How will changes impact regulated professionals – and the employers that employ them?
“It’s no doubt that there’s an attack on the autonomy of regulated professions in Alberta.”
So says Jon Rossall, senior counsel at McLennan Ross, in response to new legislation proposed by the Alberta government.
Looking to protect free expression, the Regulated Professions Neutrality Act would potentially reshape how colleges and regulators oversee the conduct and education of thousands of professionals. It could narrow when they can investigate or discipline members for what they say or do off the clock.
The bill is part of a broader trend in which the provincial government “sees itself as potentially replacing or supplanting the role of the regulatory body in some instances,” says Rossall, pointing to increased political appointments on some professional councils as an example.
In that context, he says the Act “seeks to limit the scope of what a regulatory body, a college or a council, can do to its members, and in what context.”
What the neutrality act would change
The new legislation is designed to shield regulated professionals from discipline based on their personal beliefs and off-duty speech.
The Act aims to prevent professional regulatory bodies from policing the personal expression of engineers, nurses, lawyers, teachers and other regulated professionals in the province.
If passed, the Act would prevent professional regulatory bodies from disciplining members for “expressive” off-duty conduct — except in carefully defined circumstances, such as:
- threats of physical violence
- misuse of a professional’s position as a member of their profession with the intent to harm someone
- misconduct related to professional boundaries
- sexual misconduct.
But much of this off-duty behaviour — where a regulatory body is still allowed to discipline you for off-duty conduct unrelated to your practice — would already be considered criminal conduct, says Joel Fairbrother, partner at Bow River Law in Calgary.
“There's no question that … in some cases, your criminal conduct could affect your license, and [with] an employer, absolutely, criminal conduct could affect your employment,” he says, and while the bill purports to protect freedom of expression, that's already protected under the Charter of Rights of Freedoms.
Government updating regulators’ laws
One of Rossall’s deepest concerns is structural: the limited exceptions to the off-duty speech protections only apply if each profession’s own statute is amended to explicitly authorize them. The government has signalled it will update laws such as the Health Professions Act, Education Act, Legal Profession Act and others to permit sanctions in the listed circumstances, but those amendments are ultimately controlled by cabinet and the legislature.
“At the end of the day, if this government wants people to be able to say whatever the heck they want, then they can let them say whatever the heck they want, is what it comes down to,” he says.
“And the regulatory bodies will not be able to sanction their members for that.”
Ideally, once the Act passes, the government will amend all of the regulatory statutes to include that list of serious exceptions, so that every profession’s college can respond to threats, criminally related expression and clear abuses of power, says Rossall.
“And if they did, that solves my problem.”
Disciplining regulated professionals
The legislation would set “overarching principles” for how professional regulatory bodies regulate their members “and have paramountcy over other pieces of legislation that address the regulation of professionals,” according to the government.
“This means the rules in the Regulated Professions Neutrality Act would apply in case of a difference between its rules and the rules in another piece of legislation.”
The legislation seeks to limit the scope of what a regulatory body, college or council can do to its members, and in what context, says Rossall, who is based in Edmonton, such as speaking their mind on issues that may be seen as unrelated to their profession.
In July, a Vancouver nurse filed two human rights complaints, alleging discrimination because of her political beliefs.
Both regulators and employers are sensitive about what members or employees say in public that reflect poorly on the employer or the regulated profession, says Rossall.
And, for the most part, the regulatory bodies have used common sense in finding that distinction, he says: “They have declined largely to get involved where clearly this is not something related to a profession.”
But in legislating the boundary between personal opinion and professional conduct, says Rossall, the government’s message to regulated professionals is essentially: “Look, even if you're a doctor or a lawyer or an engineer or an architect, you can say whatever the heck you want in a cocktail party. And you ought not to be criticized simply because of what your profession is.”
However, if you’re saying it in your capacity as a regulated professional and the public believe that your professional status somehow gives you the enhanced ability to speak about that, then that might be a problem, he says.
“You are then seen to be speaking on behalf of your profession. And if that's the case, then you are going to have to be fair and follow the same rules as everybody else. And you might find yourself being investigated for unbecoming conduct if you step over a line.”
Employers disciplining off-duty expression
While Fairbrother doesn’t think the legislation will have a major impact, he says there might be an issue when it comes to employers disciplining regulated professionals.
Currently, if such a professional has been disciplined by the regulatory body, that could limit or end their license to practice unencumbered, which could mean the employer has grounds to discipline them or terminate their employment, he says.
“What this [proposed legislation] does is prevent that from becoming grounds in some circumstances because the professional body isn't able to discipline you for it. And so the employer can't rely on the fact that your license is somehow harmed.”
However, off-duty conduct in any job could be grounds for dismissal or discipline if it relates to the person’s job and somehow is embarrassing to the employer — though it's not always easy for an employer to do that, says Fairbrother, suggesting that the connection has “faulty logic” in some cases.
Another interesting feature? If a regulated professional feels they have been unfairly disciplined by the regulatory body, this bill makes it easier for the professional to appeal that decision to the Court of King's Bench, subject to a correctness standard, he says.
"For most tribunals … a judicial review is going to be on the basis of reasonableness, which is much harder to establish that they've breached it. So, this is a very clear shot across the bow by the Alberta government that if there's anything like this, we're going to give the professionals any tool at their disposal to prevent that from happening."
Cultural competency and DEI concerns
A further consideration to the new legislation concerns diversity, equity and inclusion (DEI) initiatives. Regulators would not be permitted to make cultural competency, unconscious bias or DEI education or training mandatory.
Both lawyers mention background considerations to the legislation, such as a 2021 move by the Law Society of Alberta to mandate cultural competency education from lawyers in a program called the Path.
The change was prompted by the National Truth and Reconciliation Report, says Fairbrother, and a small number of lawyers who opposed the mandate were disciplined for refusing to participate.
"There is a valid point by the professionals that said, ‘Look, this is just not what they're supposed to be doing. They’re supposed to be regulating us to make sure we're competent and that we're protecting, or that we're not harming, the public interest. They're not supposed to be doing cultural education.'"
And while the law society determined it had the right to impose that mandate, "the government has now stepped in to prevent that sort of thing from happening in the future," says Fairbrother, and regulators won’t be able discipline them for refusing to do such training.
The legislation is also stepping into the area of affirmative action hiring, says Rossall, citing the influence of a pushback against DEI in the United States.
The proposed legislation states that regulators "would not be permitted to arbitrarily assign value or blame or give people preferential or adverse treatment to achieve diversity, equity and inclusion, based on: race, colour, ancestry, national or ethnic origin, religious belief, political belief, conscientious belief, sex, sexual orientation, or gender identity.”
Regulatory bodies 'reviewing' legislation
In response to the Neutrality Act, the Law Society is conducting a “thorough review” of the draft legislation to fully understand what it means for the organization, the public and the legal profession in Alberta, according to Colleen Brown, manager, communications and stakeholder engagement.
“As part of that review, the Law Society will review our operations to determine what will be required to ensure compliance with the Regulated Professions Neutrality Act.”
As for the Association of Professional Engineers and Geoscientists of Alberta (APEGA), its current regulatory systems are “already very close to being in compliance with Bill 13,” and “minimal changes will be required,” says Gisela Hippolt‑Squair, director of member engagement and communications.
The organization does not have mandatory DEI but offers optional training on topics such as inclusive practice, she notes.
As for matters of discipline, “conditions are determined based on the specifics of each case and within our legislative authority. Any requirements imposed comply with current legislation and are applied to uphold professional standards.”
