3.  ROLE OF THE FAIRNESS COMMISSIONER

3.a  When will the Commissioner require a review?

Entry-to-Practice Reviews should not be done only when a problem has been identified. They are systemic reviews that consider, for example, whether registration requirements and practices that appear to be neutral may be having an unnecessary or unfair impact on some or all groups of applicants.

3.b  Determining the scope of a mandatory review

Discussing the scope

Before specifying the scope of a mandatory review, the Fairness Commissioner or OFC staff will discuss the matter with the regulatory body, ideally to agree on the scope that makes sense and the timing for the review. Ultimately, however, the Commissioner is responsible for determining the scope of each mandatory review. Regulators conducting voluntary reviews should also consider the priority areas on which their reviews should focus.

The goal is for reviews to achieve the greatest impact and to be manageable. Even when the legislation requires a topic to be included in mandatory reviews (i.e., necessity and relevance of requirements, reasonableness of fees, and efficiency of decision-making), the Commissioner will specify which topics should be analyzed in an in-depth way and those that may be analyzed in a summary way. The Commissioner cannot exempt these topics entirely, because the legislation requires that they be included.

In deciding on the scope, the Commissioner considers work the regulator has done to review and improve registration requirements and practices. The Commissioner also considers potential problem areas indicated by the OFC's analysis of Fair Registration Practices Reports and Audit Reports.

Registration requirements

An analysis of registration requirements is a component of all mandatory reviews. This is because section 19(2) of FARPA and 22.6(2) of RHPA Schedule 2 require these reviews to include an analysis of “(a) the extent to which the requirements for registration are necessary for or relevant to the practice of the profession.”

Sections 19(2) and 22.6(2) also state that reviews must include an analysis of registration fees, which are one kind of registration requirement. Specifically the analysis must include “(c) the reasonableness of the fees charged by the regulated profession in respect of registrations.”

The items listed below are all examples of registration requirements. It is unlikely that a single review would be expected to address them all.

• Qualifications for competence to practice
  • Education credentials
  • Language proficiency
  • Workplace or clinical experience
  • Successful completion of registration exams
  • Good character
  • Any special requirements for internationally trained applicants
• Other requirements for entering practice
  • Legal status
  • Professional liability insurance
• Submitting proof that qualifications and other requirements are met
  • Documentation required and alternatives acceptable to the regulator ⁵
• Payment of fees
  • A particular fee related to registration
  • Fees charged by qualifications assessment agencies
  • Fees and waivers of fees for access to records. ⁶

Registration practices

An Entry-to-Practice Review analyzes registration practices to ensure they are transparent, objective, impartial and fair. The items listed below are examples of registration practices drawn from the legislation.

• Providing information about:
  • Registration practices ⁷
  • The amount of time the registration process usually takes ⁸
  • Objective requirements for registration and where alternative means of satisfying them may be acceptable to the regulator ⁹
  • The fee scale related to registration ¹⁰

• Assessing qualifications, whether by the regulator or a qualifications assessment agency ¹¹
  • Implementing measures to ensure that regulators and qualifications assessment agencies make assessments in a transparent, objective, impartial and fair manner ¹²
• Making registration decisions
• Managing internal reviews or appeals
  • Providing the opportunity for applicants to make submissions in the internal review or appeal ¹³
  • Using different decision-makers than the ones who made the original decision ¹⁴
  • Informing applicants of any right they have to request further review of or appeal from the decision ¹⁵
• Granting applicants access to records ¹⁶
• Training assessors and decision-makers ¹⁷

• Making decisions in an efficient and timely way ¹⁸
  • Making registration decisions within a reasonable time ¹⁹
  • Giving applicants written responses and reasons for decisions within a reasonable time ²⁰
  • Providing an internal review or appeal within a reasonable time. ²¹

3.c  Possible scenarios for the scope of mandatory reviews

The following are hypothetical scenarios showing how the scope of Entry-to-Practice Reviews can differ. Note: In-depth analysis of a topic means that significant time and attention will be spent on it. Summary analysis means that the topic is included but not examined in detail. A summary analysis is a brief look at an issue as opposed to a comprehensive examination.

Scenario #1: Previous voluntary review

Three years ago, a mid-sized regulatory body conducted a voluntary review of its work-experience requirement. The review was extensive and participatory, and included an analysis of the justification for the requirement and its impact on both Canadian and internationally trained applicants. The review's recommendations have been implemented.

The Fairness Commissioner's research suggests that the registration-related fees for this regulatory body appear to be low. Any issues raised by the Commissioner as a result of the regulator's Fair Registration Practices Report have been dealt with. The regulator's Audit Report indicated compliance with the legislative requirements but suggested a few improvements about timely communication with applicants. The audit suggestions have been implemented. Most assessment decisions for this profession are made by a national body with which the regulator has a memorandum of understanding.

In this scenario, the Commissioner could specify the following scope for a mandatory review:

	In-depth analysis	Summary analysis
Registration requirements	necessity and relevance of qualifications for registration (apart from workplace experience) requirements for proving how the qualifications are met (apart from workplace experience)	necessity and relevance of the work-experience requirement reasonableness of fees
Registration practices		efficiency and timeliness of decision-making

Scenario #2: First review, bridging program

A large regulator has not yet conducted a review of its entry-to-practice requirements. The regulator's Audit Report indicates compliance with the legislative requirements. Data from the Fair Registration Practices Reports indicate a high success rate for internationally trained applicants. However, applicants and advocacy groups have expressed concern about a new mandatory bridging program for internationally trained applicants and the associated fee.

In this scenario, the Commissioner could specify the following scope for a mandatory review:

	In-depth analysis	Summary analysis
Registration requirements	necessity and relevance of qualifications for registration, with an emphasis on the mandatory bridging program requirements for proving how the qualifications are met reasonableness of fees for the mandatory bridging program	reasonableness of all other registration fees
Registration practices		efficiency and timeliness of decision-making

Scenario #3: First review, timeliness

A small regulator has not yet conducted a review of its entry-to-practice requirements. This profession has a low proportion of internationally trained applicants. No particular issues have emerged from the Fair Registration Practices Reports or Audit Reports. However, applicants have complained about the length of time to find out the results of internal appeals.

In this scenario, the Commissioner could specify the following scope for a mandatory review:

	In-depth analysis	Summary analysis
Registration requirements	necessity and relevance of qualifications for registration and of requirements for proving they are met	reasonableness of registration fees
Registration practices	efficiency and timeliness of internal appeal decisions	efficiency and timeliness of other decisions

Scenario #4: First review, assessment

A mid-sized regulator has not yet conducted a review of its entry-to-practice requirements. After reviewing the Fair Registration Practices and Audit reports, the Fairness Commissioner remains unclear about criteria used to assess the qualifications of internationally trained applicants and the accountability arrangements between the regulator and a qualifications assessment agency.

In this scenario, the Commissioner could specify the following scope for a mandatory review:

	In-depth analysis	Summary analysis
Registration requirements	necessity and relevance of qualifications for registration and of requirements for proving they are met	reasonableness of fees
Registration practices	assessment of qualifications for internationally trained applicants accountability arrangements to ensure transparent, objective, impartial and fair assessments by the qualifications assessment agency	efficiency and timeliness of decision-making

3.d  Time for conducting a review

Under the legislation, mandatory reviews must be conducted at times specified by the Fairness Commissioner. The time needed to conduct a review depends on the scope of the review and the nature of the consultation process. A review of a single fee or practice, for example, would be less extensive than an in-depth review of all qualifications for registration. Therefore, in discussing the scope of the review, the OFC and regulator will consider the length of time necessary to complete the review. This will help the Commissioner to determine the period within which the regulator must complete the review.

3.e  Support to regulators

The Fairness Commissioner provides the following types of support to Ontario regulators for Entry-to-Practice Reviews.

Working collaboratively

The Fairness Commissioner is committed to a respectful, collaborative relationship with regulatory bodies, recognizing their distinct roles. Before requiring a mandatory Entry-to-Practice Review, the Commissioner or OFC staff meet with the regulator to discuss timing, focus and scope. During the review, regulators are encouraged to keep in touch with their contacts at the OFC to discuss how the review is progressing and to raise any questions about the process.

Sharing information, trends and analysis

As OFC staff analyze information provided by Ontario regulators and other sources, they share helpful hints and trends. Among other benefits, this will reduce the information regulators have to gather on their own in their reviews. For example, it would be more efficient for the OFC to provide cross-country information on common topics where possible rather than requiring each regulator to collect it during the course of its review. Promising practices that Ontario regulators identify are an important source of information for the OFC to share more broadly.

The following are examples of informational supports that could be provided over time as the OFC builds its capacity in this area:

• Annual immigration data per occupation from Citizenship and Immigration Canada to show the number of entrants per occupation
• Summaries of promising developments in Ontario and elsewhere in relation to registration requirements and practices
• Innovative approaches to conducting reviews of registration requirements and practices.

Providing guidance

The Fairness Commissioner has produced this guide to help regulators conduct Entry-to-Practice Reviews. The guide will be enhanced as more experience is gained about what works well in the process. Policy staff from the Office of the Fairness Commissioner will be available to discuss issues and answer questions with individual regulatory bodies before, during and after the review.

Advocating changes

When an Entry-to-Practice Review recommends changes to legislation or regulations that will increase fair access to a regulated profession, the Fairness Commissioner can support the regulatory body by advocating agreed-upon changes to government. For example, the Commissioner could promote omnibus changes to regulations or legislation when several regulatory bodies state the need for regulatory or legislative change as a result of their reviews.

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