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.

Footnotes

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.

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