The Alberta government recently introduced Bill 13: Regulated Professions Neutrality Act (the “Bill”) into the Legislature for first reading . If passed, the Bill will restrict the ability of professional regulatory bodies (each a “Regulatory Body”) to discipline their respective members (a “Regulated Member”) for “expressive conduct” arising outside of the Regulated Member’s professional duties.
Regulated professions can only be practiced by those who have been granted registration or status by the applicable Regulatory Body, typically after providing proof of competency such as having obtained a specific degree or training. A Regulatory Body’s responsibilities further include overseeing practice of the profession and importantly, disciplining Regulated Members for various types of misconduct.
Notable regulated professions in Alberta include those under the umbrella of the Health Professions Act such as physicians, dentists, optometrists, as well as lawyers and accountants .
Mickey Amery (Alberta Minister of Justice and sponsor of the Bill) framed the Bill to the Legislative Assembly as protecting freedom of expression of Regulated Members . The Bill’s treatment of “expressive conduct” can be broken down into three interrelated sections:
Expressive Conduct
“Expressive Conduct” is defined to mean “an activity or communication that conveys or attempts to convey meaning, but does not include physical violence or property damage.”
Practice of Regulated Profession
“Professional Services” are activities a Regulated Member carries out within the scope of their regulated profession, or in their capacity as a Regulated Member and that are related to their regulated profession.
A Regulated Member primarily engages in practice of their regulated profession if they are:
providing profession services; or
carrying out an activity or interacting with someone carrying out an activity directly related to the operation of a business associated with the provision of professional services by the Regulated Member.
Sanctions for Expressive Conduct
A regulatory body or appeal body must not impose a sanction on a Regulated Member for expressive conduct that occurs outside the practice of the regulated profession.
There are a number of narrow exceptions to the general prohibition on sanctions including where the “expressive conduct” contains threats of physical violence, inappropriate pushing of professional boundaries, or sexual misconduct towards clients, students, or minors.
In defining “expressive conduct,” the Alberta government mimics the seminal Supreme Court of Canada case Irwin Toy Ltd. v. Quebec (Attorney General). There, the Court developed the legal test for determining whether freedom of expression as guaranteed by section 2(b) of the Charter of Rights and Freedoms has been violated, stating
“If the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee [of freedom of expression] .
It is almost assured that regulatory proceedings and subsequent judicial reviews arising from the Bill and impugned “expressive conduct” will follow the jurisprudence stemming from the Irwin Toy Ltd. decision closely as to whether a Regulated Member engaged in “expressive conduct” and is thus protected from sanctions by the Regulator.
The strict classification of “practice of the regulated profession” appears to be confined to actively practicing (such as a physician examining a patient or a lawyer meeting with opposing counsel) or managing the business associated with the practice. When paired with the broad definition of “expressive conduct” (being anything conveying or attempting to convey meaning – save for the noted exceptions), Regulated Members will have substantial freedom to express themselves when they are “off the clock.”
However, the proposed Bill is not without criticism. Legal scholars have expressed concerns about the potential spread of “misinformation”, particularly when that information is coming from an accredited professional. Critics are also concerned the Bill will inhibit the Regulatory Body’s ability to protect the public , which our Courts have consistently stated is the ultimate objective of professional regulation .
The Bill must pass several more debate and review stages in the Alberta Legislature before being proclaimed into law.
Note: This article provides general commentary and is in no way intended to replace the need to consult with a legal professional concerning the specific circumstances of your situation. This article should not be construed or relied upon as legal advice.
