September 9, 2010

Bylaws: Unlawful sub-delegation through discretionary registration requirements

Administrative Law
Professional Regulation
Registration and Fitness

Where governing legislation allows the council of a professional body to make bylaws establishing requirements for admission, the council cannot create a bylaw that simply states the requirements to be what the council deems satisfactory, as this evades any exercise of power by turning the legislative power into an administrative one, and amounts to redelegation by the council to itself.

An instance of a court finding a council, with a delegated power to legislate, having improperly sub-delegated that power to itself, is illustrated in Tchou-San-Da v. Association of Professional Engineers and Geoscientists of British Columbia, 2007 BCSC 1403, September 21, 2007. An applicant, Mr. Tchou-San-Da, who obtained work experience that the council continually found to be inadequate, argued that bylaw 11(e)(2), which set out the required work experience for admission, improperly delegated the power to create requirements back to the Association. The bylaw described the required experience as that which was deemed “satisfactory to the Council,” rather than specifically defining the criteria as required under section 13(1)(c) of the Engineers and Geoscientists Act. The Court allowed the petition in part. Though the decision to refuse Mr. Tchou-San-Da’s application for full membership was held to be reasonable given his insufficient experience, bylaw 11(e)(2) was invalid and struck down as it failed to explain the nature and extent of the work experience required.

This case underscores the difficulty in drafting by-laws which allow for flexibility in specific requirements while at the same time ensuring sufficient specificity to avoid a finding of improper sub-delegation.  Given this case, the safer route seems to be setting out all registration requirements in the professional regulatory body’s by-laws.