Can a Court Interfere with the Examination Process

The Ontario Supreme Court recently considered the degree to which a Court may interfere with the process followed by an examination body for a professional college. This is an important decision as it is the first to consider the issue in this context.

The Ontario College of Chiropractors requires successful completion of an examination for registration. This examination is administered by the Canadian Chiropractic Examining Board (CCEB), a not for profit corporation comprised of the provincial licensing bodies that regulate chiropractic practice. The Board schedules examinations 3 times per year in various locations. All of its policies and procedures, including deadlines for registration and late applications were clearly available on its website.

The applicant missed the deadline for registration for the examination, the last step she had to complete in order to be registered. She had a position waiting for her upon completion of this requirement. She said that she was late due to financial problems. When she tried to submit the examination fee past the deadline, it was not accepted by the CCEB and she could not take the examination. She lost the job opportunity noted above as she had to wait another 4 months to take the next offered examination.

She launched and was granted several internal appeals. The CCEB took these appeals seriously and presented much evidence regarding what happened, the reason for its policies and so forth.

She was unsuccessful in all internal appeals and appealed to the Court by judicial review. The main issues were whether the CCEB was a public body that was subject to judicial review, and whether it abused its discretion when it refused to allow her to register late for the examination.

The Ontario Supreme Court held that the CCEB did not have any statutory or regulatory power, even though it was comprised of the regulatory authorities. It did say that the CCEB was bound by the rules of natural justice and procedural fairness. As to how the applicant had been treated, the Court stated that "reviewing courts remain unwilling to interfere with policies established by such non-statutory entities or the procedural decisions they reach in the absence of manifest unfairness."

Another important point was that the applicant had argued that her financial situation was a hardship that was an extraordinary circumstance. She had incurred significant debt while completing her studies. The CCEB had rejected her argument and the Court held that its decision in this regard was reasonable.

FAWCETT V. CANADIAN CHIROPRACTIC EXAMINING BOARD

2010 ONSC 4903 (CanLii)