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)

PROFESSIONAL REGULATORS MAY OBTAIN TRANSCRIPTS FROM PROCEEDINGS SUBJECT TO A PROVINCIAL COURT PUBLICATION BAN IN SOME CIRCUMSTANCES

Recently, the College of Teachers obtained an order producing the transcript of evidence of a child witness at a preliminary hearing in respect of a teacher, Mr. Sidhu, who had been criminally charged with sexually offending against a child: The BC College of Teachers v. British Columbia 2010 BCSC 847.
Mr. Sidhu had resigned from the College a few years before the charges were laid. He was ordered to stand trial following the preliminary hearing, but ultimately the charges were stayed and did not proceed. There were 2 publication bans pursuan tto s.539(10) and 486.4(2) of the Criminal Code.
The College intended to proceed against Mr. Sidhu in a discipline hearing and had applied for access to the transcript of the child's evidence for use in those proceedings. The ban pursuant to s.539 was made at the beginning of the preliminary inquiry and was in effect until such time as Mr. Sidhu was discharged or the trial had ended. Mr. Sidhu argued that the stay of proceedings was not an end to the trial, as no trial had been commenced so that the ban remained in effect. The Court did not accept this argument and found that in the circumstances, in light of the stay and the fact that one year had passed since the stay had been entered, the trial was at an end, and so the publication ban was at an end.
The situation with respect to a s.486.4(2) ban was different. This section requires the consent of the complainant before the ban may be lifted. The complainant was still an infant, was not in the jurisdiction and was not expected to testify before the College.
The Court decided to release the transcript, but not in a manner in which the ban would be violated. The transcript had to be reviewed by the Crown first and where applicable, all information that could identify the child complainant had to be removed.
The case is helpful because it indicates the court's willingness to interpret publication ban provisions liberally so as to assist professional regulators to carry out their duties. It is not clear how the College could use the transcript, if such important information is removed from it and the child witness was not going to testify, but that is another matter.

LSBC DECISION NOT TO HOLD A DISCIPLINE HEARING IS NOT SUBJECT TO JUDICIAL REVIEW

In Taylor v. the Law Society of British Columbia 2010 BCSC 1098, the B.C. Supreme Court held that the decision of the Discipline Committee not to hold a discipline hearing with respect to a particular matter, is not subject to judicial review. The LSBC's Conduct Review Committee (CRC) had made a finding that there had been professional misconduct on Mr. Taylor's part and that a citation should be issued, but for reasons that were not set out in the judgment, the Discipline Committee decided not to proceed. Mr. Taylor applied to quash the decision of the Discipline Committee because it had accepted the CRC's conclusions and this information formed part of his record at the Law Society. The Court found that the decision not to proceed was an administrative one and as such was not subject to the Judicial Review Procedure Act. In the course of giving its reasons the Court noted that the LSBC was obliged to maintain the documents in Mr. Taylor's file as part of its duties to the regulate the practice of law and to protect the interests of its members and its duties to the public.
I think that the reasoning in this decision would apply to decisions of Inquiry Committees under the Health Professions Act - in other words their decisions are not subject to judicial review.