Acts and Regulations

2021, c.1 - An Act to Amend the Early Childhood Services Act

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2021, c.1
An Act to Amend the
Early Childhood Services Act
Assented to March 26, 2021
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1Section 1 of the Early Childhood Services Act, chapter E-0.5 of the Acts of New Brunswick, 2010, is amended
(a) by repealing the definition “operator” and substituting the following: 
“operator” means an individual, corporation, unincorporated association, partnership or limited partnership that operates a facility.(exploitant)
(b) by adding the following definitions in alphabetical order: 
“court” means The Court of Queen’s Bench of New Brunswick, and includes a judge of that court.(cour)
“personal information” means personal information as defined in the Right to Information and Protection of Privacy Act.(renseignements personnels)
2Section 2.02 of the Act is amended
(a) in subsection (2) by striking out “information” and substituting “information, including personal information,”;
(b) by adding after subsection (2) the following: 
2.02(2.1)In providing the Minister with the information for the on-line registry, an operator of a licensed facility may disclose the personal information of an individual if the person from whom the information was obtained and the individual to whom the information relates have consented to the disclosure.
(c) by adding after subsection (3) the following: 
2.02(4)The Minister may collect any information, including personal information, that is provided to the Minister for the on-line registry.
2.02(5)Subject to subsection (6), the Minister may use the information provided to the Minister for the on-line registry for the following purposes: 
(a) determining a child’s eligibility to participate in a program or receive a service;
(b) managing enrolment at licensed facilities;
(c) creating a unique identification number for a child;
(d) creating a unique identification number for a staff member of a facility;
(e) determining an operator’s eligibility for grants under Part 3;
(f) determining a parent’s eligibility for financial assistance under Part 4.
2.02(6)The Minister may use an individual’s Medicare number provided to the Minister for the on-line registry for the purpose of creating a unique identification number for a child. 
2.02(7)The Minister may use a unique identification number referred to in paragraph (5)(c) to identify a school-age child for the purposes of the Education Act.
2.02(8)Subject to subsections (9) and (10), the Minister may disclose the information provided to the Minister for the on-line registry  
(a) to the Minister of Heath,
(b) to an operator of a licensed facility, and
(c) to any other person or class of persons prescribed by regulation.
2.02(9)For the purposes of paragraph (8)(a), the Minister may disclose an individual’s Medicare number to the Minister of Health for the purpose of validating the unique identification number for a child referred to in paragraph (5)(c).
2.02(10)Subject to subsection (9), for the purposes of subsection (8), the Minister may disclose only the personal information, that has been prescribed by regulation.
3Section 2.2 of the Act is amended
(a) in subsection (1) of the English version by striking out “he or she” and substituting “the Minister”;
(b) in paragraph (4)b) of the French version by striking out “ce que”.
4Section 5 of the Act is amended by adding after subsection (3) the following: 
5(4)For greater certainty, only the actual operator may be the applicant for a licence to operate a facility.
5Subsection 6(1) of the Act is amended
(a) in paragraph (a) by striking out “complies” and substituting “will comply”;
(b) by adding after paragraph (a) the following: 
(a.1) the application complies with New Brunswick Regulation 2018-11 under this Act,
6The Act is amended by adding after section 7 the following: 
Notice of change
7.1If a licensee that is a corporation, unincorporated association, partnership or limited partnership has a change in directors, partners or general partners, as the case may be, the licensee shall: 
(a) notify the Minister in writing within 15 days after the change; and
(b) submit to the Minister, within 30 days after the change, all the documents for the new directors, partners or general partners that the licensee would have been required to submit at the time of applying for the licence.
7Section 10 of the Act is amended
(a) by adding before subsection (1) the following: 
10(0.1)An applicant in paragraph (1)(c) and subsection (2) includes: 
(a) the directors, in the case of an applicant that is a corporation or an unincorporated association;
(b) the partners, in the case of an applicant that is a partnership; and
(c) the general partners, in the case of an applicant that is limited partnership.
(b) in paragraph (1)(c) by striking out “an associated person” and substituting “the applicant or an associated person”;
(c) by repealing subsection (2) and substituting the following: 
10(2)An applicant or an associated person is not suitable to have contact with children receiving services at a facility in the following circumstances: 
(a) the applicant or associated person is the subject of a court order made under the Family Services Act in relation to a danger to the security or development of a child as described in paragraphs 31(1)(a) to (g) of that Act;
(b) the Minister of Social Development has made a finding that the applicant or associated person has endangered the security or development of a child under section 31.01 of the Family Services Act;
(c) the applicant or associated person is the subject of a court order made under the Family Services Act in relation to a danger to the security of a person as described in paragraphs 37.1(1)(a) to (g) of that Act;
(d) the Minister of Social Development has made a finding that the applicant or associated person has endangered the security of another person under section 36.2 of the Family Services Act; or
(e) the applicant or associated person has been convicted of an offence under the Criminal Code (Canada) that is prescribed by regulation.
8Subsection 11(1) of the Act is repealed and the following is substituted: 
11(1)An application for the renewal of a licence shall be made on a form provided by the Minister and submitted to the Minister at least 90 days before the expiry date of the licence.
9Subsection 12(1) of the Act is amended
(a) in paragraph (a) by striking out “complies” and substituting “will comply”;
(b) by adding after paragraph (a) the following: 
(a.1) the application complies with New Brunswick Regulation 2018-11 under this Act,
10Section 13 of the Act is amended
(a) by adding before subsection (1) the following: 
13(0.1)A licensee in (1)(c) and subsection (2) includes: 
(a) in the case of licensee that is a corporation or an unincorporated association, the directors who have contact with children receiving services at the facility or who are responsible for maintaining the financial records of the facility;
(b) in the case of a licensee that is a partnership, the partners who have contact with children receiving services at the facility or who are responsible for maintaining the financial records of the facility; and
(c) in the case of a licensee that is a limited partnership, the general partners who have contact with children receiving services at the facility or who are responsible for maintaining the financial records of the facility.
(b) in paragraph (1)(c) by striking out “an associated person” and substituting “the licensee or an associated person”;
(c) in subsection (2) by striking out “an associated person” and substituting “the licensee or an associated person”.
11Subsection 14(1) of the Act is amended in the portion preceding paragraph (a) by striking out “before the licence expires” and substituting “at least 90 days before the expiry date of the licence”.
12The Act is amended by adding after section 18 the following: 
Inclusion
18.1(1)An operator of a licensed facility shall provide services in an inclusive environment that respects the diversity of children and families related to race, colour, creed or religion, national origin, ancestry, place of origin, age, disability, marital status, family status, sexual orientation, sex, gender identity or expression, social condition and political belief or activity.
18.1(2)An operator of a licensed facility shall develop and implement an inclusion policy.
18.1(3)An inclusion policy shall include the following: 
(a) how the operator will create an environment at the facility that supports, reflects and promotes equitable and inclusive practices to ensure that services are responsive to the needs, values and cultural beliefs of the families using the services;
(b) in the case of a facility of a class prescribed by regulation, any information prescribed by regulation.
13Section 19 of the Act is repealed and the following is substituted: 
19(1)The staff members of a licensed facility shall meet the training requirements and other qualifications prescribed by regulation.
19(2)The Minister may collect and use the personal information of staff members of a licensed facility for the purpose of determining whether the training requirements and other qualifications referred to in subsection (1) have been met.
19(3)The Minister may collect the personal information referred to in subsection (2) either directly from the staff member to whom it relates or indirectly from an operator.
19(4)The Minister may disclose the personal information of a staff member of a licensed facility collected under subsection (2) to an operator for the purpose of confirming the training and other qualifications of the staff member.
14The Act is amended by adding after section 19 the following: 
Checks of staff members
19.1(1)If the Minister has reasonable grounds to believe that a staff member may not be suitable to have contact with children receiving services at a licensed facility, the Minister may obtain a check with the Department of Social Development.
19.1(2)If after a check under subsection (1), the Minister still has reasonable grounds to believe that a staff member is not suitable to have contact with children receiving services at the facility, the Minister may order the operator to dismiss the staff member.
19.1(3)Subsection 10(2) applies with the necessary modifications to a staff member referred to in subsection (1).
15Section 22 of the Act is amended by adding after subsection (7) the following: 
22(8)An inspector shall inform the Minister as soon as practicable, if, during an inspection, the inspector has reasonable grounds to believe that
(a) there is an imminent danger to the health, safety or well-being of a child who is receiving services at the licensed facility, or
(b) the operator has failed to ensure that
(i) no child receiving services at the licensed facility is subjected to any form of physical punishment or verbal or emotional abuse, or
(ii) no child receiving services at the licensed facility is denied physical necessities.
16Subsection 27(3) of the English version of the Act is amended by striking out “his or her” and substituting “their”.
17The Act is amended by adding after section 28 the following: 
Protection order
28.1(1)The Minister may issue a protection order under this section if, after receiving information from an inspector under subsection 22(8), the Minister has reasonable grounds to believe that
(a) there is an imminent danger to the health, safety or well-being of a child who is receiving services at the licensed facility, or
(b) the operator has failed to ensure that
(i) no child receiving services at the licensed facility is subjected to any form of physical punishment or verbal or emotional abuse, or
(ii) no child receiving services at the licensed facility is denied physical necessities.
28.1(2)In a protection order, the Minister may
(a) order the licensee to stop operating the licensed facility until the Minister is satisfied that the order has been complied with,
(b) order that the licensee eliminate the danger and take any other measures set out in the order, and
(c) suspend the licensee’s licence.
28.1(3)A protection order shall
(a) set out the reasons for the order,
(b) state that the licensee is entitled to request that the Minister review the decision, and
(c) include any other information prescribed by regulation.
28.1(4)The Minister shall serve a protection order by personal service on the licensee.
28.1(5)The Minister
(a) shall post a notice of a protection order at the licensed facility, and
(b) may provide notice of the protection order to the parents or guardians of the children who receive services at the licensed facility.
28.1(6)No person other than the Minister shall remove a notice posted under paragraph (5)(a), unless the person is authorized to do so by the Minister.
28.1(7)A protection order is effective on the occurrence of the earlier of the following: 
(a) notice of the protection order is posted at the licensed facility; and
(b) the protection order is served on the licensee.
28.1(8)The making of a request to review a decision referred to in subsection (3) does not stay the protection order.
28.1(9)The Minister may vary or revoke a protection order at any time.
Court order
28.2(1)If the Minister has reasonable grounds to believe that an individual who provides services in a licensed facility poses an imminent danger to the health, safety or well-being of a child who receives services at that facility or that the individual has subjected a child receiving services at that facility to any form of physical punishment or verbal or emotional abuse or that the individual has denied a child receiving services at that facility physical necessities, the Minister may apply to the court for an order prohibiting the individual from providing services.
28.2(2)The Rules of Court apply to an application under subsection (1).
28.2(3)On an application under subsection (1), the court may issue an interim order without a hearing if it is satisfied that it is in the public interest to do so.
28.2(4)Any person may apply to the court for an order varying or revoking an order issued under subsection (1).
18Subsection 29(5) of the Act is amended by striking out the portion preceding paragraph (a) and substituting the following: 
29(5)If an operator fails to complete the measures indicated in a probationary licence issued in accordance with paragraph (1)(a) within the time specified, or fails to comply with this Act or the regulations, the Minister may do either of the following: 
19Subsection 30(2) of the Act is repealed and the following is substituted: 
30(2)The Minister may revoke a licence if
(a) the licensee has been convicted of an offence
(i) under this Act or the regulations, or
(ii) under an Act prescribed by regulation or a regulation under that Act; or
(b) the Minister is of the opinion that the licensee is no longer complying with New Brunswick Regulation 2018-11 under this Act,
(c) the Minister is of the opinion that the licensee
(i) has failed to ensure that no child receiving services at the licensed facility is subjected to any form of physical punishment or verbal or emotional abuse, or
(ii) has failed to ensure that no child receiving services at the licensed facility is denied physical necessities,
(d) the Minister is of the opinion that there is an imminent danger to the health, safety or well-being of a child who is receiving services at the licensed facility,
(e) in the case of a suspended licence for which a probationary licence has been issued, the Minister is of the opinion that
(i) the licensee has failed to complete the measures indicated in the probationary licence or has failed to do so within the time specified in the probationary licence, or
(ii) the licensee has failed to comply with an order requiring that the measures specified in the order be taken to remedy a non-compliance or has failed to do so within the time specified in the order.
20Subsection 33(1) of the Act is repealed and the following is substituted: 
33(1)A person may request that the Minister review a decision to revoke a licence under any of the following provisions: 
(a) paragraph 30(2)(b), in the case of a revocation for failing to comply with subsection 49(2) of New Brunswick Regulation 2018-11 under this Act;
(b) subparagraph 30(2)(c)(i) or (ii); and
(c) paragraph 30(2)(d).
21Section 35 of the Act is repealed and the following is substituted: 
35A request for a review under paragraph 33(2)(a) or (b) stays the decision under review.
22The Act is amended by adding after section 43 the following: 
Collection, use and disclosure of personal information – grants
43.1(1)The Minister may collect and use the personal information of staff members of a licensed facility for the purpose of determining whether to provide a grant.
43.1(2)The Minister may collect the personal information referred to in subsection (1) indirectly from an operator in a form referred to in subsection 42(1) or in a record produced for examination under subsection 43(2).
43.1(3)The Minister may disclose the personal information referred to in subsection (1) to an operator for the purpose of providing a grant.
23Subsection 46(4) of the English version of the Act is amended by striking out “his or her” and substituting “their”.
24Section 47 of the Act is repealed and the following is substituted: 
47(1)An application for assistance shall be made on a form provided by the Minister and shall be accompanied by the documents prescribed by regulation.
47(2)Subject to section 48.1, the Minister may collect and use the personal information of an individual, except for the individual’s Medicare number, for the purpose of establishing a parent’s eligibility for assistance.
47(3)In a form referred to in subsection (1), the Minister may collect personal information either directly from the individual to whom the information relates or indirectly from another person.
47(4)The Minister may disclose the personal information collected under subsection (2) to an operator of a licensed facility, to an operator of a facility that is subject to an interim permit, or to a person who operates a facility described in subsection 4(2), for the purpose of providing assistance to a parent.
25Section 48.1 of the English version of the Act is amended
(a) in subsection (2) by striking out “his or her” and substituting “the parent’s”;
(b) in subsection (3) by striking out “his or her”.
26Section 50 of the English version of the Act is amended
(a) in the portion preceding paragraph (a) by striking out “his or her” and substituting “the Minister’s”;
(b) in subparagraph (c)(i) by striking out “his or her” and substituting “their”.
27Section 55 of the Act is amended
(a) in subsection (2.1)
(i) in paragraph (a) of the English version by striking out “and” at the end of the paragraph;
(ii) by adding after paragraph (a) the following: 
(a.1) the on-line registry established under section 2.02; and
(b) in paragraph (3)(a) of the English version by striking out “his or her servant” and substituting “that Minister’s servant”.
28Section 63 of the Act is amended
(a) by adding after paragraph (a.02) the following: 
(a.03) prescribing persons or classes of persons for the purposes of paragraph 2.02(8)(c);
(a.04) prescribing personal information that the Minister may disclose for the purposes of subsection 2.02(10);
(b) by adding after paragraph (q) the following: 
(q.1) prescribing classes of facilities for the purposes of paragraph 18.1(3)(b);
(q.2) prescribing information that shall be included in an inclusion policy for the purposes of paragraph 18.1(3)(b);
(c) by adding after paragraph (w) the following: 
(w.1) prescribing other information that may be included in a protection order for the purposes of paragraph 28.1(3)(c);
(d) in paragraph (z)
(i) by adding after subparagraph (iii) the following: 
(iii.1) providing that the type or amount of a grant may be determined by the level of training held by the staff members of a recipient of a grant or by categories of staff members,
(ii) in subparagraph (v) of the English version by striking out “and” at the end of the subparagraph;
(iii) by adding after subparagraph (v) the following: 
(v.1) providing that the terms referred to in subparagraph (v) may vary by operator or by class of operator, and
CONSEQUENTIAL AMENDMENTS
Regulation under the Early Childhood Services Act
29New Brunswick Regulation 2018-11 under the Early Childhood Services Act is amended
(a) in section 4
(i) by adding before subsection (1) the following: 
4(0.1)In subsection (1)
(a) in paragraph (e) the applicant includes: 
(i) the directors, in the case of an applicant that is a corporation or an unincorporated association;
(ii) the partners, in the case of an applicant that is a partnership; and
(iii) the general partners, in the case of an applicant that is a limited partnership; and
(b) in paragraph (f) the applicant includes: 
(i) in the case of a corporation or unincorporated association, the directors who have contact with children receiving services in the facility or who manage the finances of the facility;
(ii) in the case of a partnership, the partners who have contact with children receiving services in the facility or who manage the finances of the facility; and
(iii) in the case of a limited partnership, the general partners who have contact with children receiving services in the facility or who manage the finances of the facility.
(ii) by adding after subparagraph (1)(g)(ii) the following:
(ii.1) the inclusion policy for the facility,
(b) in section 12 by adding before subsection (1) the following: 
12(0.1)In subsection (1), an operator of a licensed facility includes: 
(a) in the case of a criminal record check or a vulnerable sector check, as the case may be,
(i) in the case of a corporation or unincorporated association, the directors,
(ii) in the case of a partnership, the partners, and
(iii) in the case of a limited partnership, the general partners; and
(b) in the case of a check with the Department of Social Development,
(i) in the case of a corporation or unincorporated association, the directors who have contact with children receiving services in the facility or who manage the finances of the facility,
(ii) in the case of a partnership, the partners who have contact with children receiving services in the facility or who manage the finances of the facility, and
(iii) in the case of a limited partnership, the general partners who have contact with children receiving services in the facility or who manage the finances of the facility.
Education Act
30The Education Act, chapter E-1.12 of the Acts of New Brunswick, 1997, is amended by adding after section 53 the following: 
Unique identification number
53.1(1)The Minister and a District Education Council, through the superintendent of a school district, may collect and use an individual’s Medicare number for the purpose of creating a unique identification number for a pupil.
53.1(2)The Minister and a District Education Council, through the superintendent of a school district, may use the unique identification number created for a child under the Early Childhood Services Act as the unique identification number for a pupil.
53.1(3) The Minister and a District Education Council, through the superintendent of a school district, may disclose to the Minister of Health an individual’s Medicare number for the purpose of validating the unique identification number for a pupil.
53.1(4)The unique identification number of a pupil forms part of the record maintained in respect of the pupil under section 54.
Personal Health Information Privacy and Access Act
31Subsection 38(1) of the Personal Health Information Privacy and Access Act, chapter P-7.05 of the Acts of New Brunswick, 2009, is amended by adding after paragraph (f.5) the following: 
(f.6) if the custodian is the Minister of Education and Early Childhood Development, to the Minister for the purpose of validating the unique identification number created for a child under the Early Childhood Services Act or created for a pupil under the Education Act,
Regulation under the Personal Health Information Privacy and Access Act
32Section 17.1 of New Brunswick Regulation 2010-112 under the Personal Health Information Privacy and Access Act is amended
(a) in subsection (1)
(i) by repealing the following definitions: 
“infant”;
“preschool child”;
(ii) by adding the following definition in alphabetical order: 
“child” means a child as defined in the Early Childhood Services Act.(enfant)
(b) in subsection (2)
(i) by repealing paragraph (a) and substituting the following: 
(a) to uniquely identify a child in the on-line registry established under subsection 2.02(1) of the Early Childhood Services Act, or, if the child does not have a Medicare number, the parent of the child;
(ii) in paragraph (b) by striking out “an infant or preschool child” and substituting “a child”;
(c) by adding after subsection (3) the following: 
17.1(4)For the purposes of subsection 48(1.2) of the Act, the Minister may collect and use an individual’s Medicare number for the following purposes: 
(a) validating a unique identification number created for a child under the Early Childhood Services Act; and
(b) validating a unique identification number created for a pupil under the Education Act.