Labour Mobility Update: TILMA Dispute Resolution Endorses Assessment of Good Character

by Field Law

On September 28, 2012 a Dispute Resolution Panel established under the Trade, Investment and Labour Mobility Agreement (“TILMA”) between Alberta and British Columbia released its decision regarding the BC College of Social Workers’ refusal to certify a social worker who had previously been registered in Alberta. This decision will be of interest to regulators. It addresses a regulator’s ability to conduct its own character assessment where the applicant has been certified by a regulator in another province or territory that has signed the agreement.

The social worker had been registered in Alberta with the Alberta College of Social Workers. He applied to the BC College of Social Workers in April 2009 and was denied on the basis that he had failed to provide satisfactory evidence of good character. This evidence was required by the College’s bylaws. Alberta initiated the dispute resolution provisions under the TILMA.

Article 13 of TILMA provides:

13(1) Subject to paragraph 4, any worker certified for an occupation by a regulatory authority of a Party shall be recognized as qualified to practice that occupation by the other Party.

13(2) For greater certainty, requirements imposed on workers to obtain a license or to register with a Party or one of its regulatory authorities prior to commencing work within the territory of that Party shall be deemed to be consistent with paragraph 1 provided that no material additional training or examinations are required as part of that registration procedure and such registrations are processed on a timely basis.

Alberta argued that Article 13 was mandatory and BC was required to register the social worker without conducting any individual assessment to determine whether he met the “good character” requirement. Alberta acknowledged that Article 13(2) would permit requirements such as criminal background checks, but argued that their use should be limited to determining whether the applicant had been convicted subsequent to registration elsewhere.

BC argued that Article 13 only required a regulator to accept an applicant’s education, training and experience where the applicant was previously registered in the other province. Nothing in Article 13 prohibited a regulator from undertaking an independent assessment of the applicant’s character. Alternatively, BC argued that its refusal to certify the social worker based on character was a legitimate objective.

The Panel accepted BC’s argument that Article 13(1) only relates to an applicant’s qualifications such as their education, training and experience. An independent assessment of the individual’s character is permissible under the TILMA. However, there is a reverse onus and regulators seeking to justify the refusal to certify a worker must produce evidence of a lack of good character. Such cases will be exceptional.

The Panel went on to find in the alternative that the BC College’s refusal to certify the social worker was a legitimate objective. The decision promoted the legitimate objectives of protecting human life or health and consumer protection, it was not more restrictive to labour mobility than necessary and it was not a disguised restriction on labour mobility.

The dissenting member of the three member Panel would have accepted BC’s interpretation of Article 13 and would not have found the refusal to register the social worker to be a legitimate objective. A copy of the Panel’s decision can be found here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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