Administrative law – Decisions of administrative tribunals – College of Nurses – Nurses – Governance – Permits and licences – Competence – Training requirements – Fairness – Judicial review – Standard of review – Reasonableness simpliciter – Evidence
Al Baba v. College of Nurses of Ontario,  O.J. No. 5392, 2013 ONSC 7335, Ontario Superior Court of Justice, November 28, 2013, F.N. Marrocco A.C.J.S.C.J., E.F. Then R.S.J. and Gordon J.
The appellant is a registered nurse. She applied to the College of Nurses of Ontario for registration as a Registered Nurse in the Extended Class (also known as a Nurse Practitioner). The requirements to become a Nurse Practitioner – Adult, are registration as a registered nurse, successful completion of a specified education program and successful completion of a Council approved examination, being the American Nursing Credentialing Centre: Adult Nurse Practitioner examination or ANCC-NP. There was no set time frame for applicants to pass the examination, but they only have three opportunities to successfully write the examination with no discretion for the College’s Registrar to allow an applicant who has failed the examination three times to write a fourth time.
In the appellant’s case, she failed to pass the ANCC-NP on three occasions. She asked for another opportunity to write the examination, noting that she had been under stress because of personal and family circumstances which affected her ability to study. She did not take issue with the fairness of the examination at the time. The Registration Committee convened and directed the Registrar to refuse her registration as an NP. Following that decision, the appellant sought a review to the Health Professions Appeal and Review Board (the “Board”) and raised for the first time, an argument that the ANCC-NP examination was unfair because it was based on American nursing practices and developed for American NP candidates and caused her undue stress. The Board confirmed the order of the Committee and the appellant appeal. The Court denied the appeal, noting that the standard of review for an appeal of a decision of the Board reviewing an application for registration was reasonableness. Reasonableness is concerned with the existence of justification, transparency and intelligibility in the decision-making process. It is also concerned with deference and whether the decision falls within a range of possible acceptable outcomes with are defensible in respect of the facts and the law. The Court held that the Board’s decision was reasonable. There was basically no evidence before the Board upon which it could have found the ANCC-NP examination to be unfair due to its American content or stress created thereby. The appellant herself put no evidence before the Board upon which it could find that she personally was adversely affected by the content of the examination or any stress caused by it. The appellant had, at the very least, the onus of establishing there was a serious issue with respect to the fairness of the examination. The evidence before the Board did not meet even that low threshold and what was before the Board was little more than a bare allegation of unfairness advanced by the appellant.
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