True regulators and quasi-regulators

The key defining characteristic of professional regulatory bodies is the fact that there is a formal delegation of provincial powers of regulation to a professional association or regulatory body by means of an act.  And yet, some professional bodies offer designations, have codes of ethics, and have complaint mechanisms without such legislation.  We could call these professional bodies ‘quasi-regulators.’

Quasi-regulators seem to do everything that true professional regulatory bodies do but without specific enabling legislation.   Indeed, by outward appearances, there is no great difference between quasi-regulators and true regulators.  The difference between true regulators and quasi-regulators is at the same time subtle and profound.  Here are some of the differences between quasi-regulators and true regulators.

The existence of act indicates that the provincial legislature has recognized the profession and has provided official sanction to the provincial association or regulatory body to regulate the profession.  In that regulatory powers are delegated powers, this delegation could always be revoked should the professional body not live up to the terms set out in the enabling legislation.

Because they are created through legislation, the various committees and panels that make regulatory decisions are considered as administrative tribunals; indeed, the decisions of these committees and panels are often appealable to Divisional Court, the branch of the Superior Court that deals with such matters.

Another example of the difference between quasi-regulators and true regulators is how title protection works.  In the case of true regulator, the enabling legislation will make it an offence to use the title (designation) or initials without authorization of the professional association or regulatory body.  In essence, the government has made it illegal to use the title without specific authorization by the regulatory body.  In the case of quasi-regulators, there is no such legislation.  In this case, using the designation without authorization is not an offence (illegal).  The quasi-regulator must initiate a civil action for trademark (certification mark) infringement provided that the designation has been trademarked.

True regulators are subject to a greater degree of governmental control than are quasi-regulators.  For instance, the Ontario Labour Mobility Act, 2009, enforces compliance with the Agreement on Internal Trade (AIT) defines “regulatory authority” as “a department, ministry or similar agency of Government or a non-governmental body that exercises authority delegated by law.”

As noted above, the differences between true regulators and quasi-regulators are both subtle and profound.  Although they appear to do much the same things, true regulators are doing so more as an extension of government, with statutory authorities and corresponding obligations.

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