PART X: - OLA REVIEW: PROFESSIONAL ASSOCIATIONS (PROPOSED AMENDMENTS)

Section 92(13) of the Constitution Act, 1867[1] grants provinces jurisdiction over property and civil rights. The licensing and regulation of a profession falls within this provincial jurisdiction[2]. The provinces therefore have the power to regulate professional associations. However, instead of exercising this power, they have preferred to delegate this responsibility to professional associations.

A - The Nature of a Professional Association

Subsection 41.1(1) of the Official Languages Act defines a professional association as " an organization of persons that, by an Act of the Legislature, has the power to admit persons to or suspend or expel persons from the practice of a profession or occupation or impose requirements on persons with respect to the practice of a profession or occupation”.

A professional association is therefore a body created by provincial statute to which the province has delegated the authority to regulate the entry and practice of a profession. The body is composed of the members of the profession who are responsible for governing the profession. The professional association generally sets its own by-laws, ensures its own funding and disciplines its members. In addition to the privilege of being the only ones entitled to use a title and to have exclusive rights to do certain acts, incorporation as a "professional association" also carries with it significant responsibilities, prerogatives and constraints on the group for the protection of the public.

Instead of legislating itself on matters that may seem complex, delicate and technical, or that evolve too quickly to be fixed in final legislation, or be the subject of parliamentary discussions, the government sometimes prefers to delegate its constitutional power to an administrative body. This is precisely the case with professional associations, especially since the legislator is often reluctant to encroach on the autonomy or independence of the professions. The state therefore entrusts these bodies with powers that it would normally be entitled to exercise.

Thus, professional associations have the right to regulate their internal affairs, the manner of elections and the powers of officers. In addition, legislators may also expressly or implicitly delegate to them the power to regulate other aspects of a profession, such as

- the content of training and probationary period prior to admission

- the conditions for admission to practice the profession

- the examination for admission to the practice of the profession

- the conditions of practice of the profession

- the rates of fees

- professional ethics and derogatory acts

- the creation of disciplinary bodies and disciplinary procedure

- disciplinary penalties.

English-speaking lawyers have aptly described these associations as "self-governments".[3] In a sense, as bodies exercising significant regulatory, supervisory, administrative and disciplinary powers, professional associations can be considered public authorities.

Without claiming to have undertaken an exhaustive analysis of the constituent Acts of each, there are at least 43 organizations in New Brunswick that can be defined as professional associations[4]. This includes:

- New Brunswick Home Economics Association (NBHEA)[5];

- Cosmetology Association of New Brunswick (CANB)[6];

- Association of New Brunswick Massage Therapists(ANBMT)[7];

- New Brunswick Podiatry Association (NBPA)[8];

- New Brunswick Real Estate Association(NBREA)[9];

- Architects’ Association of New Brunswick (AANB)[10];

- Association of New Brunswick Land Surveyors (ANBLS)[11];

- New Brunswick Dental Assistants Association (NBDAA)[12];

- New Brunswick Registered Barbers Association (NBRBA)[13];

- New Brunswick Chiropractors Association(NBCA)[14];

- Interior Designers of New Brunswick (IDNB)[15];

- New Brunswick Association of Dietitians (NBAD)[16];

- New Brunswick Funeral Directors and Embalmers Association (NBFDEA)[17];

- New Brunswick Association of Occupational Therapists(NBAOT)[18];

- New Brunswick Association of Real Estate Appraisers(NBAREA)[19];

- Association of Registered Professional Foresters of New Brunswick (ARPFNB)[20];

- Association of New Brunswick Licensed Practical Nurses (ANBLPN)[21];

- Nurses Association of New Brunswick (NANB)[22];

- Association of Professional Engineers and Geoscientists of New Brunswick (APEGNB)[23];

- New Brunswick Veterinary Medical Association(NBVMA)[24];

- Construction Association of New Brunswick (CANB)[25];

- Opticians Association of New Brunswick (OANB)[26];

- New Brunswick Association of Optometrists (NBAO)[27];

- New Brunswick Association of Speech-Language Pathologists and Audiologists(NBASLPA)[28]

- Paramedic Association of New Brunswick (PANB)[29];

- New Brunswick Society of Medical Laboratory Technologists (NBSMLT)[30];

- New Brunswick Association of Medical Radiation Technologists(NBAMRT)[31];

- New Brunswick Association of Respiratory Therapists (NBART)[32];

- New Brunswick Association of Social Workers (NBASW)[33];

- Law Society of New Brunswick (LSNB)[34];

- College of Physicians and Surgeons of New Brunswick (CPSNB)[35];

- College of Physiotherapists of New Brunswick (CPNB)[36];

- College of Psychologists of New Brunswick (CPNB)[37];

- Certified Professional Accountants of New Brunswick (CPANB)[38];

- Corporation of Translators, Terminologists and Interpreters of New Brunswick (CTINB)[39];

- New Brunswick Institute of Agrologists (NBIA)[40];

- Atlantic Planners Institute (AIP)[41];

- New Brunswick College of Dental Hygienists(NBCDH)[42];

- New Brunswick College of Pharmacists (NBCP)[43];

- New Brunswick Dental Society (NBDS)[44];

- New Brunswick Denturists Society[45];

- New Brunswick Society of Certified Engineering Technicians and Technologists (NBSCETT)[46];

- New Brunswick Society of Cardiology Technologists (NBSCT)[47].

In creating these associations, the New Brunswick legislature was not only concerned with protecting their members, but also the public who are in contact with the professional. The legislators justify the autonomy it grants to these associations by assuming that only the professionals concerned have the knowledge necessary to carry out the functions of the profession. The autonomy it granted is essentially the power to decide who will be entitled to practice a profession. However, members of a professional association are not the only ones who may be affected by the services rendered by a professional. Others may also be concerned, for example, workers in related fields, members of a profession whose scope of practice is closely related to that profession, aspiring professionals, educational institutions and educators, and the public who receive the services of these professionals.

Professional associations were therefore established primarily for reasons of public interest. A few years ago, the Royal Commission Inquiry on Civil Rights in Ontario - the McRuer Commission - saw this as the only reason to legitimize such a broad delegation of authority to these bodies."

“The granting of self-government is a delegation of legislative and judicial functions and can only be justified as a safeguard to the public interest. The power is not conferred to give or reinforce a professional or occupational status. The question is not, "Do the practitioners of this occupation desire the power of self-government?" but "Is self-government necessary for the protection of the public?". No right of self-government should be claimed merely because the term "profession" has been attached to occupation. The power of self-government should not be extended beyond the present limitations, unless it is clearly established that the public interest demands it.”[48]

In New Brunswick, professional associations are created by a statute commonly referred to as a "private bill". The procedure for the passage of "private bill" legislation differs from that for "public bill" legislation. A "public bill" is simply drafted and introduced, but there are several steps before a "private bill" can be introduced in the Legislature. A "private bill" deals with local or private matters or is for the benefit or in the particular interest of a person or group of persons, a corporation or a municipality. Therefore, before any such favour is granted, the Legislative Assembly must be satisfied that the legislation in question will not prejudice other rights or interests.[49] A first point to note is that the Province of New Brunswick, in authorizing the creation of these associations, has an obligation to ensure that they comply with its constitutional and statutory linguistic obligations.

B - The Role of the Professional Association

The purpose of a "private bill", as the name implies, is to look after the interests or benefits of an individual or a number of individuals, as opposed to a "public bill" which deals with a matter or contains measures that affect society as a whole. As a rule, a law constituting a professional association is for the benefit of its members. However, while these statutes confer managerial authority over the internal administration of professional associations, they also have the effect of regulating their relationship with society.

The legislature must therefore ensure, in creating these associations, that some control is retained over their activities. This control can be exercised in a few ways:

- the Lieutenant Governor in Council or a minister may appoint one or more members of the board of directors that conducts the affairs of the association

- it may be provided that by-laws adopted by the association shall be approved by the Lieutenant Governor in Council

- the Lieutenant Governor in Council may reserve the right to revoke or repeal any by-law made by the association

- the Act may contain detailed provisions relating to the conditions for the admission of members, to which the association may add specific conditions

- the legislature may provide for the publication in the Royal Gazette of by-laws adopted by the association.

I will not analyze in detail all the powers that the Legislature has granted to the professional associations in the province. However, I can say that the regulatory power usually assigned to these associations generally revolves around internal administration, admission to the profession and regulation of the profession. The professional association has the power to license a profession, establish academic and competency standards, set admission procedures, enforce discipline and adopt principles of professional ethics. It may also establish rules concerning meetings of its members, the manner of electing its officers, the creation of internal committees, the amount of membership dues, etc. The association's board of directors is generally given the power to make regulations. The bylaws, once finalized, must then be approved by the members at a general meeting.

Professional associations therefore have a monopoly over the practice of a profession. They are responsible for ensuring that the persons they license are qualified and meet the standards of competence required to practice the profession. These powers are not delegated to the association to enable it to protect the economic interests of its members, but rather to ensure that they have the necessary skills and competencies to practice a profession.

Professional associations have an obligation to maintain standards of competence for their members. However, controlling admission to a profession is not the only way to achieve this. In fact, professional associations regulate themselves on an ongoing basis. The legislature considers them to be in a better position to judge violations of professional ethics and, therefore, has delegated to them significant authority to regulate professional discipline. To this end, the McRuer Commission identified three distinct groups that have a special interest in the control of a profession:

(1) The public, who should be the primary beneficiaries of the entire process

(2) The members of the association whose failures may be subject to discipline; and

(3) The profession itself, which has a general interest in maintaining high standards of professional competence.[50]

One of the most important powers of an association with respect to its members is the power to impose discipline in the event of a breach of professional standards. Generally, the governing statute of an association does not determine the procedure that will be followed before the disciplinary tribunal; this is often left to the discretion of the association. However, no one would dispute the fact that the disciplinary penalties imposed by an association can have severe consequences. Penalties can range from a simple reprimand, to suspension and, in the most serious cases, expulsion from the profession. In exercising its disciplinary power, the professional association acts in a quasi-judicial manner. The law therefore requires it to respect certain fundamental principles of natural justice.

II - THE LINGUISTIC OBLIGATIONS OF PROFESSIONAL ASSOCIATIONS

As we have seen, professional associations control admission to a profession and the conditions of its practice. In this sense, they exercise part of the powers of the state, and can therefore be considered part of the provincial public administration. They deal with their members but also with the public. In doing so, the associations must take into account the language rights of the public and the obligations imposed on them by those rights. The language obligations of these associations stem from the Canadian Charter of Rights and Freedoms[51] and the Official Languages Act[52].

A - The Canadian Charter of Rights and Freedoms

The first question that arises is whether professional associations are institutions within the meaning of the Canadian Charter of Rights and Freedoms.[53] I will set aside immediately the argument that, because they were created by private legislation, these associations are not subject to the language obligations of the Charter. In R. v. Losier,[54] McIntyre J. of the New Brunswick Court of Queen's Bench held that subsection 18(2) of the Charter did not apply to the New Brunswick Chiropractors Act[55] because that law was a private initiative and so did not fall within section 32 of the Charter. I cannot agree with this conclusion which, in my view, is wrong in law.

Under section 32(1), the Charter applies "to the Parliament and government of Canada" and "to the legislature and government of each province". Both levels of government are therefore bound by the provisions of the Charter. In addition, any body that exercises statutory authority is also bound by the Charter. In this category, we might include the Governor General or Lieutenant Governor in Council, ministers, public servants, municipalities, courts and police officers. However, the Charter also applies to bodies other than those listed above.

In order to identify the other bodies to which the Charter applies, it is appropriate first to distinguish between private corporations, which are incorporated by statute and whose existence and powers depend on an enabling statute, and bodies created by statute which, in addition to their existence, confer on them a power of coercion related to government action. Both are legal persons with the rights of a natural person, but only the second type of body is subject to the provisions of the Charter.

For example, in McKinney v. University of Guelph[56] and Stoffman v. Vancouver General Hospital[57], the Supreme Court of Canada held that the mandatory retirement policies of a university and a hospital could not be challenged under the Charter. Although both the university and the hospital were created and given certain powers by statute, neither institution had powers beyond those of an individual.

However, in Eldridge v. British Columbia[58] the Supreme Court of Canada held that an entity that "implements a specific government policy or program"[59] is bound by the Charter. Indeed, if the activity carried out by a non-governmental entity is governmental in nature, that activity will be subject to the obligations of the Charter, although for other activities the entity is not bound by the Charter.

It is also important to remember that s. 32(1) of the Charter applies not only to Parliament, legislatures and government, but also to all matters within the purview of these institutions. In Godbout v. Longueuil (City), Justice La Forest explained the rationale for the broad scope of section 32 as follows:

“Were the Charter to apply only to those bodies that are institutionally part of government but not to those that are - as a simple matter of fact - governmental in nature (or performing a governmental act), the federal government and the provinces could easily shirk their Charter obligations by conferring certain of their powers on other entities and having those entities carry out what are, in reality, governmental activities or policies In other words, Parliament, the provincial legislatures and the federal and provincial executives could simply create bodies distinct from themselves, vest those bodies with the power to perform governmental functions and, thereby, avoid the constraints imposed upon their activities through the operation of the Charter. Clearly, this course of action would indirectly narrow the ambit of protection afforded by the Charter in a manner that could hardly have been intended and with consequences that are, to say the least, undesirable. Indeed, in view of their fundamental importance, Charterrights must be safeguarded from possible attempts to narrow their scope unduly or to circumvent altogether the obligations they engender.” [emphasis added].[60]

It is therefore clear from case law that the Charter does apply to a body for either of the following reasons:

1. The entity is part of the "government" within the meaning of section 32, either by its very nature or because the government exercises substantial control over it. In such a case, all activities of the entity are subject to the Charter.

2. A particular activity of an entity may be subject to the Charter if that activity can be attributed to government. In this case, it is appropriate to examine not the nature of the entity whose activity is being challenged, but rather the nature of the activity itself.[61]

This is the criteria which we must use to determine whether the Charter applies to professional associations. We note that in Andrews v. Law Society of British Columbia[62] the Supreme Court of Canada, relying on s. 15(1) of the Charter, struck down a condition of admission to the bar that the Law Society of British Columbia had added. There was no reference in that decision to section 32 of the Charter. The Court appears to have concluded, de facto, that the Law Society is a government entity within the meaning of section 32(1).

In Klein and Dvorak v. Law Society of Upper Canada,[63] the Ontario Divisional Court found that the Law Society of Upper Canada was a statutory body exercising its powers in the public interest. In the Court's view, the Law Society was performing a regulatory function on behalf of the "legislature" and "government" within the meaning of s. 32(1) of the Charter, when it made rules relating to advertising by lawyers or to the relationship between lawyers and the media. Even though the rules and observations contained in the Code of Conduct were not adopted by regulation, the Court said this did not prevent them from being subject to the provisions of the Charter. Indeed, the Law Society, through its disciplinary procedure, enforces the provisions prohibiting lawyers from advertising fees and making statements to the media, thereby incorporating these provisions into Ontario law and making them subject to the Charter.

The same logic applies in the case of other professional associations. In exercising the powers conferred on them by their constituent Acts, these bodies perform a regulatory function on behalf of the "legislature" and "government" within the meaning of section 32(1) of the Charter. Through their disciplinary procedures, they ensure compliance with the provisions of their constituent Acts, which give them enforcement powers specific to government action.

The activities of professional associations cannot be equated with those of a private entity, such as a provincial sports association. For example, in Blainey v. Ontario Hockey Association et al,[64] the Ontario Court of Appeal held that the mere fact that the association in question was receiving grants under provincial legislation was not sufficient to make its activities governmental acts for the purposes of the Charter. According to the Court of Appeal, there is no delegation of authority from the Legislature or grant of power by the government in the relationship between the sports association and the province. In such a case, the association is not performing any governmental function. This is not the case with professional associations to which the government and the Legislature have delegated a number of powers that would otherwise be exercised by the government or the Legislature.

Given that analysis, I conclude that professional associations are entities performing governmental functions within the meaning of s. 32(1) of the Charter. Any other conclusion would be illogical, as it would allow the provincial government and the Legislature to offload linguistic obligations to these associations, by granting powers which would normally be exercised by the state.

While this may seem odd in light of the analysis under subsection 32(1) concerning language rights under the Charter, a further analysis must be undertaken to determine whether the body is an institution within the meaning of sections 16 and 20. Evidently, in matters of language rights, two evaluations must be conducted in order to qualify an organization as an “institution” and thus have it subjected to the language obligations contained in the Charter.

In Charlebois v. Mowatt,[65], apart from its analysis of subsection 32(1), the New Brunswick Court of Appeal considered the meaning to be given to the expression "institutions of the legislature or government" in subsections 16(2) and 20(2) of the Charter. In Charlebois, municipalities were identified as "institutions" within the meaning of these provisions. The Court of Appeal noted that municipalities are created by an Act of the Province and exercise the powers conferred on them by that Act.

The Court then referred to Godbout v. Longueuil (City)[66], where the issue was a motion passed by the City of Longueuil. The city had objected to its motion being subject to the Charter. La Forest J. found that the Charter did apply to the activities of the municipality. Having reviewed previous case law related to the scope of the Charter of the Supreme Court of Canada, La Forest J. reaffirmed some important principles relating to the Charter’s applicability to entities other than legislatures or governments. He emphasized their "governmental nature", either by virtue of the degree of governmental control over them, of the functions they perform or of the actions they take.

La Forest J. said acts must be "governmental" and not simply "public". Concerning municipalities, La Forest J. relied on four factors to conclude that municipalities cannot escape the application of the Charter. The third factor is particularly relevant for our purposes:

Municipalities are empowered to make laws, to administer them and to enforce them within a defined territorial jurisdiction.[67]

This made it clear that municipalities are creatures of the provinces from which they derive law-making powers, that is, they exercise powers and perform functions conferred by the provincial legislatures that the legislatures would otherwise have to perform. Since the Charter applies to provincial legislatures and governments, it applies to these entities which provinces vest with governmental powers; otherwise, provinces could simply avoid the application of the Charter by vesting certain powers in municipalities.[68]

In Charlebois, the New Brunswick Court of Appeal concluded that municipalities in New Brunswick are subject to the Charter and so, the actions of the City of Moncton are reviewable under the Charter. In short, New Brunswick municipalities are creatures of the province, they exercise governmental powers conferred upon them by the Legislature or the Government, and derive their powers from the law. They must act within the limits of that legislation. Their functions are clearly governmental. The Court concluded that they are "institutions" within the meaning of sections 16(2) and 20(2) of the Charter. The Court also strongly emphasized the soundness of the reasoning in Godbout that stated that governments could avoid language obligations imposed by the Charter if those obligations did not apply to other governmental entities.

Can the same argument be used to conclude that professional associations are "institutions of government and of the Legislature" within the meaning of sections 16(2) and 20(20) of the Charter? We have seen that these associations are created by statutes passed by the Legislature, and that they exercise powers conferred on them by those statutes. However, it is also reasonable to ask whether these associations are governmental in nature, given the degree of governmental control over them, or the functions they perform. We know that the Supreme Court of Canada in Godbout said that these acts must qualify as "governmental", not merely "public". In some cases, these professional associations have the power to establish rules of law, and to apply and enforce them. In the exercise of these actions, they are institutions within the Charter, since their actions can be characterized as "governmental”.

It is also true that these associations are created by private laws, which generally relate to local or private matters, or are in the interest of a person, a group or a municipality. However, in New Brunswick, these “private laws” also regulate the relationship between professional associations and society, which means these associations must also protect the public interest. Evidently, we must distinguish between the actions of these associations that are private in nature and those that are public. Therefore, it is important to ask the following questions:

- Does the action involve the public interest?

- Does the action modify a law of public interest or defeat the application of some general rules of law?

- Does the action affect a range of interests?

When these criteria are applied, only a few of the actions of professional associations can be considered private in nature and thus be exempted from the Charter’s language obligations. By allowing the establishment of these professional associations, the legislator gives them a monopoly with respect to the administration of professional services, to the admission to a profession and to the services that the public can obtain. The granting of this monopoly and autonomy can only be justified for reasons of public interest. They are not granted to reinforce or consolidate the status of the professions, but rather to ensure the protection of the public interest. The mere fact that individuals practice a profession does not give them the right to claim this monopoly. Only the protection of the public interest should justify its granting.

The professional association, by virtue of the powers conferred upon it by the provincial legislature, has the right to regulate the affairs of the association, the manner of election of its officers, the powers of its officers, and all other matters of internal administration. These powers may be considered private in nature and may, in the end, be outside the scope of the Charter. In addition to this power to regulate internal affairs, Parliament has also expressly or implicitly delegated to professional associations the power to regulate many aspects of a profession. As bodies with significant regulatory, supervisory, administrative and disciplinary powers, professional associations can be considered public authorities and an essential part of the structures of government. They are part of the administrative machinery of the state and represent much more than a mere association of individuals engaged in the same profession.

Therefore, because of the broad and liberal rules of interpretation that must be applied in linguistic matters,[69] the nature and role of professional associations make them closely linked to government. They are part of the state structure and are institutions of government and the legislature within the meaning of the Charter.

Professional associations are therefore subject to the obligations of sections 16 to 20 of the Charter. Accordingly, it can be said that the English and French languages are the official languages of professional associations and that these languages have equal status and equal rights and privileges as to their use within these bodies (s. 16(2)). The constituting acts and by-laws of these professional associations must be enacted in both official languages (s. 18(2)). Disciplinary committees of professional associations must respect the right of individuals to use the official language of their choice in disciplinary proceedings (s. 19(2)). They are also required to communicate and provide services to the public and their members in the official language of their choice (s. 20(2)).

B - The Official Languages Act

New Brunswick's first Official Languages Act[70] did not include any provisions with respect to professional associations. The Official Languages Act, 2002 also made no mention of professional associations, except for their judicial activities. Indeed, the Act defines the term "court" to mean the courts and administrative tribunals in the province. The disciplinary committees of Associations are obviously "tribunals" within the meaning of the Act. Given the nature of their actions and the coercive effect of their decisions, they must apply the principles of procedural fairness and natural justice in their proceedings. They are "administrative tribunals" and therefore "courts" within the meaning of the Official Languages Act. In this regard, they are required to comply with the provisions of sections 16 to 24 of the Official Languages Act.

Thus, English and French are the official languages of these disciplinary "tribunals", and members have the right to use the official language of their choice in matters before them, including pleadings and proceedings.[71] It is also incumbent upon these courts to understand the official language chosen by a party, without the assistance of an interpreter or any technique of simultaneous translation or consecutive interpretation.[72] Witnesses appearing before these tribunals also have the right to be heard in the official language of their choice and, upon request of a party or witness, the tribunals must ensure that simultaneous translation or consecutive interpretation services are provided.[73] It should be noted that section 21 only gives the right to request translation or interpretation to parties and witnesses, not to lawyers or members of the court. Section 24 provides that final decisions or orders of the courts, including reasons and summaries, shall be published in both official languages if the point of law at issue is of interest or importance to the public or if the proceedings were conducted in whole or in part in both official languages.

It was when the Official Languages Act was amended in 2013 that the legislature adopted section 41.1 which deals with professional associations. Subsection 41.1(1) defined professional associations as "an organization of persons that, by an Act of the Legislature, has the power to admit persons to or suspend or expel persons from the practice of a profession or occupation or impose requirements on persons with respect to the practice of a profession or occupation." Subsection 41.1(2) provided that professional associations shall provide prescribed services to "their members" in both official languages. I note, first, two flaws in this provision: first, it purports to apply only to "members" of professional associations and not to the "public" and, second, it refers to "regulatory services" that were never defined.

With respect to the first flaw, I will not repeat the argument that I have already made in earlier sections of this paper. Suffice it to say that any attempt to limit the scope of the language obligations of professional associations to their members is both futile and contrary to their constitutional language obligations. The province cannot justify such a limitation on the right of the public to receive services from these associations in the official language of their choice. Were it to do so, the province would be contravening its obligation to enhance the vitality and development of the minority language community, a principle that underlies the language rights it has recognized for that community. It was therefore imperative to make an amendment so that subsection 41.1(2) would also refer to the "public" and not only to members.

Section 41.1 of the Official Languages Act, 2013 was scheduled to come into force in June 2015 following the adoption of regulations that would implement it. However, these regulations were never developed, and, on the eve of the June 2015 deadline, it was clear that they never would be. At the time, the province was also involved in a lawsuit brought by a citizen who claimed that her language rights had been violated because a professional association, in this case the College of Psychologists of the province, had not been able to provide her with equal access to the professional entrance exams in French. With Michel Bastarache, I represented this citizen. After lengthy negotiations with the representatives of this association and with those of the government, it was agreed, among other things, that section 41.1 of the Official Languages Act of 2013 had to be amended and replaced by a new provision.

On June 5, 2015, Bill 49, An Act to Amend the Official Languages Act, which resulted from these negotiations, received Royal Assent. This new version of section 41.1 is now in the Act. It maintains the definition of professional association in subsection 41.1(1) that was present in the 2013 version. Subsection 41.1(2) is, however, amended to provide that when a professional association exercises its powers to admit, suspend or expel a person, it must provide the services and communications related to that exercise in both official languages and, with respect to its power to impose requirements, it must ensure that any person can meet those requirements in the official language of his or her choice. In addition, subsection 4.1(3) provides that no person shall be disadvantaged because they have exercised the right to choose the official language in which they meet the requirements of the professional association.

These new provisions are important because they address the criticisms that have often been levelled by Francophones at professional associations with respect to the quality of the entrance examinations and continuing education courses offered to members. Many French-speaking applicants to a profession, faced with the poor quality of some translations, chose to write their entrance exams in English. This put them at a disadvantage compared to their English-speaking colleagues. In addition, in many cases, the documents allowing applicants to prepare for the entrance exams were only available in English. Such situations should now be contrary to the obligations imposed on associations by the Official Languages Act. We will see that unfortunately this is not yet the case with respect to the Nurses Association of New Brunswick.

Subsection 41.1(4) rectifies an important omission by Parliament in the 2013 version. It provides that professional associations must not only offer their services and communications in both official languages to their members, but also to the public that interacts with them. Associations will therefore have to ensure that they provide equal access to services of equal quality to both official language communities.

Returning to the situation with the Nurses Association of New Brunswick, the Commissioner of Official Languages d’Entremont produced an excellent report in 2018 on the situation faced by Francophone students when it came time to write the nursing entrance exam[74]. I will first recall the facts.

In that case, the complainants, French-speaking student nurses, alleged that they had been disadvantaged because they had chosen to use French to meet the requirements imposed by the Association for access to the right to practice nursing. They mentioned problems with the translation and adaptation into French of the English version of the National Council Licensure Examination-Registered Nurse (NCLEX-RN). In addition, the complainants criticized the lack of resources in French for the preparation for the exam. This exam, designed and prepared in the United States, is used by all Canadian provinces except Quebec.

Following its investigation, the Office of the Commissioner of Official Languages concluded that the association had violated the Official Languages Act by adopting an entrance exam that clearly disadvantaged Francophone candidates. Indeed, there is a significant gap in terms of the exam preparation resources available to the English-speaking communitý compared to what is available to French-speaking people. Commissioner d’Entremont noted that there is only one French-language question bank - with no mock exams and only a limited number of preparatory questions, whereas there is a wide range of high-quality English-language mock examś on the market. Therefore, French-speaking candidates are not on an equal footinǵ with English-speaking candidates.

I recognize that the association has no control over these preparatory resources. However, as the Commissioner noted, the NCLEX-RN exam does not exist in a vacuum and the association knows the situation with these resources and their availabilitý. The Commissioner concluded that since the association made the decision to use the NCLEX-RN exam, Francophone and Anglophone candidates are no longer on an equal footing.

This situation has resulted in many French speaking nursing students deciding to take this exam in English. Not all these students have the language skills to do so and those who must write the exam in French continue to feel disadvantaged and often are denied the opportunity to practice the profession for which they were trained due to their inadequacy in the English language. English-speaking students do not experience this stress.

At the conclusion of her investigation, the Commissioner made the following recommendations:

- that the association take the necessary steps to ensure that the requirements for admission to practice nursing in New Brunswick fully comply with subsection 41.1(3) of the Official Languages Act of New Brunswick

- that regardless of the entrance exam chosen by the association, any translation of the exam and any amendments to it be done by a certified translator

- that the association report to the Office of the Commissioner on the steps taken to comply with subsection 41.1(3) by September 4, 2018.

Since that report was filed, nothing has changed. The Association refuses to take steps to correct the violation of the Official Languages Act and continues to maintain the position that the exam is fair. The provincial government refuses to fulfill its responsibilities and demand that the Association comply with the law. I wonder if the government would hide behind the so-called "independence" of professional associations if one of them violated a provision of the Human Rights Act in the application of its entry-to-practice criteria. I would hope not. Why is it any different for the Official Languages Act, a quasi-constitutional law that takes precedence over all other laws, including the constituting laws of these Associations?

There is a simple solution to this issue. There is currently an exam that would correct the situation if adopted by the Association. This exam created by the Canadian Association of Schools of Nursing was developed in both French and English. All the New Brunswick Association would have to do is accept this exam, and if they want to keep the NCLEX exam for those nurses who wanted to take it, they could do that as well. If the Association does not act on this issue, I maintain that the provincial government has a constitutional and moral responsibility to ensure that they do, or else they will have to do it for them.

In light of the above, I propose that the provisions of the Official Languages Act dealing with professional associations be amended to add:

- a requirement that professional associations file an annual report with the Premier and the Office of the Commissioner of Official Languages listing the means by which they have ensured compliance with their language obligations;

- that a professional association that fails to comply with its linguistic obligations may have its activities suspended until the necessary corrections are made.

[1] (U.K.), 30 & 31 Vic, c 3, reproduced in RSC 1985, Sch II, No 5.

[2] See P. W. Hogg, Constitutional Law of Canada (looseleaf ed.), vol 1 at 21-10; Law Society of British Columbia v Mangat, 2001 SCC 67, [2001] 3 SCR 113 at paras 38-43 and 46; and Krieger v Law Society of Alberta, 2002 SCC 65, [2002] 3 SCR 372 at para 33.

[3] See, among others, J.K. Lieberman, "Some Reflections on Self-Regulation" in The Professions and Public Policy(Toronto: University of Toronto Press, 1976) at 89.

[4] This list was compiled following a survey conducted by the provincial government in January 2015.

[5] In spite of my research, I was unable to find the statute creating this association which was however included in the list prepared by the provincial government.

[6] An Act to incorporate the Cosmetology Association of New Brunswick (Cosmetology Act), SNB 1998, c. 48.

[7] An Act to incorporate the College of Massage Therapists of New Brunswick (2009).

[8] An Act respecting Podiatry, SNB 1983, c. 101.

[9] An Act to Incorporate the New Brunswick Real Estate Association, N.B. 1994, c. 115.

[10] An Act respecting the Architects' Association of New Brunswick, SNB 1987, c. 66.

[11] An Act to Incorporate the Association of New Brunswick Land Surveyors, SNB 1986, c. 91.

[12] Act Respecting Dental Technicians, SNB 1957, c. 71.

[13] An Act to Incorporate the Registered Barbers Association of New Brunswick, SNB 2007, c. 82.

[14] An Act to Incorporate the New Brunswick Chiropractors' Association, SNB 1997, c. 69.

[15] An Act respecting the Registered Interior Designers Association of New Brunswick, SNB 1987, c. 67.

[16] An Act respecting the New Brunswick Association of Dietitians, SNB 1988, c. 75.

[17] Embalmers, Funeral Directors and Funeral Providers Act, SNB 2004, c. 51.

[18] An Act respecting the Association of Occupational Therapists of New Brunswick, SNB 1988, c. 76.

[19] An Act to Incorporate the Real Estate Appraisal Association of New Brunswick, SNB

[20] New Brunswick Association of Registered Foresters Act, 2001, c. 50.

[21] Licensed Practical Nurses Act, SNB 1977, c. 60.

[22] Nurses Act, SNB 1984, c. 71.

[23] Engineering and Geoscience Professions Act, SNB 1986, c. 88.

[24] An Act respecting the New Brunswick Veterinary Medical Association (Veterinarians Act), SNB 1990, c. 70.

[25] An Act respecting Construction Officials and the New Brunswick Association of Construction Officials, SNB 2002, c. 56.

[26] Opticians Act, SNB 2002, c. 58.

[27] Optometry Act, 2004, SNB 2004, c. 50.

[28] An Act to Incorporate the New Brunswick Association of Speech-Language Pathologists and Audiologists, SNB 1987, c. 71.

[29] An Act respecting the Paramedic Association of New Brunswick, SNB 2006, c. 33.

[30] Medical Laboratory Technologists Act, SNB 1991, c. 67.

[31] An Act to Incorporate the Medical Radiation Technologists Association of New Brunswick, SNB 2004, c. 45.

[32] Respiratory Therapists Act, SNB 2009, c. 18.

[33] An Act to Incorporate the New Brunswick Association of Social Workers Act, 1988, SNB 1988, c. 78.

[34] Law Society Act, 1996, SNB 1996, c. 89.

[35] An Act respecting the New Brunswick Medical Society and the College of Physicians and Surgeons of New Brunswick, SNB 1981, c. 87.

[36] An Act respecting the College of Physiotherapists of New Brunswick, SNB 2010, c. 7.

[37] College of Psychologists Act, N.B. 1980, c. 61.

[38] Chartered Accountants Act, 1998, SNB 1998, c. 53, replaced by the Chartered Professional Accountants Act, SNB 2014, c. 28, s. 1: "previous Acts" means the Chartered Accountants Act, 1998, being chapter 53 of the Statutes of New Brunswick, 1998, the Certified General Accountants Association of New Brunswick Act, being chapter 86 of the Statutes of New Brunswick, 1986, and the Certified Management Accountants Association of New Brunswick Act, 1995, being chapter 55 of the Statutes of New Brunswick, 1995, as amended.

[39] An Act respecting the New Brunswick Translators, Terminologists and Interpreters Corporation, SNB 1989, c. 66.

[40] An Act to Incorporate the New Brunswick Institute of Agrologists, SNB 2004, c. 46.

[41] Certified Professional Planners Act, SNB 2005, c. 34.

[42] College of Dental Hygienists of New Brunswick Act, SNB 2009, c. 10.

[43] Pharmacy Act, SNB 1983, c. 100.

[44] New Brunswick Dental Society Act (New Brunswick Dental Act, 1985), SNB 1985, c 73.

[45] Denturists Act, SNB 1986, c. 90.

[46] An Act respecting the New Brunswick Society of Certified Engineering Technicians and Technologists, SNB 1986, c. 92.

[47] An Act respecting the New Brunswick Society of Cardiology Technologists, 2004, c. 49.

[48] Royal Commission Inquiry into Civil Rights (McRuer Commission), 1968, Report No. 1, Vol. 3 at 1162 [Inquiry into Civil Rights].

[49] See Legislative Assembly of New Brunswick, " The Procedure for a Private Bill", online: < https://www.gnb.ca/legis/publications/billbecomeslaw/bill4-e.asp >.

[50] Inquiry into Civil Rights, supra at p 1183.

[52] SNB 2002, c. O-0.5 [OLA].

[53] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11 [Charter].

[54] (1992), 130 NBR (2d) 53, [1992] NBJ No 672 (QL).

[55] SNB 1958, c 64.

[56] [1990] 3 SCR 229, 76 DLR (4th) 545.

[57] [1990] 3 SCR 483, 76 DLR (4th) 700.

[58] [1997] 3 SCR 624, 151 DLR (4th) 577.

[59] Ibid. at para 43.

[60] [1997] 3 SCR 844 at para 48, 152 DLR (4th) 577 [Godbout].

[61] Greater Vancouver Transportation Authority v Canadian Federation of Students - British Columbia Chapter, 2009 SCC 31, [2009] 2 SCR 295 at para 16.

[62] [1989] 1 SCR 143, 56 DLR (4th) 1.

[63] 50 OR (2d) 118, 16 DLR (4th) 489.

[64] 54 OR (2d) 513, 26 DLR (4th) 728 (Ont CA).

[65] 2001 NBCA 117, 242 GNI (2d) 259 [Charlebois].

[66] Supra.

[67] Ibid. at para 51.

[68] See also Nanaimo (City) v. Rascal Trucking Ltd [2000] 1 SCR 342 at para 31, 183 DLR (4th) 1; Ramsden v. Peterborough (City), [1993] 2 SCR 1084, 106 DLR (4th) 233; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307 at paras 32-36; Public School Boards' Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 45, [2000] 2 SCR 409 at para 33; Freitag v. Town of Penetanguishene (1999), 47 OR (3d) 301, 179 DLR (3d) 150 (CA); and in particular the passage of Linden J. at p 663 in Re McCutcheon and City of Toronto (1983), 41 OR (2d) 652, 147 DLR (3d) 193 (SC), cited with approval in Godbout, supra at para 52.

[69] See, among others, R v Beaulac, [1999] 1 SCR 768, 173 DLR (4th) 193.

[70] Official Languages of New Brunswick Act, RSNB 1973, c. O-1.

[71] OLA, supra, ss 16 and 17.

[72] Ibid., s 19.

[73] Ibid., s 21.

[74] Office of the Commissioner of Official Languages of New Brunswick - Investigation Report - Nurses Association of New Brunswick - May 2018, https://officiallanguages.nb.ca/wp-content/uploads/2014/04/2016-3071-investigation_report-web.pdf