On May 2, 2022, the Alberta Government introduced Bill 23, the Professional Governance Act. Bill 23 represents a major overhaul for professional regulatory legislation in Alberta. The Bill would repeal the governing statutes for 22 professions and replace them with one umbrella statute. It would expand the abilities of Professional Regulatory Organizations (PROs) to make bylaws and rules, but it would also introduce considerable government oversight and control. Much of Bill 23's content will be familiar to PROs, but there are several new and noteworthy provisions.
Here is a summary of some of the most significant provisions:
The Bill empowers the Minister to establish a regulatory model for each PRO through regulations. The Bill also creates "Professional Governance Officers" to advise the Minister on the choice of regulatory models.
Existing PROs that are continued under the new Act will keep the same regulatory model, "until a regulation is made ..." The Minister will be authorized to make regulations respecting regulatory models, thus giving the Minister immense power over the regulation of professions through regulations. PROs will also be permitted to apply for a change of regulatory model.
The Bill describes five possible regulatory models:
- Voluntary registration – where registration is only required if an individual wishes to use a restricted title or engage in specified activities
- Mandatory registration – where individuals who meet requirements for registration and wish to provide specified professional services to the public must register
- Restricted activities – where only registrants who are authorized may engage in providing designated professional services to the public
- Exclusive scope of practice – where only registrants may be authorized to engage in the provision of services within a scope of practice
- Restricted titles – where only a registrant may use a restricted title
The Lieutenant Governor in Council will be empowered to designate new PROs on the Minister's recommendation. The Minister will also be able to direct a Professional Governance Officer to recommend whether a PRO continues to serve the public interest. The Minister can then recommend revoking a PRO's designation if the Minister considers it is no longer in the public interest.
Professional Governance Officers
Professional Governance Officers will be empowered to oversee PROs. They can make inquiries of PROs to determine if the PRO is complying with the Act, the regulations, and appropriately governing itself. This includes whether the PRO is maintaining public confidence, whether it has effective rules of professional conduct, its ethics and practice standards, whether it is meeting the requirements for continuing competence, whether it has taken appropriate measures to avoid and detect unprofessional conduct and to ensure registrants are held accountable. Professional Governance officers will have the power to require PROs to comply with their directions.
The Lieutenant Governor in Council will also be authorized to appoint an administrator for a PRO on the Minister's recommendation. Administrators will be empowered to support PROs or to carry out their duties and functions for them. The Minister could appoint an administrator if considered warranted after a review by a Professional Governance Officer.
The Minister will be empowered to propose the amalgamation of two or more PROs and to direct a Professional Governance Officer to review the proposed amalgamation and provide the Minister with advice. On receiving the Professional Governance Officer's recommendation, the Minister can recommend amalgamation to the Lieutenant Governor in Council. PROs will also be permitted to apply to amalgamate with each other or with professional associations. Amalgamation applications will be subject to review by a Professional Governance Officer.
The Bill provides that public members appointed to a PRO's governing body, a committee or tribunal, must act as objective and full participants in the PRO's governance. The Bill also defines the public member's role as ensuring the PRO represents the values and interests of Albertans, monitoring the PRO's ability to act fairly and transparently, and its ability to perform its other prescribed powers, duties, and functions.
This language may be difficult to reconcile with other provisions of the Bill that limit the roles of public members in the regulation of the professions. For example, section 36(2) provides that public members may not serve as the Chair or Vice-Chair of a governing body. This policy choice is surprising since some PROs in Alberta have benefitted from public member Chairs and Vice-Chairs for many years.
Section 37 states that PROs must establish a governing body consisting of a Chair and the number of registrants set out in the bylaws, "each of whom must be selected by the membership of the" PRO. This language appears to be aimed at reversing the trend towards appointment-based processes for registrant members of governing bodies.
The Act does not prescribe any minimum percentage of public members on governing bodies, but section 37(d) states that the governing body includes "the public members appointed by the Minister ." Section 57(5) provides for the Minister to appoint "any number of public members...that the Minister deems appropriate to protect and serve the public interest and the interest of public safety." These provisions allow the Minister to determine the number of seats public members occupy on a particular PRO's governing body. It also creates the prospect of inconsistent approaches to public member involvement among governing bodies.
PROs will be required to establish Registration and Complaints Inquiry committees and permitted to establish Competence and Practice Review committees. There is no prescribed minimum percentage of public members on these committees, but section 41 permits the governing body to appoint an individual who is not a registrant or former registrant. 39(1)(a) states that these committees must include at least three registrants "who must form the majority of a committee ." Section 39(1)(b) also states that a registrant must act as the Committee Chair.
The Billrequires PROs to maintain registers for individual registrants and temporary registrants. For some authorized professions, "business registrants" such as corporations and partnerships may also be registered where regulation permits. Registers of registrants must be publicly available on the PRO's website.
Completed registration applications must be assessed, and registration decisions must be made and issued to applicants within 120 days. This is significantly more onerous than Alberta's Fair Registration Practices Act currently requires. The Fair Registration Practices Act requires interim registration decisions to be made within six months and final decisions to be made within the "maximum time period prescribed in the regulations." There is currently no regulation prescribing a maximum time period for final registration decisions. Registration decisions can be to approve an application with or without conditions, defer registration for up to one year, or refuse the application for registration.
Complaints and Discipline
The Bill adopts a complaints and discipline system similar to the current Chartered Professional Accountants Act. PROs will be able to accept complaints about current registrants and former registrants provided the complaint is about conduct while the person was a registrant and provided the complaint is made "within the time period prescribed by the regulations."
The investigation body is the "Complaints Inquiry Committee" or "CIC." A "CIC Secretary" conducts a preliminary review of complaints and can require the complainant and the registrant to answer questions and produce relevant records. The CIC Secretary can also encourage the resolution of complaints. The complaint is referred to the "CIC Chair" unless it is resolved or the CIC Secretary directs that no further action be taken.
The CIC Chair can also determine that no further action should be taken or appoint an investigator to investigate the complaint. Following an investigation, the CIC reviews the complaint and can direct no further action be taken or refer one or more allegations of unprofessional conduct to the Discipline Tribunal List Chair. Complaints can also be resolved without a hearing using sanction agreements which the CIC must approve.
If referred to hearing, the Discipline Tribunal List Chair appoints a Discipline Tribunal. Discipline and Appeal Tribunals must comprise at least three individuals and have at least 25% public member appointees. Tribunals with two registrants and one public member will therefore be the norm. This can be contrasted with Alberta's Health Professions Act which requires a minimum of 50% public members on all discipline and appeal tribunals and on the governing bodies of health PROs.
Discipline hearings must "commence" within 120 days of allegations being referred to hearing "or within such other time period as the chair permits." The Discipline Tribunal process is administered by a "Discipline Tribunal Secretary." Appeals are heard by an Appeals Tribunal constituted by the Appeals Tribunal List Chair and the appeals process is administered by an "Appeal Tribunal Secretary."
Following a finding of unprofessional conduct or the approval of a sanctions agreement, registrants have the option to apply to resign from the PRO instead of having the discipline proceedings continue.
Court Enforcement of Decisions
The Bill permits PROs to apply to Court to enforce decisions of a Discipline Tribunal, an Appeal Tribunal or the CIC Chair under the incapacity provisions of Part 9 of the Act.
In addition, in the event of unpaid investigation and hearing costs, PROs will be authorized to file a copy of the Discipline or Appeal Tribunal's order with the Court. The order may then be enforced as a judgment of the Court. This is a far simpler procedure than most other regulatory statutes, which typically require PROs to sue registrants for unpaid costs.
Publication and Dissemination of Information
PROs will be required to respond to requests from the public for information about registrants, such as registration status, restrictions and conditions on their practice and discipline information. Notices of discipline hearing and appeals must be published in advance of the hearing, in accordance with the PRO's bylaws. Discipline Tribunal decisions must also be published along with the status of any appeals, and Appeal Tribunal decisions must also be published. The CIC Secretary will also be authorized to disclose complaints and their status to other professional regulators in which the registrant is registered or is seeking registration.
Section 159 creates a statutory confidentiality obligation over all information produced in the course of proceedings under the Act. This prohibits the use of such information for any other purpose without the consent of the party who provided it or court order.
PROs will be expressly authorized to publish that a person or groups of persons are not registrants or a PRO and are not entitled to use restricted titles.
All PROs will be able to conduct Practice Review. The Practice Review Committee will be authorized to appoint practice reviewers, establish rules and procedures and review registrants' practices. Practice Reviewers will have the same broad powers as an investigator to compel information. Following a practice review, the Committee will be able to recommend practice improvements, direct further reviews or practice improvement plans, direct remedial training or submit complaints.
The Bill incorporates a very useful tool from the Health Professions Act to address registrant capacity issues such as substance abuse, addictions, physical or mental health problems, cognitive decline, etc. If the CIC Secretary has reasonable grounds to believe a registrant is incapacitated, they may notify the CIC Chair, who may direct the registrant to undergo physical or mental examinations. If treatment is recommended, the registrant may also be directed to submit to treatment. The CIC Chair can impose conditions or suspend the registrant's ability to practice until satisfied the registrant is no longer incapacitated.
PROs will be subject to review by the Alberta Ombudsman. The Ombudsman will be authorized to recommend that PROs quash and reconsider or vary any decision or recommendation.
Protection from Legal Proceedings
The Bill prohibits legal proceedings against PROs and their staff and volunteers for "anything done or omitted to be done in good faith." The Bill goes further and provides that none of the PRO or its staff or volunteers may be required to give evidence other than in proceedings under the Act or to produce records forming part of the PROs records relating to the conduct of a registrant. This will help protect PRO staff and volunteers from being named in lawsuits and required to produce documents and to submit to questioning.
Electronic Documents, Meetings and Hearings
The Bill authorizes PROs to collect and manage information and records electronically, subject to any regulations, bylaws, rules or standards to the contrary.
The Bill also expressly authorizes virtual meetings, but Discipline and Appeal Tribunal hearings may only be held virtually if the parties consent or if the Discipline or Appeal Tribunal List Chair determines that the hearing can be held fairly and effectively by electronic means. Virtual hearings are already a common practice and have been endorsed by the Courts. Approval from Discipline and Appeal Tribunal List Chairs for virtual hearings is likely to be routine.
The Act prescribes a 10-year statutory records retention requirement for PROs to follow.
Bylaws, Rules, Codes and Standards
PROs will have broad powers and duties to make bylaws, rules of conduct, codes of ethics and practice standards. For example, sections 205 and 206 of the Bill require governing bodies to make bylaws, including about registration and competence requirements. PROs are also permitted or required to make bylaws respecting issues such as the requirement for citizenship or entitlement to work in Canada, evidence of good character and reputation, professional liability insurance coverage, registration renewal requirements, competence requirements, practice review, discipline decision publications, and business registrants where the profession is authorized to register them.
These powers will be subject to substantial Ministerial oversight. The Minister will be able to disallow or require amendments to bylaws, rules of conduct, codes of ethics and practice standards. The Minister will also be able to direct new bylaws, rules, codes or standards.
Recognition of Specialists
The Bill authorizes the Minister to make regulations respecting specialities and specialists, including the recognition of specialists and the use of "specialist" and other specialty titles.
Coming Into Force
The Professional Governance Act will come into effect on proclamation with one exception. Section 66(4)(b) requires registration applications to be dealt with consistent with the Labour Mobility Act. Section 66(4)(b) comes into force when the Labour Mobility Act comes into force.
For Regulators, Bill 23 represents a massive change. The Bill leaves many critical details to regulations and schedules. Regulators will need to carefully review the transitional provisions, plan and engage with the Ministry to ensure these critical details are considered carefully. The Government's plan to proclaim Bill 23 by January means there is an incredible amount of work to be done over the next eight months.
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.