowances to be paid to any member of the Board, or any committee of the College, and providing for the payment of necessary expenses of the Board and committees of the College;
(e) respecting the evaluation of, and licencing requirements of, applicants for registration who have not regularly practised clinical optometry for such minimum period of time or hours as may be prescribed;
(g) respecting a peer-assessment program or program of continuing education, including requiring optometrist to participate in any such program and providing for any other matter that will facilitate or give effect to such program;
(i) respecting supervised practice, monitoring supervised practice and the delegation of acts of optometry and any other ancillary matters and providing for the establishment of a committee or committees to deal with such matters;
(s) prescribing the records and accounts to be kept by optometrists and professional corporations with respect to their practice, and providing for the production, inspection and examination of such records and accounts;
(t) providing that the licence of an optometrist, or the permit of a professional corporation, be suspended without notice or investigation upon contravention of any regulation or by-law that requires the optometrist or the professional corporation to pay a fee, file a document or do any other act by a specified or ascertainable date, and providing for the re-instatement of a licence so suspended;
(w) respecting the protection, storage, transfer or possession of patient records of optometrists or former optometrists, including the protection and disposition of the patient records of a deceased optometrist;
(x) providing for the re-instatement or re-issuance of any licence or permit suspended or revoked pursuant to this Act and prescribing the terms and conditions upon which re-instatement or re-issuance of a licence or permit may be granted;
(3) A certificate purporting to be signed by the Registrar stating that a certain by-law or regulation of the College was, on the specified day or during a specified period, a duly enacted by-law or regulation of the College in full force and effect constitutes prima facie evidence in any court of that fact without proof that the person who signed it is the Registrar or that it is the Registrar's signature. 2005, c. 43, s. 19.
(2) The name, address and qualifications of every person who, at the coming into force of this Act, is licenced pursuant to the former Act, must be entered in the register, but continues under any requirements or limitations attached to the person's previous licence.
24 (1) Every person who holds a licence to practise shall annually, on or before December 15th, apply for a renewal thereof in a manner prescribed by the by-laws and regulations and such renewal must be granted upon payment of the annual fees and satisfaction of any other requirements prescribed by the by-laws and the regulations.
(2) Where any person holding a licence to practise fails to pay the annual fees prescribed within three months of the date upon which such fees become payable, the Registrar, after issuing ten-days' notice by registered mail addressed to the last known address of such person on the register, shall cause the name of such person to be struck off the register and, subject to subsection (3), the person ceases to be licensed to practise.
(3) Where the name of a person has been struck off the register pursuant to subsection (2), the person shall, at any time within two years thereafter, upon paying such annual fees and any arrears, be entitled to have a licence to practise issued provided all other requirements of this Act and the by-laws and regulations are met. 2005, c. 43, s. 24.
25 The Board shall appoint one or more complaints committees to investigate, in accordance with this Act and by-laws and regulations, any allegation of unprofessional conduct, conduct unbecoming the profession, incompetence, incapacity or any breach of the code of ethics, standards or rules of professional practice established by the by-laws and regulations of or by an optometrist. 2005, c. 43, s. 25.
(2) When a licence is suspended or restricted pursuant to subsection (1), the Registrar shall, forthwith, give written notice of the suspension, and the reasons for the suspension, to the optometrist.
(3) A complaints committee shall, upon receipt of a request from the optometrist, provide an opportunity for a meeting with the committee to the optometrist within ten days of the written request and, after the meeting, the committee may confirm, vary or terminate the suspension or restrictions imposed pursuant to subsection (1).
(4) Where a decision is made pursuant to subsection (1) and the suspension or any restrictions imposed by the complaints committee remain in place following the meeting referred to in subsection (3), the matter shall be referred to a hearing committee which must hold a hearing within thirty days unless the optometrist requests a hearing date that is more than thirty days after the referral of the matter to the hearing committee. 2005, c. 43, s. 33.
34 (1) At any time after a complaints committee refers a matter to a hearing committee and before the commencement of a hearing, the optometrist complained of may tender to the complaints committee a settlement agreement, in writing, consented to by legal counsel for the College, that includes an admission of unprofessional conduct, conduct unbecoming the profession, incompetence, incapacity or breach of the code of ethics or standards established by the by-laws and regulations and the optometrist's consent to a specified disposition, conditional upon the acceptance of the agreement by a hearing committee.
(3) Where a complaints committee recommends acceptance of the proposed settlement agreement, the committee shall instruct legal counsel for the College to advise the hearing committee hearing the complaint of its recommendation.
(5) Where the hearing committee appointed to hear the complaint accepts the recommendation of the complaints committee, the hearing committee shall confirm such acceptance by written decision that incorporates the settlement agreement.
35 The Board shall appoint a hearing committee to conduct a hearing into any matter referred to it by a complaints committee or to consider an appeal by an optometrist from a decision of the complaints committee to impose a sanction. 2005, c. 43, s. 35.
42 The jurisdiction of a complaints committee or a hearing committee to deal with a complaint or a charge against an optometrist is not affected by the optometrist's failure to renew the annual licence or by the fact the optometrist's name is no longer on the applicable register. 2005, c. 43, s. 42.
43 (1) Subject to any publication bans, the College shall publish a hearing committee's decision or a summary of the decision in its annual report and may publish the decision or summary in any other publication.
(2) Where the registration or licence of an optometrist has been revoked or suspended or where conditions, limitations or restrictions are imposed on the licence of an optometrist, the College shall place a notice in such publications as it deems necessary in order to inform the public. 2005, c. 43, s. 43.
44 (1) An optometrist against whom a hearing committee has rendered a decision and imposed sanctions may appeal from the findings of the hearing committee on any point of law to the Nova Scotia Court of Appeal.
(2) The notice of appeal must be filed with the Nova Scotia Court of Appeal not later than thirty days after the decision of the hearing committee and must be served upon the Registrar and the complainant.
(3) The record on appeal from the findings of the hearing committee consists of a copy of the transcript of the proceedings, the decision of the hearing committee and the evidence before the hearing committee certified by the chair of the committee.
(4) The Civil Procedure Rules governing appeals from the Supreme Court of Nova Scotia to the Nova Scotia Court of Appeal that are not inconsistent with this Act apply mutatis mutandis to appeals to the Nova Scotia Court of Appeal pursuant to this Section.
(5) Where a matter is appealed to the Nova Scotia Court of Appeal pursuant to this Section, the Nova Scotia Court of Appeal may grant a stay of any order made pursuant to this Act pending the outcome of the appeal. 2005, c. 43, s. 44.
(b) "legal proceeding" means any civil proceeding, discovery, inquiry, proceeding before a tribunal, board or commission or arbitration, in which evidence may be given, and includes an action or proceeding for the imposition of punishment by fine, penalty or imprisonment for the violation of a Provincial enactment, but does not include any proceeding or hearing conducted pursuant to this Act or the regulations.
(2) A witness in any legal proceeding, whether a party to the proceeding or not, is excused from answering any question as to any proceedings of a complaints committee or a hearing committee, and is excused from producing any report, statement, memorandum, recommendation, document or information prepared for the purpose of the investigative, disciplinary and hearing processes of the College, including any information gathered in the course of an investigation or produced for a complaints committee, a hearing committee or staff members of the College.
(4) Unless otherwise determined by a court of competent jurisdiction, a decision of a complaints committee or a hearing committee is not admissible in a civil proceeding other than in an appeal or a review pursuant to this Act. 2008, c. 3, s. 10.
45 Notwithstanding that a member or members of a complaints committee or a hearing committee have ceased to hold office by reason of the lapse of their appointments, such member or members are seized with the jurisdiction to complete any matter the committees have commenced if necessary to retain a quorum and, for this purpose, such member or members continue to have the same powers, privileges, immunities and duties as are provided by this Act and the by-laws and regulations. 2005, c. 43, s. 45.
46 Subject to this Act and the by-laws and regulations, a professional corporation may engage in the practice of optometry and optometrists may be employed by a professional corporation for the purpose of engaging in the practice of optometry. 2005, c. 43, s. 46.
(4) Notwithstanding subsections (2), a person resident in Canada may hold legal title to issued shares of a professional corporation solely as trustee for the exclusive benefit of an optometrist, or the spouse or child of an optometrist, or a group of such individuals so long as no one other than an optometrist, or the spouse or child of an optometrist, acts as such a trustee without the written consent of the Registrar. 2005, c. 43, s. 47.
49 A professional corporation shall not engage in the practice of optometry unless the professional corporation is issued a permit under this Act and is in compliance with this Act and the by-laws and regulations. 2005, c. 43, s. 49.
(c) satisfies the Registrar that it is a professional corporation limited by shares that is in good standing with the Registrar of Joint Stock Companies under the Companies Act and the Corporations Registration Act and that it is a private company as defined by the Securities Act;
(3) The Registrar may renew a permit upon such application and payment of such fee as may be required by the by-laws and regulations where the Registrar determines that the requirements of subsection (1) are satisfied by the professional corporation. 2005, c. 43, s. 51.
52 (1) A permit issued or renewed pursuant to Section 51, may be suspended or revoked at any time by the Registrar, upon giving fifteen days notice, in writing, subject to the by-laws and regulations, if a professional corporation fails to satisfy any of the requirements prescribed in subsection 51(1).
(3) Where, pursuant to subsection (1), a permit is suspended or revoked, the professional corporation may, within fifteen calendar days of the effective date of the notice of the suspension or revocation pursuant to subsection (1), request, in writing, that the Executive review the Registrar's decision pursuant to subsection (2).
(4) Where a professional corporation requests a review by the Executive pursuant to subsection (3), and the Executive, in its discretion, decides to review the Registrar's decision, the professional corporation shall, within thirty days of receiving notice of the Registrar's decision, make written submissions to the Registrar and the Executive.
(5) The Executive may investigate the matter as it considers appropriate and may require the professional corporation, or its directors, officers, employees or shareholders, to provide information and documentation to the Executive.
(7) Where the Executive re-instates or re-issues a permit that has been suspended or revoked pursuant to subsection (1), the Executive may prescribe terms and conditions upon which re-instatement or re-issuance of a permit may be granted.
(a) the Registrar shall suspend a permit without notice or investigation where the professional corporation has failed to pay a fee or assessment, file a document or do any other act by a specified or ascertainable date; and
(b) a permit suspended pursuant to clause (a) shall be re-instated by the Registrar upon payment of the required fee or assessment, receipt of a document required to be filed or performance of a required act by the professional corporation.
53 For the purpose of this Act, the practice of optometry must not be carried on by or be deemed to be carried on by clerks, secretaries and other persons employed by the professional corporation to perform services that are not usually and ordinarily considered by law, custom and practice to be services that may be performed only by an optometrist. 2005, c. 43, s. 53.
54 (1) Where a professional corporation practices optometry only through the services of one optometrist and that optometrist dies, retires, becomes incompetent or is no longer licenced pursuant to this Act, or is suspended under this Act, the permit of that professional corporation is deemed to be revoked and such professional corporation shall cease to practice optometry.
(2) Where a professional corporation practices optometry through the services of more than one optometrist and that professional corporation ceases to fulfil any requirement prescribed in subsection 51(1) by reason of
the professional corporation shall forthwith notify the Registrar and shall fulfill the requirements in question within one hundred and twenty days from the date of death, incompetency, revocation, retirement or other removal or the suspension, as the case may be, of the optometrist, failing which the permit is deemed to be revoked and the professional corporation shall cease to practise optometry effective upon the expiration of the one hundred and twenty day period.
(3) Where the permit of a professional corporation is deemed to be revoked under this Section and thereafter the professional corporation is able to demonstrate that it is in compliance with subsection 51(1), the professional corporation may apply to the Registrar to have its permit re-instated and the Registrar may, in the Registrar's discretion, re-instate the permit subject to such conditions as the Registrar may direct. 2005, c. 43, s. 54.
55 Where the shares of a professional corporation engaged in the practice of optometry are transferred or where there is a change in the shareholders, directors or officers of the professional corporation, or any change in the location where the professional corporation carries on business, the professional corporation shall, within fifteen calendar days, notify the Registrar of such change. 2005, c. 43, s. 55.
56 The relationship of an optometrist to a professional corporation, whether as a shareholder, director, officer or employee, does not affect, modify or diminish the application of this Act and the by-laws and regulations to the optometrist. 2005, c. 43, s. 56.
57 (1) All persons who carry on the practice of optometry by, through or on behalf of a professional corporation are liable in respect of acts or omissions done or omitted to be done by those persons in the course of the practice of optometry to the same extent and in the same manner as if such practice were carried on by those persons as an individual or a partnership, as the case may be, carrying on the practice of optometry.
(2) No owner of voting shares of a professional corporation shall pledge, hypothecate, enter into a voting trust, proxy or any other type of agreement vesting in any other person who is not an optometrist the authority to exercise the voting rights attached to any or all of the owner's shares. 2005, c. 43, s. 57.
(2) The relationship between a professional corporation and a patient of the professional corporation is subject to all applicable laws relating to the confidential and ethical relationships between an optometrist and a patient.
(3) All rights and obligations pertaining to communications made to or information received by an optometrist apply to the shareholders, directors, officers and employees of a professional corporation. 2005, c. 43, s. 58.
60 A certificate purporting to be signed by the Registrar stating that a named professional corporation was or was not, on a specified day or during a specified period, a professional corporation entitled to practise optometry according to the records of the Registrar, must be admitted in evidence as prima facie proof of the facts stated therein without proof of the Registrar's appointment or signature. 2005, c. 43, s. 60.
61 Where a professional corporation commits an offence contrary to this Act or the by-laws and regulations, every person who, at the time of the commission of the offence, was a director or officer of the corporation is guilty of the same offence and subject to the same penalties unless the act or omission constituting the offence took place without the person's knowledge or consent or the person exercised all due diligence to prevent the commission of the offence. 2005, c. 43, s. 61.
62 (1) Every person who contravenes Sections 46 to 61 or the associated by-laws and regulations is guilty of an offence and liable on summary conviction, in addition to any penalty otherwise provided for in this Act or the by-laws and regulations, for a first offence to a fine not exceeding one thousand dollars and for a second or subsequent offence to a fine not exceeding three thousand dollars.
(2) Where a professional corporation is convicted of an offence contrary to Sections 46 to 61 or the associated by-laws and regulations, the permit of the corporation is suspended in default of payment of any fine ordered to be paid until such time as the fine is paid.
(c) use verbally or otherwise the title of optometrist or any abbreviation of such title, or any name, title, description or designation that may lead any person to believe that such a person is an optometrist licensed to practise or entitled to practise as an optometrist; or
(d) advertise, hold out or conduct themselves in any way implying or leading any person to believe that such person is an optometrist licensed to practise or entitled to practise as an optometrist. 2005, c. 43, s. 63.
64 (1) An optometrist who leaves and ceases to practise in the Province and upon return practises optometry before providing the Registrar with a certificate of good standing from all jurisdictions in which the optometrist practised during such absence, is guilty of an offence.
(2) The College may waive the requirement of subsection (1) and may make regulations exempting optometrists from the requirements of subsection (1) if the optometrist has been absent from the Province for a period shorter than the maximum period prescribed in the regulations.
(3) No person is entitled to receive a fee, reward or remuneration for professional services rendered to any person in the practice of optometry or any appliances or devices supplied to any person in the practice of optometry unless that person is registered in accordance with this Act at the time the service was provided or the appliances or devices were rendered.
(4) No person shall wilfully have or attempt to have themselves granted a certificate of registration, licence to practice or to be registered as an optometrist by making or producing or causing to be made or produced any false or fraudulent representation or declaration. 2005, c. 43, s. 64.
65 (1) Except in respect of the penalty provided for a corporation, where a person violates any provision of this Act, the Summary Proceedings Act applies in addition to any penalty otherwise provided for in this Act or the by-laws and regulations.
(2) In a prosecution for an offence contrary to this Act or the by-laws and regulations, the onus of proof that a person accused of an offence has the right to practise optometry, or that a person comes within any of the exemptions provided by this Act, is on the person accused.
(3) Where a violation of this Act or the by-laws and regulations, by a person who does not have the right to practise optometry, continues for more than one day, the offender is guilty of a separate offence for each day that the violation continues.
66 Nothing in this Act prohibits the activity of any person authorized by an Act of the Legislature, notwithstanding that the activity or any part of the activity constitutes the practice of optometry pursuant to this Act. 2005, c. 43, s. 66.
67 (1) Where an optometrist whose licence to practise has been suspended or restricted pursuant to this Act or the by-laws and regulations does or intends to do anything contrary to this Act, in addition to any other penalty which may be invoked, the doing of such thing may be restrained by an injunction of the Supreme Court of Nova Scotia at the instance of the College.
(2) Where a person other than an optometrist does or attempts to do anything contrary to this Act the doing of such thing may be restrained by an injunction of the Supreme Court of Nova Scotia at the instance of the College. 2005, c. 43, s. 67.
(2) An optometrist shall report to the Registrar of Motor Vehicles the name and address of any patient attending upon the optometrist for professional services who, in the opinion of the optometrist, is afflicted with visual infirmities or disabilities rendering it unsafe for such a patient to drive a motor vehicle upon a highway.
(3) No action lies against any optometrist for the disclosure of any information or any document or anything therein, pursuant to subsection (2), unless the disclosure is made with malice. 2005, c. 43, s. 68.
69 (1) No action for damages lies against the College, the Board, the Executive, any committee of the College or any member of any committee of the College or any employee of the College for any act or failure to act or any proceeding initiated or taken in good faith under this Act or in carrying out of any duties or obligations in accordance with this Act.
(2) In respect of any complaint made pursuant to the former Act, the investigative committee appointed pursuant to the former Act is deemed to be a complaints committee appointed pursuant to this Act.
(3) Nothing in subsections (1) and (2) precludes a complaint made pursuant to the former Act being investigated by a complaints committee appointed pursuant to this Act and, in such a case, an investigative committee appointed pursuant to the former Act ceases to have any jurisdiction in respect of that complaint. 2005, c. 43, s. 71.
72 (1) Upon the coming into force of this Act, any matter pending before a discipline committee pursuant to the former Act must, where not set down for a hearing to commence within sixty days of the coming into force of this Act, be transferred to a hearing committee appointed pursuant to this Act for hearing and determination, but otherwise must be heard and determined by the discipline committee pursuant to the former Act.
(3) The discipline committee pursuant to the former Act is continued until all matters pending before it at the coming into force of this Act and not transferred to a hearing committee appointed pursuant to this Act have been finally decided. 2005, c. 43, s. 72.
74 Subclause 2(1)(d)(i) of Chapter 258 of the Revised Statutes, 1989, the Limitation of Actions Act, is amended by adding ", Optometry Act" immediately after "Act" in the second line. 2005, c. 43, s. 74.