WHO NEEDS AN INDEPENDENT CONTRACTOR AGREEMENT? INDEPENDENT CONTRACTOR FAQS
Who needs an Independent Contractor Agreement? Optometrists are permitted to practise in a variety of settings, many of which require them to have a written Independent Contractor Agreement (“Agreement”) in place.
The circumstances in which members do NOT need to have an Agreement are the easiest to determine. You do not need an Agreement if you practise:
on your own
with another member of the College who is engaged in the practice of the profession
with an Ontario-registered physician who is engaged in the practice of medicine
Ontario Regulation 119/94 also creates an exception so that optometrists who work in hospitals, government, or universities with others are NOT required to have Agreements.
Members practising in almost every other setting MUST have an Agreement in place, including but not limited to the following situations:
Members who practise at an optical store, even if it is only once a week
Members engaged in practice with corporations that coordinate mobile eye clinics
Members engaged in practice with an optometrist, group of optometrists, or corporation owned by optometrists, where some or all of the optometrists are not licensed to practise in Ontario
Members engaged in practice with an optometrist or a physician who is strictly acting as a manager and not seeing patients
Members who are practising in association with a surgical centre (and are not employed by an ophthalmologist performing the surgeries)
How do I know if my Agreement is in compliance with the College regulation? Is the College able to review it for me? The College recommends that members entering into Agreements include the following wording (taken from (O. Reg. 119/94 under the Optometry Act, subsection 4(5) in their contracts):
The parties hereby acknowledge and agree that the optometrist, ___________ (enter name): (a) shall control the professional services provided to a patient; (b) shall control who he or she may accept as a patient; (c) shall provide every patient or his or her authorized representative with a copy of his or her prescription; (d) shall set the fee charged or collected in respect of any professional service; (e) shall control the maintenance, custody and access to the records required to be kept in respect of the practice of the profession; (f) shall have access, along with his or her staff, to the premises where the member practises and to the books and records related to his or her practice, at any time of the day or night; and (g) shall ensure that any advertising relating to the professional services provided by the member meets the requirements set out in regulations made under the Act. O. Reg. 24/14, s. 1.
Agreements must include:
Terms for reasonable rent for office space and equipment that is paid regularly and is not based on volume of business or fees generated by the optometrist
Agreements cannot include the following:
Terms requiring the transfer of patient records to non-optometrists (i.e., opticians/corporations) upon termination of any agreement
Terms that require sharing of fees (as fee sharing is expressly prohibited by the regulation)
Terms whereby the optical/corporation controls the following:
o fees o schedule/types of appointments o vacation/days off o attire o how patients receive the copy of their prescriptions o a requirement to disclose revenues/volume of business
The College does not have the capacity to approve members’ Agreements. Members are encouraged to ask their own lawyers to review any Agreement prior to signing to ensure it is in compliance with the regulation.
Disclaimer: The independent contractor provisions under the Optometry Act are not necessarily consistent with Canada Revenue Agency’s definition of “independent contractor,” nor were they intended to be. You should consult an accountant for advice on compliance with the CRA in that regard. This document is not intended to provide legal advice; members should consult with their own lawyers for such advice.