February 21, 2011

Can professional regulators enforce cost awards in court?

Administrative Law
Professional Regulation

If a registrant ends up owing his or her regulatory body fines or costs, that body can likely “enforce” payment by withholding certification or registration renewal, or by taking similar measures. But can a regulatory body sue to enforce payment of such sums in court? This question may greatly concern colleges and respondents where disciplinary hearings have resulted in significant expense, and the respondent ordered to pay significant costs is no longer a registrant.

Professional regulators are creatures of statute, and only have those powers  explicitly granted by statute, or necessarily incidental to explicit powers. Some bodies, like colleges under the B.C. Health Professions Act, have all the powers and capacity of a natural person (s.15(3)), but since a natural person does not have any legal power to declare another’s debt, such a provision does not answer the enforceability of fines and costs in court.

Some regulatory bodies, such as APEG BC, have express an statutory right to enforce costs awards by way of court order (e.g., s.35(4) of the Engineers and Geoscientists Act, R.S.B.C. 1996, ch. 116). In the absence of such an express provision, however, a statutory regulator would not seem empowered to pursue fines or cost awards outside of its own regime. BC Courts have not yet addressed this problem, but courts in other provinces have generally turned away from recognizing an implicit power of statutory bodies and associations (especially trade unions) to pursue, in court, disciplinary sums levied against members (e.g., Alberta, Manitoba, Saskatchewan, Ontario, and Newfoundland, but excluding New Brunswick). For example, see Winnipeg Commodity Exchange v. Spalding (1989), 57 D.L.R. (4th) 589 (Man.C.A.), or Saskatchewan Veterinary Medical Association v. Hashimoto (1999), 184 Sask.R. 130 (Sask.Prov.Ct.).