Printed . This content is updated regularly, please refer back to https://bcfsa.ca to ensure that you are relying on the most up-to-date resources.
Accommodation Statement Cover Letter
This Statement addresses:
- BC Financial Services Authority’s (“BCFSA”) duty to accommodate a limitation which is associated with or caused by a characteristic which is protected under the Human Rights Code, [RSBC 1996] c. 210 (“Code”); and
- the principles and procedures which will apply to BCFSA’s assessment, design, and implementation of such an accommodation.
- This Statement applies to an individual person seeking a licence, registration, approval, determination, decision, or order (an “Applicant”) from BCFSA pursuant to its statutory powers of decision, but not to any other persons.
- In the exercise of its regulatory function, BCFSA will accommodate to the point of undue hardship a properly identified and documented limitation of an Applicant which is associated with or caused by a characteristic which is protected under section 14 of the Code (“Protected Characteristic”). Please refer to section 29 for the factors that BCFSA will consider when determining whether undue hardship exists.
- At the date on which this Statement was approved and adopted; section 14 of the Code provided:
A trade union, employers’ organization or occupational association must not
(a) exclude any person from membership,
(b) expel or suspend any member, or
(c) discriminate against any person or member
because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or member, or because that person or member has been convicted of a criminal or summary conviction offence that is unrelated to the membership or intended membership
- In British Columbia, regulators of licensed professions and occupations, including BCFSA, have a legal obligation not to engage in forms of discrimination which are prohibited by section 14 of the Code.
- Section 14 of the Code prohibits a regulator from making an adverse decision about or otherwise discriminating against an Applicant because the Applicant has a Protected Characteristic.
- Section 14 of the Code also prohibits the discrimination which occurs when
a) a regulator adopts a standard for a purpose that is rationally connected to its regulatory mandate with an honest and good faith belief that the standard is necessary to the fulfillment of that mandate; and
b) the standard is reasonably necessary to the accomplishment of that mandate; but
c) the standard has an adverse (or discriminatory) effect on an Applicant with a Protected Characteristic due to the interaction between the standard and the limitations which are associated with or caused by the Applicant’s Protected Characteristic.
In the above circumstances, before applying the standard to the Applicant, the regulator must accommodate to the point of undue hardship the limitations which are associated with or caused by the Applicant’s Protected Characteristic.
a) a regulator cannot accommodate the limitations which are associated with or caused by an Applicant’s Protected Characteristic without incurring undue hardship;
b) an Applicant is offered and refuses an accommodation which is reasonable even if it is not either a perfect accommodation or the Applicant’s preferred accommodation; or
c) an Applicant refuses to cooperate with the regulator during the accommodation process,
the Applicant may lose the right to receive any (further) accommodation.
BCFSA’s Accommodation Process
- Every Protected Characteristic which is included from time to time in section 14 of the Code will be covered by this Statement.
- Requests for the accommodation of a limitation which is associated with or caused by a Protected Characteristic will be assessed by BCFSA on a case-by-case basis.
- When BCFSA designs and implements an accommodation, it will also do so on a case-by-case basis.
- Accommodation measures are inherently dynamic. The limitations associated with or caused by a Protected Characteristic may change over time, requiring an existing accommodation to be revised. Similarly, over time a previously viable accommodation may reach a point where it causes undue hardship.
- An Applicant who may require an accommodation should bring the Applicant’s circumstances to BCFSA’s attention without delay.
- If an Applicant is entitled to an accommodation, the legal duty to design and implement the accommodation rests with BCFSA.
- An Applicant who applies for an accommodation is expected and required to cooperate with BCFSA throughout both the accommodation process and the currency of any accommodation resulting from that process.
- An Applicant who is adversely affected by a rule or requirement of BCFSA due to a limitation which is associated with or caused by a Protected Characteristic may request an accommodation of that limitation (“Accommodation Request”) from BCFSA. An Accommodation Request must be made using the form approved by BCFSA.
- An Accommodation Request must identify:
- the Protected Characteristic(s) of the Applicant which give(s) rise to the limitation(s) which the Applicant wants BCFSA to accommodate; and
- the limitation(s) which is/are associated with or caused by the Protected Characteristic(s) identified by the Applicant.
- An Accommodation Request must include sufficient reliable and satisfactory documentation to permit BCFSA to assess both the existence of the Protected Characteristic(s) which has/have been identified by the Applicant and the limitation(s) which is/are associated with or caused by that/those Protected Characteristic(s).
- BCFSA may ask an Applicant, at the Applicant’s cost, to provide BCFSA with all such information from a third-party as may be reasonably required to allow BCFSA to assess an Accommodation Request accurately and fairly.
- BCFSA may require an Applicant to meet with a representative of BCFSA either remotely or in person to:
- review the Applicant’s Accommodation Request in greater detail;
- discuss the need for further satisfactory and reliable information, including relevant professional advice, to support the Accommodation Request; and/or
- discuss potential means of accommodating the Applicant.
- An Applicant may include in the Accommodation Request suggestions about ways in which BCFSA could accommodate the Applicant. However, such suggestions are not required and, if made, will not bind BCFSA.
Assessment of an Accommodation Request
- On receipt of an Accommodation Request, BCFSA will refer the Accommodation Request to the BCFSA senior leader (“Senior Leader”) who is most directly accountable for the matter giving rise to the Accommodation Request. For clarity, the Senior Leader must be at the Senior Vice-President or Vice-President level.
- The Senior Leader, with such assistance from other BCFSA’s employees and a BCFSA lawyer (in-house or external) as may be necessary or advisable, will review the Accommodation Request to determine whether:
- the Accommodation Request is complete and within the scope of this Statement;
- the Accommodation Request involves a simple or complex accommodation;
- the documentation supplied with the Accommodation Request is sufficient and reliable;
- a meeting with the Applicant may or will be necessary in conjunction with the assessment, design, or implementation of an accommodation; or
- additional measures can or should be taken to address an Accommodation Request which is incomplete, insufficient or in some other manner unsatisfactory.
- If, having completed the review, the Senior Leader determines the Accommodation Request is incomplete, insufficient or in some other manner unsatisfactory, the Senior Leader will inform the Applicant of the determination, indicate why the determination was made, and confirm that the Applicant may submit a revised Accommodation Request to address the deficiencies identified by the Senior Leader.
- If, having completed the review, the Senior Leader determines the Accommodation Request is complete and otherwise satisfactory and an accommodation appears to be required, the Senior Leader, with such assistance from a BCFSA lawyer (in-house or external) as may be necessary or advisable, will assess, design, and implement the accommodation.
- In the case of a complex accommodation, the Senior Leader may refer the Accommodation Request to a committee (“Committee”) consisting of the Senior Leader, one other BCFSA leader at the Vice-President or Senior Vice-President level and a BCFSA lawyer (in-house or external), for further review and, if an accommodation appears to be required, for the assessment, design, and implementation of an accommodation.
- Where the Senior Leader or the Committee identifies more than one possible accommodation, there will be a presumption in favour of implementing the accommodation which has the lowest adverse impact on the public interest, the rules and regulations administered by BCFSA, and other generally applicable regulatory requirements.
- Once an accommodation has been implemented, the Senior Leader will remain responsible for the ongoing management of the accommodation.
- The Senior Leader or the Committee, as the case may be, must record the key considerations, analysis and conclusions which formed the evaluation of the Accommodation Request. This record may take the form of summary reasons, as described below, or another reasonably comparable form of documentation.
- Factors that will be considered by BCFSA when assessing whether an accommodation would result in an undue hardship include but are not limited to the cost to BCFSA of providing the accommodation, adverse impacts on BCFSA’s operations, and adverse impacts on third parties including members of the public and other licensees or registrants, in the context of its statutory mandate.
- If the Senior Leader or the Committee decides not to provide any accommodation to an Applicant, and if the Applicant has complied with any reasonable directions given by the Senior Leader or the Committee during the processing of the Accommodation Request, the Applicant may:
- require the Senior Leader or the Committee to provide summary reasons for the decision not to provide any accommodation; and
- ask for the decision of the Senior Leader or the Committee to be reviewed by the Chief Executive Officer (“CEO”) of BCFSA.
- On a review, the CEO:
a) must review both the Accommodation Request and the reasons given by the Senior Leader or the Committee;
b) may, at such times and in such manner as the CEO deems necessary, interview the Applicant or request a written submission from the Applicant; and
c) may direct that the Applicant be provided with an accommodation or refer the matter back to the Senior Leader or the Committee for reconsideration or uphold the decision under review.
- Nothing in this Statement restricts or is intended to restrict an Applicant’s right to be heard under any statutory provision.
- The CEO may direct that this Statement be reviewed for currency and effectiveness at such intervals as the CEO deems necessary.