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Bill 11, Fair Registration Practices Act, was recently tabled in the Alberta Legislature. Given that there is currently a majority in power it is expected that this Bill will be passed into law relatively quickly and with few, if any changes.
If passed, the Fair Registration Practices Act (“Act”) could have significant impacts on professional regulatory organizations (“PROs”) in Alberta. The Minister of Labour and Immigration, Jason Copping, introduced the Bill. Minister Topping’s words to the Legislature indicate that the purpose of the Bill is to “remove unfair barriers while maintaining the high professional standards all Albertans have come to know and expect”. Its aim is to facilitate the admission of foreign trained professionals into Alberta PROs.
Part 1 – Fair Registration Practices Code
New General Duty
The Act would require that the process by which individuals are admitted into a PRO must be “transparent, objective, impartial and procedurally fair”. This likely is not a departure for PROs in Alberta but the presence of this language can impact how the Act as a whole is interpreted. Any time there is a duty at law, the party operating under the duty has obligations and therefore potential risk where such obligations are not met or are not met adequately.
Further, procedural fairness relates to ensuring that the means by which a decision is made is a fair one. This section might be interpreted to require a positive obligation on the part of PROs to make applicants for registration aware of concerns which would lead to a decision not to register. An example of this might be that in the course of considering an application, if the person reviewing and making a determination about that application questioned the quality of a candidate’s relevant work experience, then it could be arguable that the reviewer has an obligation to address that with the potential candidate.
Duty to Provide Information
Under the Act, PROs would be obliged to provide clear information about registration practices and any review or appeal process. Information would have to be made available as to the length of time that a typical application for registration would take. The requirements for registration must be clearly laid out as well as any alternate ways that potential applicants might meet requirements (e.g. experience in lieu of education). The criteria by which all requirements are measured must also be made available. If supports are available to applicants through the PRO or more broadly, then information about those supports must be available. Finally, any fees associated with registration must be made clear.
In light of these duties it is advisable that PROs review the information which they currently make available to registrants and compare that information to that which would be required under this Act. It is likely necessary that such information not only be available but also be available in more than one format and be easily accessible to applicants.
Qualifications for Registration
Under the Act, PROs would be mandated to make available to the public information relating to: (1) the documents which are required for registration to prove qualifications; as well as (2) alternatives to such documents which are acceptable, in the event of circumstances beyond the control of an applicant.
Assessing qualifications must be done in a transparent, objective, impartial and procedurally fair way. Again, “procedurally fair” is language that may import a positive obligation on a PRO.
PROs which make use of third party reviewers will be required to take steps to ensure that such reviews are also performed in a transparent, objective, impartial and procedurally fair way. PROs should take steps to
assure themselves that this standard is met – and be able to demonstrate it if need be.
Timely decisions, responses and reasons
PROs must make an interim (i.e. not final) decision on an application within 6 months after receiving the application and all information required for the application. Further timelines in respect of a complete decision will be found in regulations (not yet available). PROs will need to monitor their decision making processes especially where their timelines are close to those prescribed.
PROs will be required to communicate in writing any decision with regard to registration along with written reasons for the decision if it is (1) an interim decision (2) a refusal to register or (3) a decision from an internal review or appeal process. PROs would be well advised to have a process in place to ensure that decisions contain written reasons that meet the required legal standard.
Finally, applicants must be provided with information as to rights to appeal or review including information about the process that must be followed and the deadlines which must be met for any such review or appeal.
Internal review of appeal
PROs will be required to have a review process for interim registration decisions, refusals to register or registrations granted with conditions. The process must provide an opportunity for applicants to make submissions in that process.
Any person assessing the qualifications of an applicant will be required to have training in that role, including third party assessors. The Minister will have the ability to make regulations with regard to such training.
Part 2 – Powers and Duties of the Minister
The Minister will have a broad array of powers under the Act, including the ability to give information and advice to PROs about the requirements under the legislation and make recommendations to PROs with regard to their duties.
The Minister will be able to advise a broad range of organizations and stakeholders, including PROs and third parties PROs rely on to assess applicant qualifications, as the Minister considers appropriate about matters under the legislation.
The Minister will also have the power to review the registration and assessment practices of a PRO, including the use of third parties to assess qualifications of applicants. The Minister may require an audit to be conducted in accordance with the regulations about a PROs registration practices and its compliance with the legislation. A PRO must cooperate with the Minister in a review or audit.
The Act provides however, that the Minister will not become involved in an interim registration decision or an internal review or appeal decision on behalf of an applicant.
Part 3 – Compliance Orders
The Minister would have the power to issue an order to a PRO requiring compliance with the Act or regulations if they have reasonable grounds to believe, following consultation with the PRO, that the PRO has contravened the Act or regulations. This is a broad power, requiring only “reasonable grounds”.
The Minister will be required to serve written notice on the PRO prior to making a compliance order. There will be certain requirements for the notice, including the nature of the proposed compliance order, steps the PRO must take to comply with the proposed order, the PRO’s right to make written submissions to the Minister and the time period for making such submissions.
While there is generally a 6 month period to apply for judicial review, the Act would limit a PRO’s ability to bring an application for judicial review to 30 days after the compliance order is served. The Court may stay a compliance order until a decision is made on the judicial review application.
Part 4 – General
Fair Registration Practices Office
The Minister may establish a Fair Registration Practices Office to assist the Minister in the exercise of the powers and duties under the legislation.
Audits Power and Report to Minister
There will be broad powers in conducting an audit, including entering and inspecting the premises of the PRO and requiring the production of documents or records. Such documents and records can be copied or temporarily removed. This can raise privacy issues for a PRO, regarding personal information of applicants and potentially clients, patients, or other third parties whose information may be involved in the registration process. There are broad enforcement powers, including the power to obtain an order from the Court of King’s Bench.
The Minister may require a PRO to submit a report, in the form and with the content as determined by the Minister, at any time directed by the Minister.
Conflict with other Acts and Protection from Liability
The Fair Registration Practices Act would supersede other legislation (i.e. the PRO’s enabling legislation) to the extent of any conflict or inconsistency.
There would be protection of liability for the Minister and persons acting under the authority of the Minister in the exercise of the functions under the Act.
There is a broad offence provision for failing to cooperate with the Minister, a compliance order, review, audit, or in failing to submit a report. Where there is an offence committed, a fine up to $25,000 can be imposed in the case of an individual and $50,000 in the case of a corporation. The Minister would have 2 years after becoming aware of evidence of an offence to commence a prosecution.
Regulation Making Authority
There will be an ability to make regulations respecting additional powers, duties and functions of the Minister. The regulations can impose obligations and duties respecting training, the assessment of qualifications of applicants who have been trained in a country other than Canada, special considerations that may apply in assessing the qualifications of applicants and the processes for applying the considerations. The regulations can also address other matters in the Act, including prescribing timelines, further powers regarding the scope of audits and respecting the collection, use and disclosure of personal information.∎
If you have any questions or would like advice, reach out to our Professional Regulatory Team.