Canada: B.C. College Of Optics Inc. v. The College Of Opticians Of B.C., 2014 BCSC 1853

Last Updated: November 24 2014
Article by Gregory Sim

The B.C. College of Optics (the "School") is a private school for Opticians.  The School applied to the provincial regulator, the College of Opticians of B.C., (the "College") seeking recognition of the School's academic program.   Graduates of recognized academic programs were eligible to write a national entry to practice examination while graduates of unrecognized programs had to complete additional requirements before they could write the exam.  The School asked what documentation the College would need in order to consider the School's application for recognition.

The College had adopted an accreditation process administered by the National Association of Canadian Optician Regulators ("NACOR"), an umbrella organization of which it was a member.  The College took the position that all institutions seeking recognition must go through the accreditation process with NACOR.  The College was not prepared to recognize the School without the same thorough review.  The College refused to create its own accreditation process just for the School.

Rather than pursue NACOR accreditation, which it found objectionable, the School applied for judicial review and argued the College was required to assess the School itself and could not delegate that function to NACOR or fetter its discretion.

The BC Supreme Court found no evidence that the College had delegated its discretion to NACOR because the College hadn't said that it would grant recognition based solely on NACOR's determination, and there had been no final decisions. On the other hand, the College had adopted a fixed policy about the type of evidence it would consider, namely the results of a NACOR accreditation. The Court held there was nothing wrong with a policy about the evidence the College would normally consider, but NACOR accreditation was not the only evidence that could justify recognition by the College. A school seeking recognition that has not gone through NACOR accreditation could produce other types of evidence.

Having stated its preference for the NACOR accreditation process, the College was not required to develop its own parallel accreditation process, or to advise the School in advance what evidence would be sufficient for recognition. The College was required to consider any evidence provided by the School in good faith and decide whether the evidence provides a level of assurance equivalent to what it receives through the NACOR process.

Commentary

Like the B.C. College of Opticians, many Alberta regulators have the statutory power to approve academic programs. Reviewing academic programs is complicated and expensive. Some regulators arrange for a third party or umbrella organization to do this.

Schools which object to a third party or umbrella organization's review may refuse to participate and attempt to seek approval directly from the regulator. This decision suggests that regulators cannot refuse to consider these direct approval requests. The court did not appear to consider that any degree of deference should be given to the regulators' choice of approval processes, and the decision may be open to challenge on that basis.

Regulators can comply with the decision without lowering standards or creating a full parallel accreditation process. Regulators will have to review information provided by an applicant school and decide whether the information is sufficient to warrant approval. If the information is insufficient, the regulator should provide reasons explaining why the information is insufficient and why approval cannot be granted.

The full decision is available for review here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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