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Establishing Low-Cost Spay-Neuter Services for Cats in Ontario

Simon Shields, LLB
(January 2011)


This is an opinion on the legal issues facing private
citizens and non-profit corporations who are trying to
establish low-cost spay-neuter services for the public in
Ontario. While it was written with cats in mind it is
equally applicable to dogs. The primary focus of the memo
is on the legal barriers posed by the Veterinarians Act.


-------------------------------

Table of Contents

1. Purpose

2. Legal Background
(a) Overview
(b) Structure of the Veterinarians Act Regime
. Overview
. Basic Licencing
. Professional (Veterinary) Corporations
. Accreditation of Veterinary Facilities
. Regulation-Making Powers
. Ministerial and Cabinet Governance of the Council
(c) 'Steering' (Referrals)
. Overview
. 'Conflict of Interest' Form of Steering
. 'Holding Out' Form of Steering
(d) The Legal Relationships in Which Veterinarians May or May Not
Provide Legal Services
. Overview
. Veterinarian as Employee
. Veterinarian as Agent
. The Role of Ownership of the Animal
. Veterinarian as Contractor
. Exceptions
. Comment
(e) Advertising
. Overview
. Advertising Prohibitions

3. Analysis
(a) Overview
(b) Relationship
. Overview
. Employment
. Contracting
. Agent/Principal
. Conclusions
(c) 'Steering'
. Overview
. 'Conflict of Interest' Steering
. 'Holding Out' Steering
. Is the 'Holding Out' Steering Regulation Ultra Vires?
. Conclusions
(d) Advertising
. The Relevant Legal Provisions
. Comment
. Conclusions

4. Remedies
(a) Overview
(b) Law Reform
(c) Civil Court Application
(d) Test Case by Non-Veterinarians
(e) Test Case by Veterinarians
(f) Summary Regarding Remedies

5. Overall Summary

---------------------------------------
1. Purpose

Any private citizen or non-profit corporation that has sought or aspired to
establish low-cost non-profit cat spay/neuter services in Ontario will likely
have run into, or can expect to run into, problems with the Veterinarian Act,
it's Regulations and the College of Veterinarians of Ontario (CVO).

This memo addresses the legal issues faced by such projects insofar as they
advance surgical - but not pharmacological - sterilization and it accepts that
only licenced veterinarians can perform such surgery. Consequently such
projects must operate in some sort of association with licenced veterinarians.

Typically such efforts would run afoul of at least two legal restrictions. The
first of these is the prohibition against comparative price advertising
('advertising'), and the second are prohibitions against referral arrangements
('referrals' or 'steering'). These issues are integrally bound up with the
general issue of just what sort of legal relationship the project may have
with the veterinarians ('vets') who are performing the actual surgery.

The purpose of this memo is to explore these legal issues and to offer my
opinions on the legal case for accomodating, circumventing or challenging
these legal restrictions, with the goal of clearing the way for the legal
establishment by private parties of low-cost non-profit spay-neuter services
in the province.

In doing this I examine three different models of such service-provision,
which differ primarily by the degree of legal and physical integration that
the project has with the vets. These three models are:
  • a 'clinic model', where the projects and the vets operate in full
    integration with each other, both legally and physically within the same
    facility;

  • a 'close proximity model', where the project and the vets operate in
    close physical proximity but are legally divorced from one another; and

  • a 'remote model', where the project and the vets are both physically and
    legally isolated from each other.
My examination of the Veterinarians Act legal regime shows that consideration
of these differing levels of integration plays a role in either avoiding or
accomodating the legal restrictions that such projects face. By examining each
of these models I hope that I can present the broadest range of options
possible in light of the legal issues involved.


2. Legal Background

(a) Overview

This section reviews and states the law applicable to such projects. Most of
it is in the Veterinarians Act ("the Act") and the General Regulation ("the
Regulation") made under that Act.

I want this section to act as a sort of 'one-stop' legal reference to the
Veterinarian Act rules, so I don't yet consider Charter freedom of expression
or other unconventional ways around problems in that law (for that see s.4
"Remedies", below). The goal here is to identify the problems in the
conventional law clearly, so the reader can see a lot of direct quotes from
the legislation so we can all see precisely what it says. In law, the devil is
in the details, and these are the details.

I start off with an examination of how the Veterinarians Act regime is
structured in Ontario, in particular how the College of Veterinarians of
Ontario ("CVO") (acting through it's Council, which can be thought of as the
CVO's board of directors) has a unique legal role in that regime. After that I
consider in turn the issues of: (c) steering, (d) the legal relationships in
which veterinarians may and may not provide services, and (e) advertising.

(b) Structure of the Veterinarians Act Regime

. Overview

Like most statutory regimes in Ontario, basic veterinary law is set out in the
Veterinarians Act itself, with further details being addressed in the
Regulation (there is only one). The way the division between Act and
Regulations is normally done in legislation is to list, within the Act, a
series of 'regulation-making' authorities. Typically these delegate reg-making
powers to the Lieutenant-Governor in Council (practically, the Cabinet of the
party in power), or sometimes to the Minister charged with administering the
Act.

The Veterinarians Act however is unusual in that it allows the Council of the
CVO to make regulations which, subject to Cabinet approval and Ministerial
review, become law (making regulations is normally the exclusive mandate of
the executive government). As well, the Minister of Agriculture, Food and
Rural Affairs has a supervisory role over the Council which will bear on the
remedial options as discussed in s.4 "Remedies".

. Basic Licencing

To start with, the basic structure of the Veterinarians Act regime is one of
licencing:
Act s.11(1)
No person shall engage in the practice of veterinary medicine or hold
himself, herself or itself out as engaging in the practice of veterinary
medicine unless the person is the holder of a licence.
A licence is basically an exception to a ban. Without the ban there is no need
to get a licence, so s.11(1) here sets out the ban and the exception.

There are other categorical exceptions [Act s.11(2-3)] for first aid or
emergency situations, some common and specific agricultural procedures (such
as taking blood samples) and vet students. Another exception is the "owner
exemption", which I quote here for interest's sake:
Act s.11(2)
Subsection (1) [the main practice licence requirement] does not apply to
prevent a person,

......

(b) from treating an animal if the person is the owner of the animal, is a
member of the household of the owner of the animal or is employed for
general agricultural or domestic work by the owner of the
animal;
If a situation does not fall under one of these exceptions, it is a offence
prosecutable under the Provincial Offences Act to practice veterinary medicine
without a licence. In fact, it is an offence to "use() a term, title or
description that will lead to the belief that the person may engage in the
practice of veterinary medicine". The offence provision applies to
corporations and their directors as well [Act s.40] (this is something you
need to keep an eye if your project vehicle is a corporation).

What constitutes practicing 'veterinary medicine' is not spelled out in the
Act other than as follows, but it is plain that surgical sterilization is
included within it:
Act s.1(1)
"practice of veterinary medicine" includes the practice of dentistry,
obstetrics including ova and embryo transfer, and surgery, in relation to
an animal other than a human being;
As noted above, given the limited practical options of pharmacological
contraception or sterilization, I have not explored how and when the
administration of such drugs constitutes practicing veterinary medicine. If
that need arises, I can look at it then.

. Professional (Veterinary) Corporations

If a non-profit corporation is being considered as the project vehicle, it
should be known that under Ontario law, a corporation has the rights and
privileges of a 'natural person' unless otherwise restricted. Of course, since
a corporation cannot attend university and get a degree in veterinary science
it cannot be veterinarian directly. However the Act does allow the conducting
of veterinary medicine through a 'professional corporation' [Act s.5.1].

Non-veterinarians however cannot establish a professional corporation under
the Veterinarians Act. Such corporations are structured essentially as
business corporations with shareholders, not as non-profit corporations (which
do not have shares). Further, all shareholders in a professional (veterinary)
corporation must themselves be veterinarians - excluding any direct community
involvement.

Of course, conducting business through a professional corporation does not
free the veterinarian from their duties under the Act [Act s.5.4-5.6].

. Accreditation of Veterinary Facilities

Having a licence to practice veterinary medicine is not however the end of the
story. Spay-neuter procedures can't be conducted without a 'veterinary
facility' to do them in, and the applicable definition is broad enough to
capture any configuration of such a facility [Act s.1(1)]:
Act s.1(1)
"veterinary facility" means a building, land or vehicle or any combination
of them used or intended to be used as a place in or from which to engage
in the practice of veterinary medicine.
So basically the location where spay-neuter procedures are performed is - by
definition - a veterinary facility. Such facilities themselves must be
'accredited' by the CVO with a 'certificate of accreditation' or else they too
are illegal [Act s.15]. The Act sets up an Accreditation Committee and
extensive procedures governing accreditation [Act s.16-18.3]. As well, in
order to regulate veterinary facilities, the Council can set standards for
them [Act s.8] and the CVO Registrar has broad powers of refusal,
investigation and search and seizure with respect to them [Act s.17,36].

. Regulation-Making Powers

The reg-making powers of the Council which are relevant for our purposes are
quoted here. Many of them will be referenced in the following discussions, but
they are worth a read now:
Act s.7(1)
Subject to the approval of the Lieutenant Governor in Council and with
prior review by the Minister, the Council may make regulations with respect
to the following matters:

1. Prescribing classes of licences and governing the qualifications and
requirements for the issuance of licences or any class thereof and
prescribing the conditions and limitations thereof.

......

4. Prescribing classes of certificates of accreditation and governing the
qualifications and requirements for the issuance and renewal of
certificates of accreditation or any class thereof and prescribing the
conditions and limitations thereof.

......

6. Governing the use of names and designations in the practice of
veterinary medicine by members of the College.

......

8. Prescribing and governing standards of practice for the profession.

......

11. Respecting the promotion or advertising of the practice of veterinary
medicine.

12. Prohibiting the practice of veterinary medicine where there is a
conflict of interest and defining conflict of interest for the purpose.

13. Defining professional misconduct for the purposes of this Act.

......

22. Exempting any member of the College from any provision of the
regulations under such special circumstances in the public interest as
the Council considers advisable.
The first thing to remember about the above provisions is that they just
outline what subjects the Council has the right to make regulations about. I
will consider the specific regulations that have been made under these powers
further below. Keep in mind that if the specific regulations that have been
made do not fit within these limits, then they are illegitimate as being
'ultra vires' (beyond jurisdiction), and can be challenged on that basis in
court.

. Ministerial and Cabinet Governance of the Council

The next thing to note is the qualifiers placed on the Council's s.7(1)
regulation-making powers, namely: "(s)ubject to the approval of the Lieutenant
Governor in Council and with prior review by the Minister, ...". This
'short-leash' approach is also evidenced by the fact that the Minister may
require the Council to "make, amend, revoke a regulation or standard" and that
if it fails to do so within 60 days then the Cabinet may change the regulation
themselves, unilaterally [Act s.7(5)].

The Minister's supervisory role over the Council is further manifest in the
following provision [Act s.6]:
Act s.6
In addition to the Minister's other powers and duties under this Act, the
Minister may,

(a) review the activities of the Council;

(b) request the Council to undertake activities that, in the opinion of the
Minister, are necessary and advisable to carry out the intent of this
Act;

(c) advise the Council with respect to the implementation of this Act and
the regulations and with respect to the methods used or proposed to be
used by the Council to implement policies and to enforce its
regulations and procedures;

(d) request the Council to make, amend or revoke regulations respecting any
matter under section 7 or the standards for veterinary facilities
established under section 8. [this complements s.7(5), discussed
above]
These provisions are particularly relevant to our situation as they offer
alternative political routes to achieve the changes we want. I will repeat and
explain this more in s.4 ("Remedies") below.

Ok, that's the basic law. Now onto some specific issues.

(c) 'Steering' (Referrals)

. Overview

As noted, any private spay/neuter project will need to work in some sort of
working relationship with licenced vets [ie. one of the 'clinic', 'close
proximity' or 'remote' models mentioned in s.1], which can facilitate the
provision of low-cost cat spay-neuter services. This 'relationship' aspect of
your intended activity raises CVO concerns about 'steering' (or 'referring' -
I use the terms interchangeably).

The essence of the steering issue is that whenever a separate legal entity
(ie. a person or a corporation) is involved in bringing the public to the
spay-neuter services, then 'steering' necessarily occurs. This is an issue
that is intertwined with the legal status of the working relationship that
such a project may have with the working vets [discussed further in (d)
below]. The main candidates for the legal status of the 'working relationship'
are: employment, independent contracting, and 'none' (ie. no formal legal
relationship).

Oddly, the prohibitions against 'steering' are located - in somewhat different
forms - in both of two separate topics of professional regulation. The first
of these is 'conflict of interest', and the second is called 'holding out'.

The 'conflict of interest' form is first set out in the regulation-making
powers of Council which have been quoted above but which I will requote it
here for convenience:
Act s.7(1)
Subject to the approval of the Lieutenant Governor in Council and with
prior review by the Minister, the Council may make regulations with respect
to the following matters:

12. Prohibiting the practice of veterinary medicine where there is a
conflict of interest and defining conflict of interest for the
purpose.
As will be seen below, the regulations made under this 'conflict of interest'
category plainly address referral fee payments, a plain form of 'steering'.

'Holding-out' steering is similar, but lacks the payment or benefit element
and requires that a "system" be in place and used for the steering. As well,
the 'holding out' provisions in the Regulation (Part IV), which contain that
form of steering, are not expressly grounded in the Act's regulation-making
authority, contrary to the situation with the 'conflict of interest' form.

Regardless of which category a particular act of 'steering' is considered
under, it is important to note that, unlike unauthorized practice, it is not a
prosecutable offence under the Act to engage in a conflict of interest, nor in
'holding out'. These 'infractions' can only be addressed by the CVO through
professional discipline against the member/s engaging in the conflict - so
non-veterinarians are not at legal risk for engaging in them.

For veterinarians however, such activities can constitute professional
misconduct:
Reg s.17(1)
For the purposes of the Act, professional misconduct includes the
following:

1. An act or omission inconsistent with the Act or this Regulation.

.......

25. Having a conflict of interest.

......

44. An act or omission relevant to the practice of veterinary medicine
that, having regard to the circumstances, would be regarded by members
as disgraceful, dishonourable or unprofessional.

45. Conduct unbecoming a veterinarian.
Again, while steering in its 'holding out' form is not specifically listed
here, it might conceivably be located under one or more of the more general
forms of professional misconduct.

. 'Conflicts of Interest' Form of Steering

The general form of 'conflict of interest' steering is defined as
follows:
Act s.42(2)
A member has a conflict of interest where the member, or a related person,
or an employee or employer of the member, directly or indirectly,

(a) enters into any agreement, including a lease of premises, under which
any amount payable by or to a member or a related person is related to
the amount of fees charged by the member; or

(b) receives, makes or confers a fee, credit or other benefit by reason of
the referral or transfer of an animal or a specimen from or to any
other person.
'Related persons' basically means the family of the veterinarian (the
'member'), and can be ignored for present purposes.

Sub-section (a) refers to fee-splitting contracts. Fee-splitting is allowed
amongst veterinarians practicing as partners, within professional
corporations, and within employer-employee relationships [Reg s.42(3)] - but
is otherwise prohibited.

Sub-section (b) covers referrals. It's definition is quite broad in that it a
referral need not be contractual, that it can be either direct or indirect,
and that it applies even if the referring is done by an employee or an
employer of the veterinarian. Since an employment relationship is not required
to trigger s.42(2)(b), an independent contractual relationship, or - arguably
- even a one-time informal referral could satisfy the relationship aspect of
the definition.

However, at it's heart a 'conflict of interest' is essentially a financial
concept and requires that the veterinarian either "receives, makes or confers
a fee, credit or other benefit" as a result of the referral, or the transfer
of the subject animal (which is the end goal of any referral arrangement). As
has been noted, this financial aspect distinguishes the 'conflict of interest'
form of steering from the 'holding out' form.

Like fee-splitting, referrals amongst veterinarian partners, associates, and
their employers and employees are allowed in some cases. These are where both
veterinarians see the animal in the same facility, or - if it is seen in a
different facility - with written disclosure of the relationship between the
veterinarians being made to the client [Reg 42(4)].

As well, referrals by veterinarians to a business or corporation are allowed
where the only benefit received by the veterinarian is indirect, in the form
of the veterinarian having a profit interest in the business or corporation,
and if [Reg s.42(5)]:
. written disclosure of the interest is made to the client;

. written assurances to the client that their declining of the referral
will not prejudice future dealings with the referring veterinarian;

. where the referral relates to lab, radiology or other technical
procedures, written explanation of provided assuring the client that the
veterinarian is responsible for the quality of the
procedures.
This last exemption appears to allow vets to make referrals to a business that
they have an interest in, such as a veterinary professional corporation or
testing facility that they have an investment interest in. It does not operate
to allow referrals from such a business to the veterinarian, which is
unfortunate as because if it had it would suggest that a business corporation
model might be more suited to any project's goals.

. 'Holding Out' Form of Steering

The second form of steering (or referring) is categorized not as a conflict of
interest, but as a form of 'holding out'. This category is interesting because
'holding out' is not mentioned in the Act at all (so the Act doesn't authorize
the making of any 'holding out' regulations as such), and yet 'holding out' is
given it's own whole Part (IV) in the Regulation]. The 'holding out' provision
that addresses steering reads:
Reg s.38
A member shall not participate directly or indirectly in a system in which
another person steers or recommends clients to a member for a professional
service or an ancillary service.
There are some differences between this form of steering and the 'conflict of
interest' form.

To start with, Part IV ('holding out') otherwise overwhelmingly addresses
advertising, so it maybe that the intention of Reg s.38 was to capture
referral-like arrangements which have an element of 'recommendation' or
'endorsement' to them.

Note as well that the provision requires that there be a 'system', rather than
just an informal, one-time referral.

Finally, what is distinct about this 'holding out' form of steering is that it
lacks any requirement that value or benefit flow between the parties. As such
it is broader in it's scope and is more likely to be relied upon by the CVO in
the case of a private spay/neuter project.

That said, the lack of the value or benefit element may render it vulnerable
to an 'ultra vires' argument that the provision is not authorized by Council's
regulation-making powers under s.7 of the Act. As mentioned above, 'holding
out' as such is nowhere mentioned in the Act, yet there is an express
regulation-making power respecting conflicts of interest [Act s.7(1)25 quoted
above]. More on this below in s.3 ("Analysis").

(d) The Legal Relationships in Which Veterinarians May or May Not
Provide Legal Services

. Overview

The Veterinarians Act regime (Act and Regulation) not only regulates
'steering' as set out above, but even goes so far as to regulate who the
veterinarian may serve in some legal circumstances, and does so in a fashion
that is directly relevant to any private spay/neuter project.

Specifically, where the veterinarian is an employee of a non-veterinarian, or
an 'agent' to a non-veterinarian principal (the 'agent-principal' relationship
is explained below), the Regulation prohibits (subject to exceptions) that
veterinarian from providing veterinary services to third parties (ie. anyone
other than their employer or principal, as the case may be) [Reg s.43(1-2)].
Violation of this rule (which I will call the 'third party services rule')
constitutes professional misconduct [Reg s.17(1)25] and opens the veterinarian
up to disciplinary action:
Reg s.43(1)
In this section,

"employee" includes an agent;

"employer" includes a principal.

Reg s.43(2)
A member has a conflict of interest who performs a veterinary service in
the course of employment by any person, other than another member, except a
service provided to the member's employer or in accordance with subsection
(4), (5) or (6).
Obviously this has major implications if a group wanted to hire a veterinarian
to work in a clinic doing spay/neuter procedures for cats owned by members of
the public. Below I consider the third party services rule in more detail, and
also consider how veterinarians may operate in purely contractual arrangements
as well.

. Veterinarian as Employee

The employment relationship in law is generally contrasted with that of the
independent contractor (eg. the contractor who builds your deck, or mows your
lawn). The distinction between the relationships is essentially that the
employer can tell the employee both what to do *and* how to do it, while the
client can only tell the independent contractor what to do. For the
independent contractor the 'how' to do it is up to them and they usually have
their own tools and ways of doing things. In these respects the employer has
much more day-to-day control over the activities of the employee than a client
does over those of the independent contractor.

As best I can determine (and I don't find the reasoning compelling) the
veterinarians Act legal regime finds no conflict of interest when work is done
by an employee veterinarian for their employer, presumably on the theory that
because the veterinarian already owes the employer a duty of labour, that this
duty coincides with the veterinarian's professional duties to the employer as
well. That is, the two duties are not in conflict.
Note:
Actually I would argue the opposite, that the control exercised by an
employer in an employment relationship actually poses a risk of impeding
the veterinarian from exercising full independence in the fulfilment of
their professional duties, which can include those to the animal and to the
CVO as well. This view has been implicitly recognized by the mandatory
inclusion of 'independent clauses' in the employment contracts of humane
society veterinarians [Reg s.43(4)(e)].
Under the third party services rule however, if the veterinarians were to
perform services for anyone other than their employer (ie. a third party
stranger to the employment) contract, then a conflict of interest exists
(unless one of the exceptions noted below applies). This reasoning seems to be
based on the idea that 'moonlighting' somehow detracts from the loyalty,
enthusiasm or commitment of the vet employee to their bosses.

The implications for a 'clinic' model, with an employee staff veterinarian,
are obvious. All the clinic's 'clients' are third parties to the employment
contract and are caught by this rule. Any veterinarian engaging in such work
is in a 'conflict of interest' and is subject to professional misconduct
allegations and discipline.

As is seen below ("Exceptions"), most of the exceptions to these rules are for
employment situations where the employer is governmental, institutional or
from a specific economic sector.

. Veterinarian as Agent

Like the employment relationship, the 'agent/principal' relationship in law
usually has associated with it a power or entitlement on the part of the
principal, which is often described as 'fiduciary'. A fiduciary relationship
is one where it is the duty of the agent to put the interests of the principal
above those of the agent.

Agency relationships can exist both within and without contract, but they are
awkward because it is not the intentions of the parties that determine when an
agency relationship exists, but rather the detailed circumstances of the
relationship. Parties may find themselves in an agency relationship without
knowing or intending to be in one, and then only after a judge tells them they
are in one - months or years after the subject events.

Just to complicate matters further, the law of agency (agent and principal) is
the product of hundreds of years of disorganized common law judicial
decisions, and is notoriously vague and changeable. However from it we can
draw the basic principles that an agent acts for the principal, and that they
owe a duty of loyalty (and in some cases a 'fiduciary' duty) to the principal.
In the spay/neuter project context, a veterinarian who worked closely with a
group within a non-employment relationship and took all their referrals, could
easily be held to be an 'agent' for the group (the group being the
'principal').

Agency relationships can co-exist within several types of legal relationships:
both employment contracts (in which case employment law usually dominates
agency law), within independent contracts - and even in the absence of either.
Regardless, when an agency relationship does exist, the 'agent' veterinarian
is effectively barred from providing their services to third parties (ie.
anyone other than the principal), unless of course one of the exceptions
applies.

The 'conflict of interest' reasoning that justifies this rule is probably
similar to that I speculated on above respecting employment, in that working
for others somehow poses a risk of degrading the quality of service to the
principal.

. The Role of Ownership of the Animal

The employment and agency rules discussed above of course presuppose that the
third party owns the animal being treated. Indeed, under Reg 43(3)(a) a
veterinarian's professional duty - by law - is owed to the owner of the animal
that they treat.

This ownership/duty rule may have been used in past by other agencies in
circumstances similar (but not identical) to those of a private spay/neuter
project, to circumvent the conflict of interest rules against treatment of
third party animals. For instance, people turning animals into the Toronto
Humane Society (THS) - both as surrendered 'owned' animals and even as 'found
strays' - have in past been met with documentation (requiring their signature)
which purports to surrender the animal to the THS, effectively a transfer of
ownership. If such a 'surrendered' animal requires veterinary treatment, then
THS had the legal argument that the vet services were provided to THS directly
as the animal's owner, and not to the third party who surrendered the
animal.
Note:
This is my speculation as to THS' legal position on these issues, but I
have also heard anecdotally that since the recent OSPCA-led 'revolution' at
THS it has refused to takes strays. This is a logical, albeit conservative,
legal position to take under the theory that a stray is quite likely an
owned animal (it's just that the owner is unknown), and that veterinary
treatment (by THS-associated employee or agent veterinarians) of someone
else's animal both violates the third-party services rule set out here -
and as well exposes THS to potential civil liability for what they do to
the animal. However, if this assessment is correct it results in the absurd
conclusion that strays cannot be accepted by a humane society, necessarily
steering them all towards the pound system. I have written extensively on
that system and its relationship with the Animals for Research Act in my
Dog and Cat Control (Ontario) Legal Guide, which is posted in my
www.isthatlegal.ca website.

As well, note that is is a criminal offence for a person having "custody or
control" of an animal to fail to provide suitable care for it [CCC
s.446(1)]. If the 'new' THS is in fact refusing to accept stray animals
then they avoid falling into that more serious legal duty as well.

Of course, when THS is formally affiliated with the OSPCA (as it has
sometimes been in it's history and I expect is now), it comes under one of
the employment exceptions noted below and can provide services to third
party's animals - though that still doesn't deal with the absence of owner
consent problem, from both the professional discipline and civil liability
perspectives.
. Veterinarian as Contractor

Independent contracting, without the intervention of a third party, is the
normal legal relationship between client and veterinarian.

However when a third party (such as a private spay/neuter project) enters into
the relationship the potential for conflict again arises. For instance,
Ontario law allows for the making of a contract between two parties for the
benefit of a third (here the animal owner). For example, I could take my
impecunious friend's cat to the vet and hire the vet to treat it, undertaking
at the same time to pay the bill. Technically in this situation my friend is
the beneficiary of my contract with the veterinarian, though the veterinarian
may naturally feel an obligation to keep me happy as well because I am the one
paying the bills.

This is a potential conflict of interest, but it appears to be one tolerated
by the legal regime, with some assistance from the above-mentioned Reg
s.43(3)(a):
Reg s.43(3)
For the purposes of section (2) [which makes employment or agency by a
veterinarian a conflict of interest],

(a) a member who performs a veterinary service for an animal shall be
deemed to perform the service to the owner of the animal which received
the service;
That is, by law, the veterinarian's duty is owed to my friend and not to me,
despite me 'paying the freight'.

. Exceptions

As always with rules, exceptions exist that allow the provision of veterinary
services to third parties despite the existence of a primary employment and/or
agency legal relationship that the veterinarian has with a non-veterinarian
employer or principal, as the case may be. Mostly these are situations are
where the primary veterinarian relationship is an employee of government, an
institution or a business sector. I set them out here in full detail as they
offer clues as to when the veterinary legal regime has in past tolerated third
party services.

Veterinarians in the following legal relationships may provide veterinary
services to third parties [Reg s.43(4-6)]:
  • employment by provincial government, federal government and other
    Crown agencies;

  • employment by a public, non-profit university or college;

  • employment by a municipality, but only as long as the veterinarian's work
    with respect to animals which are not owned by the municipality is
    spay-neuter and related pre and post-op management;

    This exception applies to allow veterinarians employed for the purposes
    of municipally-run spay-neuter clinics to treat animals owned by members
    of the public. This is consistent with the recent opening of a municipal
    spay-neuter clinic in Toronto. As such it is an interesting comparator to
    a private spay/neuter project, both reflecting a present legislative
    intent to limit this exception to municipally-run clinics, and providing
    a model for a future general non-profit project exception.

  • employment by a humane society (ie. an affiliate of the OSPCA) where a
    written contract provides that the veterinarian "is responsible for all
    decisions relating to the quality and promotion of the member"s
    professional services and the health of the subject animals";

  • some employment by 'Gencor The Genetic Corporation';

    This is an interesting and obviously politically-negotiated exception.

  • employment by the estate of a deceased veterinarian or the personal
    representative of an impaired veterinarian for the purposes of wrapping
    up their practice;

  • employment by a professional (veterinary) corporation;

  • shareholding in a professional (veterinary) corporation.

  • employment by an agricultural food or drug business but only insofar as
    the veterinary services relate to those products and with an established
    customer, in which case the treating veterinarian shall try to pre-notify
    the animal's regular veterinarian;

  • employment by - or contracting with - a person, partnership or
    corporation where that party provides no services that are the exclusive
    monopoly of veterinary medicine, where the services relate to the party's
    products or services, and where the veterinarian services are for
    established customers of the party at their farm or similar
    establishment. In such a case the treating veterinarian shall try to
    pre-notify the animal's regular veterinarian [Reg s.43(5)];

    The above two exceptions appear to be a concession to agri-business,
    where their staff veterinarians can attend to the animals of customers of
    their products and services.

  • employment by - or contracting with - a person, partnership or
    corporation engaged in poultry feed, production or processing as long as
    the services or not offered to others as an inducement to purchase from
    or sell to the party [Reg s.43(6)].
So - what principles, if any, can we draw from these exceptions which tolerate
service to a third party within otherwise dominant 'client-to-veterinarian'
relationships? There are 12 of them and they break down as follows:
  • other professionals (other veterinarians) .... 4
  • government ................................... 2
  • institutional ................................ 2
  • business ..................................... 4
Of the institutional exceptions, the one for the OSPCA - which requires the
employment contract to specify that the veterinarian "is responsible for all
decisions relating to the quality and promotion of the member's professional
services and the health of the subject animals" - may be the best model for a
private project. This condition directly addresses the primary concern of the
whole 'conflict of interest' issue, that the relationship between client and
veterinarian be free of improper motivations and interference.

And of course, the already existing exception (allowing the employment of
veterinarians) for municipally-run spay-neuter clinics is a good precedent for
the creation of a similar exception for private projects.

. Comment

The essential goal of these 'conflict of interest' rules is to avoid the
intervention of any third party (person, corporation or otherwise) into the
otherwise direct 'client-to-veterinarian' relationship. The concern is that
such relationships enable the interests of the third party to encroach and
'conflict' with the professional and ethical duties that the veterinarian owes
to the client, and for that matter their legal duties to the animals.

Whatever approach a project eventually adopts to deal with these problems it
is essential to keep in mind that this 'conflict' legal analysis is what will
be driving judicial assessment of whatever model is decided upon.

(e) Advertising

. Overview

As the project goal is to make low-cost sterilization services available
broadly to reduce cat overpopulation, advertising such services is an obvious
aspect of succeeding in that goal. As well of course it raises obvious freedom
of expression concerns.

Authority for the CVO's Council to make regulations on this subject is set out
here:
Act s.7(1)
Subject to the approval of the Lieutenant Governor in Council and with
prior review by the Minister, the Council may make regulations with respect
to the following matters:

11. Respecting the promotion or advertising of the practice of veterinary
medicine.
Note that, unlike unauthorized practice - but like steering - it is not a
prosecutable offence under the Act to engage in prohibited advertising.
Prohibited cost advertising can only be addressed by the CVO through
professional discipline against the member (ie. the veterinarian) engaging in
it. While there is no express 'prohibited advertising' category of
professional misconduct, there are several (of the 45 listed) professional
misconduct categories that might apply to such a situation:
Reg s.17(1)
For the purposes of the Act, professional misconduct includes the
following:

1. An act or omission inconsistent with the Act or this Regulation.

2. Failing to maintain the standard of practice of the profession.

......

43. Touting or, except as permitted by this Regulation, soliciting
professional business.

44. An act or omission relevant to the practice of veterinary medicine
that, having regard to the circumstances, would be regarded by members
as disgraceful, dishonourable or unprofessional.

45. Conduct unbecoming a veterinarian.
. Advertising Prohibitions

The advertising prohibitions are quite broad. In fact they start out (much
like a licencing regime) by prohibiting all practice-related advertising or
communications, and then setting up specific and defined
exceptions:
Reg s.35
No member shall publish, display, distribute or use, or permit, directly or
indirectly, the publication, display, distribution or use of any
advertisement, announcement or similar form of communication related to the
member"s professional services or ancillary services or to a member"s
association with, or employment by, any person, except as permitted by this
Part.
That's what they can't advertise to the public. What they can advertise is
"information" that is [Reg s.36(1)]:
  • "factual, accurate and verifiable ... that a reasonable person would
    consider relevant in the choice of a veterinarian";

  • "not false, misleading or deceptive by the inclusion or omission of any
    information";

  • "readily comprehensible, dignified and in good taste";

  • "contains no testimonial or comparative statements";

    This prohibits comparative price advertising, or even such comments as
    'cheapest', 'cheaper', 'budget', 'economy', etc - perhaps even
    'affordable'. 'Low cost' would certainly fall under this rule.

  • "contains no information in respect of a fee or price";

    This directly prohibits price advertising. Fee schedules may however be
    posted in their place of business [Reg s.36(2)] as long as "it cannot be
    read by a person outside the veterinary facility" [Reg s.36(3)];

  • "contains no reference to a specific drug, appliance or equipment".
There is an odd provision relating to advertising that reads: "(n)o
information shall be communicated using a medium that is not equally
accessible to all interested members to use" [Reg s.36(4)]. It seems to be the
most extreme of a set of rules that are really designed to prevent cost
competition amongst veterinarians, or at least open cost competition.

Additional rules in this regard, perhaps redundant in light of the breadth of
Reg s.35 (quoted above), prohibit direct solicitation of business, which
differs from advertising in that it is usually more focussed on one person
[Reg s.39]. Again though, this rule has exceptions for:
  • written communications [marked 'Advertisement': Reg s.40(3)] sent to
    "persons not known to need professional services or ancillary services
    but who might in general find the availability of such services useful"
    if they comply with the content restrictions set out above (from Reg
    s.36) [Reg s.40(1)(a)];

  • communications to "regular clients" (which are defined extensively) [Reg
    s.40(1)(b),(2)].

3. Analysis

(a) Overview

In this section I analyse the legal barriers to your project of establishing
low-cost spay-neuter services in Ontario. In s.4 below ("Remedies"), I
consider the specific practical and legal remedies that can be brought to bear
against these barriers.

This analysis corresponds to the topics addressed in s.2 above ("Legal
Background"):
  • steering or referring business to those veterinarians ('Steering');

  • the legal status of the relationship your organization has with the
    veterinarians who perform the spay-neuter services ('Relationship');

  • advertising, both cost and otherwise ('Advertising').
The 'relationship' and 'steering' issues are closely interrelated so I will
address them first, while the 'advertising' issue is fairly self-contained so
I leave it for last.

(b) Relationship

. Overview

Here I consider the various possible practical and legal relationships that a
private spay/neuter project can have with the veterinarians who directly
provide spay-neuter surgery services to the public. Remember that insofar as
any of these models pose risks, it is only to the involved veterinarians
themselves in the form of professional discipline. That is, participation in a
'conflict of interest' situation by a non-veterinarian is not a prosecutable
offence.

. Employment

Veterinarians can be employees but if they are then they cannot serve animals
belonging to third parties such as members of the public (ie. they can only
serve their owner's animals). There are exceptions to this rule but none that
apply to a private spay/neuter project. As all the clients of such a project
would fall into this 'third party' class, under conventional law the
employment relationship is not suitable for the project's relationship with
the vets who are doing the surgery.

Unconventional (eg. Charter) remedies to this barrier are discussed in s.4
below ("Remedies").

. Contracting

Independent contracting between a project and a veterinarian to provide
services to third parties does not - as such - put the veterinarian into a
conflict of interest. The concern here though is that such a relationship
might also constitute an agency relationship, with the vets being the
project's agent for the delivery of such services to the third party public. I
address that issue next.

. Agent/Principal

If the relationship between the project and the vets is viewed as one of
agency, with the project as the principal and the vets as their agents (and
either in or out of contract) for the delivery of spay/neuter services to the
public, then the relationship is for present intents and purposes the same as
if the vets were employees. In that case, provision of veterinary services to
third parties constitute a conflict of interest [Reg s.43(1-2)], and
professional misconduct.

The essential indices of an agency relationship are that the agent is charged
with undertaking actions on behalf of and for the principal, and that when so
doing the agent owes a duty of loyalty to the principal and their interests.
So to avoid the relationship being categorized an as agency one, you try to
minimize or eliminate those factors.

. Conclusions

Under present law, an employment relationship between a private spay/neuter
project and a veterinarian puts the vet into a conflict of interest, by virtue
of their providing services to third parties. As long as that law remains
unmodified it ends the possibility of a full, integrated clinic model. Options
to address this are discussed in s.4 ("Remedies").

Avoiding an agency relationship (which if present would have the same problems
as employment) is more achievable. The most practical way of avoiding the
establishment of an agency relationship is to make the relationship between
the project and the vets as 'arm's-length' as possible. For instance, while a
contract between them to provide spay/neuter services to third parties is not
legally prohibited, it should still be avoided. Such a contract is evidence
towards the conclusion that the vets are the project's agents. The
relationship should be based entirely on one-way referrals by the project to
veterinarians who provide low-cost spay/neuter services.

Further, a project should have no supervisory authority or role over the vets
whatsoever. In essence, the legal relationship between the project and the
vets should be 'none'. The relationship should be a dumb symbiosis, without
any active involvement of the vets other than their service provision.

This is an unusual and perhaps awkward relationship, but the situation of a
wholly unaffiliated non-profit project is unique. It cannot take advantage of
either the OSPCA or the municipal exceptions allowing third party treatments
within an employment or agency relationship. Further, since the project will
not be asserting an ownership claim over the cats brought in, it cannot (as
THS may have done) hide behind the pretense that they are 'their' cats which
'their' veterinarian could legitimately treat.

To summarize, under conventional veterinary law the legal relationship between
the project and the spay-neuter vets should be 'none of the above' - they
should be legal strangers.

That said, while they can be legal strangers, there are two options has to how
physically close they are: the 'close proximity' model and the 'remote' model.
The close proximity model could operate essentially out of the same (or
neighbouring) physical premises, with the vet-occupied premises having to be
accredited veterinary facilities.

Alternatively a project could operate entirely out of it's own premises (or
it's members' homes for that matter) and engage in it's advocacy and referral
activities in complete physical separation from the vets and their accredited
veterinary facilities.

From a conventional law perspective (ie. before Charter remedies or law reform
are brought to bear) I favour the remote model of 'relationship' as it
undermines the argument that the vets are the project's agents for it's goals.
Close physicial proximity makes the agency argument much stronger and risks
placing the vets in a conflict of interest leading to professional misconduct
allegations.

As will be seen in the following discussion (and again only from a
conventional law perspective), I also favour the remote option for it's
implications on the 'steering' issue.

Should a project not prefer the remote option, but prefer a closer working
relationship with the vets - and maybe even a 'clinic' model, then one is into
Charter and law reform issues, which I discuss in s.4 "Remedies" (below).

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