Administrative law – Decisions of administrative tribunals – College of Traditional Chinese Medicine Practitioners – Licence to practice – Examinations – Judicial review – Procedural requirements and fairness – Natural justice – Legitimate expectations – Appeal process – Standard of review – Correctness – Reasonableness simpliciter
Eliott v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia,  B.C.J. No. 1005, British Columbia Supreme Court, April 25, 2005, Fisher J.
The Petitioner had applied to the College for registration as an acupuncturist and was required to pass two examinations, one written and one practical. The passing mark was 60% for the practical examination and 62% for the written examination. She passed the practical examination, but not the written. As a result, the College refused her application for registration and advised the Petitioner that she would be required to retake both examinations.
During the written examination, there was one interruption which took up several minutes of writing time for the Petitioner. No additional time was given to any of the candidates to complete the examination beyond the four-hour time limit. The Petitioner complained that she was unable to properly complete the examination because of the interruption. The passing mark for the written examination was established about three months after the examination was completed, at 62%. The Petitioner achieved a grade of 61.5% and, accordingly, failed the examination.
The Petitioner appealed the matter to the Registration Committee under the College’s internal appeal process. The basis for the appeal was that the Petitioner had not had enough time to complete the written examination. The Registration Committee found no basis to change the original score and denied her appeal.
The Petitioner appealed to the Court on the basis that the College had breached the rules of natural justice and procedural fairness in considering her appeal under the College’s internal appeal process and in administering the written examination.
The Court first considered the scope of the appeal, which was established in the Health Professions Act, R.S.B.C. 1996, c. 183, at s. 20(4.1). That section is broadly worded and, the Court held, provided that all issues related to the College’s refusal to register the Petitioner were properly a part of an appeal.
The Court also held that while issues of natural justice and procedural fairness are more commonly addressed in judicial review proceedings, a statutory appeal such as this may also include such issues if they had a bearing on the decision under appeal. The Court could review the fairness of the administration of the examination, including the setting of the passing grade by the Examination Committee.
In considering the appropriate standard of review to apply to the appeal, the Court found that the question before the Registration Committee in the Petitioner’s appeal was one of mixed fact and law and was reviewable on a standard of reasonableness. However, with respect to the procedural propriety of the College’s treatment of the Petitioner’s appeal, as well as certain aspects of the examination process, the standard of review was correctness.
The Court considered whether the Registration Committee had violated the principles of natural justice in administering the written examination. The Petitioner argued first that the College had violated the rules of natural justice by failing to give additional time for writing the examination, as had been their usual practice in previous years, and argued the doctrine of legitimate expectations. The Court held that there was nothing unfair in the manner in which the examination was conducted and that the evidence did not establish that there was a past practice of giving additional time as a general rule or that the Petitioner was aware of such a practice that would apply in these circumstances.
The Petitioner also argued that the College had failed to follow its own procedures in setting the passing score for the written examination. The Court held that the College’s procedures for setting passing scores was not clearly set out in either its Handbook or the By-laws. Rather, it was a discretionary matter within the expertise of the members and professional staff of the College. The evidence indicated that subject matter experts were consulted and this advice was considered by the Examination Committee. The Court was unable to conclude that the College failed to follow its own procedures in setting the passing score or that the doctrine of legitimate expectation should apply in this circumstances.
The Court next considered whether the College acted on irrelevant considerations in setting the passing score for the written examination. The Court held that consideration of the number of students who would pass or fail was not irrelevant and there was no evidence that the Examination Committee took this factor into account for an improper purpose.
The Court next considered whether the College had violated the rules of natural justice in conducting the Petitioner’s internal appeal. The Petitioner argued that the College had breached the rules of natural justice by failing to (1) advise her of the proper scope of the appeal, (2) provide her with a copy of the written examination, and (3) provide her with an opportunity to correct or contradict the factors relied on in making this decision.
As to the first alleged breach, the information provided to the Petitioner about the scope of her appeal was adequate and did not result in a breach of the rules of natural justice and procedural fairness.
As the second alleged breach, the Court found that the College could not be faulted for refusing to disclose the Petitioner’s examination in circumstances where it understood that her complaint was related to the administration of the examination and not the quality of the questions themselves. A failure to disclose an examination will only be a breach of natural justice where disclosure is necessary for the Applicant to know the case she has to meet.
Finally, with respect to the third alleged breach, the Petitioner argued that the Registration Committee acted on information that she could have contradicted, had she had the opportunity, regarding her ability to complete the examination. The Court found that the Petitioner had completed almost all of the examination, but was not able to answer a number of the questions by applying her knowledge, because she ran out of time. There was no evidence that the Registration Committee had not considered this information before it decided that there was no basis on which it could alter her score.
In the result, the appeal was dismissed.
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