September 7, 2011

Injunctions to prevent unauthorized practice by former registrants who fail to comply with continuing competency requirements: The value of a consistent message

Professional Regulation
Registration and Fitness

Every year regulators face the issues surrounding cancelling registrants’ licenses for failure to comply with continuing competency requirements. These issues include the question of whether grace periods are permitted to complete requirements and if so, for how long and on what bases; whether the requirements to be completed are increased for failure to comply or whether special types of requirements (such as those that demonstrate an understanding of professional obligations) apply; and whether to seek injunctive relief where former registrants continue to hold themselves out as registrants, but do nothing to obtain reinstatement or challenge the cancellation.

For regulators, the case of the Alberta Assn. of Architects v. Boga, 2011 ABQB 482, illustrates the need for regulators to interact with former registrants in a manner consistent with having cancelled their licenses. Mixed messages regarding the status of a respondent’s license can be held against regulators who seek injunctive relief to prevent unauthorized practice.

In Boga, the respondent architect’s registration with the Alberta Association of Architects was cancelled for his failing to comply with continuing competency requirements.  The respondent did not apply for reinstatement within the required period, and did not apply to the court for a review or appeal of the cancellation.  The respondent failed, upon request from the Association, to return his seal or his certification, and continued to hold himself out as an architect on his company’s website. After cancellation, however, the Association requested the respondent provide the Association with a letter, which he did, explaining he had suffered from a severe head injury and was now sufficiently recuperated to begin the process of reinstatement of his registration. He also sent the Association a cheque for his annual fees, which it accepted. He advised he had not been and was not practicing.

The Association applied for a permanent injunction prohibiting the respondent from practicing, and requiring that he return his seal and certificate. The respondent argued he had understood his complying with the Association’s request to send an explanatory letter, and the Association having accepted his annual fee payment, meant he was still a registrant. Based on his understanding, he did not know he needed to do anything else until the injunction matter arose.

The Court denied an injunction on the basis it was premature, being of the view the respondent had reasonable chance of success on review or appeal that the cancellation was wrongful; it appeared the respondent could be reinstated upon his conducting his continuing competency requirements. The Court adjourned the Association’s application for 60 days, pending the respondent commencing a review or appeal, or the parties addressing the matter otherwise.

Alberta Assn. of Architects v. Boga, 2011 ABQB 482