) ) DOROTHY DOUSE Appellant – v. –, 2013 ONSC 5444

CITATION : Douse v. College of Nurses of Ontario, 2013 ONSC 5444 DIVISIONAL COURT FILE NO.: 288/12 DATE: 20130823 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, NORDHEIMER AND PERELL JJ.

BETWEEN: ) ) DOROTHY DOUSE Appellant – and – COLLEGE OF NURSES OF ONTARIO Respondent )) )) )) )) )) In Person Linda Rothstein and Emily Lawrence , for the Respondent ) ) ) HEARD at Toronto: August 23, 2013 NORDHEIMER J. (ORALLY) [ 1 ] The appellant appeals the decision of the Health Professions Appeal and Review Board dated March 15, 2012 which confirmed the decision of the Registration Committee of the College of Nurses dated January 28, 2011 that directed the Registrar of the College to refuse to issue a certificate of registration to the appellant. [ 2 ] The appellant wishes to become a registered practical nurse.

In order to do so she is required to write and pass the Canadian Practical Nurse Registration Examination. Under the Nursing Regulation, O. Reg. 275/94 , there is no discretion in the College to register an applicant who has not passed the registration examination. The appellant wrote this examination three times: January 2008, May 2008 and January 2009. The appellant failed the examination each time. A candidate is only allowed to write the examination three times.

However, due to exceptional personal circumstances, the Registration Committee granted the appellant the rare opportunity to write the examination a fourth time, effectively annulling the results of the January 2009 attempt. The appellant wrote the examination once more in May 2010, and she once again failed. [ 3 ] Because of correspondence that she received from the College that contained some erroneous information, the appellant does not believe that she failed the examination in May 2010. Consequently, she asked the College to let her review her examination questions and answers. The College refused.

The refusal was based on two essential points. One is that, if the appellant obtains a copy of her examination, the third party independent contractor who administers the examinations will not be able to use the same questions in any future examinations. The other is that the examination is a multiple-choice examination that is administered by this independent third party.

The examinations are marked by a computerized scanning program that is highly accurate. [ 4 ] The fact that the College made some mistakes in corresponding with the appellant is no basis to assume that an error was made by the third party contractor who administers and scores the examinations. The evidence is that numerous quality control measures are taken to ensure the accuracy of the marking process. It is noteworthy that the third party administrator of the examinations does offer persons who take the examinations the opportunity to have their examinations re-scored by hand.

Indeed, the appellant asked that such a re-scoring be done respecting her January 2009 examination. She made no such similar request regarding her May 2010 examination. It is also noteworthy on this point that the appellant’s grade scores are consistent across her four examinations. [ 5 ] The standard of review regarding decisions of the Health Professions Appeal and Review Board is reasonableness. The

issue before us therefore is whether the decision of the Board was a reasonable one. The Registration Committee followed the established policy and procedure. The appellant wrote the required examination and failed each time she wrote it. As a consequence of that fact, the Registration Committee refused to issue a certificate of registration. The Board upheld that decision. There is nothing in the facts of this case that establishes that the Board’s decision in that regard is unreasonable.

In particular, the College had legitimate and reasonable reasons for refusing to allow the appellant to see the results of her examination. The appellant has not demonstrated why, in her particular case, there is any reason to doubt the accuracy of the examination results. There is a regulatory requirement that a candidate pass the examination in order to be registered as a practical nurse. That is a requirement that all candidates must fulfill.

There is no authority to relieve against that regulatory requirement. [ 6 ] The reality is that the appellant unsuccessfully wrote the examination four times, having been accorded the exceptional indulgence of having one of her attempts annulled so that she could write the examination a fourth time. As a consequence, the College reasonably refused to issue a certificate of registration. [ 7 ] In all those circumstances, the decision by the Board upholding the decision of the Registration Committee is unassailable. [ 8 ] The appeal is dismissed. ASTON J.

COSTS [ 9 ] On behalf of the panel, I have endorsed the back of the Appeal Book and Compendium, “The appeal is dismissed for the oral reasons delivered by Nordheimer J., recorded. No costs are requested, none are ordered.” NORDHEIMER J. ASTON J. PERELL J. Date of Reasons for Judgment: August 23, 2013 Date of Release: August 27, 2013 CITATION : Douse v. College of Nurses of Ontario, 2013 ONSC 5444 DIVISIONAL COURT FILE NO.: 288/12 DATE: 20130823 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, NORDHEIMER AND PERELL JJ. BETWEEN:

DOROTHY DOUSE Appellant – and – COLLEGE OF NURSES OF ONTARIO Respondent ORAL REASONS FOR JUDGMENT NORDHEIMER J. Date of Reasons for Judgment: August 23, 2013 Date of Release: August 27, 2013