) ) NAHED AL BABA Appellant – v. –, 2013 ONSC 7335

CITATION : Al Baba v. College of Nurses of Ontario and Health Professions Appeal and Review Board, 2013 ONSC 7335 DIVISIONAL COURT FILE NO.: 122/13 DATE: 20131128 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT A.C.J.S.C. MARROCCO, THEN R.S.J. AND GORDON J. BETWEEN: ) ) NAHED AL BABA Appellant – and – COLLEGE OF NURSES OF ONTARIO and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondents )) )) )) )) )))) Paul Gemmink , for the Appellant Linda L. Rothstein and Emily Lawrence , for the Respondent, College of Nurses of Ontario David P.

Jacobs, for the Respondent, Health Professions Appeal and Review Board ) ) ) HEARD at Toronto: November 26, 2013 gordon j. Overview [ 1 ] Nahed Al Baba appeals a decision of the Health Professions Appeal and Review Board (the “Board”) dated February 5, 2013. The Board confirmed an order of the Registration Committee (the “Committee”) of the College of Nurses of Ontario (the “College”), which refused her application for registration with the College as a Registered Nurse in the Extended Class (also known as a Nurse Practitioner or NP).

Background Facts [ 2 ] The College is a body created by statute that regulates the profession of nursing in Ontario. Through Council of the College, it is to establish and maintain standards for qualifications of nurses in a manner which serves and protects the public. The College has a statutory duty to provide registration practices that are transparent, objective, impartial, and fair. If the College relies on a third party to assess qualifications, it is required to take reasonable measures to ensure the third party also complies with this obligation.

The Registrar and Committee ensure applicants meet the registration requirements to be a nurse. [ 3 ] One type of nursing registration is known as NP-Adult. The requirements to become an NP-Adult are registration as a registered nurse (“RN”), successful completion of a specific education program, and successful completion of a Council-approved examination. There is no set time frame within which applicants must pass the examination, but they have only three opportunities to write and successfully complete it. Successful completion of the examination is a non-exemptible requirement for becoming an NP.

The Registrar of the College has no discretion to allow an applicant who has failed the examination three times to write a fourth time. [ 4 ] The Council-approved NP-Adult examination is the American Nursing Credentialing Centre: Adult Nurse Practitioner (the “ANCC-NP”) examination, and the administration of the testing is outsourced to the Canadian Nurses Association (“CNA”). ANCC-

NP is a multiple-choice, computer based examination and is owned, developed and scored by the American Nurse Credentialing Centre(“ANCC”), which has significant experience developing and setting nursing examinations. ANCC is the certification body of theAmerican Nurses Association. [5] The ANCC-NP examination was developed for American NP candidates and is used to test NP’s in all Canadian jurisdictionsexcept Quebec.

To ensure Canadian candidates are tested on Canadian NP competencies, a designated committee at ANCC (made up ofrepresentatives from each Canadian jurisdiction, a consultant and a content expert) reviews the examination questions and answers aftereach sitting in Canada and removes questions that appear relevant only in the American context. The result is that these questions do notform part of the scoring for Canadian candidates. The use of the ANCC-NP examination in Ontario and the American question removalprocess is publically available on the College’s website. [6] Ms. Al Baba has been an RN since 1993.

In January of 2008 she made application to the College for registration as an NP-Adult. The College found that she had met the education requirement, but she failed to pass the ANCC-NP on three occasions. InJanuary of 2010 the College Registrar advised Ms. Al Baba that her application was being referred to the Committee for refusal andinvited her to make written submissions to the Committee.

By letter dated February 8, 2010, she requested another opportunity to writethe examination, indicating that when she wrote the examinations she had been under stress from personal financial circumstances andfamily obligations and that these factors affected her ability to study. No issue was then taken with the fairness of the examination. OnFebruary 24-25, 2010, the Committee convened and directed the Registrar to refuse her registration as an NP since she was no longereligible to write the exam and had not met this non-exemptible requirement. Following that decision, Ms.

Al Baba requested a hearing ofthe application before the Board. The hearing was later converted into a review in writing at the request of her counsel. [7] The evidence before the Board included her application file, her submissions to the Committee, the Committee’s decisionletter, a letter from the CAN outlining the procedure for scoring the ANCC-NP examination, a College publication about the NPregistration process describing why an American examination was being used in Ontario, and submissions from counsel for Ms. Al Babaand the College, respectively. [8] Ms.

Al Baba argued before the Board, for the first time, that the ANCC-NP examination was unfair because it was based onAmerican nursing practices and was developed for American NP candidates and caused her undue stress. She argued that in thosecircumstances it should not be considered an “examination”. She also submitted that the College did not properly answer questionsrelating to the fairness of testing NP candidates in its reports to the Fairness Commissioner from 2008-2011.

Specifically, it was allegedthat the College did not clarify that the examinations have American-centric questions or that the authors of the examination areAmerican. [9] The Board confirmed the order of the Committee. It held that Ms. Al Baba failed to demonstrate that the ANCC-NPexamination was not an “examination” within the meaning of the NP requirements and did not demonstrate that the use of theexamination was so unfair as to nullify her results.

The Board also held that the College’s dealing with the Fairness Commissioner wasnot such as to invalidate its use of the ANCC-NP examination and that any reporting deficiencies were a matter between the College andthe Commissioner. Finally, the Board determined that nothing occurred during the sittings of her examinations that would invalidate theresults and the evidence was not sufficient to establish that any of her examination attempts were invalid. The Standard of Review [10] The Standard of Review for an appeal of a decision of the Board reviewing an application for registration is reasonableness.

The Board is a specialized health tribunal with the relevant expertise to assess the evidence and interpret its governing statute. Thequestion before the Board was not one of general application and outside its expertise. This court has previously applied the standard ofreasonableness in similar circumstances [see Barbosa v. Health Professions Appeal and Review Board, 2012 ONSC 1761 and Oromitanv.

Health Professions Appeal and Review Board, 2012 ONSC 6501]. [11] The Appellant asserts that the standard of review is correctness on the theory that the issues on this appeal pertain to “naturaljustice” and “procedural fairness”. Borrowing from the factum of the College, this mischaracterizes the issues before the Board and thiscourt. The Appellant raised no issue of procedural fairness with respect to the process before either the Committee or the Board.

Rather,the Appellant’s claim is one of substantive unfairness, that is, that the NP examination approved by Council of the College was unfair. [12] Reasonableness is concerned with the existence of justification, transparency, and intelligibility in the decision-makingprocess. It is also concerned with deference and whether the decision falls within a range of possible, acceptable outcomes which aredefensible in respect of the facts and law [see Dunsmuir v. New Brunswick 2008 SCC 9 , [2008] 1 SCR 190]. Was the Decision of the Board Unreasonable? [13] In our view, the decision of the Board was reasonable.

There was basically no evidence before it upon which they could havefound the ANCC-NP examination to be unfair due to its American content or stress created thereby. The Appellant, herself, put noevidence before the Board upon which it could find that she personally was adversely affected by the content of the examination or anyadditional stress caused by it. There was no evidence that other applicants for registration were in any way affected by the content of theexamination. There was no evidence of the numbers of persons taking the examination and no evidence of the results, aside from those

of the Appellant. [ 14 ] Although the Appellant could have proceeded before the Board by way of hearing and challenged the evidence of the College, she elected to proceed by way of written review with the result that the evidence before the Board was quite limited in scope. [ 15 ] There can be no doubt that the Appellant had, at the very least, the onus of establishing there was a serious issue with respect to the fairness of the examination. The evidence before the Board did not meet even that low threshold. What was before the Board was little more than a bare allegation of unfairness advanced by counsel.

Other Issues [ 16 ] The Appellant raised for the first time on this appeal that the Board should have expanded its review by retaining an expert or an expert panel to investigate the issue of unfairness.

Quite aside from the request never having been made of the Board, it is our view that the evidence was not sufficient to warrant the assistance of a Board appointed expert. [ 17 ] With respect to the College’s reporting requirements to the Fairness Commissioner, we agree with the Respondents that this is a matter between the College and the Commissioner, and that the Commissioner has no status or involvement with individual registration issues. Accordingly, any issues with the College’s reporting requirements to the Fairness Commissioner do not affect the reasonableness of the Board’s decision.

Conclusion [ 18 ] The appeal by Ms. Al Baba is dismissed. In the event the parties are unable to agree on costs they may make written submissions to us within 15 days. Each party’s submissions shall be limited to three pages exclusive of attachments. A.C.J.S.C. MARROCCO THEN R.S.J. GORDON J. Released: November 28, 2013 CITATION : Al Baba v. College of Nurses of Ontario and Health Professions Appeal and Review Board, 2013 ONSC 7335 DIVISIONAL COURT FILE NO.: 122/13 DATE: 20131128 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT A.C.J.S.C. MARROCCO, THEN R.S.J. AND GORDON J. BETWEEN:

NAHED AL BABA Appellant – and – COLLEGE OF NURSES OF ONTARIO and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondents REASONS FOR JUDGMENT GORDON J. Released: November 28, 2013