Canada: Performance Reviews: Check-Ups Keep Regulators Running In Top Condition

Last Updated: October 10 2016
Article by Jason Kully

What is a performance review?

A "performance review," also known as a "third-party review," is a rigorous, in-depth assessment of the regulatory performance of an organization by an independent and objective outside body. A performance review can be conducted on all of an organization's regulatory processes or, alternatively, a more targeted process can be used to review selected regulatory processes such as discipline or registration.

In essence, a performance review is a "regulatory check-up" focusing on what is working well in the organization, what is not working well, and where improvements can be made. A performance review typically culminates in a number of recommendations that can be implemented by the regulatory organization to improve performance.

How is a performance review conducted?

The general approach used for a performance review is for the reviewer to identify a specific set of criteria, which are believed to be indicators of "good regulation," and then to work with the organization in gathering a substantial amount of information and evidence on the organization's practices. Depending on the scope of the review, this could include all of the information publicly available including on the organization's website, sample complaint investigations, registration decisions, complaint hearing documents and processes, and all of the organization's policies and procedure manuals. The available evidence and information is then compared to the criteria to determine if the criteria have been met by the organization.

An alternative approach sometimes used is for the reviewer to look at the evidence and information it has gathered and to assess if any problems can be identified based on an analysis of the information, which is performed while keeping general concepts of good regulation, such as fairness and transparency, in mind.

A variety of different indicators, assessment criteria, "best practices," or concepts of good regulation have been used to measure the performance of a regulatory organization. Although there are different methodologies used in performance reviews and each methodology offers its own strengths and weaknesses, what is common to any review is that it provides the regulatory organization the benefit of assessing its performance in relation to an established and objective benchmark.

Where have performance reviews occurred and who has been engaged in them?

Performance reviews are common in the United Kingdom where the Professional Standards Authority, the initial promoters of "right touch regulation," provides oversight of nine statutory bodies that regulate health and social care professionals in the United Kingdom. The Professional Standards Authority regularly reviews the performance of each of the regulators, providing recommendations for improvement where appropriate.1

In Canada, although performance reviews have been used in a few different contexts, they remain relatively rare. On occasion governments have ordered performance reviews where there have been potential concerns about regulatory performance and governments want an objective source of information before considering policy decisions that could affect the regulator.2 There are also some statutorily mandated reviews such as the oversight provided by the Fairness Commissioner in some provinces.

Finally, there have been a few regulatory organizations that have initiated reviews as a performance enhancement tool. For example, the Royal College of Dental Surgeons of Ontario, the College of Registered Nurses of British Columbia, and the Ontario College of Teachers have had regulatory reviews conducted.3 Similarly, the Real Estate Council of Alberta recently engaged Field Law to conduct a review of its regulatory performance.4

Why is a performance review valuable?

Performance reviews reflect a commitment by an organization to continuous learning and improvement, things which are fundamental to any regulated individuals practice. A review also assists in ensuring that regulatory organizations are fully protecting and promoting the public interest.

There is value in an organization being able to measure itself against objective criteria. This includes identifying the criteria that are being met. This helps regulatory organizations, their members and the public recognize that while perceived deficiencies are a matter of concern, they are typically the exception rather than the norm. A review that indicates that an organization is performing well in the majority of its roles and duties promotes confidence from its members, the public, and other interested stakeholders.

Similarly, there is value in pro-actively identifying areas in which improvement is needed or in which substantial overhaul is necessary. Risk assessment is becoming of increased importance for regulatory organizations and a performance review is an unmatched risk assessment tool.

When an issue that needs improvement is identified, the regulatory organization can take steps to address the issue before a member of the public or a member of the profession suffers negative consequences as a result. Confidence in the organization is promoted when an issue is identified and corrected without complaint. Even if the issue is corrected without public notice, any potential loss of confidence in the organization due to a negative consequence is pro-actively eliminated. There is real benefit in identifying and eliminating an ailment prior to the appearance of symptoms.

Further, if a substantial concern such as regulatory non-compliance is identified, the organization can take immediate steps to address the concern. This would eliminate the potential for decisions or processes to be challenged due to non-compliance and would eliminate the potential need to repeat the process or to make the decision again, thereby preventing the wasting of time and resources.

More to come in the future

Although some performance reviews have been initiated in Canada, they remain uncommon. However, we predict that in the years to come, such reviews will become much more common as regulatory organizations and governments come to appreciate the benefits of a rigorous review of regulatory performance and the pro-active identification of issues and concerns.

For more details on what a performance review looks like, what kind of information is gathered, and what kind of recommendations are made, the performance review carried out by Field Law for the Real Estate Council of Alberta can be reviewed by clicking here.


1. Professional Standards Authority, "Annual Report and Accounts and Performance Review Report 2014/2015".

2. For example, see Donald J. Avison, "A College Divided: Report of the Fact Finder on the BC College of Teachers", October 2010; PWC, "Operational Review and Audit of the College of Denturists of Ontario", March 8, 2012; Dr. Dennis Kendel, "For the Sake of Students: Current and Future Teacher Regulation in the Province of Saskatchewan", September 2013.

3. Professional Standards Authority, "A review conducted for the Royal College of Dental Surgeons of Ontario", June 2013; Professional Standards Authority, "A review conducted for the College of Registered Nurses of British Columbia", April 2016; The Honourable Patrick J. LeSage, "Review of the Ontario College of Teachers Intake, Investigation, and Discipline Procedures and Outcomes and the Dispute Resolution Program", May 2012.

4. Field Law, "Regulatory Performance Review of the Real Estate Council of Alberta", April 4, 2016.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions