B.C. College of Optics Inc. v. The College of Opticians of British Columbia, 2016 BCCA 85, allowing an appeal of the lower Court's finding that the regulator could not require a third-party assessment of a training program as a mandatory precondition before it would consider the program for approval.
The B.C. College of Optics (the School) sought to have its private training program for opticianry recognized and approved by the regulator, the College of Opticians (the College). The College told the school that in order to be considered, the School had to undergo a third-party accreditation process by the National Association of Canadian Optician Regulators (NACOR). Instead of doing so, the School applied for judicial review of the requirement.
The B.C. Supreme Court, in a decision reviewed by Field Law in an earlier case summary, held that there was nothing wrong with the College considering evidence from a third party accreditor. However, by refusing to consider an application without a NACOR assessment, the regulator had adopted a "fixed policy" about the evidence it would consider. This was improper and constituted a fettering of the regulator's discretion. It ordered the College to receive and consider whatever evidence the School chose to submit in support of its application.
The College appealed. In granting the appeal, the B.C. Court of Appeal held that the lower Court had mischaracterized the facts. There was nothing improper about the College requiring the NACOR assessment before it would consider the application. Such a requirement did not fetter the College's discretion because the College was not making a decision on the merits, it was only taking an "administrative step" to ensure it had the necessary information needed to consider the application. Importantly, the College was not refusing to consider additional information the School wished to offer.
Furthermore, even if the governing legislation did not expressly authorize the College to require the third-party NACOR assessment as a mandatory precondition on an applicant's application, its ability to do so was necessarily implied by the College's duty to determine the education programs that met the training requirements of the profession. As it stated, "this is essential to standardize the application process and to ensure the appellant receives qualitative evidence in an essential area in which it lacks expertise. To find otherwise would undermine its statutory mandate to preserve and protect the public."
Comment:
The B.C. Court of Appeal decision supports the ability of regulators to incorporate a third-party accreditation process into its assessment of applications for approval of training programs. However, regulators must be cautious that they do not fetter their discretion by being overly reliant on the third-party accreditation process. While the regulator can impose a precondition that the applicant undergo the process, it must still make an independent determination of whether the program meets the regulator's requirements for approval. This includes considering additional information that the applicant may wish to offer.
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