The Applicant, Ms. Fawcett, unsuccessfully brought an application for judicial review of a decision made by the Respondent, Canadian Chiropractic Examining Board, which refused to permit her to write an examination on June 12, 2010 as she did not apply for the exam or pay the required fee by the applicable deadline

Administrative law – Decisions of administrative tribunals – Canadian Chiropractic Examining Board – Chiropractors – Training requirements – Permits and licences – Examinations – Fees – Judicial review – Public body – definition – Discretion of delegated authority – Evidence – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter

Fawcett v. Canadian Chiropractic Examining Board, [2010] O.J. No. 3955, 2010 ONSC 4903, Ontario Superior Court of Justice, September 8, 2010, M.G.J. Quigley J.

The Applicant, Ms. Fawcett, sought judicial review of a decision of the Respondent, Canadian Chiropractic Examining Board (the “Board”). Ms. Fawcett completed all of the requirements necessary for her to become a chiropractor in Ontario. The final component was the clinical skills evaluation examination that was conducted by the Board. Ms. Fawcett hoped to complete that examination on Saturday, June 12, 2010 in Hamilton, Ontario. The evaluation was the “Level C” component, which involves hands-on evaluation (as opposed to the Level A and Level B components).

Ms. Fawcett did not apply to be examined on June 12. She also did not pay the examination fee, which was required prior to April 16, 2010. The deadline for the payment of the examination fee was established by the Board and published on its website. Ms. Fawcett claimed that a personal financial hardship prevented her from paying the fee. She attempted to pay the fee after the deadline but the Board would not accept her late application or permit her to take the June 12 examination. Ms. Fawcett claimed that the Board’s decision to preclude her from taking the examination on June 12 was made solely because her application fee was not received on time. She claimed that this decision was unreasonable and must be set aside.

Ms. Fawcett had brought an urgent application to be heard on June 7, 2010. Counsel for the Board did not oppose the order permitting her application to be heard urgently on that date. The judge dismissed her application and advised that he would provide written reasons at a later date. The current decision is the detailed set of written reasons from the June 7 hearing.

The Court first summarized the Board’s legal status. It is a not-for-profit without-share-Corporation. It administers an examination, which the provincial chiropractic licensing bodies (such as the Ontario College of Chiropractors) have made a requirement for a chiropractor’s licence. The Board established certain policies and limitations in respect of the examinations due to the facilities required for the “Level C” examination. The Board’s website specifically stated that late applications would be considered for Level A and B examinations only.

Ms. Fawcett had made arrangements to commence her career with a chiropractor after completion of her examination. However, that arrangement would not be tenable if she had to wait until the October 2010 Level C examination.

Ms. Fawcett brought a number of internal appeals to the Board before she brought an application to the Court. Specifically, she brought Level 1, 2, and 3 appeals. In the context of those appeals, Ms. Fawcett provided her evidence about why she did not submit her application fee on time. All three of these appeals were dismissed by the individuals or panels that heard them.

The Court first considered whether there was a sufficient basis to have heard the application on an urgent basis. The Court specifically noted that the matter was heard on an urgent basis because of the generous concession made by counsel for the Board and not because it was concluded that the circumstances amounted to sufficient urgency within the meaning of the statute or the relevant case law.

One of the fundamental propositions underlying Ms. Fawcett’s request for judicial review was the assertion that the Board is a statutory decision maker (a “public body”) operating under a delegated power from the College of Chiropractors of Ontario. She alleged that the Board has been delegated the statutory power of qualifying people wishing to be members of the chiropractic profession throughout Canada.

The Court did not accept Ms. Fawcett’s position. The Board is a private corporation and not a statutory or governmental body. It derives its power solely from its Letters Patent and not from legislation or regulations. In addition, in administering its examinations, it is not exercising any delegated “statutory power”. The fact that the provincial regulatory bodies have chosen to rely on the Board’s examinations as evidence of skill and knowledge, does not mean that the Board has a statutory or regulatory power.

The Court continued to consider the standard of review applicable to the Board as well as whether the Board abused its discretion. The Court found that the standard of review was reasonableness given that there is no privative clause and there is no particular expertise exercised by the Board in determining how to apply a late payment period provision.

The Court noted that there was no enabling statute that established a framework within which the Board was to operate. However, there are public aspects to the functions of the Board that demand procedural fairness and the discretionary authority needs to be exercised in good faith and not for improper purposes. The Court referred to authorities which indicated that the question was whether an applicant had been treated with such manifest unfairness as to call for the intervention of the Court. This situation was not an instance where the Board denied a substantive right that it owed to Ms. Fawcett; the Board merely determined that she could not take the examination when she wanted to because she failed to apply to take the examination and pay the examination fee in the time frame established by the Board. Ms. Fawcett had argued that the Board’s decision to prevent her from taking the examination was unreasonable on its face and arbitrary for failing to consider the impact of the alleged misrepresentations made by the Board’s website. She also argued that the appeal’s decision (finding that her circumstances did not amount to “extraordinary circumstances”) was unreasonable.

The Court found that the evidence suggested that Ms. Fawcett was the author of her own misfortune. She failed to read the Board’s website carefully respecting the application and fee payment deadlines. She also contradicted her own evidence about whether she had the funds available to pay the application fee in order to meet the April deadline.

The Court concluded that the Board owed Ms. Fawcett a duty of procedural fairness but she was accorded and received all of the procedural fairness from the Board that she could have expected to receive. She was able to provide her explanation to the Board and was granted three separate levels of appeal by the Board. The Court concluded that there was no violation of any substantive rights enjoyed by Ms. Fawcett.

Ms. Fawcett’s application for judicial review was dismissed.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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