Professional Regulators Must Address Human Rights Issues: Burden Or Blessing?

Seasoned professional regulators know that human rights issues arise from time to time in the regulatory context. Increasingly, however, the issues appear to be moving from the periphery to the centre of the regulatory sphere, requiring regulators who typically have more professional than legal experience to grapple with human rights laws. Recent cases finally provide some "good news" for professional regulators with respect to human rights issues.

The Alberta Human Rights Act, RSA2000, c. A-25.5, expressly prohibits "occupational associations" from discrimination on enumerated grounds, including race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation. Professional regulatory organizations are considered to be "occupational associations" for the purpose of human rights laws.

What this means is that a regulatory body cannot subject an individual to differential treatment based on a protected ground, even if the differential treatment arises indirectly, such as when a standard policy results in a disproportionate effect on an individual or group of individuals. In addition, a regulatory body is subject to the duty to accommodate. This means that once a member or prospective member establishes that he or she faces a barrier to full participation in membership because of a protected ground, the regulator is required to take steps to remove these barriers, up to the point of "undue hardship."

For example, human rights issues arise in the following contexts: foreign-trained professionals being denied registration and alleging discrimination based on place of origin1; professionals raising issues of addiction (considered a "disability" in human rights law) as an excuse or mitigating factor for unprofessional conduct2; professionals with physical or mental disabilities that might affect their ability to practice safely and effectively3; and applicants being denied registration due to criminal convictions4.

At one point in time, some regulators tried to choose an easy way out: they would shunt complex human rights issues over to the Human Rights Commission to decide the matter, on the basis that the Commission had superior expertise in the area. That avenue was closed in 2006, when the Supreme Court released the decision of Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14.

Tranchemontagne concerned two men who challenged a provision of the Ontario Disability Support Program Act, 1997 ("ODSPA"), which disqualified alcohol or drug addiction as disabilities and denied income support to people who claimed disability on those grounds. The appeal tribunal declined to consider the matter, holding that it did not have jurisdiction. This ruling was appealed to the Ontario Divisional Court, which held that while the appeal tribunal did have jurisdiction, it was right to decline jurisdiction on the basis that the human rights commission was the better forum.

The Supreme Court overruled the Court of Appeal in a decision with serious ramifications for tribunals across Canada. Firstly, it agreed with the Court of Appeal that tribunals had jurisdiction to apply human rights law. It explained...