Lockerbie v. College of Occupational Therapists of Nova Scotia, 2020 NSSC 279

Supreme Court of Nova Scotia Citation: Lockerbie v. College of Occupational Therapists of Nova Scotia, 2020 NSSC 279 Date: 20200414 Docket: SYD No. 488364 Registry: Sydney Between: Lori Lockerbie Applicant v. College of Occupational Therapists of Nova Scotia Respondents Library Heading Judge: The Honourable Justice Patrick J. MurrayHeard: October 11, 2019, in Sydney, Nova ScotiaWritten Decision: April 14, 2020Subject: Administrative Law; Judicial Review Application

Summary: Appeal seeking review of decision of the Board of the College of Occupational Therapists of NovaScotia.Issues: The following issues were for consideration by the Court: 1. That the Respondent erred in finding that the first two writings of the NOTCE by the Applicantwere fair and therefore was denied procedural fairness. 2. That the Respondent erred in receiving evidence and making findings that multiple writingsincreased the likelihood of passing the examination. It was a submission without evidential basis thatformed part of the findings. 3.

That the Respondent received evidence from the Registrar that had been determined beyond thescope of the hearing and jurisdiction of this Board in pretrial conferences relating to the adequacy ofaccommodations. In doing so, it denied the Applicant procedural fairness.Result: Application dismissed. On the whole, the Board’s decision found to be reasonable. Reasons given fordecision were justified, transparent and intelligible. Court considered decision of Supreme Court of Canada in Canada (Minister of Citizenship andImmigration) v.

Vavilov, 2019 SCC 65, as well as other relevant caselaw.Caselaw: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; LIUNA Local 615 v.Can Mar Contracting Ltd., 2016 NSCA 40; Baker v. Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 S.C.R. 817; CHRC, Canada (Canadian HumanRights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230; Parsons v.Chignecto – Central Regional School Board, [2013] N.S.J. No. 282; Swart v. College of Physiciansand Surgeons of PEI, [2014] P.E.I.J. No. 50; Dunsmuir v. New Brunswick, 2008 SCC 9; LIUNALocal 615 v.

Stavco Construction Ltd, 2019 NSCA 53; Canada Post Corp. v. Canadian Union ofPostal Workers, 2019 SCC 67; Caliao v. College of Nurses of Ontario, ; Waverly(Village) v. Nova Scotia (acting Minister of Municipal Affairs), (1993), 1993 NSSC 71 , 123N.S.R. (2d) 46 (N.S.S.C.); Healy v. Halifax (Regional Municipality), 2017 NSSC 83; THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET.

SUPREME COURT OF Nova Scotia Citation: Lockerbie v. College of Occupational Therapists of Nova Scotia , 2020 NSSC 279 Date: 20200414 Docket: SYD No. 488364 Registry: Sydney Between: Lori Lockerbie Applicant v. College of Occupational Therapists of Nova Scotia Respondents Judge: The Honourable Justice Patrick J. Murray Heard: October 11, 2019, in Sydney, Nova Scotia Post-Hearing Submissions: January 30, 2020, February 18, 2020 Written Decision: April 14, 2020 Counsel: Christopher T. Conohan for the Applicant, Lori Lockerbie Roderick H.

Rogers, Q.C. for the Respondent, College of Occupational Therapists of Nova Scotia By the Court: Introduction [ 1 ] The College of Occupational Therapy “COTNS” is responsible for licensing and registration of its members. In order to serve and protect the public interest COTNS has a mandate to ensure members have the necessary skills and qualifications to hold a practicing certificate. [ 2 ] Ms. Lori Lockerbie has dedicated herself to becoming a licensed therapist. She has studied abroad and started a family while completing her studies.

Since 2017 she has been attempting to pass the CAOT exam. [ 3 ] This case is involves a decision made by the Board of the College on April 25, 2019, not to permit Ms. Lockerbie a further writing of the exam. The Judicial review hearing in this matter took place on October 11, 2019. [ 4 ] Since that time, the applicable law has undergone change, due to a trilogy of administrative law decisions released by the Supreme Court of Canada in December, 2019. The leading case of Ca nada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , is now the authority on how a review of an administrative law decision is undertaken. Overview [1] [ 5 ] Lori Lockerbie (the “Applicant”) applied for judicial review of the April 25, 2019 decision of the Board of the College of Occupational Therapists of Nova Scotia (“Board”), refusing Ms. Lockerbie’s request to write the National Occupational Therapy Certification Exam (“NOTCE”) for a fifth time. [ 6 ] Each new applicant for registration with the College of Occupational Therapists of Nova Scotia (“COTNS” or “College”) is required to pass the NOTCE among other criteria.

In January 2017, Ms. Lockerbie had satisfied all requirements for registration, other than successful completion of the NOTCE.

[ 7 ] Ordinarily, a candidate has up to three attempts to pass the NOTCE. Ms. Lockerbie did not pass the examination in any of her first three attempts. She was diagnosed with a learning disability after the third attempt and asked the Board’s Credentials Committee for a fourth opportunity. The Credentials Committee originally rejected her application, but, on reconsideration, it granted Ms. Lockerbie “4 th and final” opportunity to write the NOTCE. It stipulated that if she was unsuccessful, her provisional registration would be vacated. [ 8 ] Ms. Lockerbie sat the examination for a fourth time in November 2018.

She was unsuccessful. The College moved to vacate Ms. Lockerbie’s provisional registration in accordance with the Credentials Committee’s decision. Ms. Lockerbie announced her intent to appeal to the Board. [ 9 ] The Board heard the appeal in April 2019 and confirmed the Credentials Committee’s decision that Ms. Lockerbie’s provisional registration should be vacated and rejected her request to write the NOTCE for a fifth time. [ 10 ] Ms. Lockerbie raises three (3) grounds of judicial review.

She argues that the Board’s decision on first issue is unreasonable and that the Board’s decision other two issues is incorrect, having raised a breach of procedural fairness. She further argues that issues two and three are “rule of law” exceptions (under the new framework) and must be reviewed for correctness. [ 11 ] The Respondent submits that all three issues must be reviewed on a reasonableness standard and says that the Board’s decision to vacate Ms. Lockerbie’s provisional registration and to deny her a fifth opportunity to write the NOTCE is reasonable.

The Respondent submits that all of the grounds raised by the Applicant have, in essence, challenged to the Board’s decision. As such, they are to be reviewed on the reasonableness standard. [ 12 ] The Applicant requests an order quashing the denial of a fifth sitting to write the NOTCE. The Respondent College of Occupational Therapists of Nova Scotia says that the Court should not disturb any decision, action or other matter under review. Factual

Summary [ 13 ] On January 6, 2017, Ms. Lockerbie had satisfied all of the requirements for registration other than successful completion of the exam. As a result, she was granted a provisional registration, subject to conditions, including the condition that she was to sit the next available writing of the NOTCE. [ 14 ] Successful completion of the NOTCE is a statutory requirement pursuant to the Occupational Therapists Act (" Act ") and the College of Occupational Therapists of Nova Scotia Registration Regulations ("Regulations") and is a requirement for general registration with COTNS. [ 15 ] Sections 19(1)(

a) of the Act and s.27(e)(vii) of the Regulations require each applicant to COTNS to complete the "certification exam" and "the examination process required by the Board". [ 16 ] Under s. 19(1) of the Act , the Board shall direct the Registrar to enter in the Register the name, address and qualifications of any person who, among other conditions: (

a) has successfully completed the certification exam if prescribed by the regulations; [ 17 ]

Section 27(e)(vii) of the Regulations provides: 27 An applicant for registration or re-registration shall, (

e) complete the New Applicant Form required by

Section 24 and submit it to the Registrar with the following : (vii) subject to

Section 28, proof of successful completion of the examination process required by the Board; [ 18 ] The NOTCE is administered by the Canadian Association of Occupational Therapists ("CAOT"). The NOTCE can be written in Nova Scotia twice a year. Generally, there is one writing in July and a second writing in November. [ 19 ] To complete the NOTCE, a candidate is required to complete two exam booklets. A candidate is normally provided with two hours to complete each exam booklet. The pass mark is approximately 70%. [ 20 ] Pursuant to CAOT Policy CEC.

P. 15, Frequency of Writing/Rewriting the National Occupational Therapy Certification Examination ("Frequency of Writing Policy"), all eligible candidates are permitted a maximum of three attempts to successfully complete the NOTCE. [ 21 ] If a candidate does not pass the NOTCE after three attempts, the Frequency of Writing Policy permits the candidate to be granted an additional three attempts upon completion of a new entry to practice occupational therapy program that is approved by the regulator. [ 22 ] Ms. Lockerbie first wrote the NOTCE on July 8, 2017. She did not seek any accommodations.

She obtained a score of 264; the pass grade was 290. [ 23 ] Ms. Lockerbie's Provisional Registration was extended to enable her to sit for the NOTCE a second time. [ 24 ] Ms. Lockerbie wrote the NOTCE for the second time on November 18, 2017. She did not seek any accommodations. She obtained a score of 260; the pass grade was 290. [ 25 ] COTNS's Provisional Registration Policy permits a provisional registration for a period of one year only. Accordingly, the Credentials Committee recommended to the Board in January 2018 that Ms. Lockerbie's provisional registration be extended to allow her

to write the NOTCE for a third time and the Board granted a further extension. [ 26 ] In March 2018, Ms. Lockerbie requested, for the first time, accommodation from CAOT under the Accommodation Policy for her anxiety. She completed Form A and her physician completed Form B. ( See paragraph 30 herein) [ 27 ] In May 2018, CAOT authorized (in Form

C) an accommodation of 3 hours per exam booklet (9 am until 12 noon and 1 pm until 4 pm) and a private room for Ms. Lockerbie's third attempt to write the NOTCE in July 2018. Without accommodations, candidates are permitted 2 hours per exam booklet. [ 28 ] On July 7, 2018, Ms. Lockerbie signed Form D acknowledging her acceptance of the accommodations, which were a separate room and additional time of 3 hours per booklet. [ 29 ] Ms. Lockerbie wrote the NOTCE for the third time on July 7, 2018 under these accommodations.

She obtained a score of 287; the pass grade was 290. [ 30 ] On August 17, 2018, the Registrar advised Ms. Lockerbie that she had not successfully completed the NOTCE and that this was a requirement under the Act and Regulations and a condition of her provisional registration. Ms. Lockerbie was advised that the Credentials Committee would be meeting to review her file and may vary or vacate her registration under s. 20(2) of the Act . The Registrar invited Ms. Lockerbie to submit any information for the Committee to consider no later than September 10, 2018. [ 31 ] Ms. Lockerbie retained Mr.

Conohan who provided submissions on September 10, 2018. He enclosed a 2-page submission, four statutory declarations from individuals who are friends with, work with or supervise Ms. Lockerbie and an Assessment by Dr. Reginald Landry, dated September 1, 2018. Mr. Conohan requested that Ms. Lockerbie be provided with the opportunity to write the NOTCE again in accordance with Dr. Landry's recommendations. [ 32 ] The Credentials Committee issued a decision in mid-September 2018. It determined that Ms. Lockerbie's provisional registration should be vacated, pursuant to s. 20(2) of the Act and refused Ms.

Lockerbie's request for a further extension of her provisional registration to write the NOTCE for a fourth time. [ 33 ] Mr. Conohan wrote to the Registrar on September 25, 2018, asking to appeal the Credentials Committee's Decision. [ 34 ] Instead of appealing to the Board, the College first provides an applicant with the opportunity to ask the Credentials Committee to reconsider its decision, pursuant to Policy 413.1, Review of Registration Policy. [ 35 ] Following Mr. Conohan's September 25, 2018, letter confirming that Ms.

Lockerbie intended to seek reconsideration of the Credentials Committee's September 2018 decision, the Registrar confirmed with the CAOT on October 2, 2018, that there was space to add an extra person to the November 2018 sitting of the NOTCE, if necessary. On the same day, the Registrar called Mr. Conohan and advised him that Ms. Lockerbie should register for the November 2018 sitting of the NOTCE in the event that her appeal was successful. [ 36 ] Ms. Lockerbie registered for the NOTCE on October 11, 2018.

She completed Forms A and B seeking accommodation for the November sitting of the NOTCE on or about October 10, 2018. [ 37 ] Ms. Lockerbie provided an additional letter from Dr. Landry, dated October 12, 2018, in support of her request of the Committee to reconsider its decision. [ 38 ] On October 22, 2018, the Credentials Committee reconsidered its September 2018 decision. It determined that it would grant Ms. Lockerbie a fourth sitting of the NOTCE and would extend her provisional registration to enable her to continue to practice, pending the results of the examination. This decision was communicated to Ms.

Lockerbie on October 24, 2018, and formally by letter dated October 29, 2018. [ 39 ] On October 29, 2018, Ms. Lockerbie was advised of the Credentials Committee's decision to permit her a fourth attempt to write the NOTCE. The Registrar advised CAOT the same day. [ 40 ] It was the decision of the Credentials Committee to offer Ms. Lockerbie a “4 th and final sitting” of the NOTCE and to extend her provisional registration until the examination results are obtained. If Ms.

Lockerbie was successful in her final sitting of the NOTCE, she would be deemed to have met the registration requirements pursuant to subsection 19(1)(

a) of the Act and subsection 27(vii) of the Registration Regulations and General Registration would be granted. If Ms. Lockerbie was unsuccessful in her final sitting of the NOTCE, Ms. Lockerbie's provisional registration would be vacated the day she received her examination results pursuant to subsection 20(2) of the Occupational Therapists Act . [ 41 ] On October 30, 2018, CAOT provided Ms. Lockerbie with Form C, listing the authorized accommodations for the fourth attempt to write the NOTCE. [ 42 ] On November 17, 2018, Ms.

Lockerbie signed Form D, acknowledging her acceptance of the accommodations granted to her by CAOT for writing the NOTCE. The decision in relation to accommodations, if any, rests with CAOT. The accommodations granted to Ms. Lockerbie included: • A separate room; • Additional time -210 minutes (3.5 hours) per booklet; and, • Dictionary access via invigilator; Technical/non-technical words identified on an exam copy provided by CAOT to the invigilator and back-up copy.

[ 43 ] Ms. Lockerbie wrote the NOTCE for the fourth time on November 17, 2018. She obtained a score of 269; the pass grade was 290. [ 44 ] On December 20, 2018, the Registrar wrote to Ms. Lockerbie indicating that she had been unsuccessful in her fourth attempt to write the NOTCE and that, in accordance with the Credentials Committee's October 22, 2018 decision and s. 20(2) of the Act , Ms. Lockerbie's provisional registration would be vacated, effective December 21, 2018. [ 45 ] Ms. Lockerbie stated it was her intention to appeal on December 24, 2018.

The correspondence forwarded to the College in part stated: Lori is appealing to the credentials committee. I am aware you [sic] office takes the position that she has had 4 chances to write when 3 are permitted. We do not count the first two as they were taken with no accommodation and Lori has only written two with accommodation. [ 46 ] Under s. 20(7) of the Act , Ms.

Lockerbie's appeal to the Board to review the decision of the Credentials Committee essentially operated as a stay of the Committee’s decision until the Board made its decision: 20(7) Where a hearing is requested pursuant to subsection (4), the registration or licence of the person requesting the hearing shall not be varied or vacated until the Board has completed its consideration of the application. [ 47 ] Accordingly, Ms. Lockerbie's provisional registration was extended until the Board rendered its decision. (Record - Tab “O”) This is a judicial review of that decision as requested by the Applicant Ms.

Lockerbie. Issues - Grounds of Review 1. That the Respondent erred in finding that the first two writings of the NOTCE by the Applicant were fair and therefore was denied procedural fairness. 2. That the Respondent erred in receiving evidence and making findings that multiple writings increased the likelihood of passing the examination. It was a submission without evidential basis that formed part of the findings. 3.

That the Respondent received evidence from the Registrar that had been determined beyond the scope of the hearing and jurisdiction of this Board in pretrial conferences relating to the adequacy of accommodations. In doing so, it denied the Applicant procedural fairness. The Decision of the Board of COTNS [ 48 ] In its reasons the Board concluded at pages 16 and 22 of its decision as follows: For the reasons set out below, the Board has decided that Ms. Lockerbie should not be provided a fifth opportunity to write the NOTCE. It is the Board’s opinion that Ms.

Lockerbie has not been discriminated against, and even if she had been, the provision of a further writing would be undue hardship and contrary to the public interest. … In consideration of the information reviewed, the analysis above, and the duty of the College to serve and protect the public pursuant to subsection 20(4) or the Occupational Therapists Act and Registration Regulation, it is the Board’s opinion that Ms. Lockerbie has not been discriminated against, and even is she had, the provision of a further writing would be an undue hardship, ad contrary to the Public Interest.

The Board affirms the Credentials Committee Report dated October 22, 2018, and the vacating of Ms. Lockerbie’s provisional registration effective December 21, 2018. [ 49 ] Taking into consideration the submissions presented by both parties, the Board identified the issue before it to be: Should Ms. Lockerbie be granted a fifth opportunity to write the National Occupational Certification Examination? The Record under Review – Contents [ 50 ] The Record for this Judicial Review application as established, pursuant to Civil Procedure Rule 7.10(

a) and as agreed between the parties, consists of: 1) Volumes I and II, containing documents Tabs A - P, including the affidavits of Johnathan Belbin, Registrar of the College; the Statutory Declaration of Ms.

Lockerbie; the various policies including CEC P. 11 (Accommodation Process); CEC P. 15 setting out the three (3) writes of the NOTCE: and the new entry to practice (OT) program; CAOT Policy 13, (Appeals based on extenuating circumstances) and COTNS Police 411.1 (Provisional Registration), the Statutory Declarations submitted by the Applicant. 2) The Decision of the Board signed by its chair on April 25, 2019. 3) The affidavit of Lori Lockerbie sworn on the 25 day of September, 2019. Motion – Admissibility re: Affidavit of Applicant

[ 51 ] There is a motion before the Court, filed by the Respondent college, objecting to paragraphs 12 and 13 of Ms. Lockerbie’s affidavit. [ 52 ] Counsel for the parties made submissions on these objections at the hearing and agreed my ruling would be contained in the overall decision on the merits of the review. [ 53 ] My ruling on the admissibility of these paragraphs is attached hereto as Appendix “A”. I have found for those reasons that paragraphs 12 and 13 are inadmissible.

The New Framework - Vavilov [ 54 ] The main ruling contained in Vavilov is that the presumptive standard of review for any administrative decisions is “reasonableness”. [ 55 ] The presumption of reasonableness can be rebutted in two situations: 1) In the case of clear statutory intent. For example, where the statute specifies another or different standard of review, or where there is specific language pertaining to a statutory appeal. This is not an appeal. 2) Where the rule of law requires that the standard of correctness be applied. This situation would likely fall into the categories of

a) constitutional questions,

b) general legal questions of central importance to the legal system as a whole; and

c) jurisdictional boundaries between two administrative bodies. [ 56 ] If the presumption of reasonableness standard is rebutted, the correctness standard will apply. The correctness standard invites the Court to undertake its own analysis, in attempting to determine whether the decision makers

interpretation is correct. [ 57 ] In the present case, the Applicant argued in its pre-hearing brief that issues two and three were both matters of procedural fairness, and submits that the decision under review, results from a breach of procedural fairness. [ 58 ] Accordingly, before Vavilov Ms. Lockerbie submitted that the proper standard of review for these issues is correctness. She makes the same submission, after Vavilov , which I shall later address.

The Principles - Reasonableness Review [ 59 ] In the event the presumption of reasonableness is not rebutted, there are a number of principles which have been set out in Vavilov that should be applied by a Court conducting a review to determine whether a decision is reasonable. [ 60 ] A reasonable decision is one that is: 1) Internally coherent and has a rational chain of analysis; 2) Justified in relation to facts and the law that constrain a decision maker. [ 61 ] Relevant factors in determining whether a decision is reasonable include: 1) Governing statutory scheme; 2) Other relevant statute law and common law. 3) Principles of statutory

interpretation; 4) Evidence before decision maker; 5) Submissions of the parties. 6) Past practices and decisions; 7) Potential impact of the decision on the Applicant. [ 62 ] As directed by Wagner, C.J. the focus is on the reasons for decision, and the outcome. The Court does not ask what decision it would have made in the place of the Board or administrative decision maker.

The Court asks whether the decision that resulted, including the rationale and the outcome was reasonable. [ 63 ] The reviewing Court is respectful of the administrative body, the delegation of authority to the latter, being a measure of deference in itself. The approach however, is not a rubber stamp, and is “not a means to shelter the decision maker from accountability”. [ 64 ] Further, the written reasons are read in light of the record under review. They are not assessed on a standard of perfection.

Vavilov suggests a robust approach, but minor missteps should not result in the decision being overturned. [ 65 ] The statutory language used is relevant to the review, in the sense that the broad and open wording may suggest greater flexibility. [ 66 ] There should be respectful attention paid to demonstrated expertise of the Board. Another principle is that the Court should be sensitive to the parameters of the Board. This is not intended to be an exhaustive list.

The Appropriate Standard of Review – the Parties Positions [67] The Applicant agrees with the Respondent that “reasonableness” is the proper standard of review for the first issue, which iswhether the College erred in finding the first two sittings by Ms. Lockerbie of the exam were fair. [68] The Applicant and Respondent disagree on the standard of review for the second and third issues. The Applicant maintains, inits post hearing brief, that these issues should be reviewed on a standard of correctness because they each fall within an exception to thepresumption of reasonableness. [69] Ms.

Lockerbie argues a finding based on no evidence is an issue of central importance. (Issue 2). In addition, she argues thatthe Board receiving improper evidence, and then making a finding in respect of it, amounts to a jurisdictional issue, (and one of centralimportance to the legal system as a whole). (Issue 3). [70] The Respondent’s position, both prior to and after Vavilov, is that the appropriate standard of review for the second and thirdissue is reasonableness.

In its pre-hearing brief the college submitted at paragraph 80: Even though the Applicant has characterized the second and third issues as raising breaches of procedural fairness, these go to thesubstance of the decision and so the Respondent submits that all three issues should be judged on the standard of reasonableness. [71] In short, the Respondent says, the issues amount to an attack on the decision, not on the process. [72] As stated, the Applicant’s position in her pre-hearing brief, was that the administrative decision is one that related to a breachof natural justice and/or a duty of procedural fairness.

No standard of review analysis governs judicial review where a complaint isbased on a denial of natural justice or procedural fairness. A review on a correctness or reasonableness standard does not arise. [73] In LIUNA Local 615 v. Can Mar Contracting Ltd., 2016 NSCA 40, Justice Fichaud explained the distinction: The reason there is no “standard of review” for a matter of procedural fairness is that no tribunal decision is under review. The court isexamining how the tribunal acted, not the end product.

If, on the other hand, the applicant asks the court to overturn the tribunal’sdecision – including one that discusses procedure – a standard of review analysis is needed. The reviewing court must decide whether toapply correctness or reasonableness to the tribunal’s decision. … In C.U.P.E. v. Ontario, Justice Binnie for the majority said: 102.

The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standardof review is applied to the end product of his deliberations. [74] Essentially the duty of procedural fairness exists to ensure administrative decisions are made using a fair and open procedure,having regard to the decision being made, and its statutory, institutional and social context. (See Baker v.

Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 at paras 21 - 28) [75] As stated in Baker, it is intended to provide “an opportunity for those affected to put forth their views and evidence fully, andhave them considered by the decision maker.” (See Baker at para. 22) [76] Although the Applicant now argues that the second and third issues should be reviewed for correctness, because they bothconstitute rule of law exceptions (to the presumptive standard applying), it is only proper to determine first whether these issues arematters of procedural fairness, as initially submitted by the Applicant.

This is so because the new framework is intended to apply to areview on the merits, and not to a review related to those matters. Procedural Fairness and Vavilov [77] Vavilov has provided a new framework for review of administrative decisions on their “merits:”. The Supreme Court ofCanada stated: [16] In the following sections, we set out a revised framework for determining the standard of review a court should apply when themerits of an administrative decision are challenged.

It starts with a presumption that reasonableness is the applicable standard whenever acourt reviews administrative decisions. [21] Certain aspects of the current framework are unclear and unduly complex.

The practical effect of this lack of clarity is that courtssometimes struggle in conducting the standard of review analysis, and costly debates surrounding the appropriate standard and itsapplication continue to overshadow the review on the merits in many cases, thereby undermining access to justice... [78] It is clear that in setting out the presumptive standard, the Court in Vavilov intended to get courts back to spending time onmerits instead of discussing what which standard of review applied.

The court said this often took a massive amount of time and often“overshadowed” the main issues under review. [79] In Vavilov the Court referred to Gascon, J.’s point, when he said the fact that legislated authority had been given to the decisionmaker, rather than to a court, points to deferential standard from the outset. [30] While specialized expertise and these other rationales may all be reasons for a legislature to delegate decision-making authority, areviewing court need not evaluate which of these rationales apply in the case of a particular decision maker in order to determine the

standard of review . Instead, in our view, it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review. The Court has in fact recognized this basis for applying the reasonableness standard to administrative decisions in the past. In Khosa , for example, the majority understood Dunsmuir to stand for the proposition that “with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to an administrative decision-maker rather than to the courts”: para. 25.

More recently, in Edmonton East , Karakatsanis J. explained that a presumption of reasonableness review “respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts”: para. 22. And in CHRC , Gascon J. explained that “the fact that the legislature has allocated authority to a decision maker other than the courts is itself an indication that the legislature intended deferential review”: para. 50.

In other words, respect for this institutional design choice and the democratic principle, as well as the need for courts to avoid “undue interference” with the administrative decision maker’s discharge of its functions, is what justifies the presumptive application of the reasonableness standard: Dunsmuir , at para. 27 . [ 80 ] Notably, Vavilov pointed out there may be less to reason to interfere where the legislature intended the decision maker “to fulfil its mandate and interpret the law as applicable to all issues that come before it”. ( Vavilov at para. 24 ) [ 81 ] In terms of procedural fairness the leading case of Baker , was discussed.

In Vavilov , the Court said it was “eminently variable” and can arise in any number of ways, having regard to all of the circumstances. [ 82 ] Baker describes the duty as highly contextual, requiring a full appreciation for the statute and the legislative intent. The Court adopted a non exhaustive list of factors for determining the content of procedural fairness. (Para’s 21 - 28) [ 83 ] In terms of when the duty arises, it is often when the remedy sought is based on the manner the decision was carried out.

In the present case there is not much question that the Applicant’s challenge is to the decision itself. [ 84 ] The Applicant argued that issues two and three dealt with procedural fairness, and thus those issues should be reviewed for correctness. As a reminder, issue 2 asks whether the Board erred in receiving evidence and in its finding based on a lack of evidence; issue 3 asks whether the Board erred in receiving evidence and using evidence, beyond the scope of the hearing.

In respect of issue number two, the Applicant submitted the following in her pre-hearing brief: To receive such a submission as they did and find that repeated writings will some how call into question the validity of the test was not in any way supported by evidence provided to the decision makers in this particular case. [ 85 ] The Applicant thus says the Board went far beyond the confines of the evidence they had been presented, constituting a violation of procedural fairness. [ 86 ] The Respondent submits that it is the decision that is being challenged and says the attack here is on the “end product”.

Thus, the College says it is reviewable on the “reasonableness” standard, as opposed to correctness. This was their position before Vavilov , and is their position after Vavilov. [ 87 ] The College says if anything Vavilov has strengthened its position that the standard of review for the second and third issues is reasonableness for a couple of reasons. First, this is a review of the merits of a decision.

Second, both of these issues raise evidentiary questions, which are included in the Vavilov framework as part of the reasonableness review. [ 88 ] Vavilov discussed procedural fairness in the context of written reasons being required and given. Written reasons were provided here. The Court stated that reasons facilitate a meaningful judicial review in terms whether an administrative decision is both procedurally fair and substantively reasonable. [81] Reasons facilitate meaningful judicial review by shedding light on the rationale for a decision: Baker , at para. 39 . In Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708, the Court reaffirmed that “the purpose of reasons, when they are required, is to demonstrate ‘justification, transparency and intelligibility’”: para. 1, quoting Dunsmuir , at para. 47 ; see also Suresh v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3, at para. 126 .

The starting point for our analysis is therefore that where reasons are required, they are the primary mechanism by which administrative decision makers show that their decisions are reasonable - both to the affected parties and to the reviewing courts.

It follows that the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable. [ 89 ] In Baker , the court held that a person affected by the decision is entitled to have an opportunity to put forward their views and evidence fully and have them considered by the decision maker. In the third issue, the Applicant argues she was denied that opportunity. In her affidavit she stated: 11.

That I wanted to raise the quality and adequacy of the accommodations provided to the appeal that was being heard by the Respondents. [ 90 ] Also the duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. [ 91 ] In the context of the statute, the Occupational Therapists Act , provides in

section 20 for an appeal of the decision by the Applicant to the Board. The decision itself states, in the introduction: On December 24, 2018, Lori Lockerbie submitted an appeal to the Board of the College of Occupational Therapists of Nova Scotia (COTNS), pursuant to section 20(4) of the Occupational Therapists Act which states,

Where the registration or licence of a person is varied or vacated pursuant to subsection (2), the person may request the opportunity to appear before the next scheduled meeting of the Board, with or without legal counsel, where the Board shall consider the application in accordance with this Act' [ 92 ] Under this Act , the authority was very clearly delegated to the College to conduct appeals on the subject of registration or licensing of a person, and with the authority to require that persons meet the qualifications, and level of competency necessary. This goes directly to their mandate of serving the public interest, as stated in

section 4 of the Act . [ 93 ] In Vavilov the Court addressed the culmination of years of jurisprudence in arriving at their conclusion on the default standard. [25] For years, this Court’s jurisprudence has moved toward a recognition that the reasonableness standard should be the starting point for a court’s review of an administrative decision.

Indeed, a presumption of reasonableness review is already a well-established feature of the standard of review analysis in cases in which administrative decision makers interpret their home statutes: see Alberta Teachers , at para. 30; Saguenay , at para. 46; Edmonton East , at para. 22. In our view, it is now appropriate to hold that whenever a court reviews an administrative decision, it should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. While this presumption applies to the administrative decision maker’s

interpretation of its enabling statute, the presumption also applies more broadly to other aspects of its decision. [ 94 ] The Court also referred to a number of the previous decisions outlining the rationale stemming from earlier decisions. I have previously made mention of CHRC , Canada (Canadian Human Rights Commission) v.

Canada (Attorney General) , 2018 SCC 31 , [2018] 2 S.C.R. 230: (see para 77 herein) [ 95 ] While there are aspects of Vavilov which speak to the reasonableness standard being applicable to all aspects of a decision, this is the case when the merits of the decision are being considered, as confirmed in paragraph 23: [23] Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decisions other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law.

The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness. [ 96 ] I conclude that correctness, is the standard of review for matters of procedural fairness and/or natural justice, and this is separate from a review on the merits to which the Vavilov framework is intended to apply. [ 97 ] I have considered the decisions of Parsons v. Chignecto – Central Regional School Board , [2013] N.S.J. No. 282 , Swart v. College of Physicians and Surgeons of PEI , [2014] P.E.I.J. No. 50 submitted by the Applicant.

That said, I find it is the merits of the decision that are being challenged in the present case. [ 98 ] Further, I find the attack here is on the “end product” and thus reviewable based on the “reasonableness” standard and not that of correctness, as would be the case if the matters involved natural justice or procedural fairness. [ 99 ] In my view, it must be assumed the legislature intended the decision maker to fulfill its mandate and interpret law as applicable to the issues before it. [ 100 ] I turn now to the Applicant’s post hearing submission that issues two and three fall within the rule of law exception, and accordingly the presumptive standard of reasonableness does not apply but instead, the correctness standard.

The Standard of Review – The Issues and Grounds of Review Issue 1 – The Board’s finding that first two writings were fair. [ 101 ] The Applicant and the Respondent agree that the standard of review to be applied to the first issue is the reasonableness standard. [ 102 ] This review will be in accordance with the principles set down in Vavilov .

This is now the default standard, with a robust approach being suggested. [ 103 ] The Applicant submits that the decision under review “falls short of the rigor of the reasonableness review as described by the Supreme Court of Canada, which she says is “much more significant and expansive”. [ 104 ] The Respondent college submits the Board reasonably concluded that Ms. Lockerbie’s first two writings of the NOTCE were fair. [ 105 ] Regarding Ms. Lockerbie’s disability, the Respondent says the Board applied well established principles from Canadian human rights law to the facts of the case before them.

Issue 2 – Multiple Writings enhance Passing by Chance [ 106 ] As mandated by Vavilov , the starting point in a judicial review of an administrative decision, is that it shall be reviewed on a standard of reasonableness. [ 107 ] This is acknowledged by the Applicant in her supplementary submissions, filed February 6, 2020 referring to the Court’s decision at paragraph 10: 10. The analysis begins with a presumption that reasonableness is the applicable standard in all cases.

Reviewing courts should derogate from this presumption only where required by a clear indication of legislative intent or by the rule of law. [ 108 ] The Applicant emphasizes the second exception, the rule of law, in stating the larger issue here is whether Vavilov changes the

standard of review that is to be applied to issues 2 and 3. [ 109 ] The Respondent’s position is that it clearly does not, maintaining that reasonableness continues to be the proper standard of review. [ 110 ] The Applicant, however, maintains in light of Vavilov , that the standard of correctness still applies, because this issue falls within one of the three categories under the rule of law.

Her submissions state: It should be noted, that both the second and third issues that were raised in the Lockerbie application deal with the making of findings in the absence of evidence and in the second case receiving submissions and evidence beyond the scope of the hearing and jurisdiction of the Board. With respect, it is submitted, these issues are issues that go to the jurisdiction and the rule of law and therefore, would continue to attract a correctness standard as per Vavilov .

Therefore, the question in terms of applying Vavilov that your Lordship will need to wrestle with is whether or not issue two (2) and issue three (3) are, being issues dealing with jurisdiction and the appropriate and principled use of evidence, rule of law issues. With the greatest of respect we submit that they are.

If your Lordship makes the same conclusion, Vavilov and the Supreme Court of Canada dictate that a correctness standard is to be applied to them. [ 111 ] The Respondent argues the Applicant is attempting to “shoe horn” the second issue (a finding based on a lack of evidence) into a “general question of law of central importance to the legal system as a whole”. [ 112 ] By doing so, the presumption of reasonableness will be rebutted, leaving the Court to apply the standard of correctness. [ 113 ] In its post hearing submission, the Respondent pointed out, that the presumption can be rebutted in two ways, as earlier stated:

(1) Where the Legislature has indicated that it intends a different standard to apply, including in statutory appeals, and

(2) Where the rule of law requires that the standard of correctness be applied, which is in three circumstances: (

i) constitutional questions; (ii) general questions of law of central importance to the legal system as a whole; and (iii) questions related to the jurisdictional boundaries between two or more administrative bodies. [ 114 ] In terms of the second issue, the Applicant argues primarily that the “appropriate and principled use of evidence” is a rule of law issue, which attracts “correctness”.

In its post hearing brief, the Applicant submitted: Obviously, whether or not an administrative body can rely upon improperly received evidence or make findings that have no factual basis before the administrative body is an important legal question. Otherwise, to allow a decision maker that is to receive to act in an unprincipled way towards evidence, would lead to results that were inconsistent and arbitrary and against any fair sense of how a legal proceeding should unfold.

This is clearly of general importance to the law. [ 115 ] While the Applicant’s arguments overlap to some degree, she says, the presumption is rebutted for the following reason.

This is due to the fact that in both issues, the issue of the presentation of evidence was not carried out on a principled and reasonable basis that is justifiable and therefore, go to the heart of the rule of law and is of general importance to the law. [ 116 ] In its post hearing submission the Respondent referred to paragraphs 68 and 69 of Vavilov as supporting the premise that a lack of evidence in the record, to support a tribunal’s decision is reviewable on a standard of reasonableness.

The Respondent also points to paragraph 125 of Vavilov , in submitting that “the reviewing court must refrain from re-weighing and re-assessing the evidence considered by the decision maker”. [ 117 ] This points to a standard of deference, not correctness. Notwithstanding, the core argument of the Applicant is that this is an exception to the presumption, and is “a question of central importance to the legal system as a whole”.

Thus, whether the Board erred in “receiving evidence and making findings without an evidential basis”, should be resolved on the basis of correctness, says the Applicant. [ 118 ] With respect and having considered what Vavilov has said about questions of central importance, I find that issue number 2 does not raise such a question. [ 119 ] While I find it is an important legal issue in this case, to conclude that it is one of central importance to the legal system as a whole, is another matter. [ 120 ] In Vavilov the Court stated with respect to evidentiary matters: 126.

The decision maker must take the evidentiary record and the general factual matrix that bears on the decision into account, and its decision must be reasonable in light of them. (See Southam at paragraph 66) [ 121 ] The Court gave examples of “what constitutes a general question of law of central importance to the legal system, as a whole” at paragraph 60. [ 122 ] The Court stated in those paragraphs that its jurisprudence continues to provide important guidance regarding what constitutes a “general question of law”.

Examples are Toronto City [2] , (whether an administrative proceeding barred by doctrine of res judicata ). Saquenay [3] , (the scope of the states duty of religious neutrality) University of Calgary [4] , (the scope of solicitor client privilege) and Chagnon [5] , (the scope of parliamentary privilege).

[ 123 ] The Court stressed that the mere fact that a dispute is “of wider public concern” is not sufficient for a question to fall into this category. (Paragraph 60) [ 124 ] The Court also cautioned that the previous jurisprudence must be read with caution, because expertise is no longer a consideration in identifying such questions.

It does, however, continue to be a consideration in applying the standard of reasonableness. (See paragraph 60 of Vavilov ) [ 125 ] The Applicant here argues the Board erred in receiving this evidence, on the “three writings” from the Registrar, stating it is the type of issue that required expert opinion. [ 126 ] Ms. Lockerbie’s affidavit contains evidence related to the Applicant’s substantive challenge to the decision on this issue. 17.

THAT counsel for the Registrar made representations that repeated testing was unreliable because of a percentage of repeated questions from previous exams being used skewed the results. 18. THAT there was no expert evidence before the board that would have permitted this submission. [ 127 ] These paragraphs go to substance of the decision, but also provide context for the type of issue the Applicant says constitutes an “important question” and therefore what the appropriate standard should be. [ 128 ] Referring further to the Supreme Court of Canada’s earlier jurisprudence, the Respondent cited Dunsmuir v.

New Brunswick , 2008 SCC 9 , itself, which discussed questions of central importance at paragraph 60: [60] As mentioned earlier, courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law “that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” ( Toronto (City) v. C.U.P.E. , at para. 62, per LeBel J.). Because of their impact on the administration of justice as a whole, such questions require uniform and consistent answers. Such was the case in Toronto (City) v.

C.U.P.E. , which dealt with complex common law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process - issues that are at the heart of the administration of justice (see para. 15, per Arbour J.). [ 129 ] Having consider the standard of review on issue 2, I am satisfied the appropriate standard of review is the presumptive standard of reasonableness. [ 130 ] Evidentiary issues, accepted and relied upon by the Board in its reasons for decision, in this particular case do not, in general, require uniform and consistent answers for the legal system as a whole.

While these issues are common to administrative tribunals, they do not rise to the level of central importance, such as the “complex common law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process”. (See Toronto City ) [ 131 ] In the Nova Scotia context, I refer to the decision of Fichaud, J. A., in LIUNA Local 615 v.

Stavco Construction Ltd , 2019 NSCA 53 , for the proposition that a lack of evidence in the record to support an administrative decision, is reviewed on a standard of reasonableness. ( LIUNA at para. 54) [ 132 ] Under the current law, there is a presumption which must be rebutted by either: 1) the clear intention of the statute; or 2) the rule of law, putting procedural fairness and natural justice aside. [ 133 ] I am satisfied that the Applicant has established neither of these exceptions. Accordingly, the standard of review on the second issue is reasonableness.

Issue 3 – Jurisdiction issue – Beyond scope of Board. [ 134 ] The Applicant argues the standard of correctness applies to the third issue, because it constitutes a question regarding the jurisdictional boundaries between two or more administrative bodies and a denial of procedural fairness. [ 135 ] I earlier found that the reasonableness standard applied to this issue leaving the question of whether the issue, falls within the rule of law exception. Primarily the Applicant argues this is a jurisdictional question but also the issue involves the presentation of evidence without a principled basis.

The Applicant’s arguments overlap to some extent but are evidentiary based. [ 136 ] I will not repeat the submission on both issues made by the Applicant but the argument on the third issue mentioned previously applies here. In her brief, the Applicant stated: Further, in the case of the third issue the jurisdiction issue is raised a Vavilov makes clear that jurisdictional questions raised a correctness standard. Vavilov framed the jurisdictional questions to be cases where an administrative body goes beyond its jurisdiction and deals with a decision that should be made by another administrative body.

In this particular case, it had been determined that the adequacy of accommodations would be in the authority and jurisdiction of the national testing body and not the provincially constituted appeal and review process that was provided for in the Occupational Therapist Act .

Despite raising and determining this issue at a procedural pretrial, the Respondent ignored this jurisdictional problem at the Hearing and made findings that were beyond its jurisdiction and used those findings to justify the administrative decision in this particular instance. [ 137 ] Jurisdiction is defined as “the authority, capacity, power or right to act, in respect of certain matters”. There is little question, the Board of the College of Occupational Therapists had the capacity and power, conferred upon it by its statute (and regulations) to decide whether Ms.

Lockerbie was entitled to a fifth writing of the NOTCE exam. (Blacks Law Dictionary, Revised 4 th Edition, West) [ 138 ] The question at this point, is what standard should to be applied to a review of that issue. Is it correctness as submitted by the Applicant or is it reasonableness, as submitted by the College?

[ 139 ] Reasonableness being the presumptive standard, the Applicant must bring itself within one of the exceptions. The Applicant submits this issue falls under the rule of law exception, a question regarding the jurisdictional boundaries, being one of the three rule of law circumstances, mentioned in Vavilov . [ 140 ] The Applicant further argued: With respect to the third issue in this appeal, obviously issues of jurisdiction were also addressed in the Vavilov case.

At prehearing discussions between counsel, it was made it very clear that the adequacy of accommodations was not part of the proceedings and was beyond the jurisdiction of the decision maker. These “adequacy of accommodations” arguments and discussions were freely discussed at the actual Hearing in contravention of this and was referenced in the decision. Again, the Respondent by permitting this obscured the scope of review between the Respondent in this matter and the national body that carries out the testing.

It had been decided amongst counsel that the national testers had the jurisdiction to deal with the questions of adequacy of accommodations. The adequacy of accommodations subsequently become prominent to the administrative body’s decision in this particular instance and it was told that the first two (2) writings for Ms. Lockerbie were fair . Accordingly, this jurisdictional mistake would attract a correctness standard as they pertain to jurisdiction between the Respondent and the National testing body. [ 141 ] Questions of jurisdictional boundaries were discussed in paragraphs 63 and 64 of Vavilov .

The Supreme Court first said there must be a “jurisdictional dispute” between two administrative bodies. Secondly, the Court said that one body must be interpreting their scope of authority, in a manner that is incompatible with the jurisdiction of another. Thirdly, the Court said this is a ground that is rarely contested, but the rationale is to avoid conflicting orders, pulling a party in “two different directions”. [ 142 ] Having read the reasons for decision, I have trouble concluding these criteria exist here.

The order granted by the decision did not place the Applicant in any other position, other than she was not permitted to sit for a fifth exam. [ 143 ] The correctness standard, as pointed out by the Court in Vavilov , is to safeguard certainty and finality in administrative decision making. There is little question on the record, that the national body had the jurisdiction to address through their polices, what accommodations would be granted.

In fact, they did that in the form of a written document with the Applicant, a document that had been signed by her, in advance of the fourth sitting. [ 144 ] The Respondent argues, that Vavilov prescribes the appropriate standard for this issue. The Respondent says this issue, like the second, is really a matter of evidence. At paragraph 34 of its brief the Respondent submits 34. In

summary, this ground of judicial review does not raise “a question regarding the jurisdictional boundaries between two… administrative bodies.” Instead, like the second issue, this third issue related to the admission of evidence and the effect of that evidence on the Boards decision.

For all the reasons highlighted above in Part B and in the Respondent’s post-hearing submissions, the standard of review for evidentiary issues, based on Vavilov , is reasonableness, not correctness. [ 145 ] There is in fact, support for this argument in the Applicant’s submission, post Vavilov , in terms of whether there is or was any question or conflict.

What is even clearer in this instance is the Pre-Hearing determinations on the jurisdictional issue was specifically raised (between the national tester and the Respondent as being the arbiter of adequacy of accommodation arguments), The significance of this is that the raising of this issue cannot be said to be mistaken or inadvertent or due to either the Board or Tribunals misapprehension of their jurisdiction. The Registrar and the Respondent raised and specifically pointed out the jurisdictional difference between them and the national tester before the hearing.

Yet despite this, arguments in relation to the adequacy of accommodations were raised by the Respondent in the administrative matter and were part of the decision that is under appeal here. [ 146 ] The Respondent argues there was no agreement as to what evidence was beyond the scope of the hearing. Indeed, if this is the case, the entire ground may well be moot.

The decision itself does not identify or confirm any such agreement on the record. [ 147 ] In terms of the standard of review, I am satisfied that the submission of the Applicant under this third issue, is really an evidentiary consideration, with a procedural component. [ 148 ] On the record before me, it is not apparent there is a jurisdictional conflict between the two bodies. CAOT and COTNS. The Applicant’s complaint is evidentiary based.

Vavilov dictates that such considerations are dealt with by the reasonableness standard. [ 149 ] In any event, I am satisfied that the Applicant has not met the onus of establishing a jurisdictional conflict, therefore, the exception is not available and the presumption of reasonableness applies. Was the Decision Reasonable? [ 150 ] Vavilov says the focus of a reasonableness review must be on the decision made, including both its reasoning process and outcome. [ 151 ] In the present case the Board concluded that: 1) Ms. Lockerbie had not been discriminated against; and 2) Permitting Ms.

Lockerbie a fifth re-write would cause undue hardship and be contrary to the public interest. [ 152 ] Once again, this review is not for this Court to decide what decision it would have made. The only consideration is whether the decision was reasonable, by considering its:

a) rationale; and

b) the outcome. [ 153 ] This Court, while paying respectful attention, must put the reasons first. Two main reasons driving the decision were: 1) enforcement of the CAOT Policy to limit the number of re-writes is necessary, for protection of the public and to protect the integrity of the profession; and 2) Successful completion of the national exam is considered essential for a candidate to have the necessary knowledge and skill to practice in the profession and to maintain public trust.

[ 154 ] The Board more than once referred to a major concern, that allowing more than three re-writes can increase a candidates chance of passing. The Board was concerned that allowing multiple re-writes could increase a candidate’s chances of passing “by chance alone”, particularly by a persons in the “borderline pass zone”. The NOTCE exam is relied on by COTNS as a measure of competence. Ensuring that members meet a minimum standard of competence is necessary to support the ability of COTNS to fulfil its mandate to protect the public and is essential to maintain public trust.

For credentialing examinations there is no obligation to grant accommodations insofar as the accommodations do not change the construct measured or threaten the validity of the examination. (P 18) [ 155 ] The Board referred to several other factors in reaching its decision, such as the fact that no appeal was filed by the Applicant (to the Credential Committee’s reconsideration decision to grant her a 4th rewrite) and the question of whether she sought adaptations to assist in her own accommodations. [ 156 ] Another key aspect of the decision, is the finding that “when looked at as a whole, Ms.

Lockerbie was treated fairly and non- discriminatorily.” (P 17) [ 157 ] Significantly, the Board went a step further in stating its “opinion that Ms. Lockerbie has not been discriminated against, but that even if she had been, the provision of a further writing would be an undue hardship on the association, (COTNS) and contrary to the public interest.” (P 16) [ 158 ] The Board therefore found that Ms. Lockerbie should not be provided a fifth opportunity to write the NOTCE. [ 159 ] It is important to recognize that the Board gave consideration to the written submissions of both Ms.

Lockerbie and the College in determining the issue before it, but also how the issue would be addressed. The Board would also consider: 1) Whether a fifth writing would cause undue hardship?; and 2) Whether there was any discrimination against Ms.

Lockerbie? [ 160 ] In Vavilov the Court suggested that in conducting this review, the reasonableness of the decision may be considered in its regard to its: 1) internal coherence, (by a rational chain of analysis); and whether it is 2) justified in relation to the factual and legal constraints. [ 161 ] A reasonable decision is one that is justified, transparent, and intelligible, and justified in relation to the facts and the law. [ 162 ] The Applicant argues this decision falls short of that standard and “cannot be justified to its citizens in terms of rationality and fairness”.

That it should not be a “rubber stamp” of the Board’s decision. [ 163 ] The College’s position is that it must, at all times, serve and protect the public interest. This was stated in full in the decision at Page 16: That the College must at all time serve and protect the public interest. Specifically, section 4(3) of the Act. Pursuant to section 4(3)(

a) of the Act, the College is required to govern its members in accordance with the Act. The Act and the Regulations require that all candidates successfully complete the NOTCE. Policy CEC P 15 dictates that successful completion of the NOTCE must happen within three (3) writes. Pursuant to section 4(3)(

b) of the Act, COTNS is required to maintain standards of qualifications and practice. COTNS submits that granting Ms. Lockerbie a fifth attempt to write the NOTCE after four failures would be inconsistent with these statutory obligations and with the overarching obligation under section 4(3) to serve and protect the public. [ 164 ] In Canada Post Corp. v. Canadian Union of Postal Workers , 2019 SCC 67 , Justice Rowe explained that Courts need not structure their analysis through the two lenses outlined (internal coherence and justifiable on the relevant facts and law) or in that order.

It is intended by this Court to accept these two “lenses” as a guide in determining the ultimate question of whether the Board’s decision was reasonable or unreasonable. [ 165 ] The Respondent has suggested in its post hearing brief that the Court should conduct one review of the decision for reasonableness and not three, if the Court accepts that as the standard of review. [ 166 ] I shall consider the issues together in my review for reasonableness. This makes sense on the basis that I have selected reasonableness as the single standard of review.

The Board identified one issue as getting to the “root” of the Appeal. A – Internally Coherent in its Reasoning and Outcome [ 167 ] The decision of the Board consists of 22 pages. It appears structurally organized and contains headings. The introduction begins with Ms. Lockerbie’s appeal, when it was made and the relevant statutory provisions. It sets out the mandate of the College under the Act and the issues that will be dealt with as a result of the appeal, which followed the fourth writing. [ 168 ] The decision sets out in order the areas being considered.

These include a factual history, the position of the parties, (in some detail), and then the analysis. The history and time line of the events leading to the decision are considered and interspersed with the procedural provisions. The steps taken at each stage are discussed. For example, “the renewal of Ms. Lockerbie’s provisional registration”, when it became necessary. The Board noted that each of these extensions is not automatic and required consideration, a factor in the overall decision. [ 169 ] The decision discusses the evidence, the Board’s concern with multiple writings, and undue hardship.

The accommodation policy and the evidence (Dr. Landry) put forth by the Applicant concerning Ms. Lockerbie’s disability is analyzed and considered. Whether or not one agrees with the result, the decision had a logical order, and consistent flow to its reasons. Its rationale can be followed. B – Justified in Relation to the Facts and Law

i) Statutory Regime

[ 170 ] The operative statute and regulations form an integral part of the decision made. This is evident in the Board’s reasoning process. Examples are found in the beginning and end of the decision. The opening paragraph at page 16 reads: It is the College's duty under section 4(3)(

a) of the Occupational Therapists Act to serve and protect the public by regulating the practice of occupational therapy in accordance with the Act and Regulations. Subsection 4(3)(

c) further authorizes the College to establish, maintain and develop standards of qualification and practice for the practice of occupational therapy. It is the Board's obligation to act consistently with this mandate when rendering a decision under

section 20 of the Act. [ 171 ] The concluding paragraph of the decision at page 22 reads: In consideration of the information reviewed, the analysis above, and the duty of the College to serve and protect the public pursuant to subsection 20(4) or the Occupational Therapists Act and Registration Regulation, it is the Board's opinion that Ms. Lockerbie should not be permitted a fifth attempt at writing the NOTCE; that Ms. Lockerbie has not been discriminated against, and even if she had, the provision of a further writing would be an undue hardship, and contrary to the Public Interest.

The Board affirms the Credentials Committee Report dated October 22, 2018, and the vacating of Ms. Lockerbie’s provisional registration effective December 21, 2018. [ 172 ] The decision speaks for itself, in terms of the mandate the College has, which is clearly recognized in the Act . The objects of the College in s. 4(3) are:

a) regulate the practice of occupational therapy and govern its members in accordance with this Act and the regulations;

b) establish, maintain and develop standards of knowledge and skill among its members;

c) establish, maintain and develop standards of qualification and practice for the practice of occupational therapy; [ 173 ] The Board’s powers extend to the Regulations; s. 4 reads the Board, “shall” :

a) Develop and maintain, the mission, objectives and strategic plan of the College;

b) Grant registration and licence in accordance with the Act and regulations. [ 174 ] In respect of an appeal, s. 20(4) gives broad powers to the Board to consider the application “in accordance with this Act”. Pursuant to s.20(7), Ms. Lockerbie’s appeal effectively stayed the Credential Committee’s decision to vacate her provisional registration after she did not pass on her fourth attempt. [ 175 ] The powers granted to the Board as contained in s. 20(6) include one of the following four options. It is to be noted, the exercise of these choices is discretionary, evident by the word “may”: 20(6) After hearing the applicant and the Registrar, the Board may:

a) direct the Registrar to issue to the applicant a licence or specialist’s licence;

b) direct the Registrar to issue to the applicant a licence or specialist’s licence subject to such conditions, limitations or restrictions as the board considers appropriate;

c) adjourn further consideration of the application, pending completion by the applicant of such training, upgrading, clinical examinations or other examinations a the Board may designate; or

d) direct the Registrar to refuse the application where the Board is not satisfied that the applicant meets the criteria set out in subsection (1). [ 176 ] There are further statutory provisions relevant to this review, and to the Board’s decision. I will not perform an exhaustive list, but would note that the “statutory requirements”, were referenced throughout the decision. [ 177 ] Specifically, I refer to section 19(1)(

a) of the Act and s. 27(e)(vii) of the Registration Regulations which together make successful completion of the NOTCE, mandatory. These read as follows: Section 19(1): 19(1) The Board shall direct the Registrar to enter in the Register the name, address and qualifications of any person who, among other conditions:

a) has successfully completed the certification exam if prescribed by the regulations;

Section 27(e)(vii): 27 An applicant for registration or re-registration shall

a) complete the New Applicant Form required by

Section 24 and submit it to the Registrar with the following: [. . .] (vii) subject to

Section 28, proof of successful completion of the examination process required by the Board;

[ 178 ] The reasoning process involved, clearly points to the Board’s obligation to follow its mandate of protecting the public interest, assessing competency, and ensuring that qualified candidates are accepted for registration. [ 179 ] COTNS is a professional body, which has been given the authority to self-regulate. It is evident in the decision that the Board, in exercising its authority was concerned with protecting the integrity of the occupational therapy profession, by adhering to policy(

s) it felt were designed for that purpose. [ 180 ] The accommodation policy is a clear example. It places an onus on the Applicant. Another example is the multiple writings policy, which relates the Board’s concern with avoiding undue hardship.

A third example is the Provisional Registration Policy 411.1, which the Board felt it applied somewhat generously, in responding to the difficulties the Applicant encountered. [ 181 ] In short, the statutory regime is a constraint which is clearly relevant in evaluating the decision, with respect to issues raised by the Applicant. ii) Submissions [ 182 ] The Respondent says the Applicant did not challenge the decision on the basis that the Board did not adhere to the submissions. Those submissions, however, are important in another respect.

In its reasons, the Board used those submissions to identify the main issue before it, and related issues, which it believed needed to be addressed. [ 183 ] The Applicant submits on this review that Vavilov now requires the “new standard” to entail a “sensitive and respectful response from the administrative decision maker”. In the decision, the Board stated: Taking into consideration the submissions presented by both parties, the Board Identified the issue to be: Should Ms. Lockerbie be granted a fifth opportunity to write the National Occupational Therapy Certification Examination (NOTCE)?

In addressing these questions, the issues identified by both parties were taken into consideration. The Board also considered whether allowing a fifth sitting would cause undue hardship, as well as whether there was any evidence of discrimination against Ms. Lockerbie. (P2) [ 184 ] This is significant because, in its analysis the Board is attempting to balance the need to honour its mandate with the personal circumstances of Ms.

Lockerbie and her learning disability. [ 185 ] Once again, whether this balance was reasonably achieved relates to the issues raised by the Applicant in terms of: 1) the fairness of the first two exams; 2) proper proof or evidence of the Board’s conclusion regarding multiple writings, which relates directly to undue hardship; and 3) the third issue, which touches on the accommodation issue. The Board discussed fairness in the context of whether there was discrimination, in relation to Ms. Lockerbie’s human rights. The Board explored this question, stating at p. 21: The Board recognizes that Ms.

Lockerbie's difficulties identified in Dr. Landry's report of September 1, 2018 do form a disability as it is understood under the Human Rights Act of Nova Scotia.

However, the Board accepts Policy CEC P.11 which indicates that no accommodation request will be granted if it jeopardizes the integrity of validity of the examination results or cause undue hardship on the Association. [ 186 ] I turn next to discuss the evidence before the decision maker, being another of the elements to be considered in assessing whether the decision is defensible. iii) Evidence Issue 1 – Did the Board err in finding that the first two writings were fair? [ 187 ] The Applicant submits she did not know of her disability during the first two exams.

As a result, she was not aware of how to treat or accommodate it at the time they were written. This does not lend itself to a finding that the first two exams were fair, she submits. [ 188 ] Expanding further on this argument, Ms. Lockerbie argues the Board “conflated” the idea of fairness in the moment, with fairness at the time of her appeal. The Board used the “wrong lens”, she says, and should have viewed things from their knowledge at that time. [ 189 ] In addition, Ms. Lockerbie argues the Board has confused an absence of malice or bad faith with fairness.

The Applicant says fairness means being permitted to write three fair and equal exams. As a result, the decision does not amount to a sensitive and respectful response. Also, the Applicant submits that a reasonable person would conclude that fair and equal means having the accommodations recommended by the Assessor. [ 190 ] The Board addresses Ms. Lockerbie’s disability in its reasons. Although taking her disability into consideration, they found on the evidence there were other factors that were relevant to this issue. Clearly, the Board felt the accommodation policy itself, CEC. P. 11, was relevant.

The policy states: 2. No accommodation request will be granted if it jeopardizes the integrity or the validity of the examination results or causes undue hardship on the association. [ 191 ] On the facts, Ms. Lockerbie received “some” accommodation for the third writing, with input from Dr. Landry. In her affidavit she confirmed she was provided additional time and was permitted to write in a separate room, which she described as a “cubicle”. (Paragraph 6). The additional time was one hour per booklet, meaning three hours per booklet instead of the usual two hours.

[192] On the fourth exam there were additional accommodations granted. This followed the diagnosis by Dr. Landry of her disability.Total writing time of 3.5 hours per booklet was granted. Ms. Lockerbie noted in her affidavit that “not all of the accommodations weregranted in a manner and to the extent recommended by my assessor”. Ms. Lockerbie signed Form D, as she had on the third exam,accepting the accommodations granted to her. In addition to the extra 1.5 hours per booklet, she was granted a separate room anddictionary access via an invigilator. Unfortunately, Ms.

Lockerbie’s experience was that the accommodations did not assist her, butrather worked to impede her in writing the fourth exam. (Paragraph 10 of Ms. Lockerbie’s Affidavit) [193] Once again, she did not pass the exam. According to the Record, the Credentials Committee in their reconsideration decision,informed Ms. Lockerbie that the fourth writing would be the final one. (Committee - October 22, 2018) [194] Did the board reasonably address Ms. Lockerbie’s difficulties in its decision to deny her a fifth writing of the NOTCE? [195] In the decision the Board set forth its reasons: While Ms.

Lockerbie argued she was entitled to three “fair” attempts of writing the exam, interpreted as three "accommodated" attempts,it was the decision of the Board that when looked at as a whole, Ms. Lockerbie was treated fairly and non-discriminatory. In addition tobeing granted a fourth opportunity to write the NOTCE with new accommodations, Ms. Lockerbie had extra familiarity with the exam,as well as extra preparation time as a whole. The College has also been generous in allowing Ms.

Lockerbie an extension of herprovisional registration well beyond the one (1) year limit set out in COTNS Policy 411.1 Provisional Registration. (P17) [196] The position of COTNS is that it is the candidate that must put forward a request for accommodations, CEC. P. 11 reads inparagraph 6: 6. The candidate and the Association are responsible for participating in the accommodation process. The candidate will submit arequest for accommodation(

s) to the Association, providing additional information to the Association upon request and consideringalternative accommodations proposed by the Association. [197] The College says at no time during the first two attempts did Ms. Lockerbie request accommodations. It was for her to assess herown circumstances prior to each writing. The College submits that her failure to do so meant no duty arose on the part of the CAOT orCOTNS. (See Caliao v.

College of Nurses of Ontario, (ON HPARB)) [198] I will repeat here the Applicant’s argument, that not knowing her own circumstances, her difficulties with reading comprehensionand writing expressions, prevented her from doing so. [199] There are additional factors that informed the Board's decision. The College argued that in exceptional circumstances the Boardhas the discretion to grant a candidate an additional opportunity to write the NOTCE. [200] The rationale for three (3) attempts includes preventing undue exposure from exam content. The Board found, for example, thatMs.

Lockerbie had extra familiarity with the exam. [201] The Respondent says, the fact that the Applicant was unsuccessful on four occasions, raises serious concerns. [202] In its reasons, the Board found that there was an obligation of Ms. Lockerbie to participate in assessing her circumstances, andthat she had been aware of the challenges she faced with or without the diagnosis. In addition to being familiar with the content, it foundshe had overall additional time to prepare. [203] I conclude that the Board’s conclusion was not based solely on the fairness of first two exams but the entire circumstances.

Theirfinding was that on the whole the Applicant had been treated fairly. Issue 2 Multiple Writings -Receiving evidence, findings without evidence. [204] The Applicant argues the Board erred in receiving evidence and making findings that multiple writings increase the likelihood ofpassing. [205] Ms. Lockerbie submits, this was not supported by the evidence in any way. The Applicant argues the Board cannot rely onimproperly received evidence or make findings that have no factual basis. The evidence she says was anecdotal and received fromcounsel for the Registrar.

Despite this, the Applicant says the decision of the Board “mentioned it several times”. [206] The College argued that a major concern with allowing more than three writes is that it can increase a person's chances of passingdue to familiarity with the previous content.

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