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
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.
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
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
The Alberta Court of Appeal provided useful guidance on the application of the organizing principle of good faith in contractual performance, established by the Supreme Court of Canada in its landmark decision Bhasin v Hrynew.
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