• Good Character: An Important Regulatory Tool Even in an Age of Labour Mobility
  • March 1, 2019 | Authors: Tessa Gregson; James Casey
  • Law Firm: Field Law - Edmonton Office
  • 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.

    Field Law’s Professional Regulatory Group has strong experience in labour mobility and registration issues and would be pleased to assist you in navigating the complexity of such matters.