January 16, 2019

2018 regulatory round-up

Administrative Law
Health Professions Review Board
Inquiry and Investigations
News and Events
Professional Regulation
Unauthorized Practice

In 2018, courts addressed the boundaries of professional regulatory bodies to act in the public interest. First, courts examined limits on the powers of regulatory bodies, involving both registrants and non-registrants, relating to fundamental freedoms of religion and speech. Second, courts examined the limits of the powers of statutory oversight bodies to ensure that “front-line” regulatory bodies act sufficiently in the public interest respecting specific complaints.

This round-up collects key regulatory cases in 2018, provides commentary, and briefly introduces the new Professional Governance Act – umbrella legislation the B.C. legislature passed in late Nov. 2018, to replace the individual statutes of five natural resource professions.

A. The power of regulators vs. fundamental freedoms

1. [Freedom of religion] Refusals to accredit educational programs with religion-based restrictions on students.The Supreme Court of Canada upheld the decisions of two law societies (BC and Ontario) refusing to accredit a law school proposed by a Christian school, Trinity Western University. The university required that students sign a “covenant” requiring that they abstain from sexual intimacy outside of marriage between one man and one woman – a covenant that would adversely impact LGTBQ students.  Law Society of British Columbia v. Trinity Western Canada2018 SCC 32, and Trinity Western University v. Law Society of Upper Canada2018 SCC 33.

In BC, the decision against accrediting the program advanced the Law Society of BC’s objective of promoting and protecting the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons and ensuring the competence of the legal profession. See our blog article here.

A notable aspect of the BC decision involved the extent to which the court discerned and attributed“reasons”to the decision of the LSBC Benchers who decided against accrediting TWU’s program.

2. [Freedom of religion] Professional obligations overriding religious objections. An Ontario court upheld professional policies setting expectations that physicians who objected to providing medical care (such as abortions or medically-assisted dying) on religious grounds, provide effective referrals to other health-care providers. Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579. See our blog article here.

3. [Freedom of expression] Professional obligations extend to social media. A Saskatchewan court upheld a disciplinary finding against a nurse who, while on leave, posted comments on social media criticizing the end of life care her grandfather received at a care facility, and criticizing the professional competence of nursing staff at the facility. The restrictions on her speech justifiably infringed her freedom of expression. Strom v Saskatchewan Registered Nurses’ Association, 2018 SKQB 110. See our blog article here.

To watch for in 2019: [Freedom of expression] Reserved titles and non-registrants. The B.C. Supreme Court has heard submissions, and will decide, if the HPA restriction against anynon-registrant using a reserved title,as part of another title describing the person’s work (HPA s. 12.1),unjustifiably infringes freedom of expression. The case involved a non-registrantusing the reserved title “midwife” as part of her occupational title, “death midwife”. The non-registrant challenged the legality of the statutory restriction, insofar as it applied to an occupation (of death care) that the public would not confuse with the birthing-related services of (registered) midwives. We will post more about this case as it develops: College of Midwives of British Columbia v. MaryMoon, B.C.S.C. File No. S-183011 (Vancouver Registry).

B. The powers of oversight bodies concerning complaint dismissals

4. [Investigation reviews] Oversight power in the absence of specific errors. A BC court addressed, but did not resolve, statutory difficulties arising from a power of the Superintendent of Real Estate to order that a regulatory body issue a citation, where it lacked any power to stipulate the content of the citation. The decision raised many unanswered questions, such as the “standard of review” that the oversight body had to exercise, and how the process could continue if the oversight body has not identified specific errors by the regulatory body in dismissinga complaint. The Superintendent of Real Estate v. The Real Estate Council of British Columbia, 2018 BCSC 1500. See our blog here.

5. [Investigation reviews] The (specific) deference that the Health Professions Review Board owes to colleges. The BC Supreme Court decided that the Review Board must afford deference to colleges in how they carry out investigations and make related decisions, and that furthermore, itmay not apply different degrees of deference to different issues. The Review Board was bound by previous court decisions establishing a “reasonableness” standard of deference, and it was not free under the Health Professions Actto apply different degrees of deference from case to case. This case is under appeal by the Review Board. College of Physicians and Surgeons of British Columbia v. Health Professions Review Board, 2018 BCSC 2021 (aka the “Dawson” case). See our blog here. [https://www.ngariss.com/hprb-reviews-no-slicing-and-dicing-of-deference/]

Commentary: In recent decades, government has implemented independent bodies to oversee complaint dismissal decisions – perhaps as a safeguard against professionals being “light” on their colleagues (even though screening committees generally include government-appointed “public” representatives). Two cases illustrate different approaches to complaint oversight bodies, and how these different approaches have generated disputes about how oversight bodies may fulfil their functions:

(a) For health professions, the Health Professions Review Board illustrates a body exercising a court-like “review” function. This has led to ongoing disputes about the extent of the “deference” that the review board owes to colleges.

(b) For real estate professionals, the Superintendent of Real Estate illustrates a body that has an overriding administrative authority that it may exercise in relation to specific complaints. This has led to a dispute about how the Real Estate Council is to implement a Superintendent for discipline, where the Superintendent does not identify how the council erred in dismissing the complaint initially.

On the one hand, such oversight bodies give a statutory voice to complainants, who are not parties at all, under the common law, to investigations and disciplinary proceedings. On the other hand, investigation bodies have the power and responsibility to allocate resources, to investigate complaints, to decide if a complaint does not raise regulatory issues, and to decide if a matter is one where mere criticism of conduct (without formal measures) is enough to correct professional conduct going forward. In such circumstances, a question arises as to how, or to what extent, the public interest is advanced by intervention in a complaint resolution except where a screening body has palpably erred, or otherwise acted unreasonably.

Reduced oversight over complaint dismissals (compared to the HPA, for example) is illustrated by the scheme under the new Professional Governance Act(addressed in more detail below). The Superintendent of Professional Governance has a power to direct that regulatory bodies comply with the statute (PGA s. 7(2)(d)), but the statute expressly provides that it may not investigate or conduct an audit of a matter relating to an individual registrantexcept as part of an investigation or audit into a “general or systemic matter”, or in other limited circumstances (e.g., relating to extraordinary action to protect the public) (PGA s. 10(2) and (4)).

C. The power of regulators to enforce compliance with laws

6. Non-professionals and shifting restricted activities. An Injunction order preventing a non-registrant from unauthorized practice via specific “restricted activities” was found to implicitly reflect subsequent changes in the law. The court held that restrictions that require compliance with law implicitly refer to law as it stands from time to timeCollege of Midwives of British Columbia v. Lemay, 2018 BCSC 1827. See our blog article here.

Bonus for legal nerds: BC’s Health Professions Actallows colleges (and others) to apply to the court for injunctions preventing unauthorized practice involving restricted activities. Although not addressed by the court in the Lemaycase, the common law provides that as part of courts issuing perpetual injunctions, a superior court retains an “equitable” jurisdiction to vary even a “permanent” injunction, to address significant changes in circumstances. As noted by the English Court of Appeal, a court does not become “functus officio” in relation to any injunction: “The Court retains jurisdiction to deal with its orders by way of prohibition, such as injunction, or by way of ordering some specific thing to be done, as in the case of an order for specific performance, and by consent of the parties, or for sufficient reason, the Court has always jurisdiction to deal with those orders which otherwise limit the liberty of a person to do what he will, or which order him to do that which he otherwise might not do.” Lever Brothers, Limited v. Kneale and Bagnall, [1937] 2 K.B. 87 (C.A.).

7. The power of regulators to require efforts to ascertain the law. Where a professional takes reasonable steps to ascertain his legal obligations, such as his right to provide pain medications to a patient over the objections of the patient’s son (who had a power to decide about the patient’s health care), the court (and the Health Professions Review Board) decided that a strict determination of legality isless significant than whether the professional has met professional standards by making appropriate inquiries about his obligations under the law. Sanders v. College of Physicians and Surgeons of British Columbia,2018 BCSC 441. See our blog article here.

D. The Professional Governance Act

On November 27, 2018, the BC legislature passedthe Professional Governance Act(“PGA”).The PGA will provide an umbrella regulatory scheme for five natural resource professions. The Act “continues” a number of bodies as “regulatory bodies” under s. 84 of the statute, i.e., the British Columbia Institute of Agrologists, the Applied Science Technologists and Technicians of British Columbia, the College of Applied Biology, the Association of Professional Engineers and Geoscientists of BC, and the Association of British Columbia Forest Professionals.

The text of the statute may be found here.

The PGA has many similarities to the HPA:

  • the continued existence of regulators, expressly in the public interest;
    • the continuation of specified regulatory bodies (s. 84);
    • a power of government to establish or amalgamate regulatory bodies (ss. 85-98);
    • a duty of every regulatory body to serve and protect the public interest (s. 22(1));
    • a council with some government-appointed councillors (s.23(2));
    • a power of government to disapprove of bylaws (s. 38);
  • reserved titles and restricted practice under regulations (s. 51), along with prohibitions and exceptions on non-registrant use of reserved titles (ss. 52 and 53);
  • offences and injunctive relief under the PGA (ss. 106 and 107);
  • registration provisions, including a credentials committee that grants and rejects applications for registration (s. 45);
  • audits and practice reviews (s. 63);
  • a duty of each registrant to report another registrant whose practice may pose a risk of significant harm (s. 58);
  • conduct and competence requirements, including
    • bylaws establishing standards of professional conduct and competence (ss. 57);
    • investigation committees, complaints, investigations, inspectors, and court-ordered search and seizures (ss. 64-66, 68-71);
    • a power of council to take extraordinary action to protect the public (s. 67);
    • consensual remedial outcomes (s. 72) and consent orders (s. 73);
    • discipline hearings (s. 75) via discipline panels (s. 77), along with procedural provisions (ss. 78-81); and
    • publication (s. 82);
  • operational provisions, including duties of confidentiality (ss. 109 and 110) and personal liability protection (ss. 112 and 113).

Notably, the PGA enables right to restricted activities for three of the five regulatory bodies that currently lack such authority (CAB, BCIA and ASTTBC).

In contrast to the HPA, the PGA has some distinct features:

  • a superintendent
    • oversees governance by regulatory bodies;
    • promotes awareness among regulatory bodies to support reconciliation with indigenous peoples in BC, including supporting the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); and
    • may issue directives to ensure compliance with the Act (s.7(1)(c));
  • an intentions paper indicates that regulatory bodies under the PGA will be enabled through regulation to register firms that employ professionals, and set requirements in key areas, including ethics, continuous professional development, and quality management;
  • decisions relating to applications for registration under the PGA are reviewed by the councilof the regulatory body (s. 48);
  • the PGA does not provide for any right of appealfrom discipline decisions;
  • regulations may require that registrants file competence declarations and conflict of interest declarations (s. 60); and
  • the Superintendent may independently levy administrative penalties (s. 99).

The PGA has enough similarities to the HPA that cases interpreting the HPA will contribute to jurisprudence relating to the PGA. But distinctaspects of the PGA have no analog in the HPA and willneed to develop on their own. For example:

(a) The mandate of the Superintendent of Professional Governance to support reconciliation with indigenous peoples is an important but complex policy component that will relate to how registrants should work on projects that have, for example, environmental implications that, in turn, engage indigenous rights and sovereignty (e.g., engineers, or biologists).

(b) The PGA’s requirement for registrants to declare conflicts of interest may provide some transparency for conflicts between professional responsibilities and the influence of employers orproponents (or others)– issues that have undermined the concept of “professional reliance”, i.e., where government relies on the professionalism and specialized competence of a qualified professional – but rules relating to “conflicts of interest” may be difficult to apply and will undoubtedly require refinement.The anticipated timeline for regulations concerning conflict of interest declarations is 2020.

(c) The Superintendent may independently levy administrative penalties (which are enforceable as debts) for contraventions of “a prescribed provision of this Act or the regulations” (by anyone other than a regulatory body). The intended subject matter of such penalties is not clear. However, multi-faceted complaint matters that engage both discipline processes andthe Superintendent’s administrative penalty scheme may result in disputes about how a matter should be addressed, and about overlapping penalties.

Lisa C. Fong and Michael Ng