Table of Contents
I. Introduction
II. Organization of this Guide
III. Legal Obligations under Fair Access Legislation
1. Fair Registration Practices: General Duties
2. Fair Registration Practices: Specific Obligations
3. Review and Reporting Obligations
3.1 Other Compliance Obligations Involving the Provision of a Report
3.2 Annual or Period Reporting Obligations
Appendix 1
I. Introduction:
In this document, the Office of the Fairness Commissioner (OFC) is offering information and advice to organizations that regulate professions and compulsory trades (hereinafter regulators) to assist them to:
It represents the next iteration of the OFC's efforts, over the last 16 years, to work with regulators to help ensure that registration practices are “transparent, objective, impartial and fair".
Ontario's fair access legislative framework is set out in two provincial statutes, which are broadly similar in nature. These are FARPACTA (which governs the 14 non-health professions and Skilled Trades Ontario) and the Health Professions Procedural Code under Schedule 2 of the Regulated Health Professions Act, 1991 (or RHPA). This statute governs the practices and policies of the 26 self-governing health colleges.
This guide focuses on the provincial regulators that are subject to FARPACTA. A separate document for the health regulatory colleges may be found
here.
The purpose of this guide is two-fold:
- to provide regulators with information and advice to more fully understand how to comply with their obligations under FARPACTA; and
- to provide OFC staff with a tool to help them assess the degree to which a regulator is complying with its legal obligations.
This version has been updated to reflect recent amendments to FARPACTA, which introduce new legal obligations for regulators to:
- ensure that the people of Ontario have access to adequate numbers of competent regulated professionals;
- accept results of language proficiency tests approved under the Immigration and Refugee Protection Act (Canada);
- adhere to time limits for making decisions on applications for registration, internal reviews or appeals; and
- fulfil additional reporting obligations.
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For guidance on how regulators can comply with FARPACTA provisions limiting their ability to retain a Canadian Experience Requirement, please see:
Information and Advice on Alternatives to Canadian Experience.
This guide should be read in conjunction with the OFC's
risk-informed compliance framework and policy.
These documents form the basis upon which the OFC will work with regulators to improve registration outcomes for all applicants, including internationally trained individuals.
In general terms, the desired objectives include implementing modern and efficient assessment and registration processes, issuing high quality, consistent and fair decisions, and a commitment to adopting best practices.
The OFC believes that two key metrics to define a regulator's success relate to the average and maximum time required to issue registration decisions and the percentage of internationally trained applicants who are successfully registered.
As indicated previously, the legal obligations that regulators must meet are set out in FARPACTA. In general terms, these legal obligations may be divided into three broad categories:
- The general duty to provide registration practices that are transparent, objective, impartial and fair and to ensure that, as a matter of public interest, the people of Ontario have access to adequate numbers of qualified, skilled and competent regulated professionals.
- A list of specific duties that relate to:
- providing information to applicants;
- making timely decisions with accompanying responses and reasons, that comply with specified timelines;
- providing applicants with an internal appeal or review process within specified timelines;
- specifying the documentation that an applicant must provide to the regulator to assess their qualifications;
- ensuring that assessment decisions made by the regulator, or a third-party service provider, are transparent, objective, impartial and fair;
- providing training for individuals who make assessment and registration decisions;
- offering the right to the applicant to obtain access to relevant records pertaining to the application; and
- filing an emergency registration plan with the Fairness Commissioner.
- A series of review and reporting requirements that the Fairness Commissioner may oblige regulators to undertake based on OFC policy guidelines and /\or their specific circumstances. These relate to:
- The provision of reports on:
- the relevance and necessity of registration requirements, the timeliness of registration decisions, and the reasonableness of fees that are charged to applicants; and
- accountability frameworks that govern the relationships between a regulator and a third-party service provider.
- A regulator's annual or periodic reporting obligations to the OFC.
- The obligations that a regulator must fulfill when it undergoes an audit.
In this guide, the OFC will identify, where appropriate, the steps that it believes regulators should take to fulfill these legal obligations. The object is to provide greater clarity to regulators on how to comply with their legislative requirements.
In tandem with these legal obligations, this document also contains a companion list of fair registration best practices. The OFC believes that these approaches, when implemented, can materially improve the quality, timeliness and fairness of registration decisions, and generally reflect excellent client-service principles.
The distinction between legal obligations and best practices is an important one. Regulators are required to comply with legal obligations as a matter of law. The failure to do so may attract enforcement consequences. The list of legal obligations may be thought of as the core elements of a fair registration compliance framework. Best practices, on the other hand, represent approaches that regulators can choose to adopt to further improve their service offerings and how they interact with applicants.
In that respect, the guide is designed to motivate regulators to continually reflect on how they can incorporate the overarching principles of transparency, objectivity, impartiality and fairness into their day-to-day registration practices. By adopting best practices, a regulator can demonstrate leadership in its field and more fully embrace modern, forward-looking and empathetic regulatory processes.
It should also be noted that the selection and implementation of best practices can sometimes differ between regulators based on the nature of their mandates and business processes, and the character of the professions or trades for which they are responsible.
There are several further points to be made about these fair registration practices. First, while the OFC may suggest a certain pathway to achieve a desired result, it recognizes that each regulator is subject to unique circumstances and that there may be different ways to achieve a particular goal. The OFC will, therefore, apply an appropriate level of flexibility and discretion when conducting its assessments of registration practices. As a modern regulator, the OFC will tailor its assessment activities in a proportionate manner to focus on potential risks and opportunities to improve practices.
Second, the OFC recognizes that some regulators will be subject to their own enabling legislation which may provide the regulator with the discretion to develop its own measures and procedures to comply with its legal obligations. These obligations may be the same, or different from, those that apply under FARPACTA.
It should be noted, however, that under section 31 (1) of FARPACTA, if a provision of this Act or of a regulation made under this Act, conflicts with a provision of another Act or a regulation made under another Act, the FARPACTA provision or the regulation under FARPACTA prevails to the extent of the conflict.
Third, in this guide, the OFC will refer to certain statutory provisions, or use certain terminology to characterize its advice on how a regulator should approach a particular fair registration obligation or practice. When the OFC utilizes the term “shall" or “must", this will typically be associated with a legal obligation set out in a statute. These terms are associated with mandatory legal obligations.
When the OFC employs the term “should", this constitutes the OFC's advice that a particular approach or activity is desirable. However, such an activity would not be mandatory. Finally, the use of terms such as “may" or “can" would signal that regulators have a wider scope of discretion in terms of acting upon a particular piece of information or advice.
It is the OFC's intention to keep the list of these practices evergreen. We plan to review them regularly to ensure that they remain current, alongside the OFC's list of exemplary / best practices. The OFC views this collection as a common resource and invites regulators to assist us to keep these ideas timely, forward-looking and relevant.
On a related issue, on November 14, 2023, the government tabled Bill 149, Working for Workers Four Act, 2023. If passed, it will prescribe the criteria that must be met to comply with the obligation for a regulated profession to:
- assess applicant qualifications in a way that is transparent, objective, impartial and fair; and
- where a third party makes such assessments, take reasonable measures to ensure that the assessments are made in a way that is transparent, objective, impartial and fair.
The government has signaled that, if the bill passes, it will immediately begin work to develop the accompanying regulatory provisions to operationalize the legislation. It is intended that this process will be informed by a series of focused stakeholder consultation sessions. Once these provisions, and the associated regulations, regulations are finalized, the OFC will once again update these guidelines to address the new obligations that are established.
While the OFC has authored this guide for certain defined purposes, stakeholders have indicated to us that it could also be employed to meet other objectives. For example, the document could also serve as a useful tool to orient new board of director or council members on the key responsibilities outlined in the legislation. It could also be employed as a self-assessment tool.
Please note that this resource has been prepared to assist regulators to understand their obligations under FARPACTA. It is not intended to replace FARPACTA, and reference should always be made to the official version of the legislation.
It is the responsibility of regulators to ensure that they comply with the legislation. This resource does not constitute legal advice. The OFC will apply and enforce FARPACTA based on the facts that are identified. This resource does not affect the OFC's enforcement discretion in any way.
II. Organization of this Guide:
This guide is organized into three parts. Part I offers an introduction and Part II explains how regulators can apply this document to develop measures and procedures to meet their legislated obligations. The heart of the document, however, is found in Part III, which outlines the OFC’s information and advice with respect to legal obligations that apply to regulators.
To make it easier to follow, Part III is organized around the three categories of legal obligations as set out in FARPACTA: the general duties; specific duties; and reporting requirements.
To provide clarity for users of this guide, we have also linked each specific duty with the corresponding provision in the legislation. The guide then refers to the OFC’s information and advice for each specific legislative provision. The document also includes information on how the OFC will assess whether, and to what extent, a regulator has demonstrated compliance with the particular legal obligation. In that respect, the OFC will outline the type of actions and/or documentation that it will consider to formulate its compliance determinations.
To provide further clarity, each legal obligation is accompanied by one or more recommended examples of how regulators can achieve the required outcomes. The OFC also identifies a list of best practices to help regulators achieve the general duties of transparency, objectivity, impartiality and fairness prescribed in the legislation.
The fourth sub-section of Part III identifies the reporting requirements for regulators associated with preparing and filing their Fair Registration Practices Reports. The content of this section identifies:
- the nature of the regulator’s specific legal obligations, with links to the relevant sections in the legislation; and
- commentary on how the OFC will ascertain whether the regulator has met these obligations.
Sub-section five articulates the legal obligations that a regulator must fulfill should it become subject to an audit.
It is important to note that regulators are subject to legal consequences for failing to meet their legislative obligations. For example, under section 26 (1) of FARPACTA, if the Fairness Commissioner concludes that a regulated profession has contravened Part III or VI of the legislation (which deal with specific duties, the issuance of reports and cooperation on audits), the commissioner may issue a compliance order to the profession requiring that it do, or refrain from doing, the things specified in the commissioner’s order.
III. Legal Obligations under Fair Access Legislation:
1. Fair Registration Practices: General Duties
According to section 1 of FARPACTA, the purpose of the legislation is to:
“Help ensure that regulated professions and individuals applying for registration by regulated professions are governed by registration practices that are transparent, objective, impartial and fair".
This articulated purpose is reinforced in section 6 of the Act, which is described as the Fair Registration Practices Code. This code subsumes two distinct duties:
- the general duty “to provide registration practices that are transparent, objective, impartial and fair”; and
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the public interest duty for a regulated profession to work in consultation with a responsible Minister to “ensure, as a matter of public interest, that the people of Ontario have access to adequate numbers of qualified, skilled, and competent regulated professionals.”
Both duties are broad in nature and not defined further in the legislation.
General Duty to provide registration practices that are transparent, objective, impartial and fair.
While this general duty constitutes an overarching legal obligation in its own right, the four nested principles of transparency, objectivity, impartiality and fairness also provide a philosophical underpinning and interpretative framework for applying the more specific duties contained in the legislation.
While the courts in Ontario have not had occasion to interpret these provisions in the context of fair access legislation, the OFC has historically defined these terms in a common sense and straightforward fashion. The discussion below is designed to convey the OFC's current working definitions of these principles. These definitions should be considered as plain language interpretative aids.
Transparency:
To be transparent means that a regulator's instructions and guidelines must be clear, accurate and straightforward. This degree of clarity is necessary to enable applicants to easily follow the required steps in the registration process. Transparency also demands information that can be easily understood with clear milestones to allow applicants to monitor their progress in completing the registration process.
Objectivity:
To be objective means that a regulator's tools, assessment criteria, procedures and training processes are designed to enhance the consistency of decision-making across applicants. Such results should be achieved regardless of the individual rendering the decision, the particular context and/or whether the determination is made by the regulator or a third-party service provider. The decision-making systems should also invest in well-trained and qualified adjudicators to promote sound, valid and reliable decisions.
Impartiality:
To be impartial means that a regulator must make its decisions through a process that is free of bias that, if present, could produce subjective or tainted assessments or decisions. Sources of bias could include actual or perceived conflict of interest, preconceived notions, or a lack of cultural competency. Each regulator is responsible for identifying sources of bias and for taking appropriate steps to ensure impartiality, which would normally include enhanced training and procedures to follow where an issue of bias is suspected.
Fairness:
Fairness must sit at the heart of the registration process for applicants who wish to join a profession, college or compulsory trade. Fairness comprises several dimensions. It is often contextual in nature and not always amenable to precise definition. It can also overlap with the first three principles discussed.
At its core, fairness means that a regulator needs to identify the steps necessary, and the documentation required, for a candidate to complete the registration process. The assessment must be rational and above-board, and not place unnecessary and ill-conceived obstacles in the way of success. Everyone should have the same prospects irrespective of their country of training or background. The process needs to be expedient. And there must be a chance for an arms-length review if the individual disagrees with a decision. Those running the processes should embrace their responsibilities with a spirit of purpose, wisdom and empathy.
Public interest duty to consult with responsible ministers to achieve positive labour market outcomes.
Under section 6 (2) of FARPACTA, a regulated profession has a duty to work in consultation with its responsible minister to ensure, as a matter of public interest, that the people of Ontario have access to adequate numbers of qualified, skilled and competent regulated professionals.
To place this provision in some context, the provincial government has become increasingly more focused on addressing labour shortages in the professions and skilled trades. Qualified immigrants have become an indispensable source of labour to fill these gaps. The government has, in turn, become more active in the legislative and program domains to address registration barriers that immigrants often encounter.
Traditionally, regulators have focused on protecting the public interest by ensuring that applicants possess the academic and technical skills necessary to skillfully undertake their work. There is now a growing recognition that an undersupply of professionals can also directly compromise public health and safety and concurrently constrain economic activity.
In addition, everyone in the applicant registration ecosystem must strive to harmonize the strategy to bring higher numbers of skilled immigrants into the country with efficient registration practices to effectively utilize this talent. This dialogue must also foster system-wide solutions that enable internationally trained applicants to ultimately obtain meaningful employment in Canada that recognizes their skills, training and aspirations.
Regulators must also pay close attention to the needs of employers who will absorb the supply of new professionals and skilled tradespersons. They should be aware of the skillsets that are in demand and any unfounded concerns or stereotypes about the qualifications of internationally trained applicants.
To achieve these important objectives, regulators need to implement fair and efficient registration practices. These should focus on establishing registration requirements that are evidence based and that eliminate barriers that unreasonably delay the registration of qualified applicants. Regulators should also strive to adopt a client focused approach to registration.
In structuring their consultation sessions with responsible ministers, regulators should be prepared to discuss (1) the supply and demand characteristics of their profession or trade, (2) whether labour market shortages are likely to arise in the short, medium and longer-terms, (3) the steps that they are taking to help close the supply and demand gap and (4) their efforts to reach out to other stakeholders to address these complex issues in a systematic way.
Fair Registration Best Practices Related to Public Interest Duty to Consult with Responsible Ministers to Achieve Positive Labour Market Outcomes:
What follows are examples of how regulators can further advance the spirit and intent of this obligation to provide for a better experience and outcomes for all applicants and to increase the throughput of qualified candidates for licensure.
Evidence-based decision making
To fulfil their duty to consult with responsible ministers, regulators should critically examine the evidentiary basis for their current practices, research best practices in other professions and / or jurisdictions, and take steps to align their own registration processes with these practices.
This approach might include:
- Collecting and analyzing data on applicants who have pursued different registration pathways and how their performance as members of the profession correlates with broad measures of competence, such as complaints received and any consequential disciplinary action taken.
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periodically reviewing the regulator’s registration requirements to verify that they continue to be relevant and necessary, and to eliminate duplicative assessment methodologies.
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seeking feedback from applicants and proactively identifying opportunities for removing barriers, simplifying registration procedures and streamlining the registration process.
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exploring innovative ways to register qualified applicants more quickly, by deploying LEAN methodologies, provisional registration techniques, or parallel processing (e.g., allowing applications to proceed down the registration pathway while waiting for outstanding documentation).
Client-focused approach
Immigrants constitute an underutilized talent pool for addressing labour shortages. Regulators should, therefore, create a welcoming environment for internationally trained individuals through the elimination of barriers that compromise the fairness and efficiency of registration processes. These measures could include:
• reviewing registration processes to ensure that they do not unjustifiably limit the ability of regulators to attract or retain certain groups through the analysis of race-based and other demographic data for applicants and / or members of the profession;
• undertaking initiatives to allow the regulator to assess an applicant’s qualifications while they reside outside of Canada;
• considering and providing accommodations in cases where an applicant indicates that they cannot obtain the required documentation for reasons beyond their control;
• collaborating with education providers and employers to develop programs that may assist ITAs, and unsuccessful candidates, to obtain registration in the regulated profession; and
• assisting those who require specific credentials to complete their registration journeys by developing customized training and experiential learning plans for candidates who are missing certain discrete qualifications (i.e., micro-credentials).
2. Fair Registration Practices: Specific Obligations
Sections 7 through 12 of FARPACTA set out the specific requirements that regulators must meet to comply with their legislative obligations.
Obligation No 1: The Regulated Profession Shall Provide Information to Applicants about its Registration Practices and Requirements.
Section 7 of FARPACTA reads as follows:
A regulated profession shall provide information to individuals applying or intending to apply for registration by the regulated profession and, without limiting the generality of the foregoing, it shall provide:
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information about its registration practices;
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information about the amount of time that the registration process usually takes;
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objective requirements for registration by the regulated profession together with a statement of which requirements may be satisfied through alternatives that are acceptable to the regulated profession; and
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a fee scale related to registrations.
How the OFC Will Ascertain whether the Regulator Has Met Obligation No.1:
This list of statutory requirements is relatively straightforward. The key issue is whether the regulator is providing the prescribed type of information to applicants. To make its assessment, the OFC will obtain the necessary confirmation from a review of public information sources and discussions with the regulator.
Fair Registration Best Practices Related to Obligation No.1:
What follows are examples of how regulators can further advance the spirit and intent of this obligation to provide for a superior client experience and better outcomes for all applicants.
The information is organized on the regulator’s website in a way that it is easy to find, written in plain language, and is complete and accurate.
- The registration information outlined in section 7 is available in the French language (for some regulators, this will be a requirement already set out in their enabling legislation, and not purely a best practice).
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The information is presented in accessible and, when appropriate, multiple formats that are easy for applicants to retrieve and follow.
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The information lets applicants know whom they may contact if they require further guidance.
Obligation No.2: The Regulated Profession Shall Provide Timely Decisions, Responses and Reasons to Applicants
Section 8 of FARPACTA reads as follows:
A regulated profession shall,
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ensure that it makes registration decisions within a reasonable time;
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provide written responses to applicants within a reasonable time; and
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provide written reasons to applicants within a reasonable time in respect of all registration decisions and internal review or appeal decisions.
Section 9.1 of FARPACTA and Ontario regulation 261/22 made under the Act further particularize this obligation for domestic mobility applicants (DLMAs) and internationally trained individuals (ITIs) as follows:
Domestic labour mobility applicants:
Section 9.1 of FARPACTA reads as follows:
(2) A regulated profession shall, within 10 business days after receiving an application for registration from a domestic labour mobility applicant, provide a written acknowledgment of receipt of the application.
(3) The written acknowledgment of receipt shall include a statement as to whether the application includes everything required by the regulated profession in respect of the application and any other prescribed information.
(4) A regulated profession shall, within 30 business days after receiving an application for registration from a domestic labour mobility applicant and everything required by the regulated profession in respect of the application, make a registration decision and provide the applicant with,
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written communication of the registration decision;
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written reasons respecting a registration decision,
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to propose that the applicant not be granted registration,
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to not grant registration to the applicant, or
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to grant registration to the applicant subject to conditions; and
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information respecting the applicant’s rights to any internal review or appeal, including any applicable procedures and deadlines.
(5) A regulated profession shall, within 10 business days after making an internal review or appeal decision in respect of a domestic labour mobility applicant, provide the applicant with written communication of the decision made upon the internal review or appeal and written reasons respecting the decision.
Internationally trained individuals
Section 5 of Ontario Regulation 261/22 made under FARPACTA, reads as follows:
(1) A regulated profession shall comply with the time limits set out in this section for at least 90 per cent of the applications for registration received from internationally trained individuals each calendar year.
(2) A regulated profession shall, within 10 business days after receiving an application for registration from an internationally trained individual, provide a written acknowledgment of receipt of the application.
(3) The written acknowledgment of receipt shall include a statement as to whether the application includes everything required by the regulated profession in respect of the application.
(4) A regulated profession shall, within six months after receiving an application for registration from an internationally trained individual and everything required by the regulated profession in respect of the application, make a registration decision and provide the applicant with,
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written communication of the registration decision;
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written reasons respecting a registration decision,
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to propose that the applicant not be granted registration,
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to not grant registration to the applicant, or
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to grant registration to the applicant subject to conditions; and
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information respecting the applicant’s rights to any internal review or appeal, including any applicable procedures and deadlines.
(5) A regulated profession shall, within 10 business days after making an internal review or appeal decision in respect of an internationally trained individual, provide the applicant with written communication of the decision and written reasons respecting the decision.
Please see Appendix 1 of this document for a summary of the time limits contained in the provisions noted above.
How the OFC Will Ascertain whether the Regulator Has Met Obligation No.2:
Section 8 of FARPACTA imposes an obligation on regulators to ensure that their registration decisions, and other nested steps in the process, are made within a “reasonable time". To assess this issue, and in situations where specific timelines are not imposed, the OFC would typically review by the regulator's website for information about timelines or service standards relating to acknowledging applications, communicating registration decisions and reasons, and communicating appeal or review decisions.
The OFC will also analyze information that regulators report on decision making time frames in their annual Fair Registration Practices Reports to ensure adherence to the time limits noted above for DLMAs and ITIs, and follow-up accordingly.
After analyzing the reported decision-making timelines, the OFC will consider the following factors in selecting its compliance approach:
- The extent to which a regulator’s statistics deviate from the time limits prescribed by legislation or regulation.
- Evidence of material improvements in timeliness of decision-making over the last reporting cycle.
- Comparisons to performance standards and results achieved by regulators that are similarly situated.
- Broad trends in confirmed applicant complaints.
Fair Registration Best Practices Related to Obligation No.2:
What follows are examples of how regulators can further advance the spirit and intent of this obligation to provide for a superior client experience and better outcomes for all applicants:
- the regulator informs applicants about potential delays, and estimated dates for providing responses, decisions or reasons when delays are incurred;
- the regulator puts formal procedures in place to measure its performance against service standards that go beyond legislated time limits;
- the regulator benchmarks its timelines against those for regulators that are similarly situated.
- the regulator periodically reviews its service standards and timelines to identify opportunities to enhance efficiency and ensure that they do not disadvantage one group of applicants as compared to others.
Obligation No.3: The Regulated Profession Shall Provide Applicants with an Internal Review of or Appeal from its Registration Decisions.
Section 9 of FARPACTA reads as follows:
(1) A regulated profession shall provide an internal review of or appeal from its registration decisions within a reasonable time.
(2) A regulated profession shall provide an applicant for registration an opportunity to make submissions with respect to any internal review or appeal.
(3) A regulated profession may specify whether submissions in respect of an internal review or appeal are to be submitted orally, in writing or by electronic means.
(4) A regulated profession shall inform an applicant of any rights the applicant may have to request a further review of, or appeal from, the decision.
(5) No one who acted as a decision-maker in respect of a registration decision shall act as a decision-maker in an internal review or appeal in respect of that registration decision.
How the OFC Will Ascertain whether the Regulator Has Met Obligation No.3:
The crux of this section is the requirement that a regulator provide an internal review or appeal mechanism from its registration decisions within a reasonable time, and that the process adheres to the steps for procedural fairness outlined in those provisions.
To ascertain whether the regulator has met this obligation, the OFC will examine:
- the steps that the regulator has taken to ensure that it operates a credible internal review or appeal mechanism;
- the adequacy of the regulator's published materials which identify the opportunities for applicants to make submissions with respect to internal reviews or appeals;
- the average time that a regulator takes to complete a review or appeal from the date of the initial request to the date that the process is completed;
- how the regulator's practices measure up against those of regulators that are similarly situated;
- how the regulator provides information to applicants about the formats in which submissions can be made (i.e., orally, in writing or by electronic means);
- how the regulator informs applicants about their rights to request a further review of, or appeal from, a decision;
- the regulator's published materials or other documentation to confirm that no-one who acted as a decision-maker in respect of a registration decision also served in the same capacity in an internal review or appeal in the same matter; and
- whether the regulator's processes may potentially prejudice one category of applicants compared to another.
Fair Registration Best Practices Related to Obligation No.3:
What follows are examples of how regulators can further advance the spirit and intent of this obligation to provide for a better experience and outcomes for all applicants:
- the regulator puts formal procedures in place to measure its performance against its timelines and / or service standards and publishes the results.
- the regulator also provides information regarding:
- the specific steps that an applicant must follow to complete the review or appeal process, and the sequencing of those steps;
- the issues that can or cannot be appealed, where applicable;
- the grounds upon which an internal review committee will agree to reconsider an initial decision; and
- precedents regarding the content and format of submissions.
- the regulator safeguards the impartiality of its internal review and appeal decisions by:
- following well-documented procedures;
- basing its decisions only on relevant criteria and evidence;
- informing decision-makers involved in internal reviews and appeals about potential sources of bias and the steps that they should take if they feel that they cannot review a case impartially;
- engaging legal counsel to periodically review the regulator's review and appeals processes.
- if a hearing is required, the regulator provides reasonable accommodation to allow applicants to effectively participate in the process; and
- if the regulator charges fees for internal reviews or appeals, those fees do not exceed the actual costs associated with those proceedings.
Obligation No 4: The Regulated Profession Shall Provide Information to Applicants on what Documentation of Qualifications Must Accompany an Application.
Section 10 (1) of FARPACTA reads as follows:
A regulated profession shall make information publicly available on what documentation of qualifications must accompany an application and what alternatives to the documentation may be acceptable to the regulated profession if an applicant cannot obtain the required documentation for reasons beyond his or her control.
How the OFC Will Ascertain whether the Regulator Has Met Obligation No.4:
This is also a straightforward requirement. The OFC will seek information from the regulator on how it communicates the information identified in this section to individuals applying, or intending to apply, for membership in the profession or compulsory trade. This inquiry would ordinarily include a review of the regulated profession’s website to confirm that the required information is available and easily accessible, and to verify that other publicly available communication materials are provided to applicants.
Fair Registration Best Practices Related to Obligation No.4:
What follows are examples of how regulators can further advance the spirit and intent of this obligation to provide for a better experience and outcomes for all applicants:
- The information that the regulator communicates to prospective applicants should identify:
- the required content of the documents organized in an easy to access format;
- the required format of the documents, including the translation format, if applicable;
- the required method for sending the documents to the regulator;
- how to contact the regulator to explore other alternative documentation that may be acceptable beyond the examples that have been posted publicly. (This information would be particularly important where the applicant cannot obtain the required documentation for reasons beyond their control).
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The identified information is available in the French language (for some regulators, this may already be a requirement in their enabling legislation, and not purely a best practice).
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The regulator allows the applicant to submit the documentation directly as opposed through intermediaries, with appropriate safeguards.
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The information provided allows the applicant to readily discern who the individual may contact if they require further information.
The OFC strongly encourages regulators to take a fair and generous approach to accepting alternative documents in situations where the applicant will experience significant difficulties in obtaining these materials, and the registration of the applicant would not otherwise compromise the public interest. Regulators should, at all times, seek to facilitate the registration of competent applicants and not place unnecessary barriers in their paths.
Obligation No 5: The Regulated Profession Shall Assess Qualifications of Applicants in a Way that is Transparent, Objective, Impartial, and Fair.
Section 10 (2) of FARPACTA reads as follows:
If a regulated profession makes its own assessment of qualifications, it shall do so in a way that is transparent, objective, impartial and fair, and if it relies on a third party to assess qualifications, it shall take reasonable measures to ensure that the third party makes the assessment in a way that is transparent, objective, impartial and fair.
How the OFC Will Ascertain whether the Regulator has Met Obligation No.5:
The assessment of applicant qualifications can often form the most critical part of the registration process. Decisions about qualifications determine whether an individual may enter a profession, how quickly that process can occur and what additional steps, if any, the candidate must take to advance their application.
In assessing the qualification of applicants, many regulators delegate components of this process to third party service providers (“third parties”). Whether it is the regulator or third party that conducts the assessment of qualifications, the legislation requires that the process be conducted in a transparent, objective, impartial and fair manner.
In addition, this provision requires that the regulator take “reasonable measures” to ensure that the third party conducts the assessment in a way that is transparent, objective, impartial and fair. Note that the term “reasonable measures” is neither defined in FARPACTA nor its regulations.
Section 13 (3) (d) of FARPACTA is also relevant to this discussion. This provision specifies that it is the function of the Fairness Commissioner to:
“Monitor third parties relied upon by regulated professions to assess the qualifications of individuals applying for registration by a regulated profession to help ensure that their assessments are based on the obligations of regulated professions under the Act”.
While the OFC relies on this provision to obtain information from third parties and to broadly review their work, it will typically look to, and rely upon, regulators to fulfill their obligation under section 10 (2) of the Act to “take reasonable measures to ensure that the third party makes the assessment in a way that is transparent, objective, impartial and fair”.
To explore whether the regulator has met this obligation, the OFC will assess the regulator’s processes for the hallmarks of these attributes. The OFC will also seek information from the regulator about the measures it takes to hold its third-party service providers accountable for transparent, objective, impartial and fair assessments and to determine if these measures are reasonable and applied consistently.
For assessment methods undertaken by the regulator, the OFC will review relevant information sources to verify:
- the connection or link between the assessment methods and the registration requirements or specific competencies that they are intended to measure;
- the measures that the regulator takes to ensure that its assessment methods and criteria are methodically and psychometrically sound;
- how the regulator ensures that only qualified assessors make the assessment decisions; and
- how the regulator informs applicants about the assessment criteria, methods and results of the assessment.
Where the regulator delegates any part of the assessment function to a third party, the OFC will request relevant materials that identify the measures that the regulator takes to hold its third-party service providers accountable for assessments that are transparent, objective, impartial and fair, and to consider whether these measures are reasonable in the circumstances. The OFC will also solicit information on whether the regulator has taken reasonable measures to inform itself about the way the third party undertakes its assessment processes.
While the legislation does not define what constitutes a transparent, objective, impartial or fair assessment, the OFC believes that the adoption of assessment practices listed below embody these four principles. Consequently, the OFC will consider these practices, among others, when determining compliance with this legislative obligation:
- the regulator has established clear and objective criteria for making assessment and registration decisions, which are clearly documented and consistently followed;
- the regulator only insists on reviewing hard to obtain documents where there is a strong, bona-fide rationale or justification to review them and where the public interest would not otherwise be compromised;
- the regulator recognizes international educational credentials unless there is evidence of substantive differences between those and Canadian credentials;
- the regulator implements measures to help ensure that its assessments are valid, reliable and free from bias;
- the regulator ensures that all individuals who assess qualifications, or make registration decisions, possess the relevant knowledge and skills, and receive adequate training; and
- the regulator clearly documents its expectations to third-party service providers.
The OFC will especially wish to review documentation that links the assessment methods employed with the registration requirements or specific competencies necessary for entry-to-practice. This analysis may include a review of competency frameworks, blueprints and/or related documentation. The OFC would also consider any psychometric review that attests to the validity and reliability of the assessment method.
Similarly, the OFC will explore whether the regulator has established any qualifications for its assessors and, if these exist, whether the regulator selects individuals in accordance with the skills necessary to do the required work. The OFC will also review how often and clearly the regulator communicates with applicants to explain the nature of the assessment process to them.
Finally, the OFC will analyze the measures that the regulator has put into place to hold third parties accountable, and whether these measures are reasonable.
The OFC recognizes that the context within which each third party provides assessment and testing services is unique. Consequently, it will take these considerations into account in determining whether the measures that the regulator has taken are reasonable in the circumstances. The office will consider the following factors:
• the nature of the assessment decisions made by the third party and the extent to which they influence the regulator’s overall decision-making process;
• whether these decisions are binding on the regulator or whether the regulator retains the discretion to override them where considerations of fairness so dictate;
• whether the regulator has established service standards that stipulate the average and maximum timeframes for the provision of services by third parties to applicants and the associated reporting protocols where these standards have not been met;
- he extent to which the regulator exerts contractual control over material aspects of the third party’s assessment methods or procedures;
- whether there is a contract in place between the regulator and the third party that establishes service standards for the processing of applications and, if so, whether the agreement affords the regulator the necessary authority to rectify non-compliance with these standards where the circumstances so dictate;
- whether there is evidence that the third party’s procedures have produced unfair or arbitrary assessments;
- whether the regulator has the capacity to verify how well the third party adheres to the agreed upon service standards; and
- whether the third party is subject to a recognized quality assurance framework.
Fair Registration Best Practices Related to Obligation No.5:
What follows are examples of how regulators can further advance the spirit and intent of this obligation to provide for a better experience and outcomes for all applicants:
- To help applicants better understand the regulator’s assessment criteria, the regulator’s registration materials for applicants should provide:
- examples of scenarios and/or illustrations to explain the relevant assessment criteria and how an applicant’s qualifications will be assessed against those factors;
- information to help applicants better understand the potential outcomes of the assessment process;
- information about the accommodation of special needs, which may include examples of situations where accommodations have been provided in the past; and
- o online self-assessment tools.
- To frame objective assessment decisions, the regulator should:
- express its assessment criteria in measurable units to minimize subjectivity in assessment decisions; and
- establish specific scores or grading scales used in the assessment methods that measure competencies or performance.
- The regulator should establish a process to periodically evaluate the educational programs it assesses to ensure that its criteria remain relevant and valid.
- The regulator should document any potential sources of bias, and/or the circumstances that may compromise impartial assessment decisions and educate its assessors about these considerations.
- The regulator should similarly ensure that the process through which an applicant can appeal the assessment of their qualifications is straightforward and not cost prohibitive.
- If there a potential for a delay in scheduling assessment appointments or making assessment decisions, the regulator should establish procedures to inform applicants about these delays and provide estimated scheduling/decision dates.
- With respect to third-party service providers, the regulator should ensure that:
- the examination protocols employed by its third-party service providers are subject to periodic psychometric testing;
- it considers the periodic re-tendering of third-party service assignments as a way to ensure that it is receiving the highest quality services in the most cost-effective fashion;
- it regularly reviews, and refreshes, its memoranda of understanding or agreements with its third parties to ensure that the necessary accountability provisions are in place and that the fees charged to applicants are reasonable;
- the agreements that it enters into with third parties address such issues as the protection of personal information and appropriate cyber-security measures;
- in conjunction with its third parties, it establishes robust protocols to communicate with applicants in situations where assessment or examination schedules are disrupted;
- where it requires clinical examinations for registration purposes, its third party is taking reasonable steps to develop virtual, in addition to, paper-based testing options.
- there is a mechanism in place to resolve disputes where the contents of an agreement between a regulator and a pan-Canadian assessment or testing agency may be inconsistent with the provisions of FARPACTA.
Obligation No 6: The regulated profession shall accept English or French language proficiency test results according to the requirements set out in Ontario Regulation 261/22 made under FARPACTA.
Section 10.1 of FARPACTA reads as follows:
A regulated profession shall ensure that it complies with any regulations respecting English or French language proficiency testing requirements.
Section 4 of Ontario Regulation 261/22 made under FARPACTA, reads as follows:
(1) An applicant for registration satisfies a regulated profession’s English or French language proficiency testing requirement if the applicant demonstrates, within two years before the date of making the application, English or French language proficiency at a level satisfactory to the regulated profession on a test that is approved under the Immigration and Refugee Protection Act (Canada) for use in assessing language proficiency.
(2) Subsection (1) does not limit a regulated profession's ability to accept other examinations, tests or assessments as evidence of English or French language proficiency.
(3) An applicant's results on a test referred to in subsection (1) are deemed to be valid for the purposes of this Regulation until the applicant receives a registration decision or, where an internal review or appeal occurs, receives an internal review or appeal decision.
(4) This section applies only in respect of new applications for registration received by a regulated profession after the first anniversary of the day this section comes into force. (i.e., by July 1, 2023).
How the OFC Will Ascertain whether the Regulator Has Met Obligation No. 6:
Most professional regulators in Ontario identify the ability to communicate effectively as a core skill that applicants must possess to practice their chosen profession or trade in a safe and competent fashion. These requirements are worded in different ways, but they essentially require that applicants demonstrate language proficiency at levels satisfactory to the regulator through one or more of the language tests that the regulator prescribes.
This specific legal obligation applies to those regulated professions that require applicants to demonstrate English or French language proficiency by submitting results that they receive from a language proficiency testing provider.
It obliges the regulated profession to accept the tests that are approved under the Immigration and Refugee Protection Act (Canada) for use in assessing language proficiency. These tests are used by Immigration, Refugees and Citizenship Canada (IRCC) and are commonly required for immigration purposes.
As of January 1, 2024, these tests were:
- The International English Language Testing System (IELTS) General Test.
- The Canadian English Language Proficiency Index Program (CELPIP) General Test.
- Pearson Test of English (PTE) Core Option
- The test d’évaluation de français (TEF Canada).
- The test de connaissance du français (TCF Canada).
Regulators should be aware that the list of approved tests may change over time.
The regulation contemplates that a regulated profession may prescribe its own profession-specific minimum scores for these tests. These minimum scores may differ from the scores adopted by IRCC. The regulator may also accept tests or methods other than those accepted by IRCC to demonstrate language proficiency if the regulator also accepts IRCC test results.
In addition, test results are deemed to be valid until the applicant receives a registration decision or, where an internal review or appeal occurs, until the applicant obtains an internal review or appeal decision. This provision is designed to ensure that the currency of an applicant's test results does not time out when the registration process is elongated.
To determine whether the regulator has met this obligation, the OFC will verify whether:
- It is the regulator's practice to accept the tests used for immigration purposes, as specified in the Ontario Regulation 261/22.
- The regulator accepts the corresponding test results as valid proof of language proficiency if they were completed within two years before the date of making the application.
- The regulator accepts the corresponding test results as valid proof of language proficiency if they fall within a range that the regulator has established to be satisfactory.
- The regulator treats the test results as valid until the applicant receives a registration decision or, where an internal review or appeal occurs, obtains an internal review or appeal decision.
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The regulator informs the individuals responsible for the assessment of applicant credentials of these legal requirements.
To verify that the regulator demonstrates those five attributes, the OFC will typically review available documentation including policies and / or guidelines for assessors on this topic, as well as the contents of public-facing internet sites, which prescribe language proficiency requirements for prospective applicants.
In addition, where a regulator specifies passing scores for these examinations that are higher than those stipulated by IRCC, the OFC will ask the regulator for evidence to justify the rationale for imposing language testing requirements on applicants that are more stringent than those specified for immigration purposes.
Fair Registration Best Practices Related to Obligation No. 6:
The OFC recognizes that the regulators will typically build language proficiency requirements into their registration practices to protect public health and safety.
However, in establishing these rules, they should also consider immigration and labour mobility objectives and obligations, and to take reasonable steps to identify and remove unnecessary barriers for internationally trained applicants.
In addition, language proficiency should be seen as a journey for applicants where full proficiency may not achieved at the point in time when a candidate is otherwise qualified to begin work in a profession or skilled trade. In these situations, regulators should exhibit flexibility to let these candidates through the registration gate, coupled with a strategy to enhance these competencies as part of a continuing professional development plan.
What follows are examples of how regulators can further advance the spirit and intent of this legal obligation to help provide for a better experience and outcomes for all applicants:
- The regulator`s language proficiency standards should align with the skill level required to practise the profession or trade and / or pass the regulator's registration examinations. These standards should not exceed the proficiency levels that are commonly accepted in employment settings and should also be referenced to the Canadian Language Benchmark rating system.
- The regulator should provide applicants with a variety of options on how they can demonstrate language proficiency in English or French. These may include:
- identifying countries where the language of education is either English or French and presumptively deeming applicants who have graduated from these jurisdictions to meet the regulator's language proficiency requirements (a practice followed by the Ontario College of Teachers)
- providing applicants with the option to submit documentation establishing that they received their primary or secondary education in English or French and deeming those applicants to have met the relevant requirements; and
- offering applicants the option to submit documentation to establish that they have been employed or performed profession / trade-related tasks in an environment where the language of communication is English or French, or both, and assessing language proficiency against this experience.
- In tight labour supply environments, regulators may decide to licence internationally trained applicants provisionally subject to the condition that they improve their language proficiency skills while serving the public in the workplace (an approach that the College of Nurses of Ontario has recently taken.)
- There may also be situations in which an applicant is able to safely practice without reaching language proficiency at levels that a regulator normally requires.
In this situation, a regulator may, on-a case-by-case basis, review the alternative that an applicant proposes with a view towards exempting the individual from the ordinary language proficiency requirement and grant an exemption, subject to the applicant's agreement to satisfy specific conditions, including the availability of a translator (a practice followed by the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario).
- Where a regulator has already established alternatives to its language proficiency requirements, or wishes to introduce new ones, it should:
- regularly review its language proficiency criteria to confirm that they remain relevant and necessary for the practice of the profession or trade, and whether there are alternatives and / or innovative ways to demonstrate language competencies;
- adopt the best set of alternatives that match the profession's or trade's individual context;
- ensure that language proficiency alternatives are accessible and affordable;
- regularly engage with employer groups to ensure that the regulator's approach to language proficiency is aligned with employer needs given labour market shortages in many sectors of the economy;
- identify and focus on the outcomes that the language proficiency requirement seeks to achieve;
- recognize the variety of ways that individuals from different cultures develop language skills and abilities, and adopt successful approaches that other regulators or jurisdictions have implemented;
- leverage technology and web-based tools to capture process efficiencies; and
- in consultation with the post-secondary educational sector, offer applicants improved access to individual language courses, bridging programs and micro-credential and / or advanced-standing opportunities to enable them to fulfill any missing language competencies in a timely fashion.
Obligation No 7: The Regulated Profession Shall Ensure that Training is Provided to the Individuals Assessing Qualifications and Making Registration, or Internal Review or Appeal Decisions.
Section 11 of FARPACTA reads as follows:
A regulated profession shall ensure that individuals assessing qualifications and making registration decisions or internal review, or appeal decisions have received training that includes, where appropriate,
a) training on how to hold hearings; and
b) training in any special considerations that may apply in the assessment of applications and the process for applying those considerations.
How the OFC Will Ascertain whether the Regulator has Met Obligation No.7:
The individuals who make assessment, registration, internal review or appeal decisions are exercising important authorities that will often have significant consequences for applicants. It is important, therefore, that they possess the skills and knowledge necessary to correctly analyse individual situations and to exercise their judgment in a fair and consistent manner.
It is also critical that these decision-makers possess an appropriate level of cultural competency since that they will regularly deal with internationally trained applicants from a broad array of countries and with distinct educational backgrounds and work experiences.
In order to ascertain whether a regulator has met this obligation, the OFC will seek information from the regulator on the training that it provides to decision makers and confirm that the required training topics identified in section 11 of FARPACTA have been appropriately addressed. This inquiry would ordinarily include a review of relevant documentation, including an assessment of orientation and initial training materials for new members undertaking this work and the nature of continuing professional development.
In more particular terms, the OFC will seek confirmation that the following topics have been addressed in the relevant training materials:
- how to assess qualifications, and to issue clear, concise, coherent and easy-to-understand decisions;
- the objectives of fair access legislation and the four guiding principles;
- cultural competency; and
- how to issue impartial and objective decisions in the context of assessment, registration and appeal processes.
Fair Registration Best Practices Related to Obligation No.7:
What follows are examples of how regulators can further advance the spirit and intent of this obligation to provide for a better experience and outcomes for all applicants:
- the regulator should pair experienced decision-makers with individuals who are new to the role;
- the regulator should provide opportunities to discuss difficult cases, while ensuring that the presiding member(s) retains authority to make the final decision;
- the regulator should ensure that individuals who assume this work understand their role and can exercise their functions independently and, in an objective and arms-length fashion; and
- the regulator should retain a trusted expert, with legal and adjudication expertise, to periodically review its training materials and to provide input on how they could be improved substantively and from the perspective of procedural fairness.
The OFC will shortly begin consultations on creating an inclusion and anti-racism lens to help regulators make culturally competent registration decision. Once this work is completed, this section will be updated.
Obligation No 8: The Regulated Profession Shall Provide Applicants with Access to their Records.
Section 12 of FARPACTA reads as follows:
(1) Upon the written request of an applicant for registration by a regulated profession, the regulated profession shall provide the applicant with access to records held by it that are related to the application.
(2) Despite subsection (1), a regulated profession may refuse access to a record if,
(a) the record or any information in the record is subject to a legal privilege that restricts disclosure of the record or the information, as the case may be;
(b) another Act, an Act of Canada or a court order prohibits disclosure of the record or any information in the record in the circumstances;
(c) granting the access could reasonably be expected to lead to the identification of a person who provided information in the record to the regulated profession explicitly or implicitly in confidence, and the regulated profession considers it appropriate in the circumstances that the identity of the person be kept confidential; or
(d) granting the access could negatively affect public safety or could undermine the integrity of the registration process.
(3) Despite subsection (2), an applicant has a right of access to that part of a record that can reasonably be severed from the part to which the applicant does not have a right of access by reason of that subsection.
(4) A regulated profession shall establish a process under which requests for access to records will be considered.
(5) A regulated profession may charge the applicant a fee for making records available if it first gives the applicant an estimate of the fee.
(6) The amount of the fee shall not exceed the amount prescribed by the regulations or the amount of reasonable cost recovery if no amount is prescribed.
(7) A regulated profession may waive the payment of all or any part of the fee that an applicant is required to pay under subsection (5) if, in its opinion, it is fair and equitable to do so.
How the OFC Will Ascertain whether the Regulator has Met its Obligation No.8:
Under this provision, upon written request, a regulator is required to provide access to an applicant of the records regarding this individual’s application that the regulator has in its possession. This obligation is subject to certain exceptions.
The object of this section is to ensure that an applicant can review materials relating to their application for registration to ascertain whether it has been processed appropriately and whether to request a reconsideration, review or appeal. This provision constitutes an element of procedural fairness in that it allows applicants to know the case that they must meet in order to seek redress from the decision made (or one that has been delayed).
In order to ascertain whether the regulator has met the obligation set out in section 12 of FARPACTA, the OFC will review the processes that the regulator has put into place to address these disclosure requirements. The OFC will also seek evidence from the regulator that the fees, if any, that the regulator charges to provide access to records do not exceed the amount of reasonable cost recovery.
Fair Registration Best Practices Related to Obligation No.8:
What follows are examples of how regulators can further advance the spirit and intent of this obligation to provide for a better experience and outcomes for all applicants:
- The regulator informs applicants at the beginning of the registration process of their right to access their records and the circumstances under which access to records will be provided.
- Where appropriate, the regulator provides context around any records that are provided to the applicant and offers the individual a contact person should they have any further questions.
- The regulator provides clear direction to staff that:
- identifies the specific documents that would typically form part of an applicant’s records package;
- outlines the procedures to apply when addressing an applicant’s records request;
- includes guidelines on the situations where certain documents contained in a records package may be withheld from disclosure;
- establishes timelines or service standards for providing such access; and
- makes legal counsel available to staff to address any contentious issues.
Obligation No 9: The Regulated Profession Shall File an Emergency Registration Plan with the Fairness Commissioner within One Year after this Section Comes into Force.
Section 7 of Ontario Regulation 261/22 made under FARPACTA specifies that:
(1) A regulated profession shall file an emergency registration plan with the Fairness Commissioner within one year after this section comes into force.
(2) A regulated profession shall update the plan whenever there is a change in circumstances that may affect the plan and, in any case, at least once every five years, and shall file the updated plan with the Fairness Commissioner within 30 days after the update.
(3) The plan shall include,
(a) the date on which the plan was last updated;
(b) the date of the next planned update;
(c) measures to maintain continuity of the regulated profession’s registration practices during an emergency;
(d) where considered by the regulated profession to be appropriate, measures to grant temporary registration during an emergency;
(e) where considered by the regulated profession to be appropriate, measures to expedite the renewal of registration and renewal of temporary registration during an emergency; and
(f) a plan for maintaining communication with applicants and the public with respect to the regulated profession’s registration practices during an emergency.
As section 7 was proclaimed into force on July 1, 2023, the regulator must file its emergency registration plan (ERP) with the OFC by July 2, 2024.
Section 7 effectively requires that professional regulators create and file an ERP with the OFC by a defined date, ensure that it addresses the stipulated elements, and keep that plan up to date.
Please note that this set of obligations applies to all regulated professions defined under schedule 1 of FARPACTA and not to the health regulatory colleges that are governed under Schedule 2 of the RHPA.
How the OFC Will Ascertain whether the Regulator Has Met Obligation No. 9:
The OFC will work with professional regulators to ensure that they have filed their ERPs by the prescribed date and that the plan contains the items identified in section 7(3) of the regulation. The office will also review the contents of each plan that it receives and may choose to provide comments to the regulator. The OFC is also willing to review a draft plan before it is brought to the regulator’s governing body for approval.
The OFC may also request that professional regulators share any instances where they may have relied on the provisions of their ERP as part of their Fair Registration Practices Reports that they are required to file on an annual basis.
Fair Registration Best Practices Related to Obligation No. 9:
What follows are the OFC’s perspectives on how professional regulators can further advance the spirit and intent of these regulatory provisions and provide a superior client experience and better outcomes for all applicants.
The objective of section 7 is to ensure that each professional regulator has turned its mind to the steps that it needs to take to maintain continuity of its registration practices during an emergency. This is not a theoretical concern as the Covid-19 pandemic recently disrupted the registration plans of thousands of applicants to the professions and skilled trades.
While there will be common elements to an ERP across the spectrum of FARPACTA regulators, there will be differences as well, given that no two regulators approach their assessment and registration processes in precisely the same way. The common goal, however, is for regulators to assess how an emergency will likely impact the organization’s registration processes and to mitigate these risks in a way that minimizes impacts for both registrants and the Ontario public.
What is an Emergency Situation?
Neither FARPACTA nor the regulation defines the term “emergency”. Thus, professional regulators have been given a wide latitude to define this term in a way that is reasonable according to their own situations and needs.
In this respect, some examples of emergency situations could include physical disasters (e.g., earthquakes), pandemics, cyber attacks and scenarios where there is a serious shortage of professionals or skilled trades persons to meet a defined and critical public need.
What is an Emergency Registration Plan, Why is it necessary and What Items Should the Plan Include?
An ERP can best be thought of as a professional regulator’s strategy to maintain the continuity of its registration processes, during unforeseen circumstances. Since such “black swan” events have become increasingly more common, pre-planning for these events has become essential.
Emergency situations are often associated with an urgent need for rapid decisions but in an environment of time constraints and resource scarcity. There is also a compelling need for clear and reassuring communications in scenarios where applicants are unsure about their futures and depend upon clear information.
In addition, how a government chooses to respond to an emergency may narrow the available options for regulators. During the Covid-19 pandemic, for example, organizations needed to work around restrictions on public gatherings, travel, and the locations on where examinations could be held.
A well-conceived ERP should contain both risk identification and mitigation components. It should also specify the pathway for an organization to recover from the impacts of the emergency. While the OFC does not possess deep expertise in the development of such plans, it wishes to offer some information and advice on the process for developing such plans, and their contents, much of which was garnered during the Covid-19 pandemic.
In the registration context, the OFC believes that an ERP should address, among other things, the professional regulator’s ability to:
- Receive documentation from, and to otherwise communicate with, applicants.
- Receive documentation from educational institutions.
- Keep candidate assessment processes moving.
- Maintain a reasonable schedule of examinations.
- Find workarounds to allow candidates to provisionally register in a profession or skilled trade and to later complete any outstanding licensure requirements.
- Communicate often, authoritatively and sensitively with applicants to the profession or skilled trade.
Many regulators have delegated portions of their assessment and testing processes to third-party service providers. On this basis, it is critical that, in developing their ERPs, they bring these entities into discussions on the parameters of the plan, and on service continuity goals more generally. Similarly, it would be a best practice for regulators to consult with other stakeholders, including past and present applicants to the profession, to better grasp the issues to be addressed.
Sections 7(3)(d) and (e) of the regulation also provides professional regulators with the option to include two additional items in their ERPs. These are measures to grant temporary registration during an emergency and to expedite the renewal of registration and renewal of temporary registration during an emergency.
Since the length of an emergency can be difficult to predict, it is particularly important for an ERP to provide for predictable and seamless processes for applicants to renew their licenses until more normal conditions return.
In both cases, professional regulators must ensure that their existing legislative frameworks will enable these steps to be taken.
The recent experience with the Covid-19 pandemic also demonstrated that regulators that could rely on electronic registration processes fared much better than those who utilized paper-based systems. Thus, an investment in this functionality would represent a key mechanism to mitigate the impacts of many emergency situations.
Similarly, organizations that offered applicants the ability to take their examinations in a virtually proctored environment, and to, thereby, avoid congregate settings, often removed a substantial barrier to regulation. The OFC believes that the maintenance of a virtual or hybrid examination capacity (e.g., in person and virtual), will generally enhance the ability of regulators to remain flexible and to maintain continuity of services in an increasingly complex environment.
It would also be important for regulators to consider whether their current legislative and regulatory frameworks are sufficiently flexible to enable an agile response during emergency situations. In general terms, regulators can adjust their processes more easily, where their regulatory and decision-making frameworks are straightforward and minimize the number of steps required to confirm a new registration practice.
The Covid-19 experience has also shown that, during an emergency, ordinary decision-making channels get jammed up with competing priorities. It is, therefore, more challenging for a regulator to gain the attention of government to fix problems that could have been addressed earlier in a less hectic environment.
While the OFC has not offered a particular template for the development of the ERP, regulators may find the following resources to be of assistance:
How the OFC Can Assist
The OFC appreciates that the process of conceiving, and consulting upon, such a plan can be complex. For that reason, regulators are welcome to reach out to their assigned OFC compliance analyst to seek further advice, information and best practices on this important topic.
3. Review and Reporting Obligations
3.1 Other Compliance Obligations Involving the Provision of a Report
Requirement No.1: The Regulated Profession Shall Undertake a Review of its Registration Practices and File a Report.
Section 19 of FARPACTA reads as follows:
(1) Every regulated profession shall undertake a review of its registration practices at times specified by the Fairness Commissioner to ensure that the registration practices are transparent, objective, impartial and fair and shall file a report on the results with the Fairness Commissioner by the date specified by the Fairness Commissioner.
(2) The review shall include an analysis of,
(a) the extent to which the requirements for registration are necessary for or relevant to the practice of the profession;
(b) the efficiency and timeliness of decision-making; and
(c) the reasonableness of the fees charged by the regulated profession in respect of registrations.
How the OFC Will Ascertain whether the Regulator Has Met Reporting Requirement No. 1:
As part of his duties, the Fairness Commissioner may require that a regulator undertake a review of its registration practices to ensure that they are transparent, objective, impartial and fair. While the Fairness Commissioner can specify the scope of this review, the commissioner must, at a minimum, include an analysis of (a) the extent to which the requirements for registration are necessary for, or relevant to, the practice of the profession, (b) the efficiency and timeliness of decision-making and (c) the reasonableness of the fees charged by the regulated profession in respect of registrations.
This provision underscores that regulators must adopt registration practices that are transparent, objective, impartial and fair. In general terms, the Fairness Commissioner will require that such a review be undertaken to address registration issues and/or complaints of a systemic nature or where a regulator has failed to take reasonable steps to address a material and/or longstanding registration matter.
Section 23(1) of the Act also requires that the regulated profession make the report that it submits to the Fairness Commissioner, public.
As mentioned previously, section 19 reports must address, at a minimum, three specific issues, which will now be considered individually.
(a) The extent to which the requirements for registration are necessary for, or relevant to, the practice of the profession
The registration requirements to enter a profession will typically identify the qualifications that an applicant must possess, the documentation that the applicant must provide to validate that these qualifications have been met, attributes of a good character or suitability to practice, and the fees that applicants must pay to engage the process. Qualifications, in turn, would most often include:
- academic credentials;
- evidence of language proficiency;
- practical (workplace) or clinical experience;
- successful completion of registration examinations; and
- other forms of competency assessments.
Some of these requirements may be found in a profession’s or trade’s governing statute or regulations. In other cases, the regulator may set these out in its bylaws and in its policies.
Regulators establish those requirements to ascertain which applicants for registration are qualified to practice in the profession or trade. To this end, it is important that the requirements are, in the words of the statue, “necessary for or relevant to the practice of the profession”.
When reviewing the registration requirements for necessity and relevance, the OFC will consider the following factors:
- the rationale that the regulator has put forward to justify these requirements;
- whether the requirements are reasonable proxies for the individual’s capacity or competencies to practice the profession;
- whether the requirements produce unintended or differential impacts on internationally trained applicants or other groups of applicants; and
- whether there are practical alternatives to the requirements or the methods of assessment.
Fair Registration Best Practices Related to Relevancy and Necessity of the Requirements for Registration
What follows are examples of how regulators can further advance the spirit and intent of this requirement to provide for a better experience and outcomes for all applicants:
In assessing whether its registration requirements are necessary to, and relevant for, the practice of a profession, a regulator could undertake a self-assessment of its processes by:
- matching its registration requirements to the competencies necessary to practice the profession;
- linking each current assessment method to the corresponding registration requirement or competency required for entry-to-practice;
- analyzing the results to determine whether there exist any overlaps and/or gaps; and
- assessing whether there are alternate modalities through which these competencies could be demonstrated in a way that preserves the public interest.
(b) The efficiency and timelines of decision-making
A critical component of a fair registration process involves the time that it takes a regulator to make its registration decisions. This feature of timeliness depends on how effectively the regulator can control the various elements of its registration process.
While a regulator can most directly control steps within its ambit (such as the efficiency of its registration committee), in other cases, third party service providers may control inputs into the process. In these scenarios, regulators are responsible for ensuring that the third party undertakes its work in a timely fashion.
In still other cases, it is the applicants who will be responsible for ensuring that they take timely steps to initiate and progress through the registration process expeditiously (e.g., provide the necessary documentation).
When reviewing the efficiency and timeliness of a regulator’s decision-making process, the OFC will take into account the following considerations:
- whether the regulator has developed both average and maximum time standards to process the great majority of its caseload (e.g., 90 percent of cases completed within six months);
- whether the regulator regularly measures its performance against these time standards and report the results to its board of directors or council and the public;
- whether the regulator periodically reviews its registration processes to identify gaps, bottlenecks and inefficiencies;
- whether the registration procedures and associated resourcing potentially favour one group of applicants over another (e.g., domestically trained versus internationally trained applicants);
- whether staff or members involved in the registration process are properly trained and can devote the time and energy necessary to superintend this work in a professional and empathic fashion;
- whether staffing levels are appropriate to efficiently process case volumes:
- how the regulator’s performance compares with similarly situated regulators.
Fair Registration Best Practices Related to the Timeliness of Decision-Making
What follows are examples of how regulators can further advance the spirit and intent of this requirement to provide for a better experience and outcomes for all applicants:
In assessing whether its decision-making is timely and efficient, a regulator could assess its processes in the following manner:
- identify the registration steps over which the regulator and its third-party service providers exercise control and establish time standards for each of these steps;
- ascertain the average time taken for an applicant to move through each of these steps, considering both mean and median time frames and the treatment of outlier cases;
- determine how these measurements may have changed over time;
- consider whether there are any bottlenecks in the system and whether adequate resources have been allocated to discrete aspects of the registration process and the system as a whole;
- identify opportunities for streamlining registration procedures without compromising service quality;
- compare performance with statistics obtained from similarly situated regulators; and
- provide recommendations to senior management and/or to the regulators board of directors/council.
(c) Reasonableness of the fees charged by the regulated profession in respect of registrations
Both regulators and third-party service providers will typically charge fees for the services that form part of the registration process. The total fees that an applicant will be expected to pay will depend on the number of steps required for registration and the fee schedules that service providers apply.
When assessing whether the fees that a regulator charges are reasonable, the OFC will take into account the following considerations:
- the rationale for setting the fee amounts;
- how the fees relate to the cost of providing the services;
- how the fees charged compare with those administered by regulators that are similarly situated;
- whether the regulator has explored opportunities to downwardly adjust fees and acted upon the findings of these reviews; and
- whether the quantum of fees pose a potential hardship for qualified applicants and whether the regulator has adopted a fee waiver policy to reduce or eliminate these fees in appropriate circumstances.
Fair Registration Best Practices Related to the Reasonableness of Fees
What follows are examples of how regulators can further advance the spirit and intent of this obligation to provide for a better experience and outcomes for all applicants:
- The regulator should conduct periodic reviews of its fee schedule to help ensure that costing assumptions remain valid.
- The regulator should consult with organizations representing applicants and other stakeholders when initially setting fees and periodically adjusting them.
- The regulator could similarly apply an inclusion lens in setting fees by conducting an impact analysis that involves ascertaining the effects of fees on various applicant groups (e.g., domestic versus internationally trained applicants). If these effects are found to be substantial, the regulator could introduce different fee scales or, based on evidence of need, decide to reduce, defer or waive fees for applicants in appropriate circumstances.
Requirement No.2: The Regulated Profession Shall Provide a Report or Information on its Compliance with the Legislation.
Section 22 of FARPACTA reads as follows:
(1) The Fairness Commissioner may require that a regulated profession provide the Fairness Commissioner with reports or information relating to the regulated profession’s compliance with this Act and the regulations and the regulated profession shall prepare and file the reports with, or provide the information to, the Fairness Commissioner.
(2) Reports and information required under subsection (1) are in addition to the reports required under sections 19, 20 and 21.
How the OFC Will Ascertain whether the Regulator has Met Reporting Requirement No.2:
Whereas section 19 of the Act requires that a regulator undertake a review of its registration practices to ensure that they are transparent, objective, impartial and fair, section 22 (1) focuses on compliance with the provisions of the Act and its regulations. In general terms, the OFC would rely on section 22 (1) where it has identified issues relating to instances of a regulator’s non-compliance with its legal obligations that are serious, pervasive or longstanding in nature.
Corollary Provisions Relating to Sections 19 and 22 of FARPACTA
Sections 23 and 24 of FARPACTA impose additional obligations on regulators when they provide reports to the OFC.
Section 23 of the specifies that:
(1) A regulated profession shall file all reports required to be filed by it under this Act or the regulations with the Fairness Commissioner by the dates specified by the Fairness Commissioner.
(2) A regulated profession shall make reports filed under subsection (1) available to the public.
Section 24 of FARPACTA reads as follows:
(1) Reports and certificates required by this Part and under the regulations shall be in the form and contain the information specified by the Fairness Commissioner or as may be specified in the regulations.
(2) Despite subsection (1), no report or other document prepared and submitted by any person for the purposes of this Act or the regulations shall contain personal information.
Section 23 (1) requires that regulators file all reports by the deadlines that the Fairness Commissioner specifies. Section 24 is an important transparency provision which, among other things, obliges regulators to make their reports available to the public.
3.2 Annual or Period Reporting Obligations
Reporting Requirement No.1: The Regulated Profession Shall Prepare and File a Fair Registration Practices Report.
Section 20 of FARPACTA reads as follows:
A regulated profession shall prepare a fair registration practices report annually or at such other times as the Fairness Commissioner may specify or at such times as may be specified in the regulations.
Section 6 of Ontario Regulation 261/22 made under FARPACTA specifies that:
(1) The report referred to in section 20 of the Act shall include data respecting,
(a) the regulated profession’s compliance with the time limits set out in section 5;
(b) the regulated profession’s ability to register internationally trained individuals who are eligible for registration without conditions within one year after the earlier of,
(i) the date the regulated profession receives everything it requires in respect of the individual’s application for registration, and
(ii) the date any third party that assesses the individual’s qualifications on behalf of the regulated profession receives everything it requires for that purpose; and
(c) where a regulated profession has been unable to meet the one-year standard referred to in paragraph (b), the steps being taken by the regulated profession to meet that standard.
(2) The report shall be made available to the public by posting it on the regulated profession’s website within 60 days after filing the report with the Fairness Commissioner.
(3) This section applies only with respect to new applications for registration received from internationally trained individuals by a regulated profession on or after the day this section comes into force.
How the OFC Will Ascertain whether the Regulator has Met its Reporting Requirement No.1:
Historically, the OFC has specified the discrete questions to be responded to in its Fair Registration Practices Report (FRP) template. To ascertain whether a regulator has met this reporting requirement, the OFC will confirm that the regulator has prepared and submitted the required report and will review the completed document to ensure that is has been prepared thoughtfully and responds fully to the questions that have been posed.
The questions that will form part of the FRP will be refreshed periodically to ensure that they remain relevant and aligned with updated legislative and regulatory requirements, the OFCs updated risk-informed compliance framework and broader system-wide objectives.
In addition, section 6 of Ontario Regulation 261/22 stipulates that the annual FRP Report shall include data on a regulator's compliance with the six-month registration standard, and its ability to meet the one-year standard for the registration of internationally trained individuals, or where the regulated profession has been unable to meet the one-year standard, the steps that it is taking to meet the standard.
These provisions apply to new applications for registration for internationally trained individuals that a regulator receives from July 1, 2023, onwards. Public reporting will begin in the 2024 FRP Report, to coincide with the first full calendar year where this new legal obligation applies.
The OFC considers that the assessment of a regulator’s ability to meet the one-year time standard is particularly important since it measures the total time that it takes an applicant to move through the assessment and registration.
As such, the OFC may ask the regulator to provide a supplementary process map outlining each of the steps in its assessment and registration process and the time required for an applicant to complete each step, to assess whether an applicant could feasibly complete all steps within a one-year period.
In situations where a regulator relies on a third-party service provider for some or all its assessment activities, the OFC also recommends that the two organizations work together to ensure a common approach to defining the starting point for the 12-month time limit, and to facilitate measurement of total time from this point to communication of a registration decision.
Upon receipt, the OFC will carefully review the data contained in the FRP and pay particular attention to the point in time that the regulator deems its assessment process to begin. Where a regulator is unable to assess and register an internationally trained applicant in one year, the OFC will assess the steps that a regulator is taking to achieve this standard and undertake discussions on what further steps can be taken.
In conducting this analysis, the OFC will consider, among other things:
- the frequency of a regulator’s examination offerings and the availability of seats;
- whether applicants are able to complete some or all of the steps in the assessment and registration process in their home jurisdictions;
- whether the regulator and / or third-party service provider has published service standards for each stage of the process and measures its / their performance against these standards;
- the existence of validated complaints from applicants or stakeholder groups regarding the overall length of the registration process; and
- comparisons of results with similarly situated regulators.
Pursuant to section 23 (1) of the Act and subsection 6(2) of the regulation the OFC will also verify that the regulator has made the report which contains this data publicly available within 60 days after filing the report with the Fairness Commissioner.
The OFC recognizes that the process of adopting appropriate licensing and reporting requirements can be complex. On this basis, regulators are welcome to reach out to their assigned OFC compliance analyst to obtain further information and advice on these topics.
3.3 Audits
The authority of the Fairness Commissioner to order regulators to undergo audits is set out in section 21 of FARPACTA as follows:
(1) Every three years or at such other times as the Fairness Commissioner may specify or at such times as may be specified in the regulations, the Fairness Commissioner shall give notice to a regulated profession that an audit must be conducted in respect of its registration practices and of its compliance with this Act and the regulations.
(2) The Fairness Commissioner shall give the notice required by subsection (1) at least 90 days before the audit is to begin and the notice shall state,
(a) that the regulated profession must choose and appoint an auditor from the roster established by the Fairness Commissioner by the date specified in the notice;
(b) that if the regulated profession fails to choose and appoint an auditor by the date specified in the notice that the Fairness Commissioner will choose the auditor;
(c) the scope of the audit and the audit standards that shall apply;
(d) the date by which the audit must be completed; and
(e) that the regulated profession is responsible for paying the auditor’s fees and expenses.
(3) The regulated profession shall, by the date specified in the notice, choose and appoint an auditor from the roster established by the Fairness Commissioner and notify the Fairness Commissioner of its choice.
(4) If a regulated profession fails to notify the Fairness Commissioner of the name of the auditor it has chosen and appointed by the date specified in the notice, the Fairness Commissioner shall choose the auditor and notify the regulated profession of his or her choice and the auditor shall be deemed to have been appointed by the regulated profession.
(5) The auditor chosen and appointed under subsection (3) or (4) shall begin the audit promptly, shall conduct it in accordance with the scope of the audit and the audit standards set out in the notice under subsection (2) and shall complete the audit by the date set out in the notice.
(6) An auditor may collect personal information, directly or indirectly, only for the purpose of an audit required under this section, but an auditor shall not retain any personal information after completing the audit and shall not include any personal information in any draft report or final report submitted in accordance with this section.
(7) A regulated profession shall co-operate with the auditor and shall,
(a) produce such records for, and provide such other information to, the auditor regarding its registration practices and any other matters related to compliance by the regulated profession with this Act and the regulations as are reasonably necessary for the auditor to perform his or her duties under this Act, including any reports required from the regulated profession under section 19, 20 or 22 or the regulations; and
(b) provide the auditor with any assistance that is reasonably necessary, including assistance in using any data storage, processing or retrieval device or system, to produce a record in readable form.
(8) Despite subsection (7), a regulated profession may refuse access to a record if,
(a) the record or any information in the record is subject to a legal privilege that restricts disclosure of the record or the information; or
(b) another Act, an Act of Canada or a court order prohibits disclosure of the record or any information in the record in the circumstances
(9) The auditor shall prepare a draft report on the audit and provide a copy of it to the regulated profession, together with a notice that the profession may, within 30 days, make written submissions to the auditor on the draft report.
(10) The auditor shall consider the submissions, if any, made by the regulated profession and may make any changes the auditor considers appropriate before finalizing the report.
(11) The auditor shall make a final report on the audit and shall file it with the Fairness Commissioner and provide a copy to the regulated profession to which the audit relates.
(12) The auditor shall file a certificate with the Fairness Commissioner certifying that the auditor conducted the audit in accordance with this Act and the regulations and that he or she has provided a copy of the auditor’s report to the regulated profession.
(13) An audit is complete when the auditor has provided a copy of the final report to the regulated profession to which the audit relates and has filed with the Fairness Commissioner the final report and the certificate referred to in subsection (12) and, if the regulated profession made submissions to the auditor on the draft report, a copy of the submissions made by the regulated profession.
(14) The Fairness Commissioner shall provide the Minister with a copy of all auditors’ reports within a reasonable time after receiving them.
(15) The regulated profession shall pay the auditor’s fees and expenses.
The OFC equates the audit function to an independent investigation undertaken by a third party whose credentials the OFC approves. The auditor will be required to produce a report with findings and recommendations. Under the legislation, the cost of the audit is borne by the regulator and the final report must be filed with the minister.
Where the OFC determines that an audit is required, it will typically have acquired a firm understanding of the situations where a regulator has not achieved compliance with the legislation. On this basis, the office will most often employ an audit to undertake a defined and targeted review of material and persistent deficiencies identified in a regulator’s registration processes.
Given the significant nature, cost and intrusiveness of the audit authority, the OFC will apply this tool following a review of all other options and only where the circumstances so warrant.
Appendix 1: Registration time limits that apply to domestic labour mobility applicants and internationally trained individuals
| DMLA (1)
| ITI (2) |
Acknowledgement of an Application: Regulator to provide written acknowledgement of the application, and inform the applicant as to whether the application is complete.
|
10 business days after receiving an application for registration
|
Registration Decision: Regulator to communicate the decision in writing, provide reasons as required, and provide information on rights to an internal review or appeal including any applicable procedures and deadlines. |
30 business days after receipt of a complete application |
90 per cent within
six months after receipt of a complete application |
Appeal or Review Decision: Regulator to provide applicant with written communication of a decision made upon following the internal review or of appeal and written reasons respecting the decision.
|
10 business days after internal review or appeal decision
|
Notes:
- DLMA: an individual who has applied for registration in Ontario and is currently registered with a body that regulates the same profession in a Canadian province or territory other than Ontario.
- ITI: an individual who has been trained in a country other than Canada to practise a regulated profession and who has applied for registration in that regulated profession in Ontario.
1 Working for Workers Act, 2021, Working for Workers Act, 2022, Working for Workers Act, 2023, and Ontario Regulation 621/22.