2011 QCCA 792, 2011 QCCA 792

Unofficial English Translation Barreau du Québec c. Khan 2011 QCCA 792 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL NO: 500-09-019587-096 (500-17-036633-074) DATE: April 26, 2011 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A. JACQUES DUFRESNE, J.A. BARREAU DU QUÉBEC APPELLANT – Respondent v. MEENA KHAN RESPONDENT – Applicant JUDGMENT [ 1 ] THE COURT ; - On appeal from a judgment of the Superior Court, District of Montreal (the Honourable Madame Justice Jeannine M.

Rousseau), rendered on March 20, 2009, that granted the respondent’s application for judicial review and declared that she is entitled to a copy of the supplemental examination given on February 19 and 20, 2007, in both French and English, her copy of the examination, i.e., her answers, the answer key and the correction grid, and ordered the appellant to supply these documents within ten days of an enforceable judgment; [ 2 ] Having examined the file, heard the parties, and on the whole deliberated; [ 3 ] For the convergent reasons of Rochette and Dufresne, JJ.A., with which Chamberland, J.A., agrees; [ 4 ] ALLOWS the appeal; [ 5 ] SETS ASIDE the trial judgment; [ 6 ] GRANTS the respondent’s application for judicial review; [ 7 ] DECLARES that the respondent is entitled to take notes when consulting the examination paper, her answer booklet, the correction grid, and the answer key; [ 8 ] THE WHOLE , with costs to the respondent given the mitigated result of the appeal, both at trial and in appeal, except for the respondent’s book of authorities filed beyond the deadline in the appeal.

JACQUES CHAMBERLAND, J.A. LOUIS ROCHETTE, J.A. JACQUES DUFRESNE, J.A. Mtre René Gauthier Mtre Janie Chaloux

Gascon & Associés For the appellant Mtre Jérôme Choquette Choquette Beaupré Rhéaume For the respondent Date of hearing: November 4, 2010 REASONS OF DUFRESNE, J.A. [ 9 ] Is a student of the École du Barreau du Québec who fails an exam entitled to consult the examination paper, her answer booklet, the correction grid, the answer key, and, above all, to receive a copy of these documents, if requested?

This is the subject of the appeal. [ 10 ] The Bar is of the opinion that allowing a student to consult these three documents in the presence of an employee of the École du Barreau, without being authorized to take notes or to obtain a copy of any of these documents, satisfies its obligation of procedural fairness. The appellant believes otherwise. [ 11 ] It is first necessary to describe the main facts leading up to the application for judicial review. BACKGROUND [ 12 ] In the fall of 2005, the appellant introduced a new professional training evaluation system.

The École du Barreau assesses students using a series of three exams during the training (30 points) and two final exams (70 points). To enter the profession, a student must obtain an overall mark of 60%. The exams are translated into English. They are corrected in several steps. [ 13 ] The respondent started the four month training program in September of 2006. She obtained 18 points out of 30 for the three in-training evaluations. She obtained 31 out of 70 points during the final evaluations on December 18 and 20, 2006, for an overall mark of 49% (18+31).

She was allowed to write the exam in English, and did so. [ 14 ] The respondent registered for the supplemental session that took place on February 19 and 20, 2007. Once again she failed the exam, receiving 39 points out of 70, for an overall mark of 57% (18+39). [ 15 ] On March 15, 2007, the respondent participated in the general supplemental exam consultation session. At such time, students may consult their answer booklets using the answer key prepared from the correction guide as well as the correction grid, which indicates point allocation.

Students, however, are prohibited from taking notes during this consultation but may nevertheless meet the director of their training centre to receive an explanation about their evaluation and the answer key. [ 16 ] On March 16, 2007, she submitted a request in writing for a revision. On April 3, 2007, she was informed that [ translation ] “[t]he review committee maintains your final mark at 57%.

This mark is final and without appeal.” This letter from the School administration specified that [translation] “[f]urthermore, if you wish to consult your copy and your correction grid following the revision, please contact your centre director at your earliest convenience.” [ 17 ] On April 3, 2007, the very same day, the respondent sent the following request to Mtre Josée Turcotte, director of the Montreal centre: [ translation ] May I please have a copy of my exam, along with the correction grid?

If not, may a lawyer who is very knowledgeable about labour law accompany me when I consult my exam? [ 18 ] On April 5, 2007, the director of the Montreal professional training centre replied as follows to the respondent’s request: [ translation ] I would be pleased to meet with you to explain the answers to the final labour law supplemental evaluation.

However, this is an individual consultation and it is not possible to give you a copy of your evaluation. [ 19 ] On April 11 and 17, 2007, the respondent met the director of the Montreal professional training centre to contest the correction of two of her answers on the supplemental exam. During these meetings, the respondent asked that she be given a copy of her answer booklet and of the correction grid, which was refused. [ 20 ] On May 10, 2007, she served her application for judicial review under

article 846 CCP , the conclusions of which are drafted as follows: WHEREFORE, MAY IT PLEASE THIS HONOURABLE COURT:

ORDER Respondent to provide the Petitioner, within ten days of the judgment herein becoming executory, with a copy of her re-take examination papers and of the correction grid that was used to correct same, as well as any other document either used or produced by the examiners in the course of their correction and re-correction; DECLARE that the Respondent's correction and consultation processes are illegal; DECLARE that the Respondent has satisfied the requirements of the Respondent with respect to the Respondent's admission examinations; [ 21 ] The respondent has since reregistered at the École du Barreau, successfully completed the exams in 2008, and was admitted to the Bar in January of 2009 after completing her articling.

The third conclusion sought by the respondent in her motion is therefore moot. JUDGMENT A QUO [ 22 ] The trial judge granted the application for judicial review and declared that the respondent was entitled to a copy of her answer booklet, of the correction grid, and of the answer key. [ 23 ] The judge concluded that [ translation ] “[the] Bar’s decision not to give Ms Khan her copy, the answer key, and the correction grid contravened the requirements of procedural fairness”. [1] [ 24 ] The judge was aware that judicial courts are reluctant to interfere with the internal management of educational institutions.

She noted that, contrary to the facts in Boyer , [2] where the student had a copy of his exam and the correction grid, and in Gbeti, [3] where the student had his exam booklet, his answer booklet, the correction grid, and the answer key, the respondent [ translation ] “had none of this – not even notes taken during the consultations”.

She concluded that it was impossible for her to undertake a serious verification or consultation. [ 25 ] The judge’s opinion was that the appellant’s decision not to give the respondent the requested documents so that it could reuse the exam questions unjustifiably contravenes the rules of procedural fairness.

She declared that the respondent was entitled to a copy of the examination paper, her answers, the answer key, and the correction grid for the entire supplemental exam. [ 26 ] The conclusions of the judgment a quo are worded as follows: [ translation ] [91] The Court: GRANTS the application for judicial review; DECLARES that Meena Khan is entitled to receive a copy of the supplemental exam, in French and in English, given on February 19 and 20, 2007, a copy of her exam, i.e., her answers, the answer key, and the correction grid; ORDERS the Barreau du Québec to provide Meena Khan with these documents within ten days of the date on which the present judgment becomes enforceable; With costs.

GROUNDS FOR APPEAL [ 27 ] The appellant raises three grounds of appeal: 1. Did the trial judge err in imposing the requirements of procedural fairness on the Professional Training Committee (“PTC”)? 2. Did she err in determining and applying the standard of review applicable to PTC decisions? 3. Did she commit palpable errors when weighing the evidence?

ANALYSIS [ 28 ] It is well established that the courts do not interfere with the internal operations of educational institutions: [ translation ] It is a well-settled and accepted principle in Canadian and Quebec administrative law that judicial review courts do not interfere in academic activities and the internal operations of educational institutions, more particularly with regard to examinations and the application of evaluation standards, barring exceptional circumstances, for example where the educational institution is in bad faith or acts in an unreasonable, arbitrary, or discriminatory manner … .

Curial deference is called for in this case because it involves weighing and applying the evaluation standards of an educational establishment, and there are no circumstances demonstrating bad faith, discrimination, favouritism, or any serious or unjust error … . [4] [ 29 ] This principle applies to the École du Barreau. [ 30 ] The School, established by the Barreau under the By-law respecting the professional training of advocates , [5] falls under the

responsibility of the Bar’s Professional Training Committee, which reports to the Executive Committee of this professional order. Theprofessional training program has two components; the School’s training in the development of the skills required for the practice of law,and the articling period. [31] The professional training comprises occasional oral or written evaluations designed to assess the skills required for thepractice of law and a final evaluation.[6] A candidate must obtain an overall mark of 60% at the end of all the professional trainingevaluations.

In case of failure, the student must sit the supplemental final examination and obtain an overall mark of 60%, taking intoaccount the results of all the evaluations.[7] [32] All the answer booklets of students who receive a mark between 50% and 59% are automatically corrected a second time by amarker with no knowledge of the first correction. [33] Training lawyers before admitting them to the profession is part of the overall mission of the Barreau which, as a professionalorder, must ensure the protection of the public.

The Barreau must in particular, for this purpose, supervise the practice of the professionby its members.[8] [34] The respondent is applying for judicial review.

The conclusions in her application, however, are more consistent with adeclaratory judgment in that they ask that the procedure for correcting examinations and consultations by students who failed anexamination be declared invalid, and that an injunction be rendered ordering that the respondent receive a copy of the examination paper,her answer booklet, the correction grid, and the answer key. [35] Looking beyond the wording of the application itself, it is clear that she is questioning the École du Barreau’s decision not togive her a copy of these documents. This is the heart of the appeal.

The School’s refusal to do so reflects the policy of the ProfessionalTraining Committee. [36] The appellant’s evidence essentially consists of the affidavit of the director of the École du Barreau, her testimony during thehearing, and the expert report dated October 10, 2007, submitted by the Evaluation Consultant (consultante en mesure et evaluation),Madame Louise Arsenault, and her testimony during the hearing. [37] The evidence indicates that the student evaluation process and examination correction method satisfy rigorous standards andrespect the recognized evaluation rules, with respect to both developing the examination as well as passing and correcting same.

In thiscontext, there can be no question as to the validity or legality of the École du Barreau’s evaluation and examination correction process.That said, what is the École du Barreau’s obligation, if any, with respect to a student who fails the examination and asks to consult theexamination paper, her answer booklet, the correction grid and the answer key? [38] The issue here is not to identify the standard for intervening in the École du Barreau’s decision to give students access to theirdocuments, without being able to take notes, and to refuse, furthermore, to provide them with a copy.

Rather, it is to determine the natureof the École du Barreau’s obligation towards those students and to decide if this obligation was breached. [39] Indeed, it is less the reasonableness of refusing to provide a copy of these documents that must be considered, and more thefairness of the correction and consultation process adopted by the École du Barreau.

The School, as a component of the Barreau, aprofessional order whose main function is to protect the public, must be transparent and allow, among other things, a student who failedan examination to verify whether there is an error in his or her corrected answer booklet.

The issue may be otherwise worded as follows:does the mechanism implemented in 2005 enable the appellant to satisfy its obligation to respect the rules of natural justice or proceduralfairness, which are one and the same in this case? [40] The extent of the obligation may vary, as Lebel, J. points out for the Supreme Court in Imperial Oil Ltd:[9] 31 …This line of argument overlooks the contextual nature of the content of the duty of impartiality which, like that of all of therules of procedural fairness, may vary in order to reflect the context of a decision-maker’s activities and the nature of its functions(Baker, supra, at para. 21; Knight v.

Indian Head School Division No. 19, (SCC), [1990] 1 S.C.R. 653, at p. 682, perL’Heureux-Dubé J.; IWA v. Consolidated-Bathurst Packaging Ltd., (SCC), [1990] 1 S.C.R. 282, at pp. 323-24, perGonthier J.; Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992]1 S.C.R. 623, at p. 636, per Cory J.). These variations in the actual content of the principles of natural justice acknowledge the greatdiversity in the situations of administrative decision-makers and in the roles they play, as intended by legislatures (Ocean Port Hotel Ltd.v.

British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52, at para. 24, perMcLachlin C.J.). The categories of administrative bodies involved range from administrative tribunals whose adjudicative functions arevery similar to those of the courts, such as grievance arbitrators in labour law, to bodies that perform multiple tasks and whoseadjudicative functions are merely one aspect of broad duties and powers that sometimes include regulation-making power.

The notion ofadministrative decision-maker also includes administrative managers such as ministers or officials who perform policy-makingdiscretionary functions within the apparatus of government. The extent of the duties imposed on the administrative decision-maker willthen depend on the nature of the functions to be performed and on the legislature’s intention. In each case, the entire body of legislationthat defines the functions of an administrative decision-maker, and the framework within which his or her activities are carried on, willhave to be carefully examined.

The determination of the actual content of the duties of procedural fairness that apply requires such ananalysis.[10] [Emphasis added.] [41] I believe the manner in which students may consult the examination paper, the answer booklet, the correction grid, and theanswer key is more or less adequate.

The sole deficiency in the current consultation procedure is the Barreau’s prohibition on takingnotes during this consultation. [42] On March 15, 2007, the respondent was able to consult the examination, her answer booklet, the correction grid, and theanswer key, but was not able to take notes or obtain copies of the documents consulted. The next day, she filed a request for revision, as

was her right. [ 43 ] In my opinion, the appellant would have been transparent and would have completely satisfied its duty of procedural fairness if it had allowed the respondent to take handwritten notes during the consultation. Obviously, taking notes does not mean that the student may transcribe the consulted documents in their entirety.

The latter must, nonetheless, be free to choose to record the information that will enable him or her to take an informed decision about whether to request a review of their examination. [ 44 ] As an example, a student who may note down that one of his answers has not been corrected, or record information about an answer to another question he feels was adequate, may then draft his request for revision with greater precision.

In any event, abuses may be avoided since the consultation is conducted in the presence of an École du Barreau representative, particularly as it is easy to require notes be taken with a different coloured pen or pencil from the one the student used during the examination. [ 45 ] In my view, the appellant satisfies its obligation to act fairly when it provides the student who fails an examination with such an access to the relevant documents.

Its obligation does not extend as far as the duty to provide a copy of these same documents, where, as the evidence established, the École du Barreau intends to reuse the examination questions in the future for reasons of economics and efficiency. In this regard, the testimony of the director of the École du Barreau du Québec clearly attests to this intention. This decision is defensible and justified by the evidence. [ 46 ] Lastly, the appellant argues, for the first time, in appeal, that

section 40 of the Act respecting access to documents held by public bodies and the Protection of personal information (“Access Act”) [11] applies. This

section is worded as follows: 40. A public body may refuse to disclose a test intended for the comparative appraisal of a person's knowledge, aptitudes, competence or experience, until the test is no longer used. [ 47 ] This provision did not apply to professional orders, such as the Barreau, at the time the respondent consulted her supplemental examinations and made her application for judicial review. [12]

Section 1.1 of the Access Act, under which documents held by a professional order are subject to the provisions of the statute, only came into force on September 14, 2007. [13] Subsection 1.1 stipulates that “[t]h is Act also applies to documents held by a professional order, to the extent provided by the Professional Code (chapter C-26 ). ” Therefore,

section 40 of the Access Act is not pertinent here. [ 48 ] For these reasons, I would allow the appeal, set aside the judgment and declare that the respondent is entitled to take notes while consulting the examination paper, her answer booklet, the correction grid and the answer key. No other conclusion is necessary because the respondent has since passed her examinations and been admitted to the practice of law. [ 49 ] As for costs, they should be awarded to the respondent throughout. The Barreau appealed as a matter of principle; therefore, under the circumstances the respondent should not bear the costs.

Moreover, as regards the trial costs, given that the appeal was only allowed in part, the respondent was justified in applying to the Superior Court to obtain more than what she was offered by the appellant. JACQUES DUFRESNE, J.A. REASONS OF ROCHETTE, J.A. [ 50 ] I have read the reasons of my colleague Dufresne, J.A.

While arriving at the same result as my colleague, I would like to add the following. [ 51 ] As L'Heureux-Dubé, J. recalls for the Supreme Court in Baker , [14] “[t]he fact that a decision is administrative and affects ‘the rights, privileges or interests of an individual’ is sufficient to trigger the application of the duty of fairness…” [15] The content of the rules of procedural fairness will vary depending on the activity of the administrative decider, the nature of its functions and the rights involved. [16] The concept of procedural fairness is, therefore, geometrically variable and the applicable requirements will depend on the circumstances of each case. [ 52 ] A first factor we should note is how important the decision is for those affected.

L'Heureux-Dubé, J. continues: The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. [17] [ 53 ] The legitimate expectations of the person who contests a decision may also serve to define procedural fairness.

In this optic, the procedural choices made by the agency concerned must be considered: … the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the agency has an expertise in determining what procedures are appropriate in the circumstances … .

While this, of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints … . [18]

[ 54 ] This said, the cardinal rule remains: … The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision . [19] [Emphasis added] [ 55 ] There are heavy consequences for the student who fails the examinations giving access to the practice of law. [20] [21] Aside from the economic cost of reapplying for admission to the École du Barreau [École], the candidate, if readmitted, must register for preparatory courses prior to recommencing the professional training. [22] [ 56 ] Practically speaking, the candidate who fails the four month professional training in December of one year, which began the previous September, [23] may not reregister until the following September.

The candidate must take preparatory courses for four months as a condition for admission to the professional training session starting in January and ending in April.

Ultimately, this means an additional delay of almost one and a half years before entering the profession, [24] in some cases having to find another professional training articling period, without taking into account the psychological distress and impact of a major failure at the beginning of one’s career. [ 57 ] Moreover, the legitimate expectations of the students at the École du Barreau are assuredly high with regards to the School’s evaluation process. They expect to be treated fairly, impartially and with transparency.

On the other hand, the École’s choice of procedure must be considered and respected, when related to its expertise. [ 58 ] The School’s expertise and the substantial means it has given itself in order to validate the examination correction process and to ensure that it is just, fair and meaningful is not at issue here. But even a well-thought-out and correctly implemented system may give rise to errors and require occasional adjustments.

Furthermore, the student must be able to [ translation ] “fully and fairly present his or her position” on how his exam was corrected, in a manner that is open, fair, and adapted to the context. [ 59 ] In Boyer , to which we were referred, [25] the student had a copy of the exam and the correction grid, which enabled him to [ translation ] “know precisely where he had committed errors.” [26] Only the model answers were not provided, which prevented him from [ translation ] “ comparing the ideal answers required by the Barreau with his own.” [27] Our Court concluded, however, that this did not render the correction process arbitrary, unjust, or unfair. [ 60 ] The situation is singularly different here.

The trial judge recounted: [ translation ] [67] In Gbeti , the student had his exam booklet, his answer booklet, the correction grid, and the correction itself: [68] Ms Khan had none of this—not even notes taken during the consultations.

She had only her memory. [69] Therefore, it was impossible for her to seriously verify with another lawyer or law professor: without the questions and the correct answers, no valid discussion about whether her answers replied to the questions was possible. [70] Regardless of the number of times a student may discuss the correction with persons involved in the process, the student nevertheless has access to only one version of the correction, that is to say, the Bar’s. [Reference omitted] [ 61 ] In my opinion, this went too far.

It is neither fair nor equitable to require students who question the correction of an exam spread out over two days to memorize problematic questions and answers. Students must be able to verify and formulate, where necessary, precise arguments, otherwise they are asked to simply rely on the institution’s established procedure. For some, the difference between success and failure comes down to only a couple of points.

Students must at least be able to take notes when consulting the examination documents, as proposed by my colleague. [ 62 ] One can understand the appellant’s concern with reducing costs, as argued in its factum: [ translation ] 14. The conditions of the consultation process were established to protect the confidentiality of these evaluation documents, so that they could be reused in subsequent years. 15.

The ultimate basis of these conditions lies in the necessity, essential according to the Appellant, of alleviating the professional evaluation process and reducing the costs associated with preparing the École du Barreau’s examinations, which totalled, for example, $2,150,650.54 for the year 2004-2005 …. [Emphasis added] [ 63 ] But the trial judge addressed these allegations as follows: [ translation ] [79] The economy sought would benefit the Barreau, not the students.

[80] This is what we can conclude from the evidence. Note that there is no allegation, nor evidence, that the earlier two-month task was unreasonable, substandard, or excessive.

Financial reasons [81] These are found in paragraphs 47 and 48 of the defence reproduced above. [82] But it is not really reasons, it is simply data: ... [84] This data is not relevant because it cannot be compared with anything, for example: • with the Barreau’s total budget, to establish an exaggerated cost; • or with the current or estimated cost of the new system in which the questions are reused, to establish a better quality-cost return or simply a saving. [ 64 ] I see nothing that would allow me to set aside the first judge’s findings of fact.

In her view, the need deemed “essential” to reduce costs was not demonstrated, and no palpable or overriding error vitiates this determination. [ 65 ] In addition, historically, students of all backgrounds who study previous exams assimilate the material and avoid certain pitfalls once they are practicing. From the institution’s point of view, given that its mission is to protect the public, this training aspect should not be neglected. But I concede that it is entitled to make its own decision in this regard. [ 66 ] For these reasons, I reach the same conclusion as my colleague.

LOUIS ROCHETTE, J.A. [10] Ibid at para 31. [13] Bill No 86 ,

An Act to amend the Act respecting Access to documents held by public bodies and the Protection of personal information and other legislative provisions , SQ 2006, c. 22 , s183(6).