Sep 23, 2020

The registration process is different from most other activities of a regulator. For example, the onus is on the applicant to establish meeting the requirements, yet the regulator should give some notice of the concerns. The balancing of these issues occurred in Risseeuw v Saskatchewan College of Psychologists, 2017 SKQB 8. The applicant was registered in Alberta and had tried for years to become registered in Saskatchewan; it was a mobility case. The Court concluded that, in the circumstances of the case, the application for judicial review should be dismissed for undue delay. The applicant was aware from previous litigation that judicial review applications needed to be brought promptly, but had waited for two years from the decision to initiate the application. The regulator had a right to some finality of its decision.

The Court went on to consider the merits of the judicial review and found the application lacking. The Court held that the regulator was not required to give the applicant the same notice and particulars as is required in the disciplinary process. The applicant is taken to know the registration requirements and should not be surprised if the regulator applies those requirements to the application. Similarly, the applicant should know that incomplete or inconsistent information provided on the application will be considered by the regulator. Similarly, the applicant should not be surprised that the regulator will want information as to her current competency if her previous application was rejected because of concerns about her competence.

Perhaps most interesting is the Court’s approach to the mobility issue. The Court suggested that, where an applicant applied previously and there were competency concerns at that time, the regulator can now (again) consider the applicant’s competency:

“The applicant’s position takes the narrowest possible view. It presupposes that the mobility provisions will be applied almost as a rubber stamp. It presumes that the respondent must purge itself of past knowledge of incompetency. The applicant’s position takes this narrow, literal view without adopting a purposive approach to legislative interpretation. The suggestion that the respondent is obligated by s. 20(2) of the Act in a robotic fashion does not comport with the overall legislative scheme and intention.”

The Court’s approach may be based on the specific legislative context rather than a pure analysis of most mobility provisions for professions and may not have broad application to other cases.

The Court also indicated that the regulator can engage in a certain amount of inquiry into the accuracy of the applicant’s information. However, the Court did not clarify how extensive those inquiries could be.