HONOURABLE MOIRA STILWELL
MINISTER OF ADVANCED EDUCATION AND
LABOUR MARKET DEVELOPMENT

BILL 11 — 2009

LABOUR MOBILITY ACT

This Bill allows certified workers from other Canadian jurisdictions to practise their occupations in British Columbia in accordance with Chapter Seven of the Agreement on Internal Trade, and, in particular, provides that British Columbia regulators must consider and apply Chapter Seven when workers who are certified for an occupation in a signatory jurisdiction apply to obtain British Columbia certification for that occupation. It allows the Supreme Court to consider whether Chapter Seven has been correctly applied and to make directions where that has not been the case, and allows the minister, and ultimately the Lieutenant Governor in Council, to ensure that provisions that may affect the ability of a certified worker from another Canadian jurisdiction to practise his or her occupation in British Columbia accord with this Act.

Contents
1  Definitions
2  Approved measures
3  Application of Agreement
4  Reviews
5  Mobility provisions
6  Conflicts
7  Agreement does not become law
8  Prohibition on private cause of action
9  Power to make regulations
10-24  Consequential Amendments
25  Commencement

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Definitions

1  In this Act:

"Agreement" means the Agreement on Internal Trade, signed in 1994 by the governments of Canada, the provinces, Yukon and the Northwest Territories, as amended from time to time;

"applicable BC regulator", in relation to an occupation, means the regulatory authority that is authorized to issue certification in British Columbia in relation to that occupation;

"approved measure" means a measure approved under section 2;

"BC equivalent occupation", in relation to an extraprovincial occupation, means an occupation in British Columbia that consists of a set of jobs that is the same as or is substantially similar to the set of jobs that constitutes the extraprovincial occupation;

"Canadian jurisdiction" means a jurisdiction the government of which is a party to the Agreement;

"certification", in relation to a worker, means a certificate, licence, registration or other form of official recognition issued to the worker by a regulatory authority of a Canadian jurisdiction that attests to the worker being qualified and, if applicable, authorized to do one or both of the following:

(a) practise a particular occupation in the Canadian jurisdiction;

(b) use in the Canadian jurisdiction a particular occupational title, designation or abbreviated title or designation;

"extraprovincial occupation" means an occupation in relation to which a worker holds a certification in a Canadian jurisdiction other than British Columbia;

"governing Act", in relation to an occupation, means the Act under which certification may be issued in British Columbia in relation to that occupation;

"measure" includes a practice, policy, standard and procedure;

"occupation" means a set of jobs that, with some variation, are similar in their main tasks or duties or in the type of work performed;

"occupational standard" means the skills, knowledge and abilities required for an occupation as established by a regulatory authority of a Canadian jurisdiction and against which the qualifications of an individual in that occupation are assessed;

"regulatory authority", in relation to British Columbia or another Canadian jurisdiction, means a person or other body, whether or not a governmental entity, that has, by an enactment, been granted authority to set or implement measures related to any of the following:

(a) the establishment of occupational standards or certification requirements;

(b) the assessment of the qualifications of workers against established occupational standards or certification requirements;

(c) the official recognition that an individual meets established occupational standards or certification requirements,

and, in relation to British Columbia, includes any other person or body that may be prescribed by the Lieutenant Governor in Council;

"terms" includes practice limitations and practice restrictions;

"worker" means an individual, whether employed, self-employed or unemployed, who performs or seeks to perform work for pay or profit.

Approved measures

2  An applicable BC regulator must not propose or apply, in relation to an occupation or an application for certification in relation to an occupation, a measure that constitutes an inconsistent measure referred to in paragraph 1 of Article 708 of the Agreement, unless that measure is approved by both the minister charged with administration of this Act and the minister responsible for the Act under which the occupation is or may be regulated.

Application of Agreement

3  (1) Subject to subsection (2), a worker who holds a certification in relation to an extraprovincial occupation may, if there is a BC equivalent occupation in relation to which certification may be issued,

(a) apply to the applicable BC regulator for certification in relation to that BC equivalent occupation, and

(b) practise the BC equivalent occupation in British Columbia

(i) after obtaining that certification, and

(ii) in accordance with the governing Act and the applicable regulations, bylaws, rules, resolutions and measures under that Act.

(2) A worker who holds a certification in relation to an extraprovincial occupation may, if there is a BC equivalent occupation, practise the BC equivalent occupation in British Columbia without obtaining the certification referred to in subsection (1) (b) (i), but only if

(a) the applicable BC regulator for the BC equivalent occupation is a prescribed regulatory authority,

(b) the BC equivalent occupation is a prescribed occupation or an occupation within a prescribed class of occupations, or

(c) certification is not required to practise the BC equivalent occupation in British Columbia.

(3) A regulatory authority that is authorized to issue certification in British Columbia in relation to an occupation must, without limiting any other obligations to which the regulatory authority is subject under this Act or Chapter Seven of the Agreement, ensure that there is published on the regulatory authority's website or on a readily accessible website of the government each measure that relates to certification of workers in relation to that occupation, including, without limitation,

(a) any measure that relates to applications referred to in subsection (1) (a) that are made in relation to that occupation, and

(b) the form of application to be used in relation to those applications.

(4) If a regulatory authority that is authorized to issue certification in British Columbia in relation to an occupation is provided with an application in relation to that occupation under subsection (1) (a), the regulatory authority

(a) must consider and determine the application in a manner consistent with the government's obligations under Chapter Seven of the Agreement,

(b) must issue any certification required by Chapter Seven of the Agreement, and

(c) may impose on any certification issued in response to the application any terms, conditions or requirements that the regulatory authority is authorized to impose on the certification in accordance with one or more of the following:

(i) Chapter Seven of the Agreement;

(ii) this Act or the governing Act, or any regulation, bylaw, rule, resolution or measure under this Act or the governing Act, to the extent that those terms, conditions or requirements are not inconsistent with the government's obligations under Chapter Seven of the Agreement.

(5) A worker who holds a certification in relation to an extraprovincial occupation and who is authorized to practise the BC equivalent occupation in British Columbia in accordance with this section may use, in British Columbia, the occupational title, designation or abbreviated title or designation applicable to the BC equivalent occupation.

Reviews

4  (1) In this section, "administrative review and appeal" does not include review by or appeal to a court.

(2) If, on a worker's application for certification referred to in section 3 (1) (a), the applicable BC regulator issues the certification on terms, conditions or requirements or refuses the application,

(a) the worker may exercise all rights of administrative review and appeal, if any, available under the governing Act in relation to the application, and

(b) if, after completing all of the administrative review and appeal processes referred to in paragraph (a), the worker alleges that the decision reached in respect of his or her application is not in accordance with this Act and Chapter Seven of the Agreement, the worker may, within 60 days after being notified of the decision and despite any enactment to the contrary, refer the decision to the Supreme Court for review.

(3) Each person or body conducting an administrative review or appeal referred to in subsection (2) (a) must consider and determine the administrative review or appeal in accordance with the obligations imposed on the government and the regulatory authority under the following:

(a) this Act;

(b) Chapter Seven of the Agreement;

(c) to the extent that it does not conflict with paragraphs (a) and (b), the governing Act.

(4) A reference to the Supreme Court under subsection (2) (b) must be made in the form of a stated case that identifies, as the question of law to be determined, whether the decision under review was consistent with the government's obligations under Chapter Seven of the Agreement.

(5) On a stated case under subsection (4) of this section,

(a) the applicable BC regulator, if other than the government, must deliver a copy of the filed notice of stated case and material to the government, and

(b) the court must

(i) determine whether the decision under review was consistent with the government's obligations under Chapter Seven of the Agreement, and

(ii) if the court determines that the decision was not consistent with the government's obligations under Chapter Seven of the Agreement, refer the application back to the applicable BC regulator with directions.

(6) In a direction under subsection (5) (b) (ii), the court must not interfere with a valid exercise of discretion by the applicable BC regulator if the court determines that the applicable BC regulator's discretion was exercised reasonably.

(7) If an application is referred back to the applicable BC regulator under subsection (5) (b) (ii), the applicable BC regulator must reconsider the application and make a decision on that application in accordance with those directions.

Mobility provisions

5  (1) In this section:

"authorizing enactment" means an enactment, other than the Health Professions Act, under which a regulatory authority may make a mobility provision;

"mobility provision" means a bylaw, rule, resolution, measure or other record that

(a) is made under an authorizing enactment, and

(b) affects or may affect the ability of a worker who holds a certification in relation to an extraprovincial occupation to practise the BC equivalent occupation in British Columbia.

(2) A regulatory authority's ability under an authorizing enactment to make a mobility provision includes the power to

(a) amend the mobility provision to make it comply with this Act, the regulations and the Agreement, and

(b) repeal the mobility provision if it does not comply with this Act, the regulations and the Agreement.

(3) The minister charged with the administration of the Act under which a mobility provision is made

(a) may request the regulatory authority to amend the mobility provision to make it comply with one or more of this Act, the regulations and the Agreement and, in doing so, may provide directions as to how the mobility provision should read or what it should or should not contain, or

(b) may request the regulatory authority to repeal the mobility provision.

(4) If the regulatory authority does not comply with a request made under subsection (3) within 60 days after the date of the request, the requesting minister may, by order, do one or more of the following in relation to the occupations to which the mobility provision applies:

(a) make a mobility provision that complies with this Act, the regulations and the Agreement;

(b) amend a mobility provision to make it comply with this Act, the regulations and the Agreement;

(c) repeal a mobility provision that does not comply with this Act, the regulations and the Agreement.

(5) In the event of a conflict between

(a) a mobility provision made or amended under subsection (2) (a) or (4) (a) or (b), and

(b) a bylaw, rule, resolution, measure or other record made under the applicable authorizing enactment,

the mobility provision referred to in paragraph (a) prevails to the extent of the conflict.

Conflicts

6  In the event of a conflict between a provision of this Act and

(a) any other enactment, or

(b) any other record of, or applicable to, an applicable BC regulator,

the provision of this Act prevails.

Agreement does not become law

7  Nothing in this Act renders the Agreement an enactment or otherwise gives to the Agreement the force of law.

Prohibition on private cause of action

8  (1) Subject to subsection (2), no legal proceeding lies or may be brought or continued against the government or another person to enforce or determine a right or obligation that is claimed or arises solely under the Agreement.

(2) Subsection (1) does not apply to a proceeding that is contemplated by Chapter Seventeen of the Agreement.

Power to make regulations

9  (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) prescribing regulatory authorities for the purposes of one or both of

(i) the definition of "regulatory authority" in section 1, and

(ii) section 3 (2) (a);

(b) prescribing occupations and classes of occupations for the purposes of section 3 (2) (b);

(c) respecting the form and content of applications for certification referred to in section 3 (1) (a);

(d) respecting information that must be collected and maintained by each applicable BC regulator respecting applications for certification under this Act;

(e) respecting reports that must be given by applicable BC regulators, including regulations respecting the timing, format and content of those reports;

(f) respecting the information that an applicable BC regulator must provide to an applicant referred to in section 3 (1) (a) in relation to the application, including regulations respecting the timing within which and the format by which that information must be provided;

(g) respecting any rules, orders, forms and directions that may be desirable for carrying out the provisions of this Act or for regulating procedure or establishing practice under this Act;

(h) if the parties to the Agreement have agreed to attempt to arrive at common certification requirements for an occupation, exempting that occupation from the application of this Act;

(i) regulations considered necessary or advisable for the purpose of more effectively bringing into operation this Act and to avoid or remedy any transitional difficulties encountered in doing so.

(3) In making a regulation under this Act, the Lieutenant Governor in Council may make different regulations in respect of different occupations or classes of occupations or in respect of different regulatory authorities or classes of regulatory authorities.

(4) Regulations under subsection (2) (i) may, for a period the Lieutenant Governor in Council specifies, suspend the operation of a provision of an enactment if that provision would impede the effective operation of this Act.

(5) Unless earlier repealed,

(a) a regulation under subsection (2) (h) is repealed 2 years after the coming into force of subsection (2) (h), and

(b) a regulation under subsection (2) (i) or (4) is repealed one year after that regulation is enacted.

Consequential Amendments

Accountants (Certified General) Act

10 Section 13 of the Accountants (Certified General) Act, R.S.B.C. 1996, c. 2, is amended by adding the following paragraph:

(c) persons who are entitled under the Labour Mobility Act to be admitted to membership in the association.

Accountants (Chartered) Act

11 Section 18 of the Accountants (Chartered) Act, R.S.B.C. 1996, c. 3, is amended

(a) by renumbering the section as section 18 (1), and

(b) by adding the following subsection:

(2) Nothing in this Act relieves the council from its obligation to admit as a member of the institute a person whom the council is obliged under the Labour Mobility Act to admit.

Applied Science Technologists and Technicians Act

12 Section 12 of the Applied Science Technologists and Technicians Act, R.S.B.C. 1996, c. 15, is amended

(a) in subsection (2) by striking out "the regulations and bylaws and may" and substituting "the regulations, the bylaws and the Labour Mobility Act, and may, subject to the Labour Mobility Act,", and

(b) in subsection (3) by striking out "The board" and substituting "Subject to section 3 (3) and (4) of the Labour Mobility Act, the board".

13 Section 13 is repealed and the following substituted:

Registration approval

13  The board must approve the registration of a person as a member

(a) on proof to the satisfaction of the board that all of the following apply:

(i) the person is of good character and reputation;

(ii) the person is a Canadian citizen or permanent resident of Canada;

(iii) the person's education and experience meet the requirements of the regulations and bylaws, or

(b) if the person is a person whose registration as a member the board is obliged under the Labour Mobility Act to approve.

Engineers and Geoscientists Act

14 Section 13 of the Engineers and Geoscientists Act, R.S.B.C. 1996, c. 116, is amended

(a) by repealing subsection (1) and substituting the following:

(1) The council must admit a person to membership in the association if

(a) both of the following apply:

(i) the person is a Canadian citizen or a permanent resident of Canada;

(ii) the person has submitted to the council the evidence referred to in subsection (1.1), or

(b) the person is a person whom the council is obliged under the Labour Mobility Act to admit to membership in the association.

(1.1) An applicant under subsection (1) (a) must submit to the council evidence satisfactory to the council of the following:

(a) that the applicant has either

(i) graduated in applied science, engineering or geoscience from an institute of learning approved by the council in a program approved by the council, or

(ii) passed examinations established by the bylaws of the association or passed examinations, requiring special knowledge in branches of learning specified by the council, of an association or institute approved by the council;

(b) that the applicant has passed special examinations required by the council;

(c) that the experience in engineering or geoscience work established by the bylaws has been obtained;

(d) that the applicant is of good character and good repute;

(e) that all examination and registration fees have been paid to the association. ,

(b) in subsection (3) by striking out "A person desiring" and substituting "A person referred to in subsection (1) (a) who desires",

(c) in subsection (4) by striking out "A person who is not a citizen or a permanent resident of Canada, whose qualifications are those required by subsection (1) (a) to (d)," and substituting "A person who is neither a citizen or permanent resident of Canada nor a person referred to in subsection (1) (b), whose qualifications are those required by subsection (1.1) (a) to (d),", and

(d) by repealing subsection (5) and substituting the following:

(5) A person to whom subsection (4) applies must be granted the licence referred to in that subsection on

(a) producing evidence satisfactory to the council of his or her qualifications under subsection (4), and

(b) paying the established fees.

Environmental (Species and Public Protection) Statutes Amendment Act, 2008

15 Section 16 of the Environmental (Species and Public Protection) Statutes Amendment Act, 2008, S.B.C. 2008, c. 33, is repealed and the following substituted:

16 Section 54 (1) is repealed and the following substituted:

(1) The regional manager or the regional manager's designate

(a) may issue an assistant guide licence to a person if the person meets the prescribed qualifications,

(b) must issue an assistant guide licence to a person if the person is a person to whom the regional manager is obliged under the Labour Mobility Act to issue an assistant guide licence, and

(c) may issue an assistant angling guide licence to a person if both of the following apply:

(i) the person is a citizen of Canada or a permanent resident of Canada;

(ii) the person is 19 years of age or older.

Foresters Act

17 Section 14 of the Foresters Act, S.B.C. 2003, c. 19, is repealed and the following substituted:

Registration

14  The council must admit a person to membership in the association as either a registered professional forester or a registered forest technologist if

(a) the person

(i) pays the registration fees,

(ii) passes the examinations established by the council,

(iii) passes the examinations in courses approved or specified by the council,

(iv) satisfies the thesis or professional report requirements of the council,

(v) has had experience in forestry work as determined by the council, and

(vi) is of good character and repute, or

(b) the person is a person whom the council is obliged under the Labour Mobility Act to admit to membership in the association.

Health Professions Act

18 Section 20 (4.1) of the Health Professions Act, R.S.B.C. 1996, c. 183, is amended by striking out everything after paragraph (c) and substituting the following:

may do one of the following:

(d) subject to paragraph (e) of this subsection, appeal the decision of the registration committee to the Supreme Court, and, for that purpose, the provisions of section 40 respecting an appeal from a decision of the discipline committee apply to an appeal under this subsection;

(e) if any or all of the bases on which the person wishes to challenge the decision of the registration committee are based on an allegation that the decision is not in accordance with the Labour Mobility Act or the Agreement as defined in that Act, refer the decision to the Supreme Court for review, and, for that purpose, section 4 of the Labour Mobility Act applies.

19 Section 50.54 is amended

(a) by repealing subsection (10) and substituting the following:

(10) The review board may make an order under subsection (9) directing the registration committee to grant registration with or without limits or conditions, or certification, as the case may be, only if the review board is satisfied that

(a) all of the following apply:

(i) the registration committee failed to act fairly in considering the application for registration or certification;

(ii) the registration decision

(A) was made arbitrarily or in bad faith,

(B) was made for an improper purpose,

(C) was based entirely or predominantly on irrelevant factors, or

(D) failed to take requirements under this Act into account;

(iii) the conditions described in subsection (11) (a) or (b) are met, or

(b) the person is a person to whom the registration committee is obliged under the Labour Mobility Act to grant registration or certification. ,

(b) in subsection (11) by striking out "subsection (10) (c)" and substituting "subsection (10) (a) (iii)", and

(c) by adding the following subsection:

(13) Nothing in this Act precludes a decision of a registration committee or of the review board from being referred to the Supreme Court for review under section 4 of the Labour Mobility Act.

Industry Training Authority Act

20 Section 8 (1) of the Industry Training Authority Act, S.B.C. 2003, c. 34, is amended

(a) in paragraph (g) by striking out "programs;" and substituting "programs to attest to the trainee being qualified to practise the trade or occupation to which the industry training credentials relate;", and

(b) in paragraph (h) by striking out "industry training recognition credential;" and substituting "industry training recognition credential to attest to the trainee being qualified to practise the trade or occupation to which the industry training recognition credential relates;".

Land Surveyors Act

21 Section 45 of the Land Surveyors Act, R.S.B.C. 1996, c. 248, is repealed and the following substituted:

Qualifications to become a land surveyor

45  A person must not be admitted as a land surveyor unless

(a) all of the following apply:

(i) the person is at least 19 years of age;

(ii) the person is a Canadian citizen or permanent resident of Canada;

(iii) the person has satisfied the board that the person has passed all required examinations and has complied with this Act and the bylaws, or

(b) the person is a person whom the board is obliged under the Labour Mobility Act to admit as a land surveyor.

Podiatrists Act

22 Section 6 of the Podiatrists Act, R.S.B.C. 1996, c. 366, is amended

(a) in subsection (2) by striking out "The person" and substituting "Unless an applicant under subsection (1) is applying in accordance with subsection (3) (c), the applicant", and

(b) by repealing subsections (3) and (6) and substituting the following:

(3) The board must

(a) register a person as a podiatrist possessing the qualifications required by this Act, and

(b) issue to the person a certificate of registration in the form the board determines

if

(c) the person is a person whom the board is obliged under the Labour Mobility Act to register as a podiatrist, or

(d) the person is not a person referred to in paragraph (c) and the person passes the examination referred to in subsection (2).

(6) If the board is not satisfied that an applicant has sufficient clinical experience, it may,

(a) in the case of an applicant applying in accordance with subsection (3) (d) who otherwise meets the requirements of subsections (1) to (3), issue an interim certificate valid for not more than one year to authorize the person to practise podiatry in a podiatry clinic or as an employee of a registered podiatrist approved by the board, or

(b) in the case of an applicant applying in accordance with subsection (3) (c), impose such terms, conditions and requirements as the board is authorized to impose

(i) under this Act, and

(ii) in accordance with the Labour Mobility Act.

Wildlife Act

23 Section 51 (1) of the Wildlife Act, R.S.B.C. 1996, c. 488, is repealed and the following substituted:

(1) A regional manager

(a) may issue a guide outfitter licence to a person if all of the following apply:

(i) the person is a citizen of Canada or a permanent resident of Canada;

(ii) the person has public liability insurance prescribed by regulation;

(iii) the person has other qualifications prescribed by regulation, and

(b) must issue a guide outfitter licence to a person if the person is a person to whom the regional manager is obliged under the Labour Mobility Act to issue a guide outfitter licence.

24 Section 54 (1) is repealed and the following substituted:

(1) The regional manager or the regional manager's designate

(a) may issue an assistant guide licence or an assistant angling guide licence to a person if both of the following apply:

(i) the person is a citizen of Canada or a permanent resident of Canada;

(ii) the person is 19 years of age or older, and

(b) must issue an assistant guide licence to a person if the person is a person to whom the regional manager is obliged under the Labour Mobility Act to issue an assistant guide licence.

Commencement

25  This Act comes into force on the date of Royal Assent.

 
Explanatory Note

This Bill allows certified workers from other Canadian jurisdictions to practise their occupations in British Columbia in accordance with Chapter Seven of the Agreement on Internal Trade, and, in particular, provides that British Columbia regulators must consider and apply Chapter Seven when workers who are certified for an occupation in a signatory jurisdiction apply to obtain British Columbia certification for that occupation. It allows the Supreme Court to consider whether Chapter Seven has been correctly applied and to make directions where that has not been the case, and allows the minister, and ultimately the Lieutenant Governor in Council, to ensure that provisions that may affect the ability of a certified worker from another Canadian jurisdiction to practise his or her occupation in British Columbia accord with this Act.