Appeal to Chief Medical Officer of Health
16. (1) In this section, “dismissal appeal record” means the documents prepared in accordance with subsection (7) by the office of the medical officer of health who dismissed the application and includes, (a) the Physician Report, (b) the Applicant Report, (c) the dismissal made by the medical officer of health pursuant to section 7, and (d) the written record of any other information received and considered by the medical officer of health in dismissing the application; “file” means delivery of a document to the office of the Chief Medical Officer of Health by way of personal service, service by pre-paid registered mail or service by fax; “Form AP1 — Notice of Appeal of Dismissal or Refusal” means Form AP1 — Notice of Appeal of Dismissal or Refusal made in the form approved by the Minister; “Form AP2 — Response to Applicant’s Appeal” means Form AP2 — Response to Applicant’s Appeal made in the form approved by the Minister; “refusal appeal record” means the documents prepared in accordance with subsection (14) by the office of the medical officer of health who refused the order and includes, (a) the Physician Report, (b) the Applicant Report, (c) the Respondent Report, in cases where the medical officer of health held a hearing, (d) the refusal made by the medical officer of health pursuant to section 12, and (e) the written record of any other information received and considered by the medical officer of health in refusing the order; “respondent appeal record” means the documents prepared in accordance with subsection (14) by the office of the medical officer of health who refused the order and includes, (a) Section “C” (History of Exposure) of the Physician Report, (b) Sections “C” (Details of Occurrence) and “D” (Additional Information) of the Applicant Report, (c) the refusal made by the medical officer of health pursuant to section 12, and (d) the written record of any other information received and considered by the medical officer of health in refusing the order. O. Reg. 166/03, s. 16 (1). (2) An applicant’s appeal pursuant to subsection 22.1 (9) of the Act shall be considered and determined in accordance with the procedure provided in this section. O. Reg. 166/03, s. 16 (2). (3) The Chief Medical Officer of Health may seek legal advice from an advisor independent from the applicant and the respondent for the purpose of determining an appeal under subsection 22.1 (9) of the Act. O. Reg. 166/03, s. 16 (3). (4) Revoked: O. Reg. 375/03, s. 3 (1). (5) The time for filing an appeal of a dismissal or a refusal is mandatory and shall not be extended by the Chief Medical Officer of Health. O. Reg. 166/03, s. 16 (5). (6) An applicant may commence an appeal of a dismissal by filing a completed Form AP1 — Notice of Appeal of Dismissal or Refusal with the office of the Chief Medical Officer of Health within five days of the deemed receipt of the dismissal pursuant to section 7. O. Reg. 166/03, s. 16 (6). (7) In the case of an appeal of a dismissal, within two days of receiving Form AP1, the office of the Chief Medical Officer of Health shall request that the office of the medical officer of health who dismissed the application file the dismissal appeal record with the office of the Chief Medical Officer of Health, and the office of the medical officer of health shall file the dismissal appeal record within two days of receiving the request. O. Reg. 166/03, s. 16 (7). (8) Within seven days of receiving the dismissal appeal record or as soon after seven days of receiving the dismissal appeal record as is reasonably practicable, the Chief Medical Officer of Health, without notice to the respondent, shall review the applicant’s Form AP1 and the dismissal appeal record and determine whether the applicant has or has not met the mandatory conditions in section 7. O. Reg. 166/03, s. 16 (8). (9) If the Chief Medical Officer of Health determines that the applicant has not met one or more of the mandatory conditions in section 7, the Chief Medical Officer of Health shall confirm the dismissal made by the medical officer of health. O. Reg. 166/03, s. 16 (9). (9.1) A decision of the Chief Medical Officer of Health made under subsection (9) is final and not subject to further review or appeal. O. Reg. 375/03, s. 3 (2). (10) The Chief Medical Officer of Health’s confirmation of the dismissal shall be in writing and be delivered by fax or pre-paid registered mail to the applicant. O. Reg. 166/03, s. 16 (10). (11) If the Chief Medical Officer of Health determines that the applicant has met all of the mandatory conditions in section 7, the Chief Medical Officer of Health shall refer the applicant’s application back to the medical officer of health who dismissed the application, with a direction that the medical officer of health consider and determine the application in accordance with this Regulation. O. Reg. 166/03, s. 16 (11). (11.1) A decision of the Chief Medical Officer of Health made under subsection (11) is final and not subject to further review or appeal. O. Reg. 375/03, s. 3 (3). (12) Upon referring an application back to a medical officer of health under subsection (11), the Chief Medical Officer of Health shall deliver a notice that the application has been referred back to the medical officer of health for consideration and determination to the applicant by fax or pre-paid registered mail. O. Reg. 166/03, s. 16 (12). (13) An applicant may commence an appeal of a refusal by filing a completed Form AP1 with the office of the Chief Medical Officer of Health within five days of the deemed receipt of the refusal pursuant to section 12. O. Reg. 166/03, s. 16 (13). (14) In the case of an appeal of a refusal, within two days of receiving Form AP1, the office of the Chief Medical Officer of Health shall request that the office of the medical officer of health who refused the order file the refusal appeal record and the respondent appeal record with the office of the Chief Medical Officer of Health, and the office of the medical officer of health shall file the refusal appeal record and the respondent appeal record within two days of receiving the request. O. Reg. 166/03, s. 16 (14). (15) The Chief Medical Officer of Health shall, within two days of receiving the refusal appeal record from the office of the medical officer of health, deliver to the respondent by personal service, service by fax or service by pre-paid registered mail, a copy of the respondent appeal record, a blank Form AP2 — Response to Applicant’s Appeal and a copy of Section “D” (Reason why Decision is not Correct) and Section “E” (Additional Information that the Chief Medical Officer of Health Should Consider) of Part 2 of the Form AP1. O. Reg. 166/03, s. 16 (15). (16) For the purposes of subsection (15), (a) service by registered mail is effective on the fifth day following the day on which the document was sent by pre-paid registered mail; and (b) service by fax is effective on the next business day if the document is faxed after 4 p.m. O. Reg. 166/03, s. 16 (16). (17) Within seven days of the day on which the respondent is deemed to have received the Form AP2, the respondent may file the Form AP2 with the office of the Chief Medical Officer of Health. O. Reg. 166/03, s. 16 (17). (18) The Chief Medical Officer of Health shall, within two days of receiving Form AP2, deliver to the appellant by personal service, service by fax or service by pre-paid registered mail, a copy of Section “B” (Response to Applicant’s Submissions in Form AP1) and Section “C” (Additional Information That the Chief Medical Officer of Health Should Consider) of the Form AP2. O. Reg. 166/03, s. 16 (18). (19) The Chief Medical Officer of Health may, but is not required to, request and receive additional information from any person that is, in the opinion of the Chief Medical Officer of Health, necessary to determine the applicant’s appeal. O. Reg. 166/03, s. 16 (19). (20) Where the Chief Medical Officer of Health receives additional information, the applicant and respondent shall be provided with the additional information and be given an opportunity to make written submissions on the additional information to the Chief Medical Officer of Health. O. Reg. 166/03, s. 16 (20). (21) The process for the disclosure and written submissions shall be determined by the Chief Medical Officer of Health. O. Reg. 166/03, s. 16 (21). (22) Within 14 days, or as soon after 14 days as is reasonable practicable, of the date when the respondent was required to file his or her Form AP2, the Chief Medical Officer of Health shall consider the refusal appeal record, the appeal submissions, and any additional information received by the Chief Medical Officer of Health pursuant to subsection (19) and determine the applicant’s appeal of the refusal. O. Reg. 166/03, s. 16 (22). (23) The decision of the Chief Medical Officer of Health shall be in writing and include reasons for the decision. O. Reg. 166/03, s. 16 (23). (24) In cases where the Chief Medical Officer of Health considers the same information that was considered by the medical officer of health in refusing the order, the Chief Medical Officer of Health shall determine if the refusal made by the medical officer of health is clearly wrong. O. Reg. 166/03, s. 16 (24). (25) If the Chief Medical Officer of Health determines that the refusal is not clearly wrong, the Chief Medical Officer of Health shall confirm the refusal made by the medical officer of health. O. Reg. 166/03, s. 16 (25). (26) The Chief Medical Officer of Health’s confirmation of the refusal shall be in writing and be delivered by fax or pre-paid registered mail to the applicant. O. Reg. 166/03, s. 16 (26). (27) If the Chief Medical Officer of Health determines that the refusal is clearly wrong, the Chief Medical Officer of Health shall substitute his or her own decision for the decision of the medical officer of health who refused the order and direct the medical officer of health to make the order sought by the applicant in accordance with section 11. O. Reg. 375/03, s. 3 (4). (28) In cases where the Chief Medical Officer of Health considers information that was not considered by the medical officer of health in refusing the order, the Chief Medical Officer of Health shall determine if, based on all of the information, including the new information, the refusal made by the medical officer of health remains correct. O. Reg. 166/03, s. 16 (28). (29) If the Chief Medical Officer of Health determines that the refusal remains correct, the Chief Medical Officer of Health shall confirm the refusal made by the medical officer of health. O. Reg. 166/03, s. 16 (29). (30) The Chief Medical Officer of Health’s confirmation of the refusal shall be in writing and be delivered by fax or pre-paid registered mail to the applicant. O. Reg. 166/03, s. 16 (30). (31) If the Chief Medical Officer of Health determines that the refusal is no longer correct, the Chief Medical Officer of Health shall substitute his or her own decision for the decision of the medical officer of health who refused the order and direct the medical officer of health to make the order sought by the applicant in accordance with section 11. O. Reg. 375/03, s. 3 (5).