The mandate of regulators is an increasingly contentious topic. At its core, the issue is whether regulators should define their public interest mandate as going beyond the narrow competence of practitioners within their scope of practice and addressing clearly unethical conduct. In Song v The Law Society of Alberta, 2025 ABKB 525 (CanLII), an Alberta court expressed deference to a regulator’s ability to define public interest in broader terms than that.
An issue in the decision was the jurisdiction of the regulator to enact rules implementing a mandatory professional development program on Indigenous cultural competence and prohibiting registrants from discriminatory or harassing conduct towards anyone, including colleagues and employees, not just clients. The applicant, a lawyer, argued that the rules were not authorized by the enabling legislation. He pointed out that there was no “objects” clause indicating that the regulator was to act in the public interest and there were no specific provisions authorizing the creation of a professional development program. He also argued that the rules reflected certain political objectives and theories (e.g., diversity, equity, and inclusion) that went beyond the regulator’s mandate. Finally, he argued that the rules infringed his rights under the Canadian Charter of Rights and Freedoms respecting freedom of conscience, religion, and expression.
The Court dismissed the application and upheld the validity of the rules, making the following points:
- A court could not adjudicate the political objectives (or motivations) of a regulator. It could only adjudicate the regulator’s actions.
- Despite the absence of an “objectives” clause, it was clear from the legislation as a whole and its context that regulators had a duty to regulate in the public interest.
- On judicial review a court does not evaluate whether a rule is necessary, wise, or effective. It only reviews the legality or validity of the subordinate legislation. The standard of review is the reasonableness of the regulator’s interpretation of its legislative authority.
- The broad authority to enact rules for the promotion, protection, interest or welfare of the regulator authorized the making of these rules, including creating a professional development program.
- The competence of a lawyer includes competence to provide services to Indigenous clients whose culture and experience may not be familiar to many registrants.
- Requiring registrants to comply with human rights law was a reasonable interpretation of the regulator’s rule-making powers.
- The professional development program provided information and did not tell the lawyer what he had to believe.
- Any determination as to whether an act of discrimination or harassment constituted an infringement of the applicant’s freedom of expression would be determined on a case-by-case basis at a discipline hearing. Case law indicates that regulators are entitled to place limits on a registrant’s conduct of a discriminatory or harassing nature.
This decision seems consistent with most court decisions on the mandate of regulators. However, it is highly unlikely that the challenges to regulators’ ability to set rules about these issues will stop any time soon.
