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Fair Registration Practices Legislation: 4 Key FAQs for Regulators

Published:

January 18, 2023

Author(s):

• Raylene Langor
• Catherine Hirbour

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Regulatory bodies across Canada are finding themselves subject to increased scrutiny in light of concerns surrounding workforce shortages, access to professional or occupational services, and patient safety issues within the healthcare sector. This scrutiny has resulted in increased “meta-regulation”, with governments imposing on regulatory bodies an additional layer of oversight, often with the objective of speeding up the assessment and registration process for internationally educated applicants. Regulators in Nova Scotia, and as of 2022, New Brunswick and Newfoundland and Labrador, operate in a legislative framework that requires regular reporting on registration practices. Given the proliferation of fair registration practices legislation in Canada, particularly Atlantic Canada, it’s reasonable for Prince Edward Island regulators to expect similar legislation on the horizon – and to begin preparing for the inevitable.

A proactive approach to evolving fair registration practices requirements will ensure regulatory bodies are prepared to re-deploy their resources toward satisfying their obligations to government and avoid the imposition of compliance measures. To help regulators understand fair registration practices legislation and their obligations under it, here are the answers to four key questions about fair registration practices legislation.

1. What is “fair registration practices legislation”?

Fair registration practices legislation includes any legislation a province implements that sets out standards and requirements that provincial or occupational regulatory bodies must follow regarding registration, in accordance with the Canada Free Trade Agreement (CFTA).

Provincial regulatory bodies set standards for how a regulated profession or occupation can be practiced, and by whom. This includes setting policies, practices, and procedures for the registration of people who apply to practice a regulated profession or occupation. Before practicing a regulated profession or occupation within a Canadian province, individuals must first successfully register with the appropriate regulatory body. Chapter 7 of the CFTA governs labor mobility. In accordance with the CFTA, provinces must ensure that regulatory bodies implement fair registration practices that are transparent, objective, impartial, procedurally fair, and consistent with workers’ mobility rights. The most effective way for provinces to ensure that regulatory bodies employ appropriate registration practices is through the introduction of fair registration practices legislation.

2. Which provinces or territories have implemented fair registration practices legislation? 

To date, seven Canadian provinces have implemented fair registration practice legislation:

• Ontario was the first Canadian province to introduce fair registration practices legislation in 2006: the Ontario Fair Access to Regulated Professions and Compulsory Trades Act.
• Manitoba introduced similar legislation in 2007: Manitoba’s Fair Registration Practices in Regulated Professions Act.
• Nova Scotia followed in 2008 with the Nova Scotia Fair Registration Practices Act.
• Sometime later, in 2019, Alberta enacted the Alberta Fair Registration Practices Act.
• Fair registration practices legislation came into force in both Saskatchewan and New Brunswick during the summer of 2022: respectively, Saskatchewan’s Labour Mobility and Fair Registration Practices Act and New Brunswick’s Fair Registration Practices in Regulated Professions Act.
• Newfoundland and Labrador is the most recent province to introduce fair registration practice legislation, with the Newfoundland & Labrador Fair Registration Practices Act receiving Royal Assent on November 9, 2022. The N.L. Act will take effect on a date proclaimed by the Lieutenant-Governor in Council.

3. What are the general duties of regulatory bodies subject to fair registration practices legislation?

All provinces that have implemented fair registration practices legislation administer their statutes and monitor regulatory bodies for compliance with the legislation in a similar manner: through a government office or agency. While the specific duties of regulatory bodies differ under the legislation of each province, all impose the same general duties: fair registration practices legislation requires regulatory bodies to establish registration practices that are:

• Open and transparent.
• Objective.
• Impartial.
• Efficient.
• Timely.
• Procedurally fair.
• In compliance with workers’ mobility rights in the CFTA.

4. How are fair registration practices established and monitored in Atlantic Canada?

To date, all Atlantic provinces with the sole exception of Prince Edward Island have implemented fair registration practices legislation. 

Nova Scotia. Nova Scotia’s Fair Registration Practices Act currently applies to 49 regulatory bodies in the province and sets standards regarding the practices employed to register individuals applying to become a member of a regulated profession or occupation. In addition to the general duties of fairness, the N.S. Act requires regulatory bodies to:

• Ensure that there are clear pathways to registration for provincially, nationally, and internationally trained applicants.
• Provide clear and understandable information on the criteria used to assess applications, the qualifications required to become registered, the process that applicants must follow to become registered, the documents that must be submitted, and how long the process should take.
• Answer applicants’ questions about registration within a reasonable timeframe.
• Let applicants know in writing, and within a reasonable time, whether their registration is denied or granted.
• Where registration has been denied, let applicants know the steps they can take to help them become successful in applying in the future.
• Give applicants who have been denied registration information about the regulator’s internal review process.
• Ensure that individuals tasked with making internal review decisions have appropriate training on how to conduct such reviews.

The N.S. Department of Labour, Skills and Immigration administers the N.S. Act through a Review Officer who: establishes guidelines regarding a regulator’s reporting requirements; advises regulators about their obligations under the Act; assists regulatory bodies in meeting their reporting requirements; prepares an annual report on the implementation of the Act to the Minister of Labor and Advanced Education; and issues compliance orders against regulators that are non-compliant with the legislation. In November 2021, Nova Scotia’s Fair Registration Practices Act was amended to provide regulators with clarity about the statistical data they must submit to the Review Officer. Additional amendments were included to extend the reporting period from every two to every five years, and to allow non-compliant regulators one year to demonstrate compliance.

New Brunswick. New Brunswick’s Fair Registration Practices in Regulated Professions Act currently applies to 50 regulatory bodies within the province. In addition to the general duties of fairness and transparency, the N.B. Act focuses heavily on meeting workforce demands by ensuring that internationally educated workers face as few barriers as possible to recognition of their credentials. The N.B. Act requires that regulators:

• Ensure registration requirements are necessary and relevant to the practice of a specific profession or occupation.
• Use assessment criteria that is necessary to assess an individual’s competence.
• Comply with any timelines established by the Minister respecting the application for registration process.
• Take any steps required by the Minister to help internationally educated individuals obtain registration.

Administered by the Minister of Post-Secondary Education, Training and Labour, the N.B. Act empowers the Minister to require regulators to report on how their registration practices comply with the legislation, and if necessary, take steps to ensure compliance. Compliance measures can include the issuance of compliance orders, the imposition of restrictions on regulatory bodies, and the imposition of administrative monetary penalties. While regulations to the N.B. Act have yet to be introduced, it’s expected they will contain specific information about reporting requirements, timelines, and compliance measures. New Brunswick regulatory bodies are wise to begin the review of their assessment and registration processes now, especially regarding internationally educated individuals.

Newfoundland and Labrador. Newfoundland & Labrador’s Fair Registration Practices Act will apply to 13 regulatory bodies in the province. The N.L. Act contains duties of fairness and transparency and requirements governing internal reviews of registration decision denials similar to those found in most provincial fair registration practices legislation. However, the N.L. Act appears much more prescriptive than other legislation regarding the imposition of requirements on regulators. For example, the N.L. Act requires regulators to report on registration practices on an annual basis and to:

• Collaborate with education providers and employers to identify opportunities to develop programs that could assist unsuccessful applicants in obtaining registration.
• Notify the Minister of any intention to change practices for the assessment of qualifications or any conditions of registration.
• Process applications for registration within specific time periods to be set out in the regulations under the Act.

The N.L. Department of Immigration, Population Growth, and Skills administers the N.L. Act, which also permits the establishment of a Fair Registration Practices Office to assist the Minister in exercising the powers and duties the legislation establishes. The N.L. Act also provides the Minister with certain specific powers, including the ability to:

• Direct a regulatory body to expedite its assessment and registration process.
• Issue compliance orders to non-compliant regulatory bodies.
• Find a regulator liable on summary conviction for non-compliance and require it pay a fine of up to $10,000.

While there aren’t yet any regulations, the N.L. Act itself provides a flavor of the regulations to come, including specific timelines for the processing of applications for registration.

Please contact your McInnes Cooper lawyer or any member of our Regulation of Professions Team @ McInnes Cooper to discuss best practices for complying with fair registration practices legislation.

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