Baldwin v. Nunavut, 2015 NUCJ 37

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Baldwin v. Nunavut, 2015 NUCJ 37 Date: 20151208 Docket: 08-14-176-CVA Registry: Iqaluit Respondent: Government of Nunavut, Department of Health -and- Defendant: Amanda Baldwin ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Respondent): John MacLean Counsel (Defendant): Self-Represented Location Heard: Iqaluit, Nunavut Date Heard: November 12, 2015; December 8, 2015 Matters: Psychologists Act, RSNWT 1988, c P-11 (Nunavut) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. UNDISPUTED BACKGROUND FACTS [ 1 ] Amanda Baldwin was employed by the Hamlet of Cambridge Bay between October 15, 2010, and March 31, 2012, as a Community Wellness Counsellor and the Family Violence Shelter Coordinator. [ 2 ] In November of 2010, Ms. Baldwin began discussions with Nunavut’s Registrar of Health Professionals, Ms.

Harvey, about what would be required for her to be registered as an intern psychologist. [ 3 ] She was advised that a plan would need to be developed which included the need for a substantial amount of practice hours together with an appropriate amount of supervision hours from a licensed psychologist. [ 4 ] The first Supervision Plan was submitted by Ms. Baldwin on Jan. 12, 2011. It was based on standards developed by the College of Alberta Psychologists [College]. Ms. Baldwin testified on November 12, 2015, that she was responsible for choosing this College as the proper agency to monitor her internship.

She chose them because Alberta is her home province and the two supervisors that she had identified were also from Alberta. [ 5 ] There was a five month delay in order for Ms. Baldwin to perfect her application to be placed on the register as an intern psychologist. [ 6 ] On May 26, 2011, Ms. Baldwin submitted an Amended Supervision Plan [the plan] with revised dates. She was to be supervised by two registered psychologists: Dr. Bruce Hadley, her primary supervisor; and, Dr.

Ayalah Aylan, her secondary supervisor. [ 7 ] The plan required her to complete 1,600 hours of supervised work within one year from the date of registration as an intern. [ 8 ] The plan also required a ratio of one hour of supervision for every 15 hours of work. [ 9 ] The plan was approved by The Honourable Minister Tagak Curley and a certificate of registration as an intern psychologist from August 2, 2011, to March 31, 2012, was issued. [ 10 ] Immediately after being registered as an intern, Ms. Baldwin asked to extend the term of the license.

She was concerned that she would not be able to complete the required 1,600 hours within eight months of supervised practice. She was assured by the Registrar, Ms. Harvey, that she would be able to renew her license in March of 2012, without any difficulty. [ 11 ] In fact, the record shows that in March of 2012, Ms. Baldwin did receive from the Department of Health, Government of Nunavut, a renewal of her internship covering the period from April 1, 2012, to March 31, 2013. [ 12 ] Notwithstanding the renewal, on March 19, 2012, Ms.

Baldwin requested registration as a fully licensed psychologist, and on March 26, 2012, she forwarded supporting documentation for consideration by the Registrar of Health Professionals and the Association of Psychologists of the Northwest Territories, hereinafter referred to as the “Association”. [ 13 ] Further documentation was requested and provided to the Association by Ms. Baldwin on March 29, 2012. [ 14 ] On May 13, 2012, the Association advised Nunavut’s Registrar, Ms. Harvey, that they noted several deficiencies in the final documentation.

They advised that they were missing the record of supervised hours signed by Ms. Baldwin’s supervisors confirming the 15 to 1 supervision ratio agreed upon. They also advised that they were concerned with the speed at which Ms. Baldwin had completed the 1,736.5 hours of supervised practice which she claimed in only eight months.

[ 15 ] At that time, it was made clear to Ms. Baldwin that the documents she provided did not indicate that she had met the required supervision ratio of eight hours per month in September, October, or December of 2011. She had also not met the required supervision ratio in March of 2012. [ 16 ] Ms. Baldwin chose not to provide any further information for consideration by the Association other than a letter from the Hamlet of Cambridge Bay confirming the hours of work submitted. This was sent to the Association on June 22, 2012. [ 17 ] In spite of numerous emails and follow ups by Ms.

Harvey, a recommendation was not received from the Association until May 16, 2013. The long delay has not been adequately explained except to say that this was the first time the Government of Nunavut had undertaken such a process and Ms. Baldwin was the first intern psychologist to ever be registered in this territory. [ 18 ] In any event, the recommendation by the Association was to deny her application for registration as a licensed psychologist in Nunavut. The Association indicated that their concerns had not been met by Ms. Baldwin. [ 19 ] Upon receipt of the recommendation, Ms. Harvey requested that Ms.

Baldwin present a plan to rectify the shortfall of supervision noted by the Association by August 30, 2013, so that she could complete her internship and be registered. She refused. Another request by Ms. Harvey in June of 2013, met with the same response from Ms. Baldwin. [ 20 ] On June 27, 2013, Ms. Harvey requested a final decision from the Honourable Minister Monica Ell, Department of Health, Government of Nunavut. [ 21 ] Again, there was a lengthy delay and the final decision from Minister Ell was not received and conveyed to Ms.

Baldwin until December 13, 2013. [ 22 ] A letter of appeal was received by the Minister on Jan. 14, 2014, and the Minister’s decision was affirmed on February 12, 2014. II. STANDARD OF REVIEW [ 23 ] At issue in this appeal is a decision by the Nunavut Minister of Health that Ms. Baldwin had failed to meet the registration and licensing requirements pursuant to

section seven of the Psychologists Act, RSNWT 1988, c P-11 (Nunavut) [the Act] adopted, in its entirety, by Nunavut from the Northwest Territories upon division. [ 24 ] This requirement was specifically addressed in the Supervision Plan signed and submitted by Ms. Baldwin on May 26, 2011. [ 25 ] Although there exists a statutory right of appeal in

Section 15 of the Act, whether this matter proceeds as a statutory appeal or a judicial review is not determinative of the standard of review. It remains that the standard in either case is one of either reasonableness or correctness (Dr Q v College of Physicians and Surgeons (British Columbia), 2003 SCC 19 , [2003] 1 SCR 226 ; generally, Donald J.M. Brown & The Hon. John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (Toronto: Canvasback Publishing, 1998), updated to August, 2015, at 14:2522). [ 26 ] According to the Supreme Court of Canada in the case of Dunsmuir v.

New Brunswick, 2008 SCC 9 at paragraph 57 , [2008] 1 SCR 190 [Dunsmuir] , the first step for the court is determining if the standard of review is sufficiently identified in the jurisprudence. In that case, the Court stated at paragraph 27: Courts while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures.

[ 27 ] Further, there is a presumption that statutory decision makers interpreting their home statutes are to be reviewed on the reasonableness standard (Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 , at paragraph 34 , [2011] 3 SCR 654 ; McLean v British Columbia (Securities Commission), 2013 SCC 67 , at paragraphs 19-33 , [2013] 3 SCR 895 ). [ 28 ] The reasonableness standard was outlined in Dunsmuir at paragraph 47 : Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 29 ] Ms. Baldwin, who is self-represented, did not provide explicit submissions other than to submit that the Minister erred in her

interpretation of the requirements that she was required to satisfy in order to be registered in Nunavut as a psychologist. [ 30 ] Mr. MacLean, on behalf of the Government of Nunavut, made submissions and filed case law to support the Respondent’s position that the appropriate standard of review is “reasonableness” on the basis that, among other things, there is no privative clause, the nature of the administrative regime is closely connected to the decision maker’s function, and the nature of the decision is a question of fact.

He submits that these facts suggest more deference should be applied to the statutory decision maker. [ 31 ] For all of these reasons, I find that in this case the standard of review is “reasonableness”. [ 32 ] The Northwest Territories Supreme Court decisions in Tan v Northwest Territories (Minister of Justice) 2010, NWTSC 12 , [2010] NWTJ No 11 (QL) [Tan] ; and Bargen v Medical Board of Inquiry, 2009 NWTSC 5 , [2009] NWTJ No 8 (QL) [Bargen] , support my decision in that they identify the applicable standard of review as reasonableness in similar circumstances and upon the same legislation. [ 33 ] I find the decision in Tan to be persuasive as Justice Cooper found that the appropriate standard of review was reasonableness, except for statutory

interpretation where it is correctness. [ 34 ] The Tan case deals with the same Act which Nunavut inherited from the Northwest Territories and the issue is almost identical.

In that case, it was the requirement to provide proof of one year of supervised practical experience that was central. [ 35 ] Justice Cooper found in paragraphs 41 and 42 of the decision, that the Minister was appropriately delegated to apply his or her discretion in determining whether or not applicants meet the statutory requirements in conjunction with the recommendations of the Association of Psychologists of the Northwest Territories. [ 36 ] Ms.

Baldwin’s case deals with the same Act and the same Association. [ 37 ] Justice Cooper found that the Minister had jurisdiction to deny the application based on standard of reasonableness and the application was dismissed. [ 38 ] Bargen is also very persuasive. This case also dealt with identical legislation and similar processes. The court found the standard of review to be reasonableness and stated that considerable deference must be given to the Minister in matters involving the setting of professional standards and the evaluation of professional credentials.

[ 39 ] The involvement of the Association in the Minister’s decision making process and their combined expertise in determining whether or not applicants have met the requirements of the Act in issues as critical as the supervision aspect of the practice experience requirements suggest a level of experience to be accorded considerable deference. III. ANALYSIS [ 40 ] The issue to be decided is: “was the Minister’s decision to deny Ms. Baldwin’s application to become a registered psychologist in Nunavut reasonable?” [ 41 ] The Government of Nunavut has conceded that Ms.

Baldwin met the academic requirements under the Act. They have conceded that she is of good character, but they submit that the Minister’s denial is reasonable given the fact that the documentation provided by Ms. Baldwin did not meet the 15:1 supervision ratio set out in the plan pursuant to section 7(3) of the Act. [ 42 ] The plan signed by Ms. Baldwin is of course included in the material filed on this appeal. Any reasonable person reading the plan would come to the conclusion that appropriate and consistent supervision was an integral part of what would be expected of Ms.

Baldwin in order to be registered as a qualified psychologist in Nunavut. [ 43 ] Ms. Baldwin’s evidence on this appeal supports this position. [ 44 ] I find it important to set out the actual words which were contained in the Plan which forms the subject matter of this appeal. [ 45 ] Under the heading “Logistics of Supervision”, we find a number of specific requirements related to supervision. The one I find most applicable to the issue I must decide is as follows: The methods of supervision will include case consultation, direct observation, video reviews, and review of written case notes and files.

Amanda will have phone or internet video conversations with each supervisor for a minimum of one hour each week (two hours total) to review client files, progress, and written work. The ratio of hours worked to hours of supervision will be 15:1, as outlined by the College of Alberta Psychologists. This will be 100 hours of the 1600 hour internship. [emphasis added] [ 46 ] It is clear from the plan that Ms. Baldwin was to keep a detailed record of her work and supervision which was to go to both supervisors at each mid-term evaluation point for their signatures. [ 47 ] Ms.

Baldwin’s position is that she exceeded the overall supervision requirements pursuant to the plan submitted, and in accordance with the Act. [ 48 ] Ms. Baldwin explained to the court that the plan which she read and signed was supposed to be flexible in terms of supervision hours. She tells us that there were many hours of supervision that she did not record. [ 49 ] She advised that, because of a number of tragic events in the community of Cambridge Bay during the months of September, October, and December of 2011, her priority during that time was building and healing relationships. [ 50 ] Ms.

Baldwin submits that she was in touch with her supervisors every day, but she did not record all of the time spent. [ 51 ] Her evidence at the hearing of this matter is that there was a general agreement between herself and her supervisors that they would step back when not needed and step forward when they were.

[ 52 ] With the greatest of respect to Ms. Baldwin, the plan which she signed and submitted clearly required a minimum of one hour each week with each supervisor for a total of eight hours every month. [ 53 ] If she did speak to her supervisors every day, it is hard to understand why those calls were not recorded and submitted as proof that the ratio was met. After all, Ms. Baldwin told us that she is the one who was responsible for picking out the criteria to be used. [ 54 ] Ms.

Baldwin admitted that, in hindsight, she would have been more diligent about documenting every single hour she spent with her supervisors. [ 55 ] At the end of the day, the flexibility that Ms. Baldwin talked about simply does not exist in the plan before the court. [ 56 ] Apart from nurses, there is no self-regulation of professionals in Nunavut. This territory is dependent on outside regulating bodies. [ 57 ] The Honourable Minister of Health made her decision to deny the application by Ms.

Baldwin based on a recommendation made by the Association, which in this case was the regulating body. [ 58 ] She made it based on their combined expertise and she had the necessary jurisdiction to do so. [ 59 ] For these reasons, I must find that the decision by the Minister to deny Ms. Baldwin’s application to be placed on the register as a licensed psychologist in Nunavut was reasonable and fair in the circumstances. [ 60 ] Accordingly, I dismiss the appeal. IV. COSTS [ 61 ] I am not going to order costs in this matter. I feel strongly that in all the circumstances, Ms. Baldwin acted reasonably and fairly.

As soon as the decision of the Minister was final, she was told that her next step was to apply to the court and file the appeal documents. It was her right to do so. She then moved the matter forward as quickly as she could. [ 62 ] I would like to conclude by saying that the length of time it took for the Association and the Government of Nunavut to make decisions about Ms. Baldwin’s future is a cause for concern.

I invite the government to look closely at the process and make sure it is not repeated for future applications of this kind under the Act. [ 63 ] Qualified psychologists who have practiced and been supervised in Nunavut are critically needed in this territory. [ 64 ] To that end, it is my sincere hope that in this case the parties can work together to draft an acceptable plan of action that would see Ms. Baldwin becoming a registered psychologist once she completes the registration and licensing requirements that are the subject matter of this appeal. Dated at the City of Iqaluit this 8th day of December, 2015

___________________ Justice B. Tulloch Nunavut Court of Justice