Sep 28, 2020

A National Regulatory Body is Possible in Canada

Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837

Under Canada’s Constitution, the regulation of professions falls under provincial jurisdiction (i.e., property and civil rights). With rare exceptions (e.g., banking, immigration), professions are not regulated through federal legislation. Previous attempts to facilitate uniform national regulation have been struck down by the courts: Reference re Securities Act, [2011] 3 SCR 837, 2011 SCC 66, http://canlii.ca/t/fpdwb.

However, the provincial regulation of professions has significant limitations. Governments have been trying to address them through informal government cooperation (e.g., related to health care) and through formal agreements (e.g., the Canadian Free Trade Agreement). In Australia, another country structured as a federation, agreements have been reached to facilitate a national approach to the regulation of health care workers: https://www.ahpra.gov.au/About-AHPRA/Who-We-Are.aspx.

Recently the Supreme Court of Canada has approved a plan for the national regulation of the securities industry: Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, <http://canlii.ca/t/hw0hz>. The plan is complex and involves a model provincial / territorial statute, an accompanying federal statute and a national body with representation from the provincial / territorial ministers overseeing the regulation of securities in their home jurisdictions. Because the plan requires provincial / territorial approval to enact or amend the plan, the Court was of the view that it did not fetter provincial constitutional authority.

This plan can serve as a model for the national regulation of other professions and industries which might now be encouraged to give national regulation further consideration.