Balancing Public Interest and Business Impact

Occupational licensing regulators play a crucial role in protecting public safety and maintaining professional standards. However, a complex question arises: Are these regulators obligated to consider the potential negative business impact on registrants when posting information on public registers? This article explores the nuances of this issue and its implications for both regulators and professionals.

The Purpose of Public Registers

Public registers serve as a valuable resource for consumers, employers, and other stakeholders. They provide transparency about professionals' qualifications, disciplinary history, and current standing within their field. This information empowers the public to make informed decisions when choosing service providers.

The Regulator's Primary Duty

The primary duty of occupational licensing regulators is to govern in the public interest. This includes:

1. Ensuring practitioners meet minimum standards of competence
2. Enforcing ethical guidelines
3. Investigating complaints
4. Taking disciplinary action when necessary

Given this mandate, regulators might argue that their responsibility to public safety outweighs concerns about potential negative impacts on individual registrants' businesses.

The Business Impact Perspective

On the other hand, registrants have legitimate concerns about how information on public registers might affect their livelihoods. Negative information, even if accurate and relevant, could deter potential clients, damage professional reputations and lead to loss of business opportunities. Some argue that regulators should consider these potential consequences when deciding what information to publish and how to present it.

Striking a Balance

In June 2023, the Financial Services Regulatory Authority ("FSRA") initiated enforcement proceedings and published on its website a notice of proposal ("NOP") to revoke and refuse the renewal application of a registrant's license (Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Officer), 2024 ONSC 4464.). The publication was made pursuant to the regulator's transparency guidelines that called for automatic publication. The registrant challenged the publication of the NOP and the transparency policy and requested that the regulator be required to publish its responding document. The regulator refused to publish the responding document. The registrant alleged that the publication of the NOP was unfair and defamatory. The Court ultimately found that the publication of the NOP did not affect the rights of the registrant, and that judicial review of the publication action was not available. The Court also held that publication of the NOP was not unreasonable as it was (a) consistent with the practice of other regulators, (b) noted that the document contained mere allegations, and (c) there was an ability to dispute the allegations. The Court also supported the regulator's decision to refuse publication of the responding document as the document may have contained statements that were inaccurate or otherwise objectionable.

While regulators' primary duty is to the public, there are compelling reasons why they should consider the business impact on registrants:

1. Proportionality: Ensure that the information published, and its potential impact, is proportional to the severity of any infractions or concerns
2. Fairness: Provide context for any negative information to avoid unfair characterizations of minor or isolated incidents
3. Accuracy: Maintain rigorous standards for accuracy and timeliness of information to prevent outdated or incorrect data from unfairly impacting registrants
4. Right to Appeal: Offer clear processes for registrants to appeal or provide additional context for published information
5. Economic Considerations: Recognize that unnecessarily harming professionals' livelihoods could have broader negative economic impacts

Best Practices for Regulators

To balance public interest and registrants' concerns, regulators should consider:

1. Developing clear policies on what information is published and why
2. Implementing a review process for sensitive information before publication
3. Providing registrants with advance notice and the opportunity to respond
4. Regularly reviewing and updating published information
5. Offering a clear pathway for registrants to request corrections or updates

While occupational licensing regulators' primary duty is to govern in the public interest, they should not ignore the potential business impact of their public register policies. By implementing thoughtful, balanced approaches to information disclosure, regulators can fulfill their mandates while also treating registrants fairly. This nuanced approach serves the interests of the public, professionals, and the broader economy.