Professional Regulation in British Columbia: Changes to the Professional Governance Act – Construction and Planning

The Professional Governance Act(“PGA“) came into effect on February 5, 2021, codifying professional governance requirements and establishing the Office of the Superintendent of Professional Governance (“OSPG”).1

The PGAhas been modified by the Law amending the law on professional governance(the “Amendment”), which came into effect on June 2, 2022.2Although the amendment has received Royal Assent, some sections will only come into force by regulation.3

Some of the major updates and additions in the amendment include:

  • Changes to the disciplinary process for certain administrative matters;

  • An annual subscription;

  • The incorporation of traditional Aboriginal knowledge; and

  • Modification of the process for declaring conflicts of interest.

In addition to these changes, the Architectural Institute of British Columbia (“AIBC”) is transitioning toPGA.

DISCIPLINARY PROCESS IN ADMINISTRATIVE MATTERS

The Amendment changes non-payment of fees from a mandatory revocation of registration to a discretionary revocation.

Section 50(2) of thePGApreviously read as follows:

Fees and special contributions

(2) If a registrant fails to pay any fee, including the annual fee, special assessment or penalty imposed by the council under this Act at the time the fee, assessment or penalty is required to be paid, the registrant ceases to be: a member of the regulator unless the board of the regulator decides otherwise, subject to the by-laws made under subsection (1).

According to the new art. 50.1(1), the board of the regulatory body may pass by-laws authorizing the suspension or cancellation of a registrant’s registration. The procedure for suspension, cancellation and reinstatement of registration shall be prescribed by the by-laws pursuant to section 50.1(2).

In addition, new section 50.1 provides:

Cancellation or suspension of registration

50.1 (1) The board of a regulatory body may, by by-law, authorize the board to suspend or cancel the registration of a registrant of the regulatory body if the registrant fails to following things:

(a) pay, within the prescribed time, a duty or a special assessment fixed or levied under a regulation made under section 50;

(b) complete or provide evidence of completion, within the specified time, of a continuing education program or requirements established in a regulation made under section 57(1)(e) or (f)[standards of conduct and competence];

(c) provide, within the time specified, a continuing education program set out in a regulation made under section 57(1)(g);

[…]

(i) fulfill any other requirement under this Act that is prescribed by the Lieutenant Governor in Council.

(2) The by-laws referred to in subsection (1) must establish the following:

(a) the procedures for suspending or canceling a registration;

(b) the requirements and procedures for reinstating a registrant whose registration has been suspended or canceled under subsection (1).

This new provision allows matters such as continuing education compliance to be treated as an administrative matter rather than a professional conduct complaint. For example, after an appropriate number of notices and reminders, suspension or cancellation of a registrant’s registration may occur for those who fail to meet continuing education requirements.

ANNUAL FEES

New section 22.1 allows the Lieutenant Governor to establish annual fees by regulation:

Annual fees

22.1 (1) The Lieutenant Governor in Council may make regulations

(a) require regulators to pay an annual fee, and

(b) fix the amounts of the annual royalties.

(2) The regulatory body shall, within the prescribed time, pay the annual fee required to pay a regulation made under subsection (1).

This provision allows OSPG to impose fees on regulators for the operation of OSPG. It’s unclear what the fee structure will look like, as Hansard of the proceedings suggests that 50% of the fee should be charged to regulators.4However, it appears that the OSPG has informed regulators that the majority of its budget will be publicly funded and that any royalty amounts would be nominal.5This is not expected to be in effect until 2023/2024.

TRADITIONAL INDIGENOUS KNOWLEDGE

The amendment includes section 55.1, which allows a registrant’s professional opinion to include traditional Indigenous perspectives. Section 55.1 creates an exception to section 54 of thePGAwhich limits the provision of regulated services to registrants, and aims to address traditional practices and knowledge in biology, forestry and agrology.

Traditional knowledge

55.1 (1) In this section,“Indigenous Peoples”has the same meaning as inDeclaration on the Rights of Indigenous Peoples Act.

(2) Section 54 does not apply to a person exercising the rights of an indigenous people, including the right to maintain, control, protect or develop any of the following with respect to the indigenous people:

(a) cultural heritage;

(b) traditional knowledge;

(c) traditional cultural expressions;

(d) manifestations of science, technology or culture.

CONFLICT OF INTEREST DECLARATION PROCESS

The conflict of interest declaration process is moving from filing by default to filing as required by regulation.6Pursuant to the amendment, regulations may prescribe when conflict of interest declarations must be submitted to the OSPG Superintendent. This amendment aims to meet certain obligations of declaration of competence and conflict of interest which were considered to be onerous. The Amendment makes it possible to establish by regulation more flexible declaration obligations, on a case-by-case basis and specific to the profession. Further information regarding conflict of interest disclosure requirements will be included in the regulations.

The regulation regarding declarations of conflicts of interest will be made under section 59(d) which will come into force by regulation and is not yet in force.seven

IN PROGRESS: THE TRANSITION OF THE INSTITUTE OF ARCHITECTURE OF BRITISH COLUMBIA

ThePGAoriginally governed five self-regulatory bodies, but was structured to incorporate additional regulatory bodies. The AIBC is moving toPGAand is expected to be fully transferred by fall 2022.8This transition will affect the composition of the AIBC Board as well as the ability of members to vote on by-laws.

AIBC Council composition updated to include greater public representation, consisting of seven elected Registered Councilors (up from ten), four appointed Lay Councilors and a non-voting Past President .9Once the transition is complete, only the AIBC board will be able to vote on the bylaws and members will be involved in a consultation process.ten

CHANGE IMPACT

The amendment aims to provide more flexibility and appropriate regulation for different professions according to their specific needs; however, many details have yet to be stipulated by regulation.

Footnotes

1 Architectural Institute of British Columbia, “Frequently Asked Questions.

2 Legislative Assembly of British Columbia, “Progress of Bills: 3rd Session, 42nd Legislature (2022).

3 Professional Governance Amendment Act 2022, in art. 67
[PGA].

4 British Columbia, Legislative Assembly,Official Record of Proceedings (Hansard)42nd Parl, 3rd Sess, Number 204 (11 May 2022) at 6595 (Hon D Eby) [Hansard].

5 Architectural Institute of British Columbia, “Professional Governance Act and Next Steps”.

6 Hansardabovenote 4 at 6589 (Hon D Eby).

seven PGA,abovenote 3 to art. 67.

8 Architectural Institute of British Columbia, “Professional Governance Act Transition.”

9 AICB,abovefootnote 1.

ten Same.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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