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 Practices Act (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. 

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 regulator’s governing statute. The regulatory regime for non-labour mobility applicants will remain the FRPA and the governing statute.

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, where there is an inconsistency, the LMA will prevail over the governing statute. 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. For example, 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. Regulators 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 regulators 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 - Bill 46, the Health Statutes Amendment Act ; 2021 - Bill 49, the 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.

If you have any questions about Bill 49, the Labour Mobility Act and it's implication on your professional regulatory organization, please feel free to contact any member of our Professional Regulatory Group.