January 8, 2013

Registration: Educational credentials and policy-based requirements – can regulators go beyond their bylaw requirements?

Administrative Law
Professional Regulation
Registration and Fitness

Professional regulatory bodies routinely review applicants’ educational backgrounds as part of their registration assessments. Regulators have both a power and a duty to determine if applicants meet their registration requirements. But sometimes regulators develop more sophisticated registration systems that they fail to implement through bylaw amendments. This is a problem because a regulator generally cannot go beyond the confines of its express statutory and bylaw powers when applying registration requirements. The recent Ontario Court of Appeal decision in Laffin v. Association of Professional Geoscientists of Ontario, 2012 ONCA 846 provides a sober reminder to professional regulatory bodies that in assessing applicants for registration, they are confined to assessing applications against the particular requirements set out in their enabling statutes and bylaws.

In Laffin, Ms. Laffin was an applicant to the Association of Professional Geoscientists of Ontario (the “Association”). She met the Association’s education requirements set out in the regulations of that body’s enabling legislation for registration, holding a four year Bachelor of Science degree or equivalent from a Canadian University in an area of geoscience (paras. 3-4). Nevertheless, the Registration Committee deferred her application until she completed four additional university courses, based on guidelines posted on the Association’s website (para. 4). This decision of the Registration Committee was later upheld by the Council of the Association, but was overturned by the Ontario Divisional Court on the basis the Association had no authority to impose additional requirements on her (para. 5). The Association appealed to the Ontario Court of Appeal on various grounds including that (a) the Association Council required more deference than had been afforded by the Divisional Court, (b) the Divisional Court’s decision was inconsistent with the Association’s public interest mandate, and (c) the decision would diminish the inter-provincial mobility of the Association’s members (para. 6). Nevertheless, the Court of Appeal unanimously upheld the Divisional Court’s decision, and $40,000 of costs were awarded against the Association (paras. 8-9).

A more in-depth treatment can be found in the reasons of the Divisional Court (2011 ONSC 6927), which rejected the Association’s argument that the applicant’s degree failed to meet minimum academic requirements established by a CCPG (Canadian Council of Professional Geoscientists) Guideline. The Association’s Regulations referred only to a four-year Canadian science degree in the area of geoscience, in contrast to the Regulations governing the Association of Professional Engineers of Ontario (APEO), which referred to a bachelor’s degree from a program “accredited to council’s satisfaction” [32].

This outcome serves as a reminder to regulatory bodies across Canada that applicants for registration must be assessed within the confines of the express requirements set out in that body’s enabling statute, regulations or bylaws, and that guidelines alone are not sufficient to create new enforceable requirements, unless a provision in or under a statute provides for enforceable guidelines.

Laffin v. Association of Professional Geoscientists of Ontario, 2012 ONCA 846, affirming 2011 ONSC 6927

Benjamin Ralston and Michael Ng