) SOPHI-ANNE MARTINO Appellant – v. –, 2017 ONSC 6892

CITATION : Martino v. College of Nurses, 2017 ONSC 6892 DIVISIONAL COURT FILE NO.: 440/16 DATE: 20171206 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Swinton, Rady and Favreau JJ.

BETWEEN: ) SOPHI-ANNE MARTINO Appellant – and – COLLEGE OF NURSES OF ONTARIO and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondents ) ) ) ) ) ) ) ) ))) David Thompson , for the Appellant Emily Lawrence , for the Respondent College of Nurses of Ontario ) ) ) HEARD at Toronto : November 15, 2017 Swinton J.: Overview [ 1 ] The appellant appeals from a decision of the Health Professions Appeal and Review Board (the “Board”) dated April 26, 2016 that upheld a decision of the Registration Committee of the College of Nurses of Ontario refusing to annul her first unsuccessful writing of the Canadian Registered Nurse Examination (the “CRNE”).

As a consequence, because she had failed the CRNE three times, she was ineligible for registration as a registered nurse. [ 2 ] In my view, the decision of the Board was reasonable, and I would dismiss the appeal. Factual Background [ 3 ] The appellant wrote the CRNE in June 2013, October 2013 and June 2014. She was unsuccessful in each attempt. Regulation 275/94 under the Nursing Act, 1991 , S.O. 1991, c. 32 then provided, in s. 9(2) , that an applicant for registration as a registered nurse in the General class could attempt the CRNE only if he or she had not failed on three previous occasions.

The Regulation has since been amended in December, 2016. [ 4 ] The requirement of successful completion of the examination is a non-exemptible requirement for registration under the regulation. However, as a matter of practice, the Registration Committee does exercise a discretion, in exceptional circumstances, to annul an examination attempt with the result that the applicant can write the examination again. [ 5 ] The appellant asked the Registration Committee to annul her first examination attempt. In a letter dated August 5, 2014, she explained that she did not feel she was prepared for the first attempt.

The Registration Committee rejected her request on October 24, 2014, finding that there were no exceptional circumstances. In its decision, it explained that the determination of exceptional circumstances is a discretionary decision, “primarily based on circumstances that the applicant could not have predicted would occur or was unable to fully comprehend at the time he or she wrote the examination.”

[ 6 ] The appellant sought a review before the Board. At this time, she made submissions about her personal circumstances in the period before she wrote the first examination. She explained that her mother had died in March 2012, and she suffered depression and anxiety as a consequence. She was taking medications with side effects such as blurred vision, headaches, anxiety, depression, drowsiness and fatigue. She submitted a report from a registered psychologist whom she saw in November 2015, Lesley Hannell.

The report stated that the medications the appellant was taking “can, in fact, lead to a state of drowsiness, fatigue and confusion.” The Board’s Decision [ 7 ] The Board confirmed the order of the Registration Committee, finding there were no grounds to annul any of the appellant’s examination attempts. [ 8 ] With respect to the Appellant’s argument that she was unable to fully comprehend her inability to pass the CRNE the first time because of her mental and emotional state, the Board stated: … The Board is sympathetic to the Applicant’s situation.

However, the Applicant should have known of any side-effects of her medications well before she attempted the examination and she had the opportunity to assess the impact of her mental and emotional state before the attempt. It is the responsibility of candidates to assess their own personal circumstances in determining when to take the examination. The Standard of Review [ 9 ] The standard of review is reasonableness with respect to a decision of the Board concerning an individual’s eligibility for registration ( Barbosa v. Health Professions Appeal and Review Board , 2012 ONSC 1761 (Div.

Ct.) at paras. 26-30 ; Al Baba v. College of Nurses of Ontario, 2013 ONSC 7335 (Div. Ct.) at para. 10 ). [ 10 ] While the appellant’s counsel suggested in oral argument that the standard of review is correctness, because the Board has no expertise in determining the impact of mental health problems, I reject this argument. Deference is owed to the Board’s assessment of the evidence and its application of the registration requirements. Analysis [ 11 ] The appellant argues that her evidence and that of Ms. Hannell were not contradicted.

She submits that the evidence showed she was suffering confusion, grief, anxiety and depression that prevented her from “fully” appreciating her inability to write the CRNE successfully on her first attempt. [ 12 ] While the reasons of the Board are brief, they are sufficient to explain the decision, when read in light of the evidence before the Board and the test being applied. [ 13 ] The appellant had the onus to establish her mental and emotional state at the time of the examination and the direct impact of those circumstances on her inability to comprehend their effect on her examination performance.

The evidence respecting her state of mind at the time of the first examination was essentially limited to that of the appellant. Ms. Hannell did not assess the appellant around the time of the first examination; rather, she relied on the appellant’s own account of the history of her condition in making her report. More importantly, Ms.

Hannell did not give an opinion that the appellant was confused at the time of the first examination, nor that the appellant was unable to comprehend her inability to pass the examination. [ 14 ] The Board concluded that the appellant could and should have assessed the side effects of her medications and the impact of her mother’s death well before the examination. That is a reasonable conclusion, given that the appellant’s mother died a year earlier, and the appellant had been taking the medications for some time before the examination. [ 15 ] The Board expressed sympathy for the appellant’s situation.

That does not mean the Board member found her evidence persuasive, as her counsel argues. [ 16 ] The Board considered the evidence and found that it did not demonstrate exceptional circumstances that would warrant the extraordinary relief of the annulment of the first examination. [ 17 ] In my view, the decision was reasonable, and there is no basis for appellate intervention. Conclusion [ 18 ] Accordingly, the appeal is dismissed. Costs to the College are fixed at $2,500.00, an amount agreed upon by the parties. _______________________________ Swinton J.

I agree _______________________________ Rady J. I agree _______________________________ Favreau J. Released: December 6, 2017 CITATION: Martino v. College of Nurses, 2017 ONSC 6892 DIVISIONAL COURT FILE NO.: 440/16 DATE: 20171206 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Swinton, Rady and Favreau JJ. BETWEEN: SOPHI-ANNE MARTINO Appellant – and – COLLEGE OF NURSES OF ONTARIO and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondents REASONS FOR JUDGMENT Swinton J. Released: December 6, 2017