January 2, 2017

2016 Professional Regulation Roundup

Administrative Law
Inquiry and Investigations
Professional Regulation
Registration and Fitness

The year 2016 involved outcomes to many of the outstanding regulatory issues that we flagged in our 2015 professional regulatory law roundup, especially those which addressed what constitutes the “public interest” that regulatory bodies serve. Most notably, appellate-level courts addressed issues such as the power of regulators to prohibit professionals from participating in customer incentive programs (Sobeys West), or to refuse to accredit educational programs that discriminated, on religious grounds, against persons of different sexual orientations (TWU).

1. Registration – refusing to accredit professional programs, in the public interest: Courts in three provinces have moved forward to address the power of law societies to refuse to accredit a Christian law school, based on a public interest concern about the school requiring students to sign a covenant abstaining from sexual intimacy outside of marriage between one man and one woman – a covenant that would effectively discriminate against students of certain sexual orientations.

  • The Ontario Court of Appeal upheld, as constitutional, a refusal by the Law Society of Upper Canada to accredit TWU’s law school earlier in the year (TWU v. LSUC, 2016 ONCA 518, summarized here).
  • In contrast, the BC Court of Appeal recently set aside, as unconstitutional, a refusal by the Law Society of British Columbia to accredit the same school (TWU v. LSBC, 2016 BCCA 423, summarized here)
  • In a third decision, the Nova Scotia Court of Appeal confirmed the setting aside of a decision of the Nova Scotia Barristers’ Society (2016 NSCA 59).

As TWU has applied for leave to appeal the Ontario decision, and the Law Society of British Columbia has applied for leave to appeal the BC decision, the matter may be one that the Supreme Court of Canada addresses in 2017. The BC decision, if left in place, limits the jurisdiction of professional regulatory bodies (in BC) to decline accrediting educational programs that discriminate, but do so on religious grounds.

2. Registration – good character: A high water mark for deference to regulatory bodies assessing the “good character” of applicants was set by Alberta courts, which confirmed an Alberta regulatory body’s refusal to register a BC professional (Lum v. Council of Alberta Dental Association and College, 2016 ABCA 154, summarized here, and also 2015 ABQB 12, summarized here). The dentist had been the subject of several various complaints, two of which were still to be resolved, but not subject to any formal discipline. The regulatory body essentially declined to accept the applicant’s good character, based on the applicant’s complaint history, despite the applicant being registered in BC. The Alberta Court of Appeal notably did not, however, decide if an “incoming” body bears a reverse onus, under TILMA (i.e., the Trade, Investment and Labour Mobility Agreement between Alberta and B.C.), to prove that a mobility applicant lacks good character.

3. Inquiry –  a test for extraordinary (or interim) measures pending investigation: The BC Court of Appeal clarified how inquiry committees may decide to take impose action, without engaging in a mini-trial, pending an investigation and while events are disputed, in Scott v College of Massage Therapists of British Columbia, 2016 BCCA 180 (summarized here). The court clarified that committees could not decide disputed issues of fact, and that a “prima facie” case as to what happened meant a case for allegations which, if believed, would be sufficient to justify a verdict, in the absence of an answer from the registrant. This case results in much-needed clarity about how inquiry committees should decide about actions to protect the public, especially in “he said, she said” complaint situations.

4. Inquiry – letters of expectation (or criticism): Courts in both BC and Ontario confirmed the power of investigative or inquiry committees to issue letters that fall short of a reprimand, even though they may set out expectations for future conduct, or even criticize or caution a registrant about past conduct. Thus, an Ontario Inquiries, Complaints and Reports Committee properly issued a letter telling registrants that it had “concerns”, and cautioned them to cease certain types of activities (in Lum v. College of Physiotherapists of Ontario, 2015 ONSC 7227 (Div.Ct.), summarized here). Similarly, a BC Inquiry Committee properly issued a letter telling a registrant about “expectations” for future conduct, pursuant to section 33(6)(b) of BC’s Health Professions Act, which kind of letter the court decided involved no discipline, and was not open to judicial review (in Ridsdale v. Anderson, 2016 BCSC 942, summarized here).

5. Discipline – standards of conduct extending to “commercial” behaviours (in the public interest): In relation to the power of regulators to prevent professionals from participating in customer loyalty, or incentive, programs that give benefits to pharmacy, courts have reached differing conclusions in different provinces.

In BC, the Court of Appeal upheld prohibitions enacted by the College of Pharmacists of BC (and reversed a lower-court decision setting those prohibitions aside) on the basis that the College’s council could reasonably enact such prohibitions without having to wait for empirical evidence demonstrating the harm of incentive programs (Sobeys West Inc. v. College of Pharmacists of British Columbia, 2016 BCCA 41, summarized here). Sobeys West was denied leave to appeal this decision to the Supreme Court of Canada.

In contrast, the Alberta Court of Queen’s Bench decided that the Alberta College of Pharmacists did not have jurisdiction to to prohibit pharmacies from offering loyalty programs, deciding that regulation of pharmacists under the Alberta Health Professions Act was not intended to extend to economic functions regulated under Alberta’s Pharmacy and Drug Act (in Sobeys West Inc. v. Alberta College of Pharmacists, 2016 ABQB 232). The Alberta College has appealed, and the Alberta Court of Appeal will likely hear the appeal in 2017.

The BC decision in Sobeys upholds a broad discretion of professional regulatory bodies to pass bylaws that, in their view, establish professional standards in the public interest. The BC Court of Appeal noted that, “in the absence of a Charter challenge, required to select the least intrusive path, nor to wait until there was empirical evidence demonstrating the harm of customer incentive programs.” [68] The BC decision in Sobeys may however be compared to the BC decision in TWU, which did involve a Charter challenge – one that questioned the power of the Law Society of BC to take action that infringed freedom of religion.

6. Other decisions impacting administrative law principles: Finally, 2016 involved some developments in administrative law that may impact how courts judicially review decisions of professional regulatory bodies. For example, the SCC clarified that the “expertise” of tribunals (that warrants deference by courts) does not depend on “the qualifications or experience of any particular tribunal member”, but arises at an institutional level, where decision-makers “can be presumed to hold relative expertise…” (Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 at para. 33). The SCC also disapproved of different levels of the “reasonableness” standard of review (Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 at para. 18).

Lisa C. Fong and Michael Ng