Canada: Good Character: An Important Regulatory Tool Even In An Age Of Labour Mobility

Perspectives for the Professions

Regulators have traditionally used a test of "good character and reputation" to assess applicants. However, the question remained – to what extent can regulators apply the test of "good character and reputation" for applicants registered in another Canadian jurisdiction seeking to move to their jurisdiction? Dr. Lum, a dentist registered in British Columbia seeking registration in Alberta, put this to the test when he appealed the Alberta Dental Association and College (the "ADA+C") Registrar's decision to reject his application for registration.

In applying for registration in Alberta, Dr. Lum submitted reference letters attesting to his good character. The B.C. College provided the ADA+C with a detailed report of 22 complaints made against Dr. Lum between 2001-2011 concerning a variety of subjects including, among other things: quality of care, fees and billings, records management, and informed consent. Dr. Lum had no findings of unprofessional conduct but many complaints had been resolved in memoranda between B.C. College and Dr. Lum wherein he acknowledged his conduct. At the time of his application to the ADA+C, two complaints against Dr. Lum remained unresolved.

The Registrar of the ADA+C found that Dr. Lum failed to satisfy the requirement of good character and reputation and denied the application. Dr. Lum appealed the decision to the ADA+C Review Panel, and then pursued judicial review by the Alberta Court of Queen's Bench followed by an appeal to the Court of Appeal. He also challenged the decision under the relevant free trade agreement, the New West Partnership Trade Agreement (the "NWPTA") and its predecessor the Trade, Investment and Labour Mobility Agreement (the "TILMA").

By way of background, two free trade agreements, the Canadian Free Trade Agreement (the "CFTA") and the NWPTA, include mobility rights for professionals registered in one province or territory and wishing to relocate to another. Notably, the NWPTA applies only to BC, Alberta, Saskatchewan, and Manitoba whereas the CFTA applies nationally. Further, unlike the NWPTA, the CFTA explicitly permits a regulatory authority to consider evidence of an applicant's good character in deciding whether to grant the application for registration. While the receiving regulator makes a decision on whether to grant an incoming professional registration, governments and individuals who wish to challenge registration decisions may use the dispute-resolution process under these free trade agreements.

Before the Court of Appeal, Dr. Lum argued that because of the TILMA/NWPTA, the ADA+C was prohibited from considering the good character and reputation of applicants who were registered with other dental Colleges covered by the TILMA/NWPTA. Essentially, he argued that because he was a registered dentist in B.C., the ADA+C had no choice but to accept him for registration in Alberta. The Court rejected these arguments noting that the ADA+C's Regulation required applicants to demonstrate "good character and reputation". The Court further commented that any complaints about compliance with the TILMA/NWPTA should be dealt with using the disputes resolution process in those agreements.

Thus, Dr. Lum proceeded with his mobility complaint seeking to overturn the Registrar's decision solely under the NWPTA. The parties to the NWPTA hearing were: Dr. Lum, the Government of B.C. and the Government of Alberta.  Recently, in December 2018, the NWPTA Panel released its decision dismissing Dr. Lum's complaint.

The Panel's decision is significant because of its determination on the use of character assessments in labour mobility. Specifically, the Panel declined to follow an earlier decision where the panel interpreted the provisions of the TILMA, which are very similar to the NWPTA (the "Social Worker Decision"). There, the panel determined that an incoming jurisdiction must show evidence of a lack of good character, rather than requiring the applicant to provide evidence of good character. This is essentially a reverse onus – removing the burden normally on the applicant to demonstrate good character and placing it on the incoming jurisdiction to show a lack thereof. This is an onerous obligation to place on the receiving jurisdiction.

The NWPTA Panel's decision is therefore a welcome reprieve. In dismissing Dr. Lum's complaint, the Panel held that rather than imposing the reverse onus from the Social Worker Decision, all measures that restrict labour mobility must meet the test in Article 6 of the NWPTA. This article permits a party to adopt or maintain a measure that may create an obstacle to trade, investment or labour mobility (i.e. the good character assessment) if the party can demonstrate the following three elements:

  1. The purpose of measure is to achieve a legitimate objective;
  2. The measure is not more restrictive to trade, investment or mobility than necessary to achieve that legitimate objective; and
  3. The measure is not a disguised restriction to trade, investment or labour mobility.

The Panel found it was clear that a character requirement generally for licensing was a legitimate objective to ensure consumer protection or the protection of human health (as was the case in dentistry). Thus, the Panel found that in matters of public health, a NWPTA panel "should have very clear evidence that any less restrictive alternatives would have met the legitimate objective, before finding inconsistency" with Article 6. In the case before the Panel, there was no basis to conclude that lesser measures, such as restrictions or conditions, would have mitigated the risk to the Alberta public health. The decision to reject Dr. Lum's registration was therefore consistent with the NWPTA and Dr. Lum's mobility complaint was dismissed.

While the NWPTA process provides another level of review of regulator's decisions once court processes have been concluded, the NWPTA Panel's decision is significant as confirms that regulators are permitted to consider good character when assessing applicants from other jurisdictions. Further, the NWPTA Panel's decision signals the deference that should be paid to regulators in their decision on whether less restrictive measures can be imposed. Overall, the NWPTA Panel's decision is a welcome one as it removes the reverse onus previously required under the Social Worker Decision and recognizes the legitimate objective achieved by assessing the good character of applicants from other jurisdictions despite the labour mobility agreements in place.

Field Law previously reported on the Alberta Court of Queen's Bench decision and provided counsel comments on the Alberta Court of Appeal decision. James Casey, QC was proud to represent the ADA+C at both the Court of Queen's Bench and Court of Appeal.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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