The decision of an examining board failed to clearly consider the applicant’s health concerns following a failed assessment

Administrative law – Decisions reviewed – Dental Board Association and College – Failure to provide reasons – Judicial review – Standard of review – Reasonableness – Dentist – Training requirements

Mattar v. National Dental Examining Board of Canada, [2020] O.J. No. 779, 2020 ONSC 403, Ontario Superior Court of Justice, February 24, 2020, C.D. Aitken, L.A. Pattillo and M.A. Penny JJ.

The applicant sought judicial review of two decisions of the National Dental Exanimating Board of Canada (“NDEB”) relating to her third and final failure of the assessment of clinical skills. The assessment of clinical skills is the third assessment required to be admitted into the practice of dentistry through the equivalency assessment process.

The applicant submitted a compassionate appeal to the NDEB stating that there were unfair circumstances that affected her ability to complete the assessment. Her appeal was submitted before the results of her assessment. The NDEB Executive Committee reviewed the circumstances related to the appeal, including the invigilator notes. The NDEB denied the compassionate appeal. The Executive Committee found that there were no conditions that disadvantaged the applicant in her assessment and did not follow regulations regarding the assessment. The Executive Committee also noted that the invigilator observed the applicant to be disruptive during the assessment.

The applicant asked for a reconsideration of her appeal. The NDEB Executive Committee informed the applicant that it considered the material before it and its decision was final. However, it was brought before the NDEB Appeals Panel, which rendered a decision on November 26, 2017. The Appeals Panel found that there was no factual mistake of any significance that could have altered the applicant’s failing grade. The Appeals Panel record did not include the applicant’s medical information. The applicant’s grade remained a fail.

On judicial review, the Court applied the standard of review framework in Vavilov to confirm the standard of review was that of reasonableness. The first issues on review related to the decision of the Executive Committee while the second concerned the decision of the Appeals Panel.

The Court concluded that the Executive Committee failed to provide transparent and intelligible reasons regarding the applicant’s mental and emotional state during the assessment after the Committee found that she was disruptive during the assessment. The Court remitted the decision back to the Executive Committee with an expanded record to include the applicant’s medical information.

The judicial review of the decision of the Appeals Panel was dismissed. The Court was satisfied the Appeals Panel reviewed all evidence before it and issued cogent reasons with the technical reasons why the applicant received a failing grade.

In the result, the decision of the Executive Committee was set aside and remitted back to the Executive Committee for a reconsideration. The judicial review of the Appeals Panel was dismissed. Costs were agreed to by the parties at a fixed amount.

This case was digested by Jackson C. Doyle, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Jackson C. Doyle at jdoyle@harpergrey.com.

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