The Alberta government has recently begun consultations regarding the mandates of regulated professions (such as lawyers, nurses, and many more). Its concerns mostly relate to the regulators allegedly construing their mandates excessively broadly, to:
- prescribe continuing education on matters unrelated to professional skills (seen in the skirmish surrounding the Law Society of Alberta’s mandating that licensees complete “The Path,” a course that fulfills a Truth and Reconciliation Commission call to action);
- regulate matters that have a peripheral relevance to practice (such as the extracurricular characteristics of a law school); and/or
- discipline members for activities lacking any connection to their clients, and having questionable connections to their profession, even when constitutional rights are at stake (exemplified by Jordan Peterson’s battle with the Ontario College of Psychologists).
Without commenting on the merits of any one of these examples, the underlying concerns are not fanciful. It is undeniable that bureaucracies (not just professional regulators) have an incentive to expand and drift in their mandate. This leads to the “bureaucracy expanding to meet the needs of the expanding bureaucracy,” to cite a phrase apocryphally credited to Oscar Wilde. The Law Society of Ontario, for instance, appears to have greatly expanded its size this century (though a lack of transparency makes the extent uncertain). There is no evidence that this has increased trust in the legal profession or the public’s ability to access justice and some evidence that it has had the opposite effect.
Self-regulation of these professions is not an intrinsic good: it exists to serve the public interest, recognizing that, for example, veterinarians are better situated than governments to determine what professional competence and minimal ethical standards are required to be a veterinarian. An element of self-governance is therefore sensible.
However, these self-governing professions are also cartels, restricting public access to a good, and therefore driving up the good’s costs. It is completely reasonable for governments to minimize cartels’ power. England and Wales has significantly deregulated the provision of legal services through the Legal Services Act of 2007, and the sky has not fallen.
While the Smith government’s concerns are reasonable, walking a line between clarifying regulators’ mandates without micro-managing them is challenging. Clarifying that their “public interest” mandates are confined to ensuring professional competence and minimal ethical standards is likely prudent. But there will be “on the line” cases. And that leads to a discrete way to curb regulators’ natural tendency to expand their own mandates: ensuring that courts can supervise their legal actions, particularly when constitutional rights are engaged.
Statutory bodies such as professional regulators are “administrative actors” in the Canadian justice system. Accordingly, their decisions can be reviewed in courts—but courts generally must be deferential to the administrators’ legal determinations. This is partially justified based on efficiency and expertise: we do not want courts second-guessing every labour arbitration decision concerning unfair bargaining. Most importantly, this deference is justified by the very fact that the legislature has entrusted the administrator, rather than courts, to make the decision.
However, in determining whether an administrator was even empowered to take an action—such as mandating a continuing education requirement—the reasons for deference are less salient. Indeed, a disinterested court can interpret the legislation afresh (with expertise in statutory interpretation, expertise not shared by most administrators) without the regulator’s incentive to broaden its mandate. In its 2019 decision Vavilov v Canada, the Supreme Court noted that deference is not appropriate when the legislature indicates that the court is to have the final say on questions of law. The scope of professional regulators’ mandates is a textbook example of where legislatures can instruct courts to intervene in cases of regulatory overreach.
Courts reviewing regulators’ determinations afresh should extend—even more importantly—to constitutional determinations, including those related to the Canadian Charter of Rights and Freedoms. Traditionally, courts do not defer to administrators on matters of constitutional law. Courts have a particular role in acting as guardians of the Constitution and many administrative decision-makers are not lawyers, much less judges. But in its 2012 Doré decision, the Supreme Court held that courts should engage in a “robust reasonableness” analysis to assess whether an administrator reasonably balanced “Charter values” against statutory objectives. This is in lieu of the traditional test for determining whether Charter rights have been limited and, if so, whether the limits are justified.
Doré has been controversial since it was decided, for a host of reasons, including: its conflation of rights and values (creating conflicts where they otherwise would not exist); allowing an administrator to limit Charter rights in circumstances where a legislature would not be able to (despite the administrator only having its power because the legislature gave it the power); and the aforementioned understandable inclination of administrators to favour their statutory mandates over Charter rights.
Doré has seemingly had nine lives at the Supreme Court, being ignored by several judges in 2015 before being revived in 2017. In 2018, four judges heavily criticized it. It was not overturned in 2019, but its fate was explicitly left an open question, leading to academic analysis that it was on its last legs. However, in December 2023, the Supreme Court unanimously doubled down on the framework—only to unanimously ignore it six months later.
The Alberta government can clarify that all questions concerning constitutional law are to be reviewed by the Alberta courts without deference to the regulator. Prescribing the way courts are to conduct constitutional review is admittedly unusual. However, there is no question that the Alberta government could alternatively bar these regulators from considering constitutional questions at all. It must logically therefore be able to permit them to consider constitutional questions—so long as courts review their constitutional determinations afresh.
To be sure, there are downsides to giving administrative bodies too short a leash. The federal government’s prescribing that the Competition Tribunal’s decisions are to be reviewed by the Federal Court of Appeal as though they were decisions of the Federal Court has led to that Tribunal arguably having insufficient room to respond to anti-competitive behaviour. This is one piece of Canada’s competition crisis, a crisis recently illustrated by Denise Hearn and Hub contributor Vass Bednar in their 2024 Max Bell Lectures and subsequent book, The Big Fix: How Companies Capture Markets and Harm Canadians. This has led to recent amendments to Canada’s competition laws that unanimously passed Parliament—rare in this day in age. Admittedly, in the context of self-regulating professionals, it is the professional regulators that threaten competition when they act as rent-seeking gatekeepers. Even so, these regulators do have important roles and dangers can come from hamstringing them.
There is no easy solution to address the legitimate concerns that the Smith government has with professional regulators’ expanding views of their own mandates. And a clear reviewing role for courts is hardly a panacea (particularly given recent trends in courts). But it can still provide protection to licensees, and a signal to regulators regarding their proper role.
