Brenda Risseeuw Appellant (Applicant) v. Saskatchewan College of, 2019 SKCA 9

Court of Appeal for Saskatchewan Docket: CACV3023 Citation: Risseeuw v Saskatchewan College of Psychologists , 2019 SKCA 9 Date: 2019-01-24 Between: Brenda Risseeuw Appellant (Applicant) And Saskatchewan College of Psychologists Respondent (Respondent) Before: Ottenbreit, Whitmore and Schwann JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr.

Justice Whitmore On Appeal From: 2017 SKQB 8 , Saskatoon Appeal Heard: January 11, 2018 Counsel: The Appellant appearing on her own behalf Merrilee Rasmussen, Q.C. for the Respondent Schwann J.A. I. Introduction [ 1 ] Brenda Risseeuw had applied unsuccessfully to become a member of the Saskatchewan College of Psychologists [College] on a number of occasions over the years. In December 2013, Ms. Risseeuw once again applied for membership with the College.

On this occasion, however, she applied pursuant to s. 20(2) of The Psychologists Act, 1997 , SS 1997, c P-36.01 [ Act ], which she says permits the College to grant membership and issue a licence to a person who is registered as a psychologist in accordance with a regulatory scheme in another province. At the time of her 2013 application, Ms. Risseeuw had been registered as a practicing psychologist with the Alberta College of Psychologists. [ 2 ] On May 22, 2014, the College rejected Ms. Risseeuw’s application. [ 3 ] In May 2016, Ms. Risseeuw sought judicial review of the College’s 2014 decision.

The Queen’s Bench judge who heard the matter dismissed Ms. Risseeuw’s application because of undue delay and on various alternate bases ( Risseeuw v Saskatchewan College of Psychologists , 2017 SKQB 8 , [2017] 7 WWR 797 [ QB Decision ]). [ 4 ] Ms. Risseeuw appeals the QB Decision to this Court. She seeks an order to set aside that decision and to compel the College to approve her application for full-practicing membership. Ms. Risseeuw also applies to adduce fresh evidence in support of her argument on the undue delay issue. [ 5 ] For the reasons expressed below, I would dismiss Ms.

Risseeuw’s application to adduce fresh evidence and dismiss her appeal from the QB Decision in relation to undue delay. Since my conclusion on the delay issue is sufficient to dispose of Ms. Risseeuw’s appeal, I find it unnecessary to resolve the remaining issues raised in her notice of appeal. II. background [ 6 ] The facts of this case were set out in some detail in the QB Decision (at paras 4–10), and are repeated only to the extent necessary to deal with Ms. Risseeuw’s appeal. [ 7 ] An appreciation of Ms. Risseeuw’s prior dealings with the College helps to frame the matter under appeal. Ms.

Risseeuw’s interaction with the College dates back to February 2003. She had applied for registration under what was then referred to as the “grand- parenting” provision in the legislation in place at that time.

Her application was rejected for “ineligibility” reasons but she was nonetheless registered as a non-practicing member in February 2004. [ 8 ] To obtain full-practicing membership with the College, the bylaws then in effect required applicants to meet defined professional benchmarks and pass an oral examination in the field of psychology in which the applicant intended to practice and in relation to professional ethics and regulation. Ms. Risseeuw took the oral examination in October 2004 but was unsuccessful.

Her application was automatically referred to an internal review panel that confirmed the failed result [ 2004 Decision ]. Ms. Risseeuw again took the oral examination in 2006. Once again she was unsuccessful and once again this result was confirmed by a review panel [ 2006 Decision ]. [ 9 ] The pattern repeated itself in November 2008 with Ms. Risseeuw again taking and failing her oral examination. She was formally notified of her examination results in January 2009. On this occasion, however, Ms. Risseeuw asked the Council of the College

to reconsider the review panel’s decision. The Council confirmed Ms. Risseeuw’s failure by way of written reasons rendered on August 4, 2009 [ 2009 Decision ]. [ 10 ] Dissatisfied with the College’s decisions over the years, Ms. Risseeuw applied to the Court of Queen’s Bench in October 2011 to quash and set aside the 2004 Decision , 2006 Decision and the 2009 Decision . Her application was dismissed in its entirety (see: McCarty v Saskatchewan College of Psychologists , 2011 SKQB 471 , 391 Sask R 105 [ McCarty ] (at the time of that application Ms. Risseeuw went by the surname “McCarty”)).

Dealing first with the 2004 Decision and the 2006 Decision , the Queen’s Bench judge who heard the matter dismissed Ms. Risseeuw’s application because she had failed to pursue the College’s internal appeal procedure, which he concluded was an adequate alternative remedy to judicial review.

By way of obiter , though, the Chambers judge stated that he would have dismissed her application in any event because of undue delay: [12] Had it been necessary, I would have exercised my discretion to dismiss the application of these same earlier decisions on the grounds of undue delay and that it would be detrimental to good administration for the courts to review these decisions after all this time. ... [14] In my opinion, it would be detrimental to good administration to permit the dated decisions to be challenged, these many years after those decisions have been made.

Any regulatory body is entitled to proceed on the basis that decisions made and not challenged in a timely manner have settled the matter and are final. To permit otherwise could lead to administrative chaos. [ 11 ] The balance of Ms. Risseeuw’s application to quash the College’s 2009 Decision was framed around arguments of a flawed process and allegations of bias.

Her application to quash the 2009 Decision on these bases was dismissed. [ 12 ] In 2010, the Act was amended to recognize professional credentials obtained in other Canadian jurisdictions and, in broad terms, to give effect to the labour mobility provisions contained in the Agreement on Internal Trade [AIT]. Ms. Risseeuw had been registered with the Alberta College of Psychologists and had enjoyed full-practice status in that jurisdiction since December 2001.

It was common ground that she was authorized to practice psychology in Alberta as of the date of her December 2013 application to the College. [ 13 ] Relying on the amended provision set out in s. 20(2) of the Act , Ms. Risseeuw applied for registration as a full-practicing member in December 2013. Section 20(2) provides: 20

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

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

b) has paid the prescribed fees; (

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

d) is registered as the equivalent of a psychologist in good standing pursuant to the legislation of another jurisdiction in Canada, or the legislation of a jurisdiction outside of Canada that is recognized by the council. [ 14 ] Ms. Risseeuw’s application was considered by the registration committee of the College in January 2014, which in turn referred it to the Council for a decision because of issues Ms. Risseeuw had raised concerning the applicability of the AIT to her circumstance. Ms.

Risseeuw had taken the straightforward position that she was entitled to full-practicing membership in Saskatchewan simply because she was registered in the province of Alberta. [ 15 ] At the time of her 2013 application, Ms. Risseeuw was a Saskatchewan resident. With this knowledge in hand, the College proceeded to assess Ms. Risseeuw as a “Saskatchewan resident” who sought registration with the College in this province by virtue of registration in Alberta and not as an out-of-province applicant. [ 16 ] The Council of the College rendered a short written decision on May 22, 2014, rejecting Ms.

Risseeuw’s application. Since the reasons are relatively brief, they are repeated in their entirety: Decision and Analysis The Council has concluded that it cannot approve Ms. McCarty-Risseeuw’s full practising membership application because the Council knows that she has not demonstrated competence for such membership and to do otherwise would place the public, which relies on the College to set and enforce standards of competence and conduct, at risk. The College’s primary purpose is to serve and protect the public.

It achieves this goal by regulating the practice of the profession and governing its members in accordance with the Act and bylaws. By setting and enforcing standards of competence and conduct, the College endeavours to assure the public of the knowledge, skill, proficiency and competency of its members. In this case, Council knows that the applicant does not possess the knowledge, skill, proficiency and competency expected of members since she failed the oral interview on three separate occasions, each of which was automatically reviewed by a review panel.

She has thus been judged as not meeting the required standards of the College by 18 other full practising members. The 2010 amendments to the Act were specifically made to provide for labour mobility. This is evident from the title of the amending Act and the Minister’s comments on moving its passage in the Legislature. In this case, the applicant was not a person who qualified in another jurisdiction where she resided and was coming to Saskatchewan to work. At all times since 2004 she has resided in Saskatchewan and has worked here.

She is not utilizing the AIT amendment for mobility purposes but to attempt to obtain registration when it has been determined that she does not meet the required standard in Saskatchewan.

Finally, the applicant’s attempt to utilize the AIT provisions of the Act to gain registration when she has failed the Saskatchewan processraises ethical concerns that also reflect negatively on the likelihood that she would practice in accordance with the College’s Code ofEthics and that compel the Council to reject her application in the public interest. [17] Almost two years later, on May 13, 2016, Ms. Risseeuw applied to the Court of Queen’s Bench for judicial review of theCouncil’s May 22, 2014, decision. Although Ms.

Risseeuw’s application was dismissed on the basis of undue delay, the Queen’s Benchjudge who heard the matter went on to express an opinion on the substantive grounds that had been raised by Ms. Risseeuw, concludingthat he would have dismissed her application on those grounds in any event. III. ISSUES [18] Ms. Risseeuw appeals the QB Decision to this Court. Fundamentally, she contends the Chambers judge erred by (

i) dismissingher application on the basis of undue delay, (ii) misinterpreting s. 20(2) of the Act and thereby committing an error in principle, and(iii) failing to conclude the College had breached its duty of procedural fairness. She asks this Court to set aside the QB Decision and foran order compelling the College to approve her application for full-practicing membership. IV. FRESH EVIDENCE APPLICATION [19] As a preliminary matter, Ms. Risseeuw applies to this Court pursuant to Rule 59 of The Court of Appeal Rules to adduce freshevidence in relation to her appeal.

The governing principles with regard to the introduction of fresh evidence on appeal are well known.In Wal-Mart Canada Corp. v Saskatchewan (Labour Relations Board), 2006 SKCA 142, 289 Sask R 20 [Wal-Mart], Vancise J.A.,referring to Maitland, Maitland, and Maitland v Drozda, (SK CA), [1983] 3 WWR 193 (Sask CA), set out thefollowing requirements: [4] The test for the admission of fresh evidence is well known and was articulated by this Court in Maitland v. Drozda. The Courtidentified four factors which must be satisfied before fresh evidence would be accepted. Those factors are: (

a) The evidence will not be admitted, if by due diligence it could have been used at trial; (

b) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the action; (

c) The evidence must be credible in the sense that it is reasonably capable of belief; and, (

d) It must be such that if believed could reasonably, when taken with the other evidence adduced at trial, be expected to have affectedthe result. (Footnote omitted) [20] This Court’s approach to fresh evidence has been affirmed on a number of occasions subsequent to Wal-Mart (see, forexample: Haug v Haug (Estate), 2017 SKCA 92 at para 12, 32 ETR (4th) 189; Pederson v Saskatchewan (Minister of Social Services),2016 SKCA 142, 408 DLR (4th) 661; Onion Lake Cree Nation v Stick, 2018 SKCA 20, [2018] 5 WWR 111; Gadd v Busse, 2011 SKCA32, 366 Sask R 291). [21] The material Ms.

Risseeuw seeks to adduce on appeal consists of an affidavit along with a wide-ranging assortment of 31documents, emails or letters attached as exhibits to her affidavit. Ms. Risseeuw’s affidavit evidence is tendered to demonstrate severalthings. First, it recounts her experience with her 2013 application and the confusing nature of the College’s application form, which sheargues led to an improper inference being drawn by the College about her honesty and integrity. Second, it supplements her argumentabout s. 20(2) of the Act, Ms. Risseeuw attached a document entitled “Canada’s New West Partnership”.

This is an agreement betweenSaskatchewan and two other western provinces in furtherance of what Ms. Risseeuw characterizes as the liberalized trade and labourmobility provisions of the AIT. The third group of exhibits touches on Ms. Risseeuw’s registration and work as a psychologist inAlberta. The fourth batch addresses her efforts with continuing education. The fifth and final group of documents is intended to addressthe reasons for Ms. Risseeuw’s delay in bringing her judicial review application.

In large measure it refers to the stress and frustrationshe claims to have experienced throughout the application process with the College and its deleterious effects on her health. [22] Since Ms. Risseeuw’s appeal turns on the undue delay holding of the Chambers judge, I will limit my assessment of her freshevidence application to the fifth group of documents and the portions of her affidavit she says bear on this issue. In more specific terms,this material encompasses the following: (

a) Exhibit 9 – This is the College’s 2014 decision. (

b) Exhibits 10 to 23 – These exhibits document Ms. Risseeuw’s interactions with various ministers of the Government ofSaskatchewan, the Ombudsman, and the Trade Ministry in Alberta, all presumably tendered by her to show how she relentlessly pursuedintervention and assistance from government officials to resolve her registration impasse with the College. Ms. Risseeuw argues her timewas better spent pursuing other extra-judicial avenues of potential resolution rather than going through the court processes. (

c) Exhibits 24 to 26 – This batch of documents include information about Ms. Risseeuw’s mortgage, line of credit and realestate listing information. Ms. Risseeuw says it demonstrates the financial constraint she had been experiencing and explains why shecould not immediately retain a lawyer to bring a judicial review application. (

d) Exhibit 27 – This exhibit is really three separate letters from medical professionals. All three letters are dated subsequent toMs. Risseeuw’s 2016 judicial review application.

(

e) Exhibit 28 – This exhibit is Ms. Risseeuw’s 2015 proof of registration with the regulatory body in Ontario. (

f) Exhibit 30 – This is a collection of the College’s newsletters from 2010–2016. [23] With those basic facts in mind, I find it helpful to approach Ms. Risseeuw’s fresh evidence application by further dividing thefifth group of documents into two broad categories: the first category relates to documents attached as Exhibits 9, 10–23, 28 and 30 to heraffidavit and the second category to the documents marked Exhibits 24–26 and Exhibit 27, together with the explanatory portions of heraffidavit. A.

Category 1 documents [24] The single unifying feature of this group of documents is that, apart from Exhibit 9, they were all available at the time of thejudicial review application. Exhibit 9 is the impugned decision. It is not evidence and in any event is part of the appeal book. Returningto the balance of the documents in this category, not only were they all available, but Ms. Risseeuw had actually provided them to herlegal counsel prior to the judicial review application. Ms. Risseeuw maintains her legal counsel strategically erred in refusing to put thesedocuments into evidence.

Had her counsel done as she had urged him to do, she argues, her reason for delay would have beensatisfactorily explained to the Chambers judge, which, in the end, would have effectively rebutted the College’s delay argument. [25] I begin by pointing out the obvious. Simply because Ms. Risseeuw’s legal counsel chose not to put this material into evidence,does not alter the inescapable fact they were in existence and could have been adduced as evidence on her application to explain why ittook Ms. Risseeuw almost two years to launch judicial review proceedings. For this reason alone, Ms.

Risseeuw fails to meet the test foradmission of fresh evidence. [26] Secondarily, I find the documents of questionable relevance to the issue at hand. Exhibits 10–23 essentially consist ofcorrespondence designed to show how Ms. Risseeuw attempted to resolve what she referred to as a “regulatory impasse” with theCollege through alternate, extra-judicial channels. Justice Currie had occasion to consider a similar argument in Warner v Saskatchewan(Worker’s Compensation Board), 2007 SKQB 76 at para 13, 292 Sask R 283 [Warner], where the aggrieved party had turned to theprovincial Ombudsman for assistance.

Justice Currie concluded, rightly in my view, that pursuit of the matter through the provincialOmbudsman instead of expeditiously through the courts “was not a reason for delaying an application for judicial review” (at para 13).Similar reasoning was applied in Crommer v Workers’ Compensation Board (1992), (SK KB), 98 Sask R 213 (QB),where the aggrieved person had sought some form of political intervention through a government minister.

The court reasoned thatbecause the minister in question lacked the statutory authority to intervene in the underlying decision, the time it took to pursue this formof political intervention amounted to an unsatisfactory explanation for the applicant’s delay. The reasoning underpinning both decisionsappears to be grounded in the notion that resort to extra-judicial measures or to office holders who do not possess the legal authority tolegally effect the impugned result does not normally amount to a satisfactory excuse for delay in bringing judicial review proceedings.

Iagree with that reasoning. [27] Neither are Exhibits 28 (proof of Ms. Risseeuw’s registration in the province of Ontario) and 30 (an assortment of theCollege’s newsletters) relevant to the issue of delay. Presumably Ms. Risseeuw sought to adduce this information on appeal to establishthe College’s animus or improper motives with regard to her candidacy for admission as a full-practicing member. While this sort ofinformation may be relevant to some of Ms. Risseeuw’s substantive arguments, I fail to see the relevance in relation to her undue delayargument. B.

Category 2 documents [28] This brings me to Exhibits 24–26, which include an assortment of banking and real estate information. A close examination ofExhibits 24 and 26 in light of the corresponding portions of her affidavit leads me to conclude that they all relate to Ms. Risseeuw’soverarching financial situation. Ms. Risseeuw informed this Court in oral argument that only Exhibit 25 was unavailable at the time ofher judicial review application. [29] Exhibit 24 is a listing agreement for a Saskatoon property that was apparently purchased by Ms. Risseeuw. Exhibit 25 is astatement of the balance available on Ms.

Risseeuw’s line of credit along with a client agreement with her bank. Exhibit 26 is anamendment to a real estate contract. It appears to reflect a change in the list price of the property referred to in Exhibit 24 along with realestate information specific to that property. [30] Ms. Risseeuw explained the significance of these documents in the following way. She says she remortgaged her homethrough a line of credit in order to purchase a second property. Her plan was to renovate the property and then flip it for profit “to makemoney for my legal fees”. Unfortunately, the renovation project did not go well.

It placed her and her husband under financial strain,which was compounded when she was unable to find a buyer for the property. [31] There are two reasons why Exhibits 24–26 should not be introduced on appeal. First, to the extent Ms. Risseeuw wasexperiencing financial pressures that impinged upon her ability to retain legal counsel, I am satisfied that, with some degree of diligenceon her part, this sort of information could have been readily produced at the time of her court application. Second, I am not persuadedthat Exhibits 24–26 provide a credible or compelling explanation for Ms.

Risseeuw’s financial situation in any event. At best, theexhibits and the explanation offered in her affidavit simply depict a poor investment strategy. If Ms. Risseeuw had the facility to obtainline of credit financing in 2015 to purchase revenue property, she could have used some of the funds to finance her litigation.Unfortunately, she chose to use those funds for a different purpose. [32] This brings me to Exhibit 27. As mentioned, this exhibit is really three separate letters from medical practitioners who eachdiagnosed Ms. Risseeuw with mental distress. Ms.

Risseeuw argues her poor health speaks to the reasonableness of her delay. [33] In very general terms, Ms. Risseeuw is correct (see: Gjerde v Saskatchewan (Workers’ Compensation Board), 2013 SKQB

435, 435 Sask R 1, aff’d on appeal Saskatchewan (Workers Compensation Board) v Gjerde, 2016 SKCA 30, 395 DLR (4th) 331 [GjerdeCA]). However, the three letters attached as Exhibit 27 were all dated after the judicial review application and, for the most part, speak toher present state of mental health (i.e., at the time the letter was generated). To the extent stress impaired Ms.

Risseeuw fromcommencing judicial review proceedings in a timely way, particularly when she knew from prior experience that delay could be fatal, itwas incumbent on her to have obtained medical information of this sort for the Chambers judge to consider. I am satisfied that with somedegree of diligence on her part, medical information could have been adduced at the time of the judicial review application. [34] In any event, to the extent the medical information can be seen as some form of retroactive assessment of Ms.

Risseeuw’smental health prior to the date on each letter, I find the three letters vague and largely unhelpful. For instance, the August 9, 2016, letterrefers to Ms. Risseeuw’s long battle with her professional organization, which she says has taken a toll on her. The physician goes on tostate that it resulted in Ms. Risseeuw’s inability to take on a regular workload but the writer then makes the observation that, of the workshe does take on, “she still manages to do well”. The one-paragraph letter of February 3, 2017, refers to “considerable stress” affectingMs.

Risseeuw for “the past three to four years” but provides no further insight about how the stress may have impacted her ability tofunction or to engage herself in legal proceedings. The February 17, 2017, letter contains a similar comment. [35] On the whole of it, while it is clear Ms. Risseeuw may have suffered from some stress because of the difficulties sheexperienced with the College, there is no suggestion in the medical opinions sought to be adduced that the stress reached a level thatdetrimentally affected her ability to work or function.

As this Court recently stated in Rowan v Canada (Attorney General), 2018 SKCA104 at para 47: “When a court of appeal admits fresh evidence it must be prepared to say that, taken together with the other evidence, itcould have been expected to have affected the result”. Having regard to the content of these letters, I am not satisfied that Exhibit 27would have had an impact on the outcome of the decision. C. Conclusion on fresh evidence application [36] In the end, and for the reasons given, I am not satisfied the fresh evidence Ms.

Risseeuw proposes to adduce on appeal inrelation to the undue delay issue meets the recognized test for admission. Not only were most of the documents in existence at the time ofthe judicial review application, but they were in her actual possession. As to the remaining documents, I am more than satisfied that withsome due diligence on Ms. Risseeuw’s part, the additional materials were capable of production. In any event, I find the proposeddocuments would not have decisively affected the bottom-line result. [37] Ms. Risseeuw’s application to adduce fresh evidence on appeal is therefore denied. V. ANALYSIS A.

Did the Chambers judge err in dismissing Ms. Risseeuw’s application forjudicial review on the basis of delay? [38] The College argued Ms. Risseeuw’s delay operated as a discretionary bar to judicial review and as such her application shouldbe struck. The Chambers judge agreed with the College’s submission and dismissed Ms. Risseeuw’s judicial review application on thatbasis. [39] The Chambers judge began his analysis of this issue by identifying Rule 3-56(3) of The Queen’s Bench Rules as applicable tothe impact of undue delay in the context of a judicial review application.

The Rule provides: 3-56(3) Subject to rule 3-63 and any enactment limiting the time in which an originating application for judicial review may be made, ifthere has been undue delay in making an originating application, the Court may refuse to grant any remedy sought if the order: (

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

b) would be detrimental to good administration. [40] The Chambers judge then correctly identified as governing authority this Court’s decision in Henry v Saskatchewan(Workers’ Compensation Board) (1999), (SK CA), 172 DLR (4th) 73 (Sask CA) [Henry], where the followinganalytical framework was set out: [70] The Rule requires a two-staged approach. The first stage contemplates a determination whether the delay in “making theapplication” is “undue”. It is important to note that it is the “making” as opposed to the “hearing” of the application that is governed bythe Rule.

It is important as well to resolve what is meant by “undue”. In my view, the term embraces two elements: the first is the actuallapse of time (measured in days, months and years) between the making of the decision requested to be reviewed and the making of theapplication requesting the review. The second is an assessment of the reasonableness of the lapse of time having regard to such mattersas the applicant’s circumstances; the nature of the legal problems involved; the conduct, acquiescence, and consent of the opposingparty; negotiations toward settlement of the dispute (the list is not exhaustive).

This second element is often summarized in theexpression “explanation for the delay”. [71] The second stage is engaged only if at the first stage the delay is found to be “undue”. The second stage requires a determinationwhether the order sought by the applicant would result in one or more of three eventualities (

i) likely substantial hardship to any person,(ii) likely substantial prejudice to the rights of any person and (iii) detriment to good administration. If one or more of those results is aptto occur, then the judge is empowered to refuse the relief sought. On the other hand, if none of the results is apt to occur the judgewould be justified in granting the order even though the delay was undue.

[41] This Court reaffirmed the Henry framework in Gjerde CA, and clarified its application in the context of Rule 3-56(3): [28] Rule 3-56(3) gives a judge discretion to determine whether an application for judicial review should be refused on the basis ofundue delay.

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

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

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

s) proffered for it. If the delay is found to be “undue,” then the secondstep of the analysis is engaged, and the judge must determine whether the order sought is likely to cause substantial hardship orsubstantial prejudice to the rights of any person or is detrimental to good administration. If one of those three eventualities exists, then ajudge may exercise his or her discretion and refuse the application. [42] In assessing the Chambers judge’s decision on appeal, I am mindful that it is a discretionary decision entitled to appellatedeference.

An appellate court may not intervene absent an abuse of discretion, that is, unless the judge erred in principle, disregarded amaterial fact or failed to act judicially, or the result is so plainly wrong as to amount to an injustice (Gjerde CA at para 28). [43] With these general principles in mind, I return to Ms. Risseeuw’s arguments with regard to how the Chambers judge dealtwith each stage of the Henry test. The first stage calls for the judge hearing the matter to determine whether the delay was “undue”.

Inaccordance with Henry, this term embraces two elements: the first is the actual lapse of time (measured in days, months and years)between the making of the decision for which review is sought and the bringing of the application. The second is an assessment of thereasonableness of the lapse of time. [44] With regard to the first aspect of the “undue” test, the Chambers judge found the time that had elapsed from the impugneddecision (May 22, 2014) until the application was brought (May 13, 2016) was “almost exactly two years” (at para 64).

Acknowledgingthe absence of any hard and fast definition for what amounts to “undue delay” in Saskatchewan, the Chambers judge canvassed rules ofcourt and decisions from other jurisdictions where a temporal limit is imposed. He observed that, in light of Ms. Risseeuw’s previousjudicial review experience in December 2011, she “must be taken to be actually aware of the need to proceed with alacrity” and of the“potential deleterious effect delay could have on her ability to pursue this application” (at para 66). On the whole of it, the Chambersjudge concluded two years was too long. [45] I do not take Ms.

Risseeuw to meaningfully challenge this finding on appeal. Her principal concern appears to be with theChambers judge’s statement that “it was two years between the date of the decision made by the respondent and the filing of thisapplication” (at para 66). Ms. Risseeuw says the judge erred because the actual time between the decision (May 22, 2014) and herapplication (May 13, 2016) was in fact just shy of two years. [46] I see no error here.

While the Chambers judge may have overstated the period of delay by eight days in paragraph 66 of hisdecision, his statement has to be viewed in light of what he had said earlier about the period of delay, i.e., it was “almost exactly twoyears” (at para 64). I am satisfied the Chambers judge was well aware of the actual lapse of time between the making of the decision andher application for judicial review and, as such, his comment in paragraph 66 does not warrant appellate intervention. [47] Ms.

Risseeuw further contends that insofar as her application was delayed by just under two years, she did not exceed the timelimit for commencing proceedings prescribed by The Limitations Act, SS 2004, c L-16.1, and, as such, her application should not havebeen barred.

Section 5 of that statute sets out the basic limitation period: no proceedings shall be commenced with respect to a claim aftertwo years from the day on which the claim is discovered. Importantly, though, s. 5 is prefaced by the words “unless otherwise providedin this Act”. In light of those words, s. 3(2)(

b) of The Limitations Act is highly relevant to Ms. Risseeuw’s argument because thissubsection expressly excludes the application of The Limitations Act from “proceedings in the nature of judicial review”. AsMs. Risseeuw’s application constituted “proceedings in the nature of judicial review” within the meaning of the s. 3(2)(

b) exception, theChambers judge did not run afoul of this statute. [48] The second aspect to the first stage of the “undue delay” test in Henry is an assessment of the reasonableness of the lapse oftime. Here, the Chambers judge turned his attention to whether Ms. Risseeuw had offered an explanation for her delay but found theevidence wanting. At paragraph 69, he said: Virtually nothing in the material explains the delay.

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

He concentrated on the other factors arising in the secondbranch of the test. [49] Courts normally require a dilatory applicant to explain his or her delay with the absence of an adequate explanation oftenweighing heavily against judicial review of the decision in question (Donald J.M. Brown and The Hon. John M. Evans, Judicial Reviewof Administrative Action in Canada, loose-leaf (Rel 2018-3, October 2018) vol 2 (Toronto: Thomson Reuters, 2013) at 3-73 [Brown andEvans]). Ms. Risseeuw acknowledges she failed to place any explanatory evidence before the Chambers judge.

As discussed above, butfor a small handful of documents, Ms. Risseeuw had evidence of this nature in hand at the time of her application and had even providedit to her legal counsel. However, for strategic or other reasons, her legal counsel opted not to file anything to explain why Ms. Risseeuwfailed to promptly bring her application, choosing to concentrate argument on the second branch of the Henry test. While Ms. Risseeuwmay take issue with the legal advice she received, the Chambers judge could hardly be faulted for his assessment of this part of the

analysis. [ 50 ] Having concluded that Ms. Risseeuw’s delay was undue, the Chambers judge then shifted his attention to the second phase of the Henry test, which required him to ask whether the order sought was likely to cause substantial hardship or prejudice to the rights of any person, or if it was detrimental to good administration. [ 51 ] At the time of the judicial review application the College did not advance a “hardship or prejudice” type of argument.

Instead, it took the position that delay was detrimental to “good administration” in that there was need for finality and certainty with how the College administers its licencing scheme. The Chambers judge agreed with the College’s submission on this point, stating: [72] ... It would be extremely difficult for a professional regulator to exercise its proper functions where challenges to decisions can be made years later. There is no certainty for the regulator, the profession and the public. Reasonably, this application ought to have been brought within six months of the date of the decision. See Crommer .

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

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

Surely it would be detrimental to good administration. The board would be entitled to assume that if the applicant was inclined to apply for a judicial review he would do so in a timely fashion, not after double the time of the usual period of no more than six months. Within the area of judicial review there must be some finality to the board’s decision . [Emphasis added] [ 52 ] On appeal, Ms.

Risseeuw argues the Chambers judge should have assessed hardship and prejudice from her vantage point, i.e., that he should have asked whether she experienced and will continue to experience hardship or prejudice because of the College’s decision. Ms. Risseeuw’s argument is summarized at page 14 of her factum: The Judge focused on delay being detrimental to good administration while neglecting that his dismissal of my application will cause and is still causing substantial hardship to me.

I have been working on this process since 2004 and the refusal of the college to register me as a psychologist is taking it’s [ sic ] toll on my health. It is the duty of the college to register me in Saskatchewan which they have refused to do and I am stressed out as diagnosed by my doctor. [ 53 ] I find it helpful to step back and assess Ms. Risseeuw’s position in light of the applicable common law principles. To begin with, an application for judicial review is a request to invoke the court’s supervisory jurisdiction over the exercise of power by a public official or tribunal.

There is no right per se to prerogative relief even if a party has standing and all of the necessary criteria have been met. This principle is explained in Brown and Evans in this way (at 3-3): All of the discretionary bars are grounded in the notion that, even though a public body may have acted unlawfully, the public interest does not always require judicial intervention. That is, other factors can override the general public interest that governmental decision- making accord with appropriate legal norms. [ 54 ] Moreover, the court has an overriding discretion to refuse prerogative relief.

This reflects the fact that, unlike private law, judicial review is not exclusively directed to the vindication of individual rights (Brown and Evans at 3-1 and 3-2). In this case, Ms. Risseeuw sought prerogative relief in the nature of certiorari to quash the College’s decision and mandamus to compel the College to approve her application for full-practicing membership. [ 55 ] Returning to Ms. Risseeuw’s argument, Ms. Risseeuw interprets Rule 3-56(3) in a literal fashion.

She argues the phrase “would be likely to cause substantial hardship to or substantially prejudice the rights of any person ” (emphasis added) is broadly crafted and, conceptually speaking, includes her rights and her interests. [ 56 ] Respectfully, Ms. Risseeuw’s literal

interpretation ignores the wording of Rule 3-56(3), which is repeated below for emphasis: 3-56

(3) Subject to rule 3-63 and any enactment limiting the time in which an originating application for judicial review may be made, if there has been undue delay in making an originating application, the Court may refuse to grant any remedy sought if the order: (

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

b) would be detrimental to good administration. [ 57 ] In my view, Rule 3-56(3) simply restates an aspect of the common law. It empowers the court to refuse to grant prerogative relief sought by an applicant if the relief granted is likely to cause substantial hardship or prejudice to the rights of any person or be detrimental to good administration in light of the applicant’s delay. The Rule does not ask the Chambers judge to consider the inverse, that is, whether the applicant would suffer hardship or prejudice if the prerogative relief sought was refused.

Admittedly, the phrase “refuse to grant” finds itself in this provision, but its use is in reference to what a Chambers judge is empowered to do if hardship, prejudice or impairment of good administration would result from granting the relief sought .

My conclusion on this point is consistent with the following commentary in Brown and Evans: “Conversely, where a respondent can point to prejudice either to itself, or others, a court will be much more disposed to dismiss an untimely or delayed application for relief” (emphasis added, at 3-75) (see also: Lowe v Diebolt , 2014 BCCA 280 at paras 42–43 , 376 DLR (4th) 138).

[58] To conclude on this point, I am satisfied that substantial hardship or prejudice must be considered by reference to how itwould affect the responding party or some other person if the relief sought by the applicant was granted in light of the applicant’s delay.It does not refer to and should not be interpreted by reference to any hardship or prejudice the applicant (in this case, Ms. Risseeuw)would likely suffer if the relief sought was not granted. [59] As mentioned, the College did not identify any hardship or prejudice on its part. Instead, it argued Ms.

Risseeuw’s delay wasdetrimental to the good administration of the College exercising its regulatory responsibility. The Chambers judge accepted theCollege’s position. “Good administration” has been interpreted to mean the administration of justice in the broad sense.

Where thedecision sought to be reviewed relates to more than one individual or fact situation (in this case, other applicants for membership under s.20(2) of the Act), certainty and finality to proceedings are considered of broad importance to the good administration of justice (GjerdeCA at para 77; Amalgamated Transit Union, Local 1374 v Saskatchewan Transportation Co., 2001 SKQB 374, 210 Sask R 46;Ostrowski v Saskatchewan (Beef Stabilization Board) (1993), (SK KB), 115 Sask R 106 (QB); Durr v Saskatchewan(Minister of the Department of Highways and Transportation), 2000 SKQB 566, 72 LCR 85; Wadena School Division No. 46 vSaskatchewan (Municipal Employees’ Pension Commission), 2001 SKQB 348, 208 Sask R 293). [60] Ms.

Risseeuw did not take issue with how the Chambers judge dealt with the “good administration” issue on appeal. Havingconsidered the decision as a whole, I am satisfied the Chambers judge properly recognized that certainty and finality were integral to thegood administration of the College’s regulatory program. B. Conclusion [61] Applying a deferential standard of review, I am not persuaded there is any basis for appellate intervention. A determination ofwhether prerogative relief should be barred on the basis of delay is a discretionary decision entitled to deference by a reviewing court.

Inthe circumstances of this matter, I am not satisfied the Chambers judge erred in principle, disregarded a material fact, failed to actjudicially or that his decision was so plainly wrong as to amount to an injustice warranting appellate intervention. Accordingly, Ms.Risseeuw’s appeal in relation to the Chambers judge’s decision on delay cannot succeed and must be dismissed. VI. Alternate grounds of appeal [62] Given my disposition in relation to Ms. Risseeuw’s first ground of appeal, it is unnecessary to consider her remaining grounds. VII.

Closing comments in relation to the standard of reviewfor procedural fairness [63] Given the result in this appeal, it is unnecessary to deal with the standard of review in relation to procedural fairness.Nonetheless, I feel compelled to briefly comment on how the Chambers judge dealt with this issue. Here, following a lengthy analysis ofthe complexities and the jurisprudential uncertainty in Canada with respect to this issue, the Chambers judge adopted what he coined a“hybrid standard of review”.

In his view, issues of procedural fairness should be assessed on a correctness standard but with a measure ofdeference accorded to the procedural choices of the decision-maker. [64] Respectfully, the approach conceived by the Chambers judge is not consistent with the law in this jurisdiction (see: Eagle’sNest Youth Ranch Inc. v Corman Park (Rural Municipality #344), 2016 SKCA 20, 395 DLR (4th) 24; Saskatoon Amalgamated TransitUnion, Local 615, 2017 SKCA 96, [2018] 4 WWR 822). [65] It is therefore important to emphasize that the result in this appeal should not be taken as an endorsement of how theChambers judge approached the standard of review for procedural fairness issues.

Pending a further decision from the Supreme Court ofCanada or this Court on this issue, the Chambers judge’s formulation of a hybrid standard of review does not displace the controllingauthorities in this jurisdiction. VIII. Conclusion [66] Ms. Risseeuw’s appeal is dismissed. Since the College did not press for costs at the time of the appeal hearing, no such orderwill be made. “Schwann J.A.” Schwann J.A.I concur. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Whitmore J.A.” Whitmore J.A.