Many regulators rely on third-party organizations to assess a candidate’s credentials for registration. Regulators then need to ensure that the accreditation body makes defensible decisions. A recent decision on how registration policies are “clarified” has lessons for regulators.
In Al Hussein v. Federation of Law Societies of Canada, 2026 ONSC 5357 (CanLII), the Federation determined that an applicant did not meet the language proficiency requirements to become a lawyer. The applicant unsuccessfully sat numerous tests administered by different organizations over four years. After the determination, the Federation amended its language proficiency policy stating that applicants could not combine test scores administered by different test administrators related to different language proficiency skills (i.e., listening, writing, reading and speaking) to create a passing score. The prior policy had been silent with respect to a candidate’s ability to combine their test scores.
The applicant challenged the Federation’s determination, arguing that because the prior policy did not expressly prohibit him from combining his test scores, he should have been permitted to do so, and that if his scores from different tests had been combined, his scores would have been sufficient.
The Court rejected the argument for several reasons, including:
- The amendment was properly characterized as a “clarification” of the existing policy. The language of the previous policy and the past practice of the Federation made clear that this was not a substantive change.
- When announcing the amendment, the Federation stated that it was a clarification.
- The applicant did not request the combining of test scores when he sought a final determination from the Federation. This was a new argument raised after the fact, inspired by the publication of the amendment.
- The policy, as clarified, was not unreasonable.
The Court accepted the “importance of language skills to those delivering legal services to the public and a lawyer’s ability to communicate clearly to clients as a core competency in the legal profession.”
This decision highlights the value of indicating when a policy amendment is simply a clarification, as opposed to a substantive change. Doing so can help explain whether past decisions can be revisited.
