Registration: When regulatory bodies cannot deviate from prescribed forms

An Alberta court recently addressed whether a regulatory body acts outside its authority where, as part of its registration renewal process, it deviates from prescribed forms and requires professionals to answer questions pertaining to their criminal record and mental health history: Health Sciences Assn. of Alberta v. Alberta College of Paramedics, 2016 ABQB 723.

In this case, the Alberta College of Paramedics (the “College”) required that paramedical technicians answer, on a registration renewal form for 2016, various questions regarding recent criminal activity, treatment or counselling for physical or mental health conditions, and drug and alcohol addiction. The Health Disciplines Act, R.S.A. 2000, c. H-2 (“HDA”), the College’s home statute, stated that a renewal form was to be “in the form prescribed by the Minister”. The prescribed form only asked for information about professional certifications, employment and education, as opposed to information related to a person’s criminal record and/or mental health history.

A paramedical technician and her labour union, the Health Sciences Association of Alberta (the “Union”), sought a court declaration that the College acted ultra vires its authority when it required paramedical technicians to complete the form. In completing the form, the technician had answered “yes” to one of the questions, and the College emailed her asking additional questions related to this “yes” answer. She refused to answer these further questions. The College nonetheless renewed her registration.

The Court rejected a number of procedural arguments raised by ACP.

1. Mootness: Although the College asserted the issue was moot, as no one’s registrant status was impacted, and furthermore, paramedics had recently been transitioned from the HDA to the Health Professions Act, R.S.A. 2000, c. H-7, which gives the College control over its own forms, the court decided that due to live controversies and an ongoing relationship between the College and the technician, declaratory relief would help them with their ongoing relationship, and would address future problems. [53]

2. Standing: The court decided the technician and the Union had standing to address the issue. [73-74]

3. Proper forum: Although the College argued that the technician had to seek review from the Health Disciplines Board under the HDA, the court concluded that the Health Disciplines Board had no authority over the College, and no jurisdiction to become involved in a registration dispute between the College and its members [83].

4. Collective agreement: Despite assertions by the College that the matter was governed by the collective agreement between the Union and her employer, the Court did not accept that the collective agreement was a bar to declaratory relief. The collective agreement merely tied the Union to the technician’s concerns with her own professional association. [92] The College was not a party to the collective agreement. [95]

On the central question of the validity of the College’s renewal form for 2016 that deviated from a form prescribed by the Minister, the College argued that the Minister was not required to prescribe forms. The College also relied on a case, K.B. v. Alberta, 2012 ABQB 329, to assert that deviations from a form prescribed by regulation are not relevant if they do not impact the “substance” of implementing the legislator’s intention [25, 98]. The Court held, however, that since the Minister did prescribe a form, the Minister had occupied the field, so that the College could not ignore the Minister’s forms and prescribe its own [103]. The questions also affected the substance of the the form; they raised the spectre of human rights issues and privacy issues, related to a person’s health and criminal record. [104]

The Court concluded, “no regulatory basis for a review of a member’s health or conduct as part of the renewal process.” [106] While the College had a mandate to ensure the continued competency of paramedics, its regulatory framework did not allow it to require answers to the “competency questions” as a condition of renewal. [107] The College had improperly added the questions to the prescribed renewal form. The Court declared that the College had acted beyond its powers by requiring its members to complete and submit the renewal form it used for 2016.

Health Sciences Assn. of Alberta v. Alberta College of Paramedics, 2016 ABQB 723

Lisa C. Fong and Michael Ng