Citation and Court Information
CITATION: Evans v. College of Nurses of Ontario, 2014 ONSC 6013
DIVISIONAL COURT FILE NO.: DC-347-14
DATE: 20141022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GORDON R.S.J., SWINTON AND HORKINS JJ.
BETWEEN:
JENNIFER LYNN EVANS Appellant
– and –
COLLEGE OF NURSES OF ONTARIO Respondent
Self-represented.
Emily Lawrence for the Respondent.
HEARD at Toronto: October 10, 2014
ENDORSEMENT
Overview:
[1] In January of 2013 a panel of the College of Nurses Registration Committee (the “Committee”) denied the Appellant, Ms. Evans, a certificate of registration as a Registered Practical Nurse because she had failed the non-exemptible licensing examination three times. The Health Professions Appeal and Review Board (the “Board”) affirmed the Committee’s denial of registration on November 28, 2013.
[2] Ms. Evans appeals from the decision of the Board. She seeks an order of this court overturning the Board’s decision and providing for her registration as a Registered Practical Nurse without passing any registration examination. In the alternative, she seeks an order permitting her to write a further and personally individualized examination.
The Standard of Review
[3] The Standard of Review in the case before us is reasonableness [see Douse v. College of Nurses of Ontario 2013 ONSC 5444]. As such, what we must be concerned with is not so much whether we agree or disagree with the decision of the Board, but whether the decision it made falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
Analysis
[4] The Ontario College of Nurses is a professional self-regulatory body, established by statute to regulate the nursing profession in Ontario. In regulating and governing the profession, the College’s overriding duty is to serve and protect the public interest. Incident to this duty is the College’s obligation to ensure that each applicant for registration has the necessary skills and knowledge to perform the work their profession will entail.
[5] Section 6 (2.1) of Ontario Regulation 275/94 made under the Nursing Act, 1991, S.O. 1991, c. 32 (as it was in force in 2012) provides for certain non-exemptible requirements for the issuance of a general certificate of registration as a registered practical nurse. One of those requirements is that an applicant have passed the examination for registration as a practical nurse set by or administered by the College or an examination approved as equivalent by the Registration Committee. The Regulation does not require that an Applicant pass the examination within any set time frame. However, each applicant has only three opportunities to write and pass the examination (s. 12(6)).
[6] Ms. Evans was unable to complete this non-exemptible requirement. She was unsuccessful in her first attempt on January 11, 2012. Prior to completing her subsequent attempts she requested and was granted accommodations because of her difficulties with reading. Her subsequent attempts on May 16 and September 12, 2012 were also unsuccessful. On December 13, 2012 the Registration Committee of the College determined that her application for registration would be declined. The Committee found no exceptional circumstances that would warrant annulment of any of her three examinations. The Board confirmed the decision of the Committee on November 28, 2013.
[7] Upon careful review and consideration of the arguments made by the Appellant we are not satisfied that any aspect of the Board’s decision is unreasonable.
[8] In confirming the decision of the Registration Committee to decline her application for registration, the Board was aware of and appropriately applied the applicable provisions of the Health Professions Procedural Code and the General Regulation adopted under the Nursing Act, 1991. Simply put, Ms. Evans has not passed the licensing examination on three occasions – an examination that is a non-exemptible requirement to obtain a licence.
[9] The evidence before the Board was not sufficient to establish any of the testing or grading improprieties alleged by the Appellant, and there was no evidence of any extraordinary and unforeseen circumstance that would justify the annulment of any of her three examinations.
[10] Following her unsuccessful completion of the first examination, Ms. Evans made a request that she be accommodated in her future attempts. Accommodation was provided by allowing her significant additional time to write the examinations and allowing her to undertake them in a room separate from most of the other Applicants. These accommodations reflected the concerns expressed by the Appellant and were accepted and implemented without suggestion by her that they were in any way inadequate.
[11] With respect to Ms. Evans’ request that we address the issue of language proficiency as a requirement for registered practical nurses, that question was not raised before the Board and is beyond our jurisdiction.
Conclusion
[12] In view of the above, and although we understand the disappointment Ms. Evans must feel with the outcome of these proceedings, her appeal must be dismissed. The College does not seek costs.
Mr. Justice R. D. Gordon, RSJ
Madam Justice K. E. Swinton
Madam Justice C. J. Horkins
Released: October 22, 2014
CITATION: Evans v. College of Nurses of Ontario, 2014 ONSC 6013
DIVISIONAL COURT FILE NO.: DC-347-14
DATE: 20141022
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GORDON R.S.J., SWINTON AND HORKINS JJ.
BETWEEN:
JENNIFER LYNN EVANS
Appellant
– and –
COLLEGE OF NURSES OF ONTARIO
Respondent
endorsement
Released: October 22, 2014