Articles
<< back to all ArticlesBill 23: Changes for Professional Regulators Under the Professional Governance Act
On May 2, 2022, the provincial government introduced Bill 23, the Professional Governance Act, at first reading in the Legislature.
The Professional Governance Act, once in force, will act as the new umbrella legislation for non-health related Professional Regulatory Organizations (“PROs”), and for many of them constitutes the most significant overhaul of their statutory mandates in decades.
Specifically, the following PROs will be covered by the new Professional Governance Act:
- Alberta Assessors Association
- Alberta Association of Architects
- Alberta Association of Landscape Architects
- Alberta Human Ecology and Home Economics Association
- Alberta Institute of Agrologists
- Alberta Land Surveyors’ Association
- Alberta Professional Planners’ Institute
- Alberta Shorthand Reporters’ Association
- Alberta Society of Professional Biologists
- Alberta Veterinary Medical Association
- Association of Alberta Forest Management Professionals
- Association of Professional Engineers and Geoscientists of Alberta
- Association of Science and Engineering Technology Professionals of Alberta
- Association of School of Business Officials
- Association of the Chemical Profession of Alberta
- Canadian Information Processing Society of Alberta
- Chartered Professional Accountants of Alberta
- Consulting Engineers of Alberta
- Electrical Contractors Association of Alberta
- Institute of Certified Management Consultants of Alberta
- Society of Local Government Managers of Alberta
- Supply Chain Management Association of Alberta
While this legislation has not yet received Royal Assent and amendments are still possible, the following is a high-level overview of some of the more significant changes to the regulation, governance, structure and operations of PROs which fall under the Act.
Greater Consistency Between PROs
This legislation will provide a greater level of consistency in the regulation, governance, structure and operations of PROs, as these PROs were formerly regulated under different Acts which differed considerably between them. This is especially true for PROs which currently fall under the umbrella of the Professional and Occupational Associations Registration Act (“POARA”) – POARA has not been amended significantly since the 1980s, and many aspects of that legislation have been in need of a review and overhaul for many years. For PROs that currently fall under the POARA umbrella, the Professional Governance Act represents a significant change in their regulation, governance, structure and operations that will bring them more in line with other PROs.
New Registration and Amalgamation Process
The Professional Governance Act establishes a framework whereby new self-regulating professions can be established under the Act (see Part 2, Division 3). The process requires professional associations to apply to the Minister for approval to become a PRO, and applications are reviewed to determine whether or not the recognition of the PRO would serve to protect the public interest and public safety, and otherwise be consistent with the Act and any applicable regulations. The Minister ultimately has the final say on whether a professional association will be recognized as a PRO.
For the first time, the Professional Governance Act sets out a process whereby PROs can amalgamate (see Part 3). While amalgamations between PROs are infrequent, they do occur (e.g. the College of Alberta Professional Foresters and the College of Alberta Professional Forest Technologists amalgamated in 2017). Two or more PROs will have the ability to make a joint application to the Minister to seek approval to amalgamate, or the Minister can propose the amalgamation of two or more PROs.
Governance
The Professional Governance Act establishes common governance requirements that will apply to all PROs that fall under its umbrella (see Part 4). The Act makes it clear that PROs cannot set or negotiate professional fees for their members, or act as bargaining agents under the Labour Relations Code. All PROs will be required to establish a governing body to manage and conduct the business and affairs of the PRO, and all governing bodies must now include public members. While many PROs are already subject to that requirement, adding public members to the governing body will constitute a change for some PROs.
The governing body will also be required to establish a Registration Committee, and a Complaints Inquiry Committee, and has the discretion to establish a Competence Committee and Practice Review Committee should it choose to do so. While many PROs already have a Registration Committee and Complaints Inquiry Committee, some PROs will now be required to establish these committees for the first time. In particular, PROs currently regulated under the POARA umbrella generally do not have Complaints Inquiries Committees to review and triage discipline complaints before they are referred to a hearing – POARA delegates that function to the chair of the Discipline Committee itself. As is discussed in more detail below, the addition of a Complaints Inquiry Committee that is separate from the Discipline Committee constitutes an important structural change for the professional discipline process for many PROs.
Professional Discipline Process and Assessing Incapacity
The Professional Governance Act establishes a common professional discipline process for all PROs that fall under its umbrella. As indicated above, all PROs will be required to establish a Complaints Inquiry Committee which is tasked with reviewing and triaging complaints as they are received. In addition, discipline tribunals and appeal tribunals are established to conduct professional discipline hearings and appeals respectively for matters referred for adjudication by the Complaints Inquiry Committee. Secretaries must be appointed for each of these three bodies (the same person can serve as secretary to the Discipline and Appeal Tribunals, but that person cannot also serve as the secretary to the Complaints Inquiry Committee). Similarly, chairs are appointed for each body to establish hearing tribunals as necessary and otherwise perform functions delegated to the Chair under the Act.
The Act requires public members to be appointed to hearing panels at both the adjudication and appeal stages, as well as to consider the approval of sanction agreements by the Complaints Inquiry Committee.
The new complaints inquiry process (Part 8) will be familiar to some PROs, but constitutes a significant change for others. The process contains more opportunities for complaints to be addressed using alternative measures short of convening a discipline tribunal to adjudicate the complaint, including the potential for mediation between a complainant and investigated member. Complaints would first be reviewed and triaged by the Complaints Inquiry Committee before being referred to a hearing tribunal under the Discipline Committee for adjudication. Some PROs currently do not have a Complaints Inquiry Committee, so the process and structure established in the Act will require some PROs to create new committees and appoint new persons to act as the Chair and Secretary of those committees.
For appeals, the Appeal Tribunal can hear appeals from the Discipline Tribunal on the record, and from there, appeals can be made to the Alberta Court of Appeal which are also on the record. This constitutes a significant and welcome change for those PROs currently regulated under the POARA umbrella, as the process under POARA gives discretion to an appeal panel to hear evidence afresh, and further appeals are in fact “rehearings on the merits” before the Court of King’s Bench (i.e. a trial).
The Professional Governance Act also contains a new regime for assessing incapacity, which is separate from the professional discipline process (see Part 9). This applies in situations where a member may lack capacity to perform their professional obligations (such as due to the onset of a mental or physical illness), and sets out a procedure to allow the PRO to address that outside of the professional discipline process, and includes consideration of potential treatments and rehabilitation for the affected member.
Registration of Members
The Professional Governance Act sets out a process and requirements for the registration of new and temporary members in PROs (see Part 5). Most significantly, the Act includes provisions intended to align with the objectives of the Fair Registration Practices Act and the Labour Mobility Act and requires that applications for registration by prospective members be considered in a timely manner (within 30 days of receipt). The provisions of the Fair Registration Practices Act and Labour Mobility Act will apply to prospective applicants from other jurisdictions who have obtained equivalent credentials that are recognized in Alberta.
Regulation and Bylaw-Making Authority
The Minister is given wide regulation-making authority under Part 15. The Minister’s regulation-making authority can include tailoring the requirements of the Act to specific PROs, and to also set regulations in a number of areas that generally apply to all PROs. Accordingly, PROs can expect additional changes in processes, procedures, governance and operations in the regulations that will be drafted and released after the Act receives Royal Assent.
For many PROs, the Professional Governance Act increases the scope of their bylaw-making authority, and some areas that were formerly addressed in regulations will now be addressed in bylaws. This change will give PROs more autonomy in some cases to set their own procedures and processes without seeking prior approval from the Minister to amend regulations, and could increase efficiencies. That said, the Act does give the Minister a general oversight power which can include issuing orders requiring PROs to amend or pass bylaws as deemed necessary. Also, proposed section 225 requires PROs to provide copies of proposed bylaws to the registrants of the PRO and others as deemed advisable by the governing body for review and comment before bylaws are adopted, which is something PROs will need to be aware of from a timing perspective in terms of implementing new bylaws.
Once the legislation has received Royal Assent, government and PROs will need to work to draft necessary regulations and bylaws before the Act comes into force on proclamation.
Conclusion
Overall, the Professional Governance Act represents a significant change for some PROs, especially those currently regulated under the POARA umbrella. While Bill 23 has not yet passed the Legislature and could be amended before receiving Royal Assent, the above is a high-level summary of the current state of the Bill and significant areas that are likely to change for many PROs. Affected PROs are encouraged to contact RMRF’s Professional Regulatory team for advice and assistance in preparing for and navigating the changes in this legislation.
