On September 2, 2011, the Competition Bureau released the results of an ex-post assessment of its December 2007 study entitled “Self-Regulated Professions: Balancing Competition and Regulation.” The Bureau’s review assessed developments since the publication of its 2007 study, which contained 53 recommendations aimed at eliminating unwarranted regulatory restrictions on competition in five self-regulating professions: accountants, lawyers, optometrists, pharmacists and real estate agents.

In addition to specific recommendations, the 2007 study also included six guiding principles set forth by the Bureau to help regulators develop regulatory frameworks that maximize consumer welfare through competition:

  1. Regulation should have clearly defined and specific objectives.
  2. Restrictions should be directly linked to clear and verifiable outcomes.
  3. Regulation should be the minimum necessary to achieve stated objectives.
  4. The regulatory process must be impartial and not self-serving.
  5. A regulatory scheme should allow for periodic assessment of its effectiveness and be subject to regular reviews.
  6. A primary objective of the regulatory framework should be to promote open and effectively competitive markets.

At the time, the self-regulating professions considered in the study had been asked to re-examine the restrictions identified by the Bureau, and to remove those that did not benefit the public interest. In December of 2009, the Bureau requested an update from each of the five professions on measures taken since the publication of its 2007 recommendations. In the ex-post assessment just released, the Bureau found that the impact of its 2007 study had extended beyond the five professions noted above and that progress had been made toward the removal of unnecessary restrictions on competition in several sectors. More specifically, the Bureau highlighted improvements made in the following sectors:

  • Labour mobility: Amendments to the labour mobility provisions of the Agreement on Internal Trade now allow workers certified for an occupation in a province or territory to be certified for that occupation in another province or territory, upon application to the relevant regulatory authority (except for public accountants, who remain subject to more stringent regulatory requirements).
  • Provision of legal services: Under the Quebec Mobility Agreement, entered into in March 2010 by all Canadian common-law jurisdictions and the Barreau du Québec, members of any provincial or territorial law society can exercise mobility on a reciprocal basis.
  • Marketing and advertising of accounting and legal services: Changes to the Canadian Institute for Chartered Accountants’ Model Rules for Professional Conduct and professional rules for the marketing of legal services have enhanced accountants’ and lawyers’ freedom to advertise.
  • Optometry: In British Columbia, Ontario, Nova Scotia and Prince Edward Island, optometrists have been given new authority to prescribe pharmaceuticals for eye conditions that they are qualified to treat.
  • Opticians: In British Columbia, opticians now have the authority to perform eye tests and identify persons requiring more in–depth assessment by an optometrist.
  • Pharmacy: A number of provinces are in the process of creating a pharmacy technician designation, which would allow pharmacy technicians to perform dispensing tasks currently reserved for pharmacists.

The Bureau concluded its review by reiterating the importance for self-regulating professions and government authorities to ensure that professional restrictions are developed and applied in a pro-competitive manner, and to strike a balance between competition and regulation.

It is important to note that the Bureau’s 2007 study and recent follow-up are relevant only to professional bodies that have been granted statutory authority by the federal or a provincial legislature to regulate some or all aspects of their profession.   Such self-regulated professions may in certain circumstances enjoy immunity from prosecution for regulations which, although authorized by valid legislation, nonetheless impede competition. Professional organizations that do not enjoy such statutory authority to regulate their members, however, remain fully subject to the provisions of the Competition Act, including criminal prohibitions of price-fixing and bid-rigging, and possible civil review by the Competition Tribunal of agreements that otherwise substantially lessen or prevent competition.

Should you have questions about the Bureau’s study or any aspect of the Competition Act, please contact the authors or another member of Stikeman Elliott’s Competition & Foreign Investment Group.