On October 26, 2021 the Government introduced Bill 49, the Labour Mobility Act  (the "LMA"), and proceeded to give the new Bill first reading. Given that the Fair Registration Practice Acts  (the "FRPA") was introduced by the Government in 2019 and came into effect on March 1, 2020, many observers wondered why the Government found it necessary to develop further legislation governing professional registration. The answer becomes clear from a detailed overview of the FRPA and the LMA. While many of the concepts from the FRPA are carried over into the LMA, the LMA creates a specialized streamlined regime for the registration of applicants who are currently registered with a similar regulatory body in Canada.

We have summarized the major provisions in the FRPA and the LMA below. 

 

Fair Registration Practices Act

Bill 49 - Labour Mobility Act

Scope of Act

While the political motivation for the FRPA was to try to facilitate the registration of internationally educated graduates, the FRPA currently applies to all applicants for registration with regulatory bodies, as defined (see definitions in s. 1).

Bill 49 applies to "labour mobility applicants" which is defined as "an individual who applies to the regulatory body to be registered in the regulated profession who is currently registered with a body that regulates the same profession in a province or territory in Canada other than Alberta" (s. 1(g)).

Bill 49 amends the FRPA so as to exclude "labour mobility applicants" from the definition of "applicant". See commentary. Once the LMA comes into effect, the scope of the FRPA will be narrowed to exclude this group.

Who is Covered?

"Regulatory bodies" covered by the FRPA are set out in Schedule 1 (s. 1(n))

"Regulatory bodies" covered by the LMA are set out in Schedule 1 and persons covered are set out in Schedule 2 (s. 1(m), (n))

Primary Duties

Regulatory bodies are required to carry our registration practices that are "transparent, objective, impartial and procedurally fair" (s. 3)

Regulatory bodies shall ensure their registration practices and decisions in respect of labour mobility applicants are "transparent, objective, impartial and procedurally fair (s. 2(1)

Duty to Provide Information

Set out in s. 4 and 5

Set out in s. 4 and 5 with some minor differences from the FRPA.

Timeliness of Decision

Must make interim registration decision within 6 months and make a registration decision within a reasonable time that does not exceed the time prescribed in the regulations. The regulations do not currently prescribe a maximum time for registration decisions (s. 6)

The LMA establishes very challenging timelines for the registration process:

  • Within 10 business days after receiving application, regulator is to provide written acknowledgement of receipt
     
  • Within 20 business days of receiving all required information, make a decision
     
  • With 10 business days of making decision provide written communication advising of the results, the reasons, and the right to an internal review or appeal
     
  • With 10 business days after making an internal review or appeal decision, issue decisions with reasons.

(s. 8)

Reasons

Reasons are to be provided within a reasonable time (s. 6(d))

Provide reasons within 10 days of making decision (s. 8(3)(b).

Appeal Rights

Advise applicants of right to review or appeal rights (s. 6(e)

Same concept (s. 8(3)(c))

Internal Right of Appeal

Provide internal right of review or appeal (s. 7)

Same concept (s. 9)

Training

Regulator must ensure those who assess qualifications, including third parties, receive training with respect to their role. Training obligations also apply to those who make interim registration decision and those who hear appeals. (s. 8)

Same concept (s. 10)

Domestic Trade Agreements

Regulators must ensure that registration practices comply with domestic trade agreements (s. 9)

Section 9 of the FRPA is repealed by s. 26(3) of Bill 49.

Regulators must ensure compliance with "domestic trade agreements" as defined and "prescribed intergovernmental agreements" as defined (s. 2)

Ministerial Powers

Detailed powers to review, make recommendations, advise and audit (s. 10 and 16). See also the regulation with respect to the audit power.

Same concept (s. 12 and 17)

Compliance Orders

Minister may issue compliance orders if contravention of Act or regulations (s. 11-14)

Same concept (s. 13-16)

Fair Registration Practices Office

Office established (s. 15)

Office renamed "Fairness for Newcomers Office" (s. 26(4)(a))

Reports

Reports to Minister as required (s. 17)

Annual report required (s. 18)

Paramountcy

Provisions of the FRPA or regulations prevail to the extent of any inconsistency with a provision of any other enactment (s. 18)

Provisions of LMA prevail if there is inconsistency with any other enactment or with the FRPA (s. 19)

Offences

Details addressed in s. 22

Details addressed in s. 23

Regulation Making Power

Addressed in s. 23

Addressed in s. 24. The content of the regulations will be extremely important. See the commentary below.

Coming Into Force

FRPA came into force on proclamation which was March 1, 2020

LMA comes into force on proclamation (except s. 27 )

Information to be provided by Applicant

 

Regulators may require labour mobility applicants to provide proof that they hold certification and require anything else "prescribed in the regulations". Regulators may not require labour mobility applicants to provide any other information (s. 6(1) and (2)). See commentary below.

Duty to Register

 

Where a labour mobility applicant has provided proof of certification from another Canadian jurisdiction and has met all other requirements that are set out in the regulations, then the regulator shall register the applicant without restrictions, limitations, or conditions, unless as otherwise provided in the regulations (s. 7)

Record of Decision

 

Maintain records for 3 years (s. 11)

Transition

The FRPA applies to regulatory bodies on the date the section comes into effect unless specified in the regulations (s.1(2))

The Act and regulations apply with respect to a labour mobility applicant's application for registration that is received after the section comes into effect and those received before the section comes into effect if the regulator has not yet made a registration decision relating to that applicant (s. 25)

 

Scope of the Act

The FRPA currently applies to all applicants applying for registration with a regulatory body, as defined. Once the LMA comes into effect, the scope of the FRPA will be narrowed so that the definition of "applicant" does not include "labour mobility applicants" as defined in the LMA.  The regulatory regime for "labour mobility applicants" will be the LMA and the Health Professions Act. The regulatory regime for non-labour mobility applicants will remain the FRPA and the Health Professions Act.

Timelines

One of the most significant aspects of the LMA is the imposition of very tight timelines with respect to labour mobility applicants in s. 8:

  • 10 business days: written acknowledgment of receipt of application
  • 20 business days: after receiving application and "everything required by the regulatory body" make a decision in respect of the application for registration.
  • 10 business days: provide written communication to labour mobility applicant, provide written reasons for decision, and advise of right of review or appeal.
  • 10 business days: provide written communication and reasons after making a decision on review or appeal

Information to be Provided by Applicant

One of the most noteworthy aspects of the LMA is the limited amount of information that a regulator can require a labour mobility applicant to provide. The regulator can require an applicant to provide proof of certification in a Canadian jurisdiction but cannot require the applicant to provide any additional information unless that information is prescribed in the regulation (s. 6(1)(2)). It is important to recall that the LMA is paramount so will prevail over Health Professions Act provisions in case of conflicts. Can a regulator ask a labour mobility applicant for information focussed on good character such as whether they have any outstanding complaints or investigations in their home jurisdiction? Not likely unless this information is specified in the regulations. Can a regulator ask the information required by the Health Professions Act relating to criminal records and sexual abuse issues? Not likely unless this information is specified in the regulations under the LMA. Section 6(1) and (2) of the LMA have the potential to be very problematic for regulators unless the regulations are properly drafted. Colleges and the Alberta Federation of Regulated Health Professions will need to engage with the government in the regulation development process to ensure that unintended consequences do not arise that negatively affect public protection.

Restrictions, Limitations + Conditions

Where a labour mobility applicant has provided proof of certification and has met any other requirements set out in the regulations, then the regulator shall register the applicant "without restrictions, limitations or conditions", unless these are provided for in the regulations. Any regulators that register applicants registered in other Canadian jurisdictions with restrictions due to, for example, scope of practice differences, will need to make sure that the regulations provide sufficient flexibility.

Regulation Making Power

The "machinery" of the LMA will be set out in the regulations which still have to be developed by government. As always with this type of legislation where most of the important details are left to the regulations, the "devil is in the details." The regulation- making power under the LMA is extremely broad so it is essential that the Federation and Colleges engage with government to ensure that a practical, workable system emerges. There are some interesting glimpses of potential government directions in the description of the regulation-making power as set out in s. 24 of the LMA. For example, s. 24(1)(l) contemplates the possibility of multi-jurisdictional registration through intergovernmental agreements that includes Alberta and other Canadian provinces or territories. The regulations can address what information a regulator can seek from a labour mobility applicant (s. 24(1)(e)) and what types of decisions can be made including permitting a regulatory body to impose restrictions, limitations, or conditions (s. 24(1)(f)).

Ministerial Involvement

One of the key design issues with respect to this type of legislation is whether government officials can become involved in individual cases or whether they are to address issues at a policy and system level. Regulators and commentators were relieved when the FRPA provided that the Minister shall not become involved in an interim registration decision, a registration decision, a review or an appeal (s. 10(4)). This was appropriate because otherwise regulators would be subject to having individual registration decisions reviewed by not only the Ombudsman but also the Minister and the Courts. However, the LMA provides a much broader scope for Ministerial involvement in individual cases under the LMA (s. 12(4)). While the LMA indicates that the Minister is not to become involved in registration decisions or an internal review or appeal decision, the LMA provides that the Minister may review these decisions after an internal review of appeal decision has been completed. So with respect to any one registration decision involving a labour mobility applicant, regulators are subject to the oversight of the labour mobility coordinators, the Ombudsman, the Minister, and ultimately the Courts if an applicant seeks judicial review.

Preparing for the Labour Mobility Act

Arising from our initial review, the following are some suggestions for regulators to assist in preparing for the implementation of the Labour Mobility Act:

  • Regulators will need to ensure that they are able to flag all applications that are made by a "labour mobility applicant" (defined in s. 1(g)) since these applicants will be subject to the special rules set out in the LMA (once in effect) and the timelines.
  • Regulators will need to monitor the proclamation date of the LMA and apply the transition rules appropriately as set out in s. 25.
  • Regulators should have already been reviewing and making adjustments as necessary to ensure that their registration practices are "transparent, objective, impartial and procedurally fair". There is a wealth of detailed guidance from other jurisdictions with similar legislation on what it takes to meet these criteria. A thorough review of all registration processes is recommended to ensure "best practices." If the review has not been completed then it is essential that regulators move quickly.
  • Regulators should already have been reviewing the information they make available to applicants to ensure compliance with the FRPA s. 4 and 5. Regulators need to review LMA s. 4 and 5 to ensure the identified information is available by the time the LMA comes into effect. Note that there are some minor differences between the FRPA and the LMA so regulators need to ensure they comply with both.
  • Regulators should already have ensured appropriate training for assessors, third party assessors, those making interim registration decisions, those making registration decisions and those hearing appeals (FRPA, s. 8). Similar training is required under the LMA (s. 10). For those regulators who have not yet provided training Field Law can provide the required training on-line.
  • Regulators will need to ensure that they have staffing and processes in place to meet the timelines in s. 8 of the LMA.
  • Regulators and the Federation will need to engage with government with respect to the development of the regulations.

Conclusion

Regulatory reform continues apace in Alberta. With the introduction of the LMA, this will be the fifth major piece of legislation affecting professional regulators in 3 years (2018- Bill 21, An Act to Protect Patients; 2019- FRPA; 2020- Bill 30; 2020-Health Statutes Amendment Act, 2020; 2021- LMA). The likely proclamation date for the LMA is unknown but given the significance of the LMA regulators are advised to begin preparation now. This article is based on our initial analysis of the LMA. I am sure that further issues will emerge as our analysis continues in the weeks and months ahead.

It should be noted that Bill 49 has only had first reading so regulators should monitor the Bill's progress to determine if there any amendments. This article is based on the content of the Bill after first reading.

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.