BRENDA RISSEEUW, Applicant - v. -, 2017 SKQB 8

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 8 Date: 2017 01 11 Docket: QBG 685 of 2016 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: BRENDA RISSEEUW, Applicant - and - SASKATCHEWAN COLLEGE OF PSYCHOLOGISTS, Respondent Counsel: Tyler M. Dahl for the applicant Merrilee D. Rasmussen, Q.C. for the respondent ___________________________________________________________________________ JUDGMENT DANYLIUK J.

January 11, 2017 ___________________________________________________________________________ Introduction [ 1 ] This is an application for judicial review brought by the applicant, Brenda Risseeuw, against a decision of an administrative tribunal, the Council of the respondent, Saskatchewan College of Psychologists [College].

The applicant seeks to quash the decision as well as seeking an order in the nature of mandamus compelling the respondent to approve the applicant’s application for registration as a psychologist in Saskatchewan, or at least returning the matter to the Council of the College to be properly determined. The applicant seeks costs from the respondent.

The respondent opposes, and also seeks costs. [ 2 ] For the reasons set out herein, I have determined the applicant’s judicial review application must be dismissed. [ 3 ] To better organize this judgment, it has been divided into the following subsections: ITEM PARAGRAPHS Introduction ............................................................................................. 1 Background Facts .................................................................................... 4

Regulatory Framework .......................................................................... 12 Evidence Before the Respondent .......................................................... 18 Issues ..................................................................................................... 23 Standard of Review ............................................................................... 24 Analysis ................................................................................................. 56 Conclusion ........................................................................................... 151 Background Facts [ 4 ] The applicant is a psychologist.

She says she has been registered with the Alberta College of Psychologists from December 2001 to the present time. She has been practising psychology in Alberta. [ 5 ] Some time ago, the applicant decided to apply to be registered in Saskatchewan. She has made more than one attempt at this over a lengthy period. In fact, the application for Saskatchewan registration that forms the basis of this judicial review application was actually her fourth attempt at Saskatchewan registration.

All three prior attempts failed. [ 6 ] With respect to her three prior applications under a previous iteration of The Psychologists Act, 1997 , SS 1997, c P-36.01 [ Act ], that cumulative process ended in her first application for judicial review. Her application to this court was dismissed in its entirety by Justice Scherman on December 15, 2011 (see McCarty v Saskatchewan College of Psychologists , 2011 SKQB 471 , 391 Sask R 105 ). In that judicial review application, the applicant sought to have a series of decisions made by the respondent quashed, dating back to January 2004.

This spanned a range of two to seven years prior to that decision on judicial review. [ 7 ] A short history of the applicant’s applications for Saskatchewan registration may be instructive: (

a) February 2003: The applicant sought provincial registration in Saskatchewan. She used the “grandparenting” provisions of the legislation in force at the time, which was The Psychologists Act, 1997 (which came into force March 1, 2002). These provisions permitted psychologists meeting certain requirements as to education and experience to be registered here if they passed an exam and had practised in specified conditions prior to the new legislation coming into force. The respondent rejected this application on the basis that the applicant did not have all the eligibility requirements she needed to register under this provision. (

b) February 2004: The applicant again sought provincial registration. This time she used the Mutual Recognition Agreement at the Regulatory Bodies for Professional Psychologists in Canada, online: <http://www.cpa.ca/documents/MRA.pdf> (10 January 2017), which was a national arrangement among regulators of psychologists which enhanced mobility of psychologists among jurisdictions. Again, the respondent determined she did not meet the eligibility requirements as she had not practised psychology with licensure for five years in this jurisdiction.

The applicant again applied for registration but this time for provisional membership (or “restricted” membership as it was then known), and this was granted under s. 21 of the legislation previously in effect. To obtain full membership, the applicant had to attain certain professional benchmarks and pass an oral interview relating to the area of psychology in which she intended to practise. The interview also dealt with ethics and professional regulation. (

c) October 30, 2004: The applicant challenged the required oral interview and examination. She failed. A review panel was constituted, and her failure was confirmed. No further appeal or review was instituted by the applicant in this instance. (

d) May 26, 2006: The applicant again challenged the required oral interview and examination. She failed. A review panel was constituted, and her failure was confirmed. No further appeal or review was instituted by the applicant in this instance. (

e) November 14, 2008: The applicant yet again challenged the required oral interview and examination. She failed. A review panel was constituted, and her failure was confirmed. (

f) January to August 2009: With respect to the failed oral interview of November 14, 2008, the applicant was advised of the review panel’s confirmation of her failure on January 26, 2009. She then exercised her right to have Council of the College review that decision. By written decision dated August 4, 2009, Council denied her appeal and confirmed her third failure of the oral examination. (

g) October 19, 2011: The applicant filed her application for judicial review of all of the respondent’s decisions pertaining to her registration that were made between 2004 and 2009. (

h) December 15, 2011: Her application for judicial review was dismissed in its entirety. (

i) December 1, 2013: The applicant again applied for Saskatchewan registration. At that time, she listed her mailing address as Saskatoon. In that application, she self-declared as competent and practising in the area of counselling of adolescents, adults and couples. She relied on the new mobility provisions in s. 20(2) of the Act . (

j) May 22, 2014: Council of the respondent made its written decision and communicated same to the applicant. Council rejected her application under s. 20(2) for full practising membership in the respondent. Council indicated, inter alia , that it was aware the applicant had not demonstrated competence for such membership and, therefore, approving membership on the basis of a mobility arrangement would not protect the public interest. (

k) May 13, 2016: The applicant filed this application for judicial review. [ 8 ] In the present application, the applicant notes that The Psychologists Act, 1997 was amended in 2010 in order to bring the legislation into compliance with the labour mobility provisions of the Agreement on Internal Trade , online: <http://www.ait-

aci.ca/> (10 January 2017), in that s. 20(2) was added. The applicant places significant reliance on this amendment in advancing her current application to this court. [ 9 ] Having noted that legislative amendment, the applicant applied to be registered as a psychologist in Saskatchewan. Her latest membership application was made in December 2013. She essentially relied entirely on the new subsection and filed materials in support of same. At first, the Council of the College referred the new application to the Registration Committee.

The matter was returned to the Council as a whole given the amendment pertaining to the Agreement on Internal Trade . [ 10 ] On May 22, 2014, the Council of the College rejected the applicant’s application for registration as a psychologist in Saskatchewan.

While that decision speaks for itself, at its core the decision to reject the application was based on three factors: • The applicant had not demonstrated competence, taking into account the rejections of her prior applications for registration in Saskatchewan. • The applicant had lived in Saskatchewan and had worked here after 2004. • There were concerns about the applicant’s ethics, based upon her attempt to register under the new s. 20(2), notwithstanding the prior rejections of her applications under what is now s. 20(1). [ 11 ] From that decision of the respondent, the applicant now seeks judicial review.

Regulatory Framework [ 12 ] Both statutory and internal rules apply. The legislation in force for the purposes of the applicant’s last application for Saskatchewan registration and licensure (and, consequently, for the purposes of this judicial review application) is The Psychologists Act, 1997 . This Act was proclaimed in force March 1, 2002. The previous legislation, being The Registered Psychologists Act , RSS 1978, c R-14, repealed by SS 1997, c P-36.01, had a somewhat different focus. [ 13 ]

Section 18 of the Act permits the respondent to register and license members.

Section 20 governs registration and reads as follows: 20

(1) The council may register as a member, and issue a licence to practise to, a person who produces evidence establishing to the satisfaction of the council that the person: (

a) has a master’s or doctoral degree in a program that primarily consisted of psychology classes from an educational institution recognized by the council; (

b) has successfully completed any period of practical training recognized by the council in accordance with the bylaws; (

c) has successfully completed any examination prescribed in the bylaws; (

d) has paid the prescribed fees; and (

e) has complied with the bylaws with respect to registration.

(2) Notwithstanding subsection (1), the council may register as a member, and issue a licence to practise to, a person who produces evidence establishing to the satisfaction of the council that the person: (

a) meets the requirements set out in the bylaws; (

b) has paid the prescribed fees; (

c) has complied with the bylaws with respect to registration; and (

d) is registered as the equivalent of a psychologist in good standing pursuant to the legislation of another jurisdiction in Canada, or the legislation of a jurisdiction outside of Canada that is recognized by the council. [ 14 ] As previously indicated, this legislation was amended in 2010 and s. 20(2) was added. The applicant’s last application for membership was made pursuant to s. 20(2) . The interplay between these two subsections is important. In 2010, Saskatchewan enacted The Miscellaneous Statutes (Labour Mobility) Amendment Act, 2010 , SS 2010, c 19 .

Section 30 contained certain amendments related to mobility of workers. The impetus for this amending legislation (which was broadly applicable to all Saskatchewan professions) was the aforementioned Agreement on Internal Trade . [ 15 ] For the purposes of The Psychologists Act, 1997 , the net effect of this amendment was to bifurcate the registration process. Previously, s. 20 of the prior legislation dealt with all applicants from outside Saskatchewan. After s. 20 was amended, this function was split.

Subsection 20(1) dealt with applications for registration from applicants who were not registered in any other locale. Subsection 20(2) dealt with applications for registration from applicants who were previously registered in another jurisdiction within Canada (or any jurisdiction outside Canada that was recognized by the respondent). [ 16 ]

Section 21 allows for provisional licences to be issued to persons who did not fully meet the requirements of s. 20(1), and the applicant held such a provisional license.

Section 21 reads as follows: 21

(1) The council may register as a member, and issue a provisional licence to practise to, a person who has met the requirements of clause 20(1)(

a) and:

(

a) does not fully meet the requirements of clause 20(1)(

b) or (c); (

b) agrees to practise in accordance with the conditions or restrictions specified in the provisional licence; (

c) has paid the prescribed fees; and (

d) has complied with the bylaws governing provisional licences.

(2) A member granted a provisional licence to practise shall comply with the bylaws governing provisional licences. [ 17 ] Sections 14 and 15 of the Act allow the respondent to make bylaws. It has done so. The relevant bylaws became effective May 12, 2006. There were some changes from the bylaws previously in force. Notably for this application, the time a person could hold a provisional (formerly “restricted”) membership was limited to three years.

Evidence Before the Respondent [ 18 ] The applicant submitted the required forms along with a number of supporting documents with her application for registration and licensure. All of that information was before the respondent when the decision was made. [ 19 ] The applicant complains that the respondent did not seek further evidence from her before coming to its decision. However, subject to the requirements of the statute and the bylaws, the composition of her application to the respondent was entirely within the applicant’s control.

It is difficult to understand why she did not place other information before the respondent if she felt that it was warranted. [ 20 ] Filed with the respondent by the applicant in support of her application for registration were the following documents: (

a) Application form for Initial Registration, December 10, 2013; (

b) Academic Transcript, Gonzaga University; (

c) Photocopy of Bachelor of Social Work Degree, University of Regina, October 19, 1991; (

d) Photocopy of Master of Arts Degree, Gonzaga University, August 7, 1998; (

e) Photocopy of Certificate, University of Calgary Continuing Education, December 7, 2007; (

f) Photocopy of Alberta Birth Certificate; (

g) Photocopy of Saskatchewan Certificate of Marriage; (

h) Consent for Release of Information, December 1, 2013; (

i) Criminal Record Check, December 10, 2013; (

j) Declared Areas of Competence and Practice form, December 1, 2013; (

k) Curriculum Vitae of applicant; (

l) Rating Form for Supervisors or Assessors, David Jackson; (

m) Letter from applicant, January 9, 2014; (

n) Application Form for Authorized Practice Endorsement, December 1, 2013; (

o) Self-Report of APE Competence, December 28, 2013; (

p) Continuing Education Credits (2005 to 2013); (

q) Conference Information form for March 25 to 26, 2014; (

r) Email, applicant to respondent, January 6, 2014, with respondent’s reply; and (

s) Certificate, Psychologists’ Association of Alberta, May 10, 2002. [ 21 ] Also, the Council of the respondent considered the applicant’s application for judicial review dated October 19, 2011; the affidavit of Karen Messer-Engel sworn August 12, 2011, in relation to that judicial review application; and the decision of Justice Scherman dated December 15, 2011. All of those documents had been filed with this court and were public documents. [ 22 ] On this application, all the above documents were also before this court as part of the certified record, along with the respondent’s decision dated May 22, 2014. Issues [ 23 ] The issues in this judicial review application are as follows:

1. Does the delay in bringing this application disqualify the applicant from obtaining relief? 2. Was the applicant denied natural justice and/or procedural fairness? 3. Did the respondent exceed its jurisdiction by making its decision based on, or in light of, improper considerations, or byexercising an investigative function not authorized by its enabling statute? 4. Was the respondent’s decision unreasonable as it lacked an evidentiary foundation? Standard of Review [24] The parties disagree as to the standard of review to apply in this case.

As is often the case, the standard ofreview to be applied will turn on the nature of the issue to be determined. 1. Applicant’s position [25] The applicant submits that there are different standards of review to apply, depending on which issue is beingconsidered. [26] With respect to the second issue listed above (i.e., whether the applicant was denied natural justice and/orprocedural fairness by the respondent), the applicant says it is to be adjudicated on the standard of correctness.

At paragraph 12 of hisbrief, applicant’s counsel states unequivocally: “Accordingly, whether the Applicant was denied procedural fairness will be reviewed onthe standard of correctness.” [27] The applicant’s position is that when one is considering whether the procedures followed by the tribunal werefair, this is a question demanding a correctness standard. In support of this proposition, the applicant cites paragraph 22 of Clifford vOntario (Attorney General), 2009 ONCA 670, 312 DLR (4th) 70, leave to appeal to SCC refused, [2009] SCCA No 461 (QL).

That casedealt with the adequacy of reasons for a tribunal’s decision. It was held that where reasons must be given as part of an overarching dutyof procedural fairness, the issue on judicial review is whether that duty has been fulfilled. The reviewing court’s duty is to ensure thetribunal honoured that legal obligation.

The applicant argues that in this case it was held the appropriate standard of review for denial ofnatural justice and/or procedural fairness is correctness. [28] With respect to the third issue on this application (excess of jurisdiction through improper considerations or byexercising an investigative function), the applicant again states the standard of review is correctness. [29] Regarding the fourth issue, which was argued as the impugned decision not having an evidentiary base, theapplicant submitted that a reasonableness standard applies: Montréal (City) v Montreal Port Authority, 2010 SCC 14, [2010] 1 SCR 427. 2.

Respondent’s position [30] The respondent states that there is only one applicable standard of review to the entirety of this case, that ofreasonableness. Cited in support of this position is ATCO Gas and Pipelines Ltd. v Alberta (Utilities Commission), 2015 SCC 45, [2015]3 SCR 219. There, it was held that the standard of review for a decision of a utilities commission in using its internal expertise to setutility rates under legislation was reasonableness (paragraph 26).

In rejecting the appellant’s argument that correctness applied, theSupreme Court said this at paragraph 27: [27] Nonetheless, the ATCO Utilities argue that the jurisprudence favours applying a standard of correctness. However, the cases theycite – ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140 (“Stores Block”), Shaw v.Alberta Utilities Commission, 2012 ABCA 378, 539 A.R. 315, and ATCO Gas and Pipelines Ltd. v. Alberta Utilities Commission, 2009ABCA 246, 464 A.R. 275 – are not analogous to the matter at hand.

They each were said to involve “true questions of jurisdiction”,where the regulator was called on to determine whether it had the statutory authority to decide a particular question. This Court’s recentjurisprudence has emphasized that true questions of jurisdiction, if they exist as a category at all, an issue yet unresolved by the Court,are rare and exceptional: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3S.C.R. 654, at para. 34. In any event, this case involves ratemaking.

As Bastarache J. noted in Stores Block, ratemaking is at the heart ofa regulator’s expertise and is therefore deserving of a high degree of deference: para. 30. [Emphasis added] [31] The Supreme Court also noted at paragraph 28 that the appeal substantially turned on the respondent’sinterpretation of its home statutes, which decisions generally attract a standard of reasonableness. 3. Resolution of standard of review [32] I first consider the issue involving an allegation of deprivation of procedural fairness and/or natural justice.

Theapplicant insists the standard of review is correctness, and the applicant only cites one 2009 Ontario decision (albeit one in which leaveto the Supreme Court was refused). [33] Neither counsel cited other authorities more directly applicable to this point. In particular, I have consideredMoreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 SCR 249. At paragraph 74, Justice Arbour ruled that wherean application for judicial review raises procedural fairness or natural justice issues, “no assessment of the appropriate standard ofreview” is required.

The reviewing court should simply conduct “an assessment of the procedures and safeguards required in a particularsituation”. One of the prior precedents cited by Arbour J. in this regard is a Saskatchewan case that reached the Supreme Court, Knight vIndian Head School Division No. 19, (SCC), [1990] 1 SCR 653. [34] While issues pertaining to selection of the appropriate standard of review continue to confound those of us whoare mere foot soldiers in the trench warfare that is administrative law, in my view the standard can even be seen as moot when it comes

to issues of procedural fairness. As was recently stated by the Nova Scotia Supreme Court in Brown v Nova Scotia (Environment), 2016NSSC 319 at para 24: [24] The first question raised by the appellants relates to procedural fairness. In the context of judicial review, a question of proceduralfairness is not typically assessed by using either of the traditional Dunsmuir [2008 SCC 9, [2008] 1 SCR 190] approaches: [30] The judge gave no deference to the arbitrator in the judge’s assessment of procedural fairness. With that, I agree.

I noteparenthetically that deference is not withheld because of any standard of review analysis. The judge is not reviewing the tribunal’sultimate decision, to which a “standard of review” is accorded. Rather, the judge assesses the tribunal’s process, a topic outside thetypical standard of review analysis. In Nova Scotia (Provincial Dental Board) v. Creager 2005 NSCA 9, this court said: [24] Issues of procedural fairness do not involve any deferential standard of review: Moreau-Bérubé v. New Brunswick (JudicialCouncil) 2002 SCC 11 , [2002] 1 S.C.R. 249, per Arbour J.; C.U.P.E. v.

Ontario (Minister of Labor), 2003 SCC 29 ,[2003] 1 S.C.R. 539, at paras. 100-103, per Binnie, J. for the majority, and at para. 5, per Bastarache J. dissenting. As stated by JusticeBinnie in C.U.P.E. at para. 102: The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard ofreview is applied to the end of product of his deliberations. This point is also clear from Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817.Justice L’Heureux-Dubé (paras. 55-62) considered “substantive” aspects of the tribunal’s decision based on the standard of reviewdetermined from the functional and practical approach but (para. 43) considered procedural fairness without analyzing the standard ofreview. [25] Procedural fairness analysis may involve a review of the statutory intent and the tribunal’s functions assigned by that statute: e.g.Bell Canada v. Canadian Telephone Employees Association 2003 SCC 36 , [2003] 1 S.C.R. 884, at paras. 21-31; Imperial OilLtd. v.

Québec (Minister of the Environment), 2003 SCC 58 , [2003] 2 S.C.R. 624, at paras. 31-32. But, once the court hasdetermined that a requirement of procedural fairness applies, the court decides whether there was a violation without deference. (Bowater Mersey Paper Co. v. C.E.P. Local 141, 2010 NSCA 19) [Emphasis added] [35] Certainly, this appears to be the law in Saskatchewan. In Saskatoon Co-operative Association Limited vSaskatchewan Joint Board, Retail, Wholesale and Department Store Union, 2016 SKCA 94, 484 Sask R 157, the unanimous court saidat paragraph 19: [19] ...

In this appeal, as in such decisions as Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 , [2002] 1SCR 249 at para 74, [2002] 1 SCR 249, the assessment of whether there was a breach of procedural fairness is not viewed through thestandard of review lens.

The content of procedural fairness in this appeal is derived from common law principles that transcend thestandard of review analysis (see Dunsmuir v New Brunswick, 2008 SCC 9 at para 79, [2008] 1 SCR 190). [Emphasis added]. [36] Further in this regard, see: Barry v Institute of Chartered Accountants of Alberta Complaints Inquiry Committee,2016 ABCA 354 at para 5: [5] That said, questions of procedural fairness are not amenable to a traditional standard of review analysis. Rather, they are typicallyreviewed for whether the proceedings met the level of fairness required by law ….

Also see a case on point which is interesting as it involves a dispute with the Alberta College: Moll v College of Alberta Psychologists,2011 ABCA 110 at para 50, [2011] 8 WWR 686. [37] This substantive issue raises an issue as to fundamental procedural fairness. The applicant contends theapplicable standard of review is that of correctness. However, that term is perhaps somewhat difficult or clumsy to use in all suchsituations. This was recently discussed by Justice Caldwell in Eagle’s Nest Youth Ranch Inc. v Corman Park (Rural Municipality #344),2016 SKCA 20, 395 DLR (4th) 24.

It was determined that the chambers judge erred in applying a reasonableness standard to an issue ofprocedural fairness (paragraphs 20 to 25). In particular, Justice Caldwell stated: [20] One problem with this first question is that in a post-Dunsmuir world [Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR190] the question seems to ask whether the other Dunsmuir standard—correctness—is the appropriate standard of review for matters ofprocedural fairness.

In this respect, I agree with Côté J.A.’s conclusion that correctness is an “awkward word to use” in the context ofprocedural fairness, see: Spinks v Alberta (Law Enforcement Review Board), 2011 ABCA 162 at para 23, [2011] 10 WWR 264. I say thisbecause procedural fairness often calls for judicial deference to certain aspects of the administrative decision under review, but the rule oflaw ultimately requires that superior courts still ask whether the decision is itself borne of a “‘just’ exercise of power” (Dunsmuir atpara 90).

So, while awkward, this is best reflected in the correctness standard, see Mission Institution v Khela, 2014 SCC 24, [2014] 1SCR 502; Newfoundland Nurses [2011 SCC 62, [2011] 3 SCR 708]; and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12at para 43, [2009] 1 SCR 339; but see the separate reasons of Stratas J.A. and Webb J.A. in Maritime Broadcasting System Ltd. vCanadian Media Guild, 2014 FCA 59, 373 DLR (4th) 167. [38] Chief Justice Richards also discussed this concept in his dissent in Eagle’s Nest, at paragraphs 83 to 85.

Hesuggests that a somewhat different approach may be appropriate, although he acknowledges the Court of Appeal was not being calledupon to decide that specific point in that appeal. At paragraph 84: [84] That said, I am also aware there is some authority from the Federal Court of Appeal to the effect that there is room for a measureof deference when it comes to the review of at least some sorts of procedural fairness questions. See, for example: MaritimeBroadcasting System Ltd. v Canadian Media Guild, 2014 FCA 59, 373 DLR (4th) 167.

As indicated, the present appeal does not requirethis Court to determine the merits of such thinking and, therefore, I would not want to foreclose its consideration in some future case by

declaring that the review of all procedural fairness issues must necessarily be conducted using the “correctness” standard of review or byotherwise showing no deference to a statutory decision-maker on this front. [Emphasis added] [39] In Mission Institution v Khela, 2014 SCC 24, [2014] 1 SCR 502, it was stated that issues emanating fromalleged denials of procedural fairness generally fall to be reviewed on a standard of correctness.

However, other passages suggest thecontrary, and some confusion remains. [40] In this regard, I have reviewed the paper of Justice David Stratas of the Federal Court of Appeal which hepublished on February 17, 2016, entitled The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency,online: < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2733751> (10 January 2017). Somewhat remarkably, a sitting appellatelevel judge published a paper critical of the Supreme Court’s post-Dunsmuir decisions [Dunsmuir v New Brunswick, 2008 SCC 9, [2008]1 SCR 190].

I have also reviewed and considered the thoughtful paper of Matthew Lewans, “Deference and Reasonableness SinceDunsmuir” (2012), 38 Queen’s LJ 59. [41] In Justice Stratas’ paper, he poses a number of questions as topics. The seventh question squarely engages thepoint presently before this court: “What is the standard of review for procedural fairness?” His short commentary is as follows (forclarity his footnotes are reproduced within square brackets within the text): In this area, there has been incoherence. Recently, the incoherence has increased.

In the same case, the Supreme Court has told us not todefer to administrators’ procedural decisions but also to defer to them on certain things. [Mission Institution v. Khela, 2014 SCC 24,[2014] 1 S.C.R. 502 at paras. 79 and 89.] Why and when we must defer or not defer goes unmentioned. Dunsmuir never discussed this standard of review issue. [See discussion in Maritime Broadcasting System Limited v.

Canadian MediaGuild, 2014 FCA 59, 373 D.L.R. (4th) 167 at para. 53 (concurring reasons).] Decades of earlier case law from the Supreme Court is allover the place. [See the cases reviewed in Maritime Broadcasting, ibid. at paras. 50-55 (concurring reasons) such as Prassad v. Canada(Minister of Employment and Immigration), (SCC), [1989] 1 S.C.R. 560 at pages 568-569; Council of Canadians withDisabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650 at para. 231; Bibeault v. McCaffrey, (SCC),[1984] 1 S.C.R. 176, 7 D.L.R. (4th) 1; Deloitte & Touche LLP v.

Ontario (Securities Commission), 2003 SCC 61, [2003] 2 S.C.R. 713.]Rules seem to be decreed in this area without any underlying doctrinal basis or rationale and certainly none based on the animatingconcept underlying judicial review. [See discussion of the animating concept, infra, text to notes 71-73.] Unsurprisingly, multiple views on this issue have emerged in my court, the Federal Court of Appeal—and despite pleas for resolution,none is in sight. [See the

summary of the multiple views in Bergeron v. Canada (Attorney General), 2015 FCA 160 at paras. 67-71.] [42] To some extent “correctness” and “reasonableness” can be seen as characterizations which may not fullyencompass the precise type of review undertaken by a court in any given instance. Some cases fall squarely and readily within thoseterms, but others simply do not. This was discussed by Justice Barrington-Foote in Unifor Local 1-S v SaskatchewanTelecommunications Holding Corporation (SaskTel), 2016 SKQB 62.

At paragraphs 23 to 25, he reviews the authorities, but then atparagraph 26 he states: [26] I agree with counsel that this is an appropriate case to accord a measure of deference to the arbitrator’s decision. That is soregardless of whether the standard of review is characterized as correctness or reasonableness. The arbitrator was obliged to make adecision consistent with the legal principles relating to reopening and reply evidence, which are discussed below. Among other things,those principles are concerned with fairness.

If the decision to allow SaskTel to reopen was a possible, acceptable outcome which isdefensible in respect of the facts and law, it could be characterized as both reasonable and correct. [Emphasis in original] [43] As noted in these authorities, the concept of deference within a “correctness” review was discussed in somedepth in Maritime Broadcasting System Ltd. v Canadian Media Guild, 2014 FCA 59, 373 DLR (4th) 167.

In that case Justice Stratasultimately found that while the correctness standard is most often applicable, sometimes a decision based in procedural fairness needs tobe reviewed on the standard of reasonableness. He noted that the tribunal was charged with fact-finding, not the reviewing court.Generally, that tribunal has some expertise, and generally, that tribunal has substantial leeway in its self-determination of process issues(paragraphs 37 to 50).

Even where correctness is the standard to apply, there are some cases where procedural fairness is in issue, yetdeference is called for, as in Sound v Fitness Industry Council of Canada, 2014 FCA 48 at para 42, [2015] 2 FCR 170: [42] In short, whether an agency’s procedural arrangements, general or specific, comply with the duty of fairness is for a reviewingcourt to decide on the correctness standard, but in making that determination it must be respectful of the agency’s choices.

It is thusappropriate for a reviewing court to give weight to the manner in which an agency has sought to balance maximum participation on theone hand, and efficient and effective decision-making on the other.

In recognition of the agency’s expertise, a degree of deference to anadministrator’s procedural choice may be particularly important when the procedural model of the agency under review differssignificantly from the judicial model with which courts are most familiar. [44] Justice Stratas reaches a similar conclusion in his paper, where he advocates a move away from rigidcategorization of standards of review. He notes that when a tribunal has a single outcome available under the reasonableness standard, itmust reach that particular outcome.

If it reaches a different (i.e., unavailable) outcome, then the decision is “unreasonable”. Is thismarkedly different than correctness? In his paper, Justice Stratas asks, and not rhetorically, why judges should even bother to determinewhether a particular application falls into the category of correctness or reasonableness, stating “The real question is the intensity ofreview that an administrative decision-maker should be given”.

Later, he discusses this issue in the specific area of procedural fairnessand states the following: The time has come to recognize that procedural decisions come in all shapes and sizes. Courts are particularly vigilant in reviewing procedural fairness where the interests at stake are high. Thus, administrativedecision-makers who make procedural decisions affecting those facing the expropriation of their home or the loss of their licence topractice a profession are often subject to exacting review. In many cases, the review is described as correctness review.

However, some cases are different. Suppose a labour arbitrator has been managing a case for years, observing the inter-party dynamics and understanding the litigation complexities in it. At the last minute, a party seeks an adjournment of a long-scheduled hearing. The arbitrator decides not to adjourn the case. On judicial review, the reviewing court will recognize the fact-based nature of the decision, the arbitrator’s knowledge of the management-labour dynamic and the arbitrator’s privileged position to appreciate what has been going on in this particular matter.

In such a case, reviewing courts are deferential, sometimes highly so. In short, just as the intensity of review of substantive decisions should vary according to the circumstances, procedural decisions should also be subject to the same flexible approach. The approach discussed above—arriving at a sense of what the margin of appreciation should be in a particular case—is apposite to procedural decisions as well. Decisions are decisions and they should be reviewed using the same methodology. Some view “procedural” decisions as somehow being different from “substantive” decisions.

But upon reflection, most will realize that those are labels that do not tell us much and that sometimes confuse. It is often hard to know what label to give to a decision. Sometimes decisions have substantive and procedural aspects at the same time. If a tribunal denies a person standing to make submissions on the ground that her submissions will not be relevant to the issues in the case, is the decision “procedural” or “substantive”? It is “procedural” if you characterize the decision as preventing her from having her say on an issue that is of concern to her and creating an appearance of unfairness.

It is “substantive” if you characterize the decision as being a ruling on the nature of the issues before the tribunal and the relevancy of the person’s proposed submissions to those issues. So which is it? Do we call the wine glass half empty or half full? The margin of appreciation to be afforded to the tribunal should not depend on the arbitrary outcome of a labelling exercise. Simplicity and unification—objectives that advance clarity of the law and access to justice—suggest that a decision of any sort should be reviewed using one methodology.

As the conflicting Supreme Court decisions recognize, some “procedural” decisions deserve deference, some less so, others not at all. It all depends on the animating concept behind judicial review and the factors and circumstances that affect its application in an individual case. [ 45 ] Thus, on this point I find myself standing in a central place where I can neither take a step toward the applicant (correctness) nor the respondent (reasonableness). Rather, I take a step to the side to assess this substantive issue (procedural fairness) on the basis outlined in the authorities cited above.

It is my view that while, generally, this decision of the respondent must be considered within the context of correctness, the tribunal is to be afforded a measure of deference; thus, I am applying a hybrid standard of review. [ 46 ] The respondent needs to have afforded to the applicant, and to have duly considered and applied, the principles of natural justice and procedural fairness.

Failing to do that will neither be rigidly categorized as “incorrect” nor “unreasonable”, but simply wrong. [ 47 ] I fully appreciate that this is a somewhat different stance, which may in itself invite appellate review in this particular case. I get it. But this is an evolving area of the law. Appellate commentary is certainly not something to be avoided; indeed, the hope is that clarity and precision can be brought to a legal area Justice Stratas describes as a never-ending construction site, with barely-finished structures constantly being torn down and new shinier ones being erected.

Our black robes notwithstanding, I have no desire to be a judicial magpie, always flying toward the brightest new building on the administrative law construction site. Surely an appropriate and workable standard of review can be found at the confluence of common sense and legal theory. [ 48 ] I next turn to the applicable standard of review to the issue of excess of jurisdiction/exercising an unauthorized function. Applicant’s counsel casts this as an issue involving correctness.

At paragraph 13 of his brief: Whether the Council exceeded its jurisdiction by rejecting the Applicant’s Application for Registration on grounds other than those found in its Act is a jurisdictional question not within the expertise of the Respondent and is also reviewed on the standard of correctness …. In essence, the applicant’s argument is that the respondent exceeded its jurisdiction both by making its ruling on the basis of improper considerations and by taking on an investigative function which neither the Act nor the bylaws authorize. [ 49 ] I disagree with the applicant.

The appropriate standard is reasonableness. The respondent is interpreting its home statute. It is dealing with a core function, that of admission of members. It is functioning as a professional regulator, not unlike the Law Society of Saskatchewan or the College of Physicians and Surgeons. [ 50 ] I have reviewed the ATCO Gas decision regarding reasonableness.

Also in this regard, see: Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at para 30 , [2011] 3 SCR 654 ; ConocoPhillips Canada Resources Corp. v Canada (Minister of National Revenue), 2016 FC 98 , 2016 DTC 5016 ; and Direct Energy Regulated Services v Alberta (Utilities Commission) , 2016 ABCA 156 . [ 51 ] In ConocoPhillips , the issue was whether the Minister of National Revenue had jurisdiction to waive certain filing requirements under the Canadian Income Tax Act , RSC 1985, c 1 (5th Supp).

It was found that what the Minister was actually doing was interpreting a statutory provision that granted her the authority and jurisdiction to apply and administer the provisions of the Income Tax Act. It was held this was similar enough to pure

interpretation of a home statute to invoke the more deferential standard of review of reasonableness. See: ConocoPhillips , para 24. [ 52 ] This is similar to the case at bar. The respondent administers The Psychologists Act, 1997 . The provincial legislature has reposited trust in the respondent to properly regulate this profession, including admissions, registrations and licensure matters. In s. 3 of that Act , the Saskatchewan College of Psychologists is created to continue the prior work of the Saskatchewan Psychological Association. Under s. 7(1), the Council of the respondent “shall govern, manage and regulate the affairs and business of the college.”

Section 15 specifically authorizes the respondent to make regulatory bylaws, which includes the power to make bylaws which:

• prescribe qualifications, standards and competency tests as well as good character for the registration of persons as members and theissuing of licenses (s. 15(2)(a)); • prescribe qualifications, standards and competency tests for the right to perform an authorized practice (s. 15(2)(b)); • prescribe procedures for registration of members, issuing licenses and their terms and conditions (s. 15(2)(c); • prescribe standards of ethics, professional conduct, competency and proficiency as well as manner and method of practice (s. 15(2)(e)to (g)); • specifically, govern examinations for the purposes of ss. 20 and 23 (s. 15(2)(p); and • prescribing “any other matters considered necessary for the better carrying out of this Act” (s. 15(2)(x)). [53] All of this being so, it is difficult to see how the respondent was not engaged in a function delineated by itsenabling or home statute.

The functions it performed regarding the applicant were not tasks outside the respondent’s jurisdiction or evenout in the penumbra; rather, those functions were at the core of the respondent’s raison d’être. Thus, when considering the third listedissue (whether the respondent exceeded its jurisdiction in dealing with the applicant’s request for membership), a measure of deference iscalled for. The standard to apply is reasonableness. [54] The fourth listed issue – whether the respondent’s decision has an evidentiary base – is also to be assessed onthe basis of reasonableness.

Both parties agree this is the standard to apply, as do I. [55] In this regard, the applicant cites Montréal (City) v Montreal Port Authority, at para 36. I am satisfiedreasonableness is the appropriate standard here. Analysis 1. Does the delay in bringing this application disqualify the applicant from obtaining relief? [56] The respondent raises a preliminary objection to the applicant’s proceedings. It is argued that the delay inbringing this application disqualifies the applicant from obtaining any relief by way of judicial review. It is argued this is a fatal flaw.

Iagree. [57] Delay can be a factor in any judicial review application. It is dealt with by Rule 3-56(3) of The Queen’s BenchRules: 3-56(3) Subject to rule 3-63 and any enactment limiting the time in which an originating application for judicial review may be made, ifthere has been undue delay in making an originating application, the Court may refuse to grant any remedy sought if the order: (

a) would be likely to cause substantial hardship to or substantially prejudice the rights of any person; or (

b) would be detrimental to good administration. [58] Previously, it was dealt with under former Rule 675 of The Queen’s Bench Rules: 675 Subject to any statutory provision limiting the time in which an application for judicial review may be made, where there has beenundue delay in making an application, the court may refuse to grant any relief sought if the order would be likely to cause substantialhardship to or substantially prejudice the rights of any person or would be detrimental to good administration. [59] These rules are similar enough that the jurisprudence under former Rule 675 is of assistance in interpretingRule 3-56(3).

Accordingly, undue delay in bringing the application can be fatal. Rule 3-56(3) is essentially a codification of the commonlaw principles which oblige applicants to bring judicial review applications in a timely manner. [60] The seminal case on point is Henry v Saskatchewan (Workers’ Compensation Board) (1999), (SK CA), 172 DLR (4th) 73 (Sask CA). Bayda C.J.S. set out the proper approach when considering delay: [70] The Rule requires a two-staged approach. The first stage contemplates a determination whether the delay in “making theapplication” is “undue”.

It is important to note that it is the “making” as opposed to the “hearing” of the application that is governed bythe Rule. It is important as well to resolve what is meant by “undue”. In my view, the term embraces two elements: the first is the actuallapse of time (measured in days, months and years) between the making of the decision requested to be reviewed and the making of theapplication requesting the review.

The second is an assessment of the reasonableness of the lapse of time having regard to such mattersas the applicant's circumstances; the nature of the legal problems involved; the conduct, acquiescence, and consent of the opposing party;negotiations toward settlement of the dispute (the list is not exhaustive). This second element is often summarized in the expression“explanation for the delay”. [71] The second stage is engaged only if at the first stage the delay is found to be “undue”.

The second stage requires a determinationwhether the order sought by the applicant would result in one or more of three eventualities (

i) likely substantial hardship to any person,(ii) likely substantial prejudice to the rights of any person and (iii) detriment to good administration. If one or more of those results is aptto occur, then the judge is empowered to refuse the relief sought. On the other hand, if none of the results is apt to occur the judgewould be justified in granting the order even though the delay was undue. [61] This test has been approved and utilized consistently. Henry was recently considered in Workers CompensationBoard of Saskatchewan v Gjerde, 2016 SKCA 30, [2016] 4 WWR 423. The Court of Appeal said this at paragraphs 28 and 29:

[28] Rule 3-56(3) gives a judge discretion to determine whether an application for judicial review should be refused on the basis ofundue delay.

Such a decision is entitled to deference and an appellate court should only interfere if there has been an abuse of thatdiscretion, that is: the judge erred in principle, disregarded a material matter of fact, or failed to act judicially or the result is “so plainlywrong as to amount to an injustice and invite intervention on that basis” (see Rimmer v Adshead, 2002 SKCA 12 at para 58, [2002]4 WWR 119; and Royal Bank of Canada v Anderson, 2008 SKCA 153 at para 10, 314 Sask R 215). [29] The law pertaining to undue delay in bringing applications for judicial review was considered by this Court in Henry vSaskatchewan (Workers’ Compensation Board) (1999), (SK CA), 172 DLR (4th) 73 (Sask CA) at para 70 [Henry].In that case, Bayda C.J.S. concluded a two-step analysis should be employed when deciding such applications.

The first step of theanalysis requires a determination of whether the delay is “undue.” There are two aspects to that question, namely (

i) the actual amount oftime that has elapsed between the making of the decision to be reviewer and the initiation of the application for judicial review, and(ii) the reasonableness of the delay, which focuses on the explanation(

s) proffered for it. If the delay is found to be “undue,” then thesecond step of the analysis is engaged, and the judge must determine whether the order sought is likely to cause substantial hardship orsubstantial prejudice to the rights of any person or is detrimental to good administration.

If one of those three eventualities exists, then ajudge may exercise his or her discretion and refuse the application. [62] I have also considered: McCarty v Saskatchewan College of Psychologists; Holowachuk v Saskatchewan(Workers’ Compensation Board), 2009 SKQB 74, 329 Sask R 131; Warner v Saskatchewan (Workers’ Compensation Board), 2007SKQB 76, 292 Sask R 283; and Durr v Saskatchewan (Minister of the Department of Highways and Transportation), 2000 SKQB 566.All of these cases consistently apply the same principles to delay in judicial review cases. [63] Under the first part of the Henry test, I am to determine whether this delay is undue.

If so, then I may go on anddetermine whether allowing the application is likely to cause substantial hardship or prejudice or would be detrimental to goodadministration. [64] Here, the impugned decision was made on May 22, 2014. The delay from that decision until this application wasbrought is almost exactly two years. At the very least, this amount of delay invites scrutiny, especially where (as here) the applicant haspreviously had a judicial review application dismissed due to delay in bringing it. [65] In Saskatchewan, there is no hard and fast definition of undue delay.

Whether delay exists depends upon theoverall circumstances. This is not the case in other jurisdictions. In Alberta, Rule 3.15(2) of the Alberta Rules of Court specificallyprovides that an application for judicial review must be served and filed within six months of the decision date. In Ontario, the case lawhas evolved to the point that any delay over six months calls for an assessment.

For example, in Ransom v Ontario, 2010 ONSC 3156, 83CCEL (3d) 136, this was said at paragraph 15: This Court has held on many occasions that a delay of more than six months in commencing a judicial review application is reason forconcern …. But like Saskatchewan, there is no automatic dismissal of a delayed application, and the surrounding circumstances are examined. InManitoba, the Court of Queen’s Bench Rules, MR 553/88, provide that “on motion” the court may dismiss an application on the basis ofdelay.

The factors considered are outlined under Rule 38.12(2): 38.12(2) On hearing a motion under this rule, the court may consider, (

a) whether the applicant has unreasonably delayed in obtaining a date for a hearing of a contested application; (

b) whether there is a reasonable justification for any delay; (

c) any prejudice to the respondent; and (

d) any other relevant factor. [66] I find the applicant’s delay does amount to undue delay. It was two years between the date of the decision madeby the respondent and the filing of this application. Considering that in December 2011 the applicant’s previous judicial reviewapplication was dismissed by this court and, therefore, she must be taken to be actually aware of the need to proceed with alacrity, thisdelay is simply too long to countenance.

Being alive to the potential deleterious effect delay could have on her ability to pursue thisapplication, the applicant should have moved swiftly to deal with the respondent’s decision. Two years is too long in thesecircumstances. [67] In reaching this conclusion I have accepted that in this province there is no pre-established limit for delay. Eachcase will turn on its own facts.

Nevertheless, guidance may be obtained from other decisions: • Kane v Lac Pelletier (Rural Municipality, No. 107), 2009 SKQB 348, 342 Sask R 113: delay between 13 and 16 months was fatal. • Holowachuk: two years. • Wadena School Division No. 46 v Saskatchewan (Municipal Employees’ Pension Commission), 2001 SKQB 348, [2001] 11 WWR138: Barclay J. held a 30-month delay was undue, stating at paragraph 25: In my view a delay of this magnitude would be detrimental to good administration and therefore in the exercise of my discretion I refuseto entertain the application.

The application is therefore dismissed. • Breton v Battlefords Union Hospital Board (1992), (SK KB), 6 Admin LR (2d) 11 (Sask QB): the delaywas 13 months.

• Crommer v. Workers’ Compensation Board (Sask.) (1992), (SK KB), 98 Sask R 213 (QB), where Scheibel J. statedat paragraph 30: [30] Each case must be considered on its merits and a long unexplained delay of any kind will jeopardize the making of the application.This is so even where granting the relief sought would not cause substantial hardship and where, as here, there is no prejudice shown.

Togrant this application, in my view, one would be acting in a manner detrimental to good administration which would open the door forfuture abuses in respect to the timeliness of the application. • Basu v College of Physicians and Surgeons of Saskatchewan (1988), (SK KB), 70 Sask R 254 (QB): two years. [68] The delay in this case is clearly undue and inordinate; thus, I move on to consider whether there has been anyexplanation for the delay. [69] Virtually nothing in the material explains the delay.

Applicant’s counsel attempted to justify the applicant’sdelay in this case (notwithstanding her prior knowledge that delay was a serious factor in assessing her application) by characterizing theapplicant’s relationship with the respondent as “tormented”. Perhaps so, but that does not provide an explanation. In fairness, applicant’scounsel did not strive to argue that in these circumstances the delay was not undue delay.

He concentrated on the other factors arising inthe second branch of the test. [70] Undue delay having been proven, with no explanation for same, I must next consider that second branch; that is,whether the delay: (

a) would be likely to cause substantial hardship to or substantially prejudice the rights of any person; or (

b) would bedetrimental to good administration. [71] The respondent argued that this delay would be detrimental to good administration. Two years have passed sincethe impugned decision was made. There is no individual hardship or prejudice to the respondent, but there is a need for certainty in theprofessional decision-making process. This decision was relatively straightforward and was not so complex that extra time was requiredto bring this application, according to the respondent.

It is further argued that the previous decision is an important factor as it was anattempt at judicial review between the same two parties in the same two roles.

In the previous decision, Justice Scherman commentedupon the delay in bringing the application and, while not expressly dismissing it on that basis, at paragraphs 12 and 14 of McCarty, hesaid: [12] Had it been necessary, I would have exercised my discretion to dismiss the application of these same earlier decisions on thegrounds of undue delay and that it would be detrimental to good administration for the courts to review these decisions after all this time. … [14] ...

Any regulatory body is entitled to proceed on the basis that decisions made and not challenged in a timely manner have settledthe matter and are final. To permit otherwise could lead to administrative chaos. [72] I agree with Justice Scherman. It would be extremely difficult for a professional regulator to exercise its properfunctions where challenges to decisions can be made years later. There is no certainty for the regulator, the profession and the public.Reasonably, this application ought to have been brought within six months of the date of the decision. See Crommer.

Also see Breton,where the delay was 14 months. At paragraphs 5 and 6, Justice Geatros said: [5] By way of explaining the delay, the applicant says that he sought ways of endeavouring to resolve his dispute with the hospitalboard amicably so as not to alienate the hospital. His efforts were of no avail. He then turned to a medical defence organization forassistance, and after discussing the circumstances surrounding the applicant's case, that organization instructed counsel to bring thepresent application.

I am not persuaded that those factors offer a satisfactory explanation for the delay which is not one of short duration.Clearly, it seems to me, the procedures that are alluded to by the applicant could have been taken and proceeded with in a more timelyfashion. For that reason, it is my view that the applicant has lost the right to the relief sought; in seeking an equitable remedy he wasunder a duty to act promptly. … [6] To my mind, implicit in the delay is that substantial prejudice would accrue to the respondent if the application is allowed to bemade. Surely it would be detrimental to good administration.

The board would be entitled to assume that if the applicant was inclined toapply for a judicial review he would do so in a timely fashion, not after double the time of the usual period of no more than six months.Within the area of judicial review there must be some finality to the board’s decision. [Emphasis added] [73] In Basu, two years was held to be undue delay, and the application was dismissed.

Justice Armstrong wasreviewing former Rule 675(2) which imposed a six-month time limit on judicial reviews, which was subsequently (in 1994) struck downas ultra vires by the Court of Appeal (Bassett v Canada (Government) (1987), (SK CA), 35 DLR (4th) 537 (SaskCA)). But even apart from that time limit, in Basu, it was found that an applicant for judicial review needed to move reasonably swiftly: [13] Even without the six month rule the application would have to be made within a reasonable time. Two years and some months isnot a reasonable time for a number of reasons.

Perhaps foremost is the very serious effect of the delay on the testimony of witnesses if anew hearing was required if the respondent’s decision was to be quashed. There must be some finality to decision …. [74] The applicant argued that there was no evidence brought by the respondent as to the effect of the delay. In acase such as this, actual evidence is not required. The circumstances speak for themselves. The nature of the respondent’s decision todeny registration and licensure to the applicant is plain on its face. The passage of two years also speaks for itself.

The applicant cannotseek to excuse her own delay by pointing to inaction on the part of the respondent. [75] The case at bar is distinct from Gjerde. There, the system in place allowed for multiple internal reviews. That isnot so here. As well, in Gjerde there was no prior experience and no court ruling which specifically discussed delay. It was determinedthat the delay was adequately explained, which is not the situation here. This case is factually distinct from that one. This case is far

more similar to the cases where delays of 12 to 30 months were held to be contrary to good administration. [76] A thorough consideration of all the factors extant in this case leads me to conclude this application must bedismissed on the basis of delay. The delay of some two years is, in and of itself, inordinate. This is particularly so where a prior judicialreview application between these same parties attracted negative commentary about the delay. I have no doubt that good administrationis adversely affected. [77] Accordingly, I dismiss the applicant’s application for judicial review because of undue delay on her

part inbringing the application before the court. [78] Notwithstanding the resolution of this application on this basis, I will go on to consider the other issues raised bythe applicant. 2.

Was the applicant denied natural justice and/or procedural fairness? [79] As stated above, this ground of judicial review is being assessed not on the strict standards of correctness orreasonableness, but on a functional and contextual approach which determines whether the processes of the respondent provided thedegree of fairness required by law. [80] The parties do not differ (and I accept) that the respondent must exercise the powers delegated to it by thelegislature fairly, in good faith and in the public interest. As a professional regulator, it could not be otherwise.

Where the parties differis where the applicant alleges the respondent has failed to fulfill those duties and claims a breach of natural justice and fundamentalfairness. [81] The applicant has particularized the alleged breaches of this duty in several ways. [82] The applicant first alleges that she did not receive notice of the case she was to meet and did not receive anopportunity to be heard.

At paragraph 47 of her counsel’s brief, the applicant says: The question in this case can be put simply: did the Council make its decision using a fair and open procedure, and did it provide anopportunity to the Applicant to put forward her views and evidence fully and have them considered by it? [83] In particular, the applicant first says she was unaware that her previous applications made under s. 20(1) wouldbe considered, and she had no chance to speak to those matters before the respondent.

Second, she says she was unaware that her place ofemployment and residence would be considered and also had no opportunity to speak to those matters. Thirdly, she was unaware that hermotives for applying under s. 20(2) would be considered. [84] In broad terms, there is a duty of fairness on the respondent, and it must act in accordance with the principles ofnatural justice. The respondent’s decisions can affect the rights or interests of individuals, including the applicant. [85] This duty must be taken in context. The province has decided that psychologists are, to a great extent,self-governing.

The legislation and bylaws already referred to set out the powers given to the respondent. The respondent acts through itsCouncil. It must act in the best interests of the public. It is, therefore, a regulator guarding the public interest, as opposed to a lobbygroup protecting the interests of psychologists. In many of the applicant’s submissions, she appears to be under a misapprehension as tothe overarching purpose of the respondent. [86] In the course of acting within its scope of authority, the respondent does a number of things, including settingthe basis for admission to membership.

This is not a club or guild. Membership is set up so that the public can be assured that someonepractising psychology in Saskatchewan is duly qualified to do so. It is for the respondent, not any other body, to determine the criteria formembership and to review applications for same to ensure that only qualified individuals are admitted for membership. [87] It must also be borne in mind that for the applicant, membership in the respondent is not an absolute right.

Itcannot be denied to her capriciously, but it is she who must satisfy the respondent that she is qualified and therefore entitled to become amember; it is not the respondent that must justify a denial of membership. It must also be kept in mind that the process in question hereinis the respondent’s process for admission, as opposed to discipline or some other process.

The record before the court, which includesthe documents submitted by the applicant herself in her quest for admission as a member of the respondent, unequivocally points to thisbeing an admission process. [88] Further, within that process of admission to a professional body, the applicant was not entitled to all thetrappings and procedures of a court case. The reality of this admissions process must be considered by this court on judicial review, andconsidered as part of the overall context in which this dispute arises.

As was said in International Woodworkers of America, Local 2-69 vConsolidated Bathurst Packaging Ltd., (SCC), [1990] 1 SCR 282 at 323, said: …the rules of natural justice must take into account the institutional constraints faced by an administrative tribunal. These tribunalsare created to increase the efficiency of the administration of justice and are often called upon to handle heavy caseloads.

It is unrealisticto expect an administrative tribunal … to abide strictly by the rules applicable to courts of law. … [89] This overall context also includes the scheme for applications (and reviews of same) established under thelegislation. As previously referenced, s. 15(2) of the Act provides for the respondent to make regulatory bylaws covering a wide range ofprocedures, including the “qualifications, standards and tests of competency and good character” for membership and licensure (s. 15(2)(a)).

Section 20 speaks very directly to registration as a member. The statute and bylaws are obviously public, so for the applicant to nowsay on this application that she did not know the test she had to meet – that she did not know that “qualifications, standards and tests ofcompetency and good character” would be in issue on any application for membership – at best seems disingenuous.

[ 90 ] Further, the legislation provides for a right of personal appearance, but only in certain circumstances. Where a decision is delegated, an aggrieved party may seek a review of same under s. 22(4). On such a review, the aggrieved party has the right to appear in person before the Council. However, in this case it was Council as a whole making the decision. This power had not been delegated. There was no right of personal appearance.

This is an admissions issue which is governed by ss. 18 to 24 of the Act , not a discipline issue under ss. 24.1 to 40, with a statutory appeal to the court under s. 37. [ 91 ] I also note an evidentiary issue. In his brief, applicant’s counsel asserts the applicant was unaware that the matters set out above would be considered by the respondent. However, in her affidavit sworn August 5, 2016, and filed in support of this judicial review application, the applicant only states (paragraph 6) that she was unaware that whether she maintained employment as a psychologist in Alberta would be considered.

Two issues arise from the construction of her affidavit: (

a) she does not actually swear to a lack of knowledge of the other matters; and (

b) how can she state that her residence and employment in Alberta were issues not occurring to her or part of her consideration in making her application, when she was in fact seeking membership on the basis of mobility laws as an extra-provincial registrant? [ 92 ] She cannot have it both ways.

She cannot say the respondent failed to properly register her due to the new mobility provisions yet claim she had no idea her residence or previous practice history would be in issue. [ 93 ] Further on this point, the certified record in this application includes the applicant’s letter which accompanied her application for membership. It specifically claimed that she had a small psychology practice on the Alberta side of Lloydminster and that she had been practising in Alberta for almost three years.

This indicates she was alive to the considerations she now says she had no idea might be considered by the respondent. [ 94 ] Yet further on this analysis of the facts and evidence before this court, the applicant’s material was presented in an unsatisfactory and conflicting manner. First, the applicant’s affidavit was inserted as Tab 16 of the applicant’s authorities appended to her brief of law – a strange place to tender the evidence. Notwithstanding this odd physical arrangement, more importantly there are also conflicts in the material itself: (

a) At paragraph 3 of her affidavit the applicant swears to this court she has been practising psychology in Lloydminster, Alberta, from May 2012 to the present. However, one of the exhibits to her affidavit is a letter from a hotel manager stating she has been staying there regularly since May 201 3 although it “could even be longer”. Thus, her own material on this application leaves uncertain the date of commencement of the applicant’s Alberta practice. (

b) To compound this uncertainty, the respondent’s application forms which the applicant tendered supplied information on point directly from the applicant. This information was not in good order. Question 4 of the application for initial registration asked the applicant to provide her various places of primary employment, the years worked and the total hours practised each year. She left this totally blank. (

c) Her curriculum vitae submitted speaks to work experience but makes no mention of practising psychology in Lloydminster, Alberta, from May 2012 to the present. In fact, it states that from September 2003 to the present she worked at “McCarty Counselling Services” in Saskatoon. She says she practised “counselling”. (

d) All of this must be contrasted with a letter she wrote to the respondent on January 9, 2014, which states she has practised as a social worker in Saskatoon for the previous fourteen years. She does add that she has a “small practice in Lloydminster, Alberta” “for almost three years”, which would put the commencement at some point in 2011 as opposed to 2012, which is what she swore to in her affidavit. [ 95 ] The point of all this is that she was applying to a professional regulator for membership registration. Honesty, integrity, accuracy and completeness are expected.

The fact that the regulator seeks this information is inherently indicative that the information is important to the regulator. It simply does not make sense that the applicant herein would not only claim to be taken by surprise when the respondent relied on this information, but also to claim that she was not treated with fundamental fairness. [ 96 ] The applicant misses the point that she had, and has, no vested right to be a member in the respondent. Membership is subject to compliance with certain conditions. Application for membership must be fully accurate and complete.

This was reviewed in Law Society of Saskatchewan v Kumar , 2013 SKLSS 4 , at paragraphs 18 and 29 : [18] The duty mandated to the Law Society is clearly set out in

Section 3.1 of The Legal Profession Act 1990 as follows: Duty of society 3.1 In the exercise of its powers and the discharge of its responsibilities, it is the duty of the society, at all times: (

a) to act in the public interest; (

b) to regulate the profession and to govern the members in accordance with this Act and the rules; and (

c) to protect the public by assuring the integrity, knowledge, skill, proficiency and competence of members. It goes without saying that in situations where the Member has provided false or misleading information to the Law Society, the Society’s ability to regulate the profession and to govern its membership in accordance with its statutory mandate is obstructed. Furthermore, regulatory bodies cannot protect the public in any meaningful way if they are not privy to accurate information concerning their Members. From the viewpoint of the Membership in a professional society, the issue is one of integrity.

Members must be candid and honest in dealing with their professional society in order to enable the society to function . The importance of integrity in the practice

of law cannot be understated and as stated in the Law Society of Saskatchewan’s Code of Professional Conduct commentary to Chapter1, “Integrity is the fundamental quality of any person who seeks to practise as a member of the legal profession.” and “The principle ofintegrity is a key element of each rule of the Code.” It should be noted that it is not necessarily every false or misleading admission oromission that will automatically lead to severe penalties but serious breaches of integrity should result in serious penalties in order tomaintain the integrity of the legal profession and the public’s confidence in it. … [29] It is the opinion of this committee that the Member’s integrity breaches are serious in that they were designed to conceal hisidentity to gain admission to a professional body.

For reasons already canvassed in this decision, such behaviour cannot be tolerated andmust be generally deterred. [Emphasis added] [97] There was an appeal to the Saskatchewan Court of Appeal in Kumar, which was dismissed: Kumar v LawSociety of Saskatchewan, 2015 SKCA 132, 472 Sask R 79. At paragraphs 7 and 8, the above passages were cited with approval. Also seeLaw Society of Saskatchewan v Mapagunaratne, 2015 SKLSS 7. While the degree of untruthfulness is different as between the Kumarcase and the case at bar, the importance of proper information is no different.

The applicant’s attempts to circumvent her inability todemonstrate the competency required for membership through use of the new mobility provisions, plus her incomplete and inaccurateapplication, suggest a lack of integrity that certainly ought to have concerned the respondent, as it did. [98] I therefore do not agree with the applicant when she claims the respondent failed to notify her of the criteria thatwould be considered or provide her with an opportunity to address same. All citizens are taken to know the law.

The legislation andbylaws set out what the respondent will look at when assessing an application for registration. The applicant must be taken to haveknown (or ought to have known) what was in issue in her application. The applicant also sought professional status. She therefore alsohad an affirmative duty to give the regulator of her profession full and accurate information, upon which she could expect the regulator(respondent) to act.

After all, it is up to the applicant to prove that she is eligible for registration, not the respondent to disprove same.She did not provide the information that the respondent, and this court, would reasonably expect her to provide. [99] As well, it must be noted that the respondent’s decision was not expressly based upon this incomplete orconflicting information from the applicant. Rather, the applicant could not pass the oral interview she was required to take. Factually,that is unchallenged. The respondent also took its own

interpretation of the mobility amendments to the legislation and found it coulddeal with the applicant in the manner it did. [100] Thus, the first issue I have with this ground of this judicial review application is that the record and the evidenceunderpinning same simply do not support the applicant’s claims. [101] I turn from the facts and evidence to the legal analysis of the points raised by the applicant. [102] In Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, it washeld that there is no “one size fits all” duty of fairness.

The duty will vary in accord with each case’s peculiar facts and surroundingcircumstances. It is not the law that in each such case a hearing must be held. [103] It is important to note that the respondent is a professional regulator to which the legislature has delegatedsignificant authority over admission to membership. That specific delegation of authority as set out in the Act extends to determining itsown processes. Those processes cannot be manifestly unfair, but they do not have to be perfect.

They do not have to include the right to ahearing and to call evidence. [104] Broadly similar to the case at bar is the judicial review case of Buchik v Alberta College of Speech-LanguagePathologists and Audiologists, 2003 ABQB 831, 342 AR 151. The applicant obtained two bachelor-level degrees from 1986 to 1992. Shethen worked at various jobs in this field between 1992 and 2003. She was dismissed from her last employment in January 2003. Prior tothat time, she was not a member of any professional organization.

In 1996 she was denied membership in the Ontario organization on thebasis she did not meet the legislative educational requirements. In 2000 she had sought registration with a national professional body butwas denied. In 2002 she sought membership in the respondent Alberta College. There were three ways she could obtain suchmembership: by meeting the education/experience requirements; by being registered in a parallel organization in another jurisdiction; orby satisfying the respondent (through a combination of factors) that the required competence was present.

Her membership applicationwas denied by the registrar, and on appeal to the College as a whole, it was also denied. Her judicial review application was dismissed. [105] In paragraph 48 of Buchik, the court noted that the legislature “intended to imbue the College with theresponsibility and authority and the discretion to establish competency requirements and requirements for registration and to enforcethose requirements”. It was determined the College had a particular expertise and was owed deference.

The court held it was for theCollege to determine whether admission qualifications were met, based on its expertise in assessing the applicant’s education, experienceand ability. [106] This is precisely what the respondent did in this case. The applicant seems to be arguing that the amendedlegislation allowed her to “get in” the respondent’s membership through new mobility provisions, irrespective of her known competencyissues. That is neither correct nor reasonable. [107] In the instant case, it is my view that the respondent did what the legislation required.

The Saskatchewanlegislature delegated power to the respondent College to determine both the requirements needed for admission as a member, andwhether any individual applicant met those requirements. In doing so, there is no requirement for an actual hearing or the provision ofevidence.

It was for the respondent to determine the manner in which it would administer admissions and, unless doing so unfairly, thecourt should be reluctant to interfere. [108] Although not expressly set out in the enumerated grounds of the application, the applicant also alleged there wasan apprehension of bias on the part of the respondent. In particular, it is alleged the respondent “prejudged” the issue of the applicant’s

competency because it relied on her past performance on admission applications and ignored that she was admitted to membership inAlberta. She says the respondent failed to conduct any new assessment of her competency and based its decision on her previousapplication. [109] I do not accept this argument. First, the respondent accepted her basic qualifications through her Albertamembership. The outstanding matter remained the completion of the required oral interview.

For whatever reason, the applicant couldnot succeed in that oral interview. [110] Second, given the past results and failures, given that membership is not a right and given that the applicant lastapplied for membership five years previously, why did the

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