The Health Professions Review Board recently had to consider if a constitutionally protected value of promoting education in both French and English created a corresponding protected value of promoting health care in both official languages – a value that a Francophone applicant said should have impacted a decision to deny her registration for failing to meet an English-language proficiency requirement: Applicant v. College of Health and Care Professionals of British Columbia (No. 1), 2025 BCHPRB 19 [HPRB-HPA-23-A036]).
Background: When an administrative decision stands to affect rights enshrined in the Charter, the decision maker must proportionally balance the interest at issue with their statutory mandate and ensure that the protected interests are not unduly limited: Doré v. Barreau du Québec, 2012 SCC 12. Further, the approach in Doré requires that decision-makers balance discretionary administrative decision-making with values enshrined in the Charter: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 [Commission scolaire].
As explained in Commission scolaire, Charter values underpin Charter rights and give them meaning. In circumstances of ambiguity, courts must prefer statutory interpretation that is respectful of those values. Administrative decision-makers must also always consider Charter values that are relevant to the exercise of their discretion, even in the absence of any direct infringement on a Charter right.
The facts of Commission scolaire illustrate the inseparable nature of Charter rights and values. The case involved five parents who applied to the Minister of Education, Culture and Employment of the Northwest Territories (the “Minister”) for their children to be admitted to a French first language education program. Section 23 of the Charter grants a category of Canadian citizens the right to have their children receive instruction in one of the official languages where it is the minority language of the province in which they reside. This means that rights holders living in mostly English-speaking provinces may have their children educated in French, and vice versa.
The parents in Commission scolaire were not rights holders as defined in the Charter, but nonetheless asked the Minister to exercise discretion to admit their children in a French education program in the Northeast Territories, where French is the minority language. The Commission scolaire francophone des Territoires du Nord‑Ouest (“CSFTNO”), which manages French first language education programs in the territory, recommended admission on the basis that it would promote the development of the Francophone community. The Minister ultimately denied the applications.
The SCC agreed that no direct infringement of section 23 of the Charter could be established, as the parents were all non-rights holders. However, the Doré analysis is also applicable in cases that engage an underlying Charter value, without limiting rights. Reasonable discretionary decision-making must be in accordance with the fundamental values of Canadian society as reflected in the Charter, which necessarily involves proportionate balancing of underlying values against statutory objectives.
Section 23 of the Charter purposes to be preventative, remedial, and unifying in nature; it is intended to prevent erosion of Canadian official language communities, redress past injustices, and promote development of minority language communities. The SCC found the Minister’s decisions were likely to have an impact on a minority language educational environment, and education is a means of realizing the societal ideal embodied section 23 as it plays a vital role in preserving and encouraging minority linguistic and cultural vitality. Admitting children of non-rights holders would have had a positive impact on the preservation and development of the territorial Francophone community, and the Minister’s decision in this context to deny admission effectively limited the underlying Charter values. The decision did not proportionally balance Charter values with the statutory mandate.
The matter before the HPRB: HPRB-HPA-23-A036 involves a Francophone applicant who was required to demonstrate English Language Proficiency (“ELP”) as part of their application for licensure as a Speech-Language Pathologist (“SLP”) with the College of Health and Care Professionals of BC. The applicant was unsuccessful in demonstrating ELP to the satisfaction of the registration committee, and was consequently denied registration.
On review, the applicant submitted (among other considerations) that the committee’s decision breached the BC Human Rights Code and the Charter, and failed to adequately consider the applicant’s particular circumstances. Namely, they were seeking to work “virtually exclusively” in French through BC’s French-language school board. The registration committee made numerous reconsideration decisions during the review process, including after publication of Commission scolaire.
The RC decision below: Pursuant to the principles affirmed in Commission scolaire, the committee acknowledged that it must consider any Charter values relevant to its discretionary decision-making with respect to whether the applicant satisfactorily demonstrated ELP. The committee did not, however, find that the values underlying s. 23 of the Charterextended to the registration issue, as the value of promoting education in both of Canada’s official languages did not create a corresponding positive obligation on the regulator to promote health care in both English and French (e.g., by increasing the availability of French-speaking SLPs). Even if they were relevant, the committee remained satisfied that high ELP is a justifiable prerequisite for effective practice in BC. Among other considerations, the requirement ensures that Francophone students have access to services from professionals with sufficient language skills to work effectively with non-French-speaking health collaborators, including as part of an interdisciplinary team.
The review decision: The HPRB considered whether the committee reasonably exercised its discretion in determining whether the applicant met the ELP requirement for licensure. It found that the committee considered the evidence provided and the Charter and human rights issues raised, as well as an opinion letter from the regulator’s Quality Assurance and Professional Practice department regarding the importance of ELP in SLP practice, particularly in a school setting. It noted that the committee was entitled to deference when performing its gatekeeper function according to its home statute, and found that it exercised its discretion reasonably. The HPRB went on to confirm the registration decision.
Section 23 of the Charter is relatively unique in that it imposes positive obligations on the state, specifically to facilitate preservation and vitality of minority language communities. Schools are an important part of realizing the values underpinning this section, as they are settings where socialization between students contributes to passing on minority languages and expressing minority language culture. However, this does not translate to a further positive obligation on regulators to promote health services in both English and French. Rather, a regulator’s concern remains the protection of the public, and language proficiency requirements are constitutional and not discriminatory where they are demonstrably justified as being necessary for safe and effective practice.
Applicant v. College of Health and Care Professionals of British Columbia (No. 1), 2025 BCHPRB 19 [HPRB-HPA-23-A036]).
Sabrina Zhu