Marshall v. College of Psychologists of Ontario, 2018 ONSC 6282
CITATION: Marshall v. College of Psychologists of Ontario, 2018 ONSC 6282
DIVISIONAL COURT FILE NO.: 627/17
DATE: 20181023
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MARROCCO A.C.J.S.C., THORBURN and D. EDWARDS JJ.
BETWEEN:
LIAM E. MARSHALL, Ph.D. Appellant
– AND –
THE COLLEGE OF PSYCHOLOGISTS OF ONTARIO THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondents
COUNSEL:
Janice Blackburn and Abbas Kassam, for the Appellant Andrew Porter and Katherine Costin, for the Respondent College of Psychologists David Jacobs for the Respondent Health Professions Appeal and Review Board
HEARD at Toronto: September 20, 2018
OVERVIEW
[1] The Appellant, Dr. Liam Marshall sought to be registered as a psychologist authorized for supervised practice. His registration was denied by the Registration Committee of the College of Psychologists of Ontario (“the Committee”). That refusal was upheld by the Health Professions Appeal and Review Board (“the Board”).
[2] The question addressed by the Committee that was then reviewed by the Board, was whether the Appellant’s program was equivalent to a program accredited by the Canadian Psychological Association within the meaning of the Regulation.
[3] The Board upheld the Committee’s decision to refuse the request for registration because it found that, notwithstanding his extensive clinical experience, further education and accomplishments, the Appellant’s PhD program was not accredited by the Canadian Psychological Association or another accrediting body approved by Council for that purpose.
[4] This appeal of the Board’s decision is about whether the Board’s decision was reasonable.
BACKGROUND OF THE PROCEEDING:
[5] The Appellant obtained his PhD in Developmental Psychology from Queen’s University in 2010. His doctoral program was not accredited by the Canadian Psychological Association.
[6] In 2015, the Appellant applied to the College of Psychologists of Ontario (“the College”) to be registered as a psychologist authorized for supervised practice and his application was referred to the Committee of the College.
The Health Professions Procedural Code (deemed by [section 4](https://www.canlii.org/en/on/laws/stat/so-1991-c-18/latest/so-1991-c-18.html) of the [Regulated Health Professions Act](https://www.canlii.org/en/on/laws/stat/so-1991-c-18/latest/so-1991-c-18.html), 1991 to be part of each health profession act)
[7] Section 22.2 of the Health Professions Procedural Code provides that the College has a duty to provide registration practices that are transparent, objective, impartial and fair.
The Requirements in [Ontario](https://www.canlii.org/en/on/laws/regu/o-reg-74-15/latest/o-reg-74-15.html) Regulation 74/15 under the [*Psychology Act, 1991, S.O. 1991, c. 38*](https://www.canlii.org/en/on/laws/stat/so-1991-c-38/latest/so-1991-c-38.html)
[8] The requirements to be registered for supervised practice in section 12 of Regulation 74/15, are as follows:
S. 12. (1) To qualify for a certificate of registration for a psychologist authorizing supervised practice, an Applicant must comply with the following non-exemptible registration requirements:
- The Applicant must have obtained a doctoral degree,
i. from a psychology program that is accredited by the Canadian Psychological Association or by another accrediting body that has been approved by Council for that purpose,
ii. from a psychology program that is considered by a panel of the Registration Committee to be equivalent to a program described in subparagraph I (emphasis added), or
iii. from a psychology program that is offered by an educational institution outside of Canada or the United States of America and that is considered by a panel of the Registration Committee to be substantially similar to a program described in subparagraph i.
- The Applicant must provide to the College a signed undertaking from two supervisors in which the supervisors undertake to train the proposed member and supervise and evaluate the proposed member’s practice and to provide reports in the form and manner as specified by the Registrar or a panel of the Registration Committee.
[9] Applicants are required to demonstrate that the psychology program is “equivalent to” a doctoral program accredited by the Canadian Psychological Association or another accrediting body approved by the Council of the College.
[10] These are non-exemptible requirements.
[11] The 2015 regulation replaced an earlier version of the regulation which provided that an Applicant obtain a doctoral degree “from a program of study with content that is primarily psychological in nature as required in the guidelines”. It is conceded that under the previous regulatory requirement, the Appellant may well have qualified for registration as there is no question that he possesses an in-depth education in psychology.
The Published Criteria for Establishing Equivalence
[12] The College provided the Appellant with the Committee’s published criteria for establishing that a program is equivalent to a Canadian Psychological Association program. The criteria are as follows:
The doctoral degree awarded by the program is equivalent in academic level to a doctoral degree from a Canadian university.
The degree is offered at an institution that is:
A. a Canadian institution that is legally authorized to grant the degree,
B. an institution in the United States of America that is accredited by an accrediting body recognized by the United States Secretary of Education as a reliable authority concerning the quality of education or training offered by institutions of higher learning or by another accrediting body approved by Council, or
C. an institution that is based in a country other than Canada or the United States of America that is considered to be equivalent to an institution described in sub-paragraph A by a foreign credential evaluation service that is a member of the National Association of Credential Evaluation Services or by another foreign credential evaluation service approved by Council.
The program is offered within a department of psychology or delivered by an identifiable core faculty of doctoral trained psychologists that assume responsibility for the program.
The program is clearly and publicly identified and described as a psychology program in its brochure, website, and descriptive materials.
The program clearly and publicly communicates in its brochure, website, and descriptive materials its intent to train professional psychologists.
The program has an identifiable body of students enrolled in it.
The program has an identifiable core faculty of psychologists responsible for delivering the program. The core faculty members each hold a doctoral degree in psychology.
The program requires that students maintain a minimum of 3 years of full-time resident graduate study or a part-time equivalent of 3 years of full-time resident graduate study.
The program requires candidates to demonstrate either undergraduate or graduate competence in the five core content areas for psychology, by passing suitable evaluations in each of the five areas or by successful completion of at least one half-year graduate course, or an advanced undergraduate course (beyond a first-year introductory course) in each of the five areas:
I. Biological bases of behaviour;
II. Cognitive affective bases of behaviour;
Ill. Social bases of behaviour;
IV. Psychology of the individual; and
V. Historical and Scientific foundations of psychology.
- The program includes graduate level instruction in the foundations of professional psychology, including:
• Assessment and Evaluation;
• Intervention and Consultation;
• Scientific and Professional Ethics; and
• Research Design and Test Construction.
The program includes training and evaluation of competence in interpersonal relationships through coursework, practica, or internship.
The program requires practicum training of at least 600 hours, of which at least 300 hours are devoted to direct, face-to-face patient/client contact, and at least 150 hours consist of supervision. Supervision must be by practitioners who are registered to practice psychology in the jurisdiction in which the services are provided.
The program requires a pre-doctoral internship of at least 1500 hours. The pre-doctoral internship must be approved by the program and must be completed after the practicum training and before the doctoral degree is conferred. Supervisors of the pre-doctoral internship must be practitioners who are registered to practice psychology in the jurisdiction in which the services are provided.
The Appellant’s Qualifications
[13] The Appellant acknowledges that he has not met the formal requirements as his doctoral program was not accredited.
[14] However, he claims that his education and training are such that he more than qualifies to work as a psychologist under supervision and he included a plan for further training under the supervision of a registered psychologist.
[15] The Appellant has completed thousands of hours of work under the supervision of registered psychologists in Ontario. This includes working with federally incarcerated sexual offenders, collecting data for research studies and assessment purposes and assisting and co-facilitating treatment groups with psychologists. It also includes assessment and treatment as well as consultation and training for prison and other services worldwide as director of research and training for Rockwood Psychological Services between 2002 and 2013. He has also made extensive contributions to the profession by way of publications, peer reviewed articles, training manuals and presentations both national and international.
[16] At no time prior to submitting his application in 2015 did the Appellant have reason to believe the regulation was about to change.
[17] The Registration Committee of the College (“the Committee”) reviewed his application.
[18] The College concluded that the Appellant’s program was not equivalent to a doctoral program accredited by the Canadian Psychological Association as the program did not meet the above conditions.
[19] The Committee did not factor in any education or experience obtained outside of the Appellant’s program.
[20] The Committee therefore directed the Registrar of the College to refuse to register the Appellant as a psychologist in Ontario.
The Board’s Decision
[21] The Appellant sought review of this refusal by the Board.
[22] The Board can direct the Registrar to issue a certificate of registration if the Applicant substantially qualifies for registration and the panel of the Committee has exercised its powers improperly.
[23] The Board may not issue such an order if an Applicant has not met a non-exemptible requirement.
[24] The Board held that it had no ability to look at any education or experience outside the scope of the program. Since the Appellant could not demonstrate that his considerable experience under the supervision of registered psychologists was done within his doctoral degree program, the Board concluded that he did not meet the requirements set out in the regulation and the factors articulated by the Committee, all of which focus on the program itself.
[25] The Board did not find the Guidelines binding but did find them of assistance in reviewing the requirements of an equivalent program. The Board held that they were within the ambit of the regulatory provision as indicators of equivalency to an accredited program.
[26] The Board therefore confirmed the decision of the Committee to refuse to issue a certificate of registration.
[27] The Board noted however that,
a. “the ability to augment educational qualifications would serve the public interest insofar as it would enable individuals, who have chosen psychology as their profession and have achieved doctoral degrees in the field of psychology to become registered without having to obtain a second doctoral degree in psychology in order to comply with the College’s new requirement” and
b. “discretionary program augmentation would allow for greater diversity of psychological skills and expertise within the profession of psychology while assuring equivalency to the standards expected in providing clinical services as a registered member of the College”.
[28] The Appellant appeals the Board’s decision to this Court.
THE ISSUE:
[29] The issue to be decided is the reasonableness of the Board’s decision that the Appellant’s program did not meet the requirements set out in Regulation 74/15 as it was not equivalent to a psychology program accredited by the Canadian Psychological Association.
STANDARD OF REVIEW:
[30] The standard of review is reasonableness.
[31] The issue at the heart of this appeal concerns the Board’s interpretation and application of Regulation 74/15. Reasonableness is the standard that applied to a review of a tribunal’s “own statute or statutes closely connected to its function, with which it will have particular familiarity”. (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 54 and Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Federation, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 30.)
[32] This Board is a specialized tribunal with expertise to review the evidence presented in a review of a registration application. (Ahmed v. Ontario (Health Professions Appeal and Review Board), 2011 ONSC 4217 (Div Ct.) at para. 4, and Barbosa v. Ontario (Health Professions Appeal and Review Board), 2012 ONSC 1761 at paras. 25-27 (Div Ct.))
[33] The Board is therefore entitled to deference in respect of its determinations of fact but also its decision. Where the decision is supported by reasons that can withstand a somewhat probing examination, the Court should not intervene. (Sigesmund v. Royal College of Dental Surgeons, [2003] O.J. No. 1806 (Div. Ct.) at para 6.)
[34] A decision with be found to be unreasonable only if there is no line of analysis within the available reasons that could reasonably lead the tribunal from the evidence to the conclusions reached. (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011], S.C.J. No. 62, at paras. 12 to 14.)
THE POSITIONS OF THE PARTIES:
The Appellant’s Position
[35] The Appellant claims the Board’s decision was fundamentally unfair as:
a. He would have been registered as a psychologist with supervised practice had he obtained his PhD outside of North America as the requirements for foreign graduates are less stringent than for those educated in North America;
b. When the Appellant obtained his PhD in 2010, he had an avenue available to him to pursue registration. However, when the relevant regulations changed in 2015, he was denied registration. The Board noted that the Appellant “like many of his colleagues, may well have qualified for registration”; and
c. The ability to augment serves the public interest and the inability to augment is only set out in the guidelines, not the wording of the regulation itself.
[36] The Appellant claims he should therefore be permitted to augment his education and experience to meet the requirements for supervised practice. Instead, the College has suggested he must complete a second PhD.
The Board’s Position
[37] The Respondent Board takes no position on the merits of the appeal but submits that, as no party has suggested that the Committee exercised its powers improperly, the Court has no power to order the Registrar of the College to register the Appellant.
The College’s Position
[38] The Respondent College takes the position that the Appellant’s application was properly refused as he did not satisfy the non-exemptible requirements for registration because he did not complete a doctoral degree from a program equivalent to a program accredited by the Canadian Psychological Association within the meaning of the Act.
ANALYSIS AND CONCLUSION:
The Purpose behind the Regulation: The Duty to Protect the Public
[39] The purpose behind registration requirements is to protect the public by ensuring that individuals who are accepted as members of the College have met the professional standards required by the province. (Sabbagh v. College of Psychologists of Ontario, [2011 1311 (ON HPARB)] at para 71.)
[40] Section 3 of the Regulated Health Professions Act, 1991, SO 1991, c 18 (“RHPA”), provides that it is the duty of the Minister of Health and Long-Term Care to ensure that the health professions are regulated and coordinated in the public interest. Section 2.1 of the Code provides that it is the duty of the College to work with the Minister to ensure, as a matter of public interest, that Ontarians have access to adequate numbers of qualified, skilled and competent regulated health professionals.
[41] Pursuant to its mandate to protect the public interest, the College is responsible for establishing and maintaining standards of registration and practices that are transparent, objective, impartial and fair.
[42] The Board in this case noted that, “when considering an application for professional registration, unless there is a public interest that warrants a restrictive interpretation of provisions regulating entry into a profession in Ontario, the interest of an individual to practice a profession should prevail.” (L.M. v College of Psychologists of Ontario, 2017 61847 (ON HPARB)).
Analysis of the Board’s Interpretation of the Regulatory Provision
[43] The question for the Board to decide was whether the Appellant’s program is equivalent to a program accredited by the Canadian Psychological Association within the meaning of the Regulation. It is not to decide whether the regulation is reasonable.
[44] At the hearing, the Appellant pointed out that the Office of the Fairness Commissioner recommended in its report of February 5, 2014, prior to the current regulatory provision coming in to force, that the College should “allow Appellants to augment/upgrade their education so that it is equivalent to a degree that is acceptable to the College.” The Regulation does not reflect this recommendation.
[45] The Board noted the Commission’s recommendation and articulated its own concerns about the fairness of the provisions in the Regulation as follows:
a. Given the Appellant’s experience and education outside the scope of this PhD program, the public interest did not seem to be served by refusing to allow his registration subject to supervision by a registered psychologist;
b. The provision in the new regulation is problematic as it does not give the Committee or the Board the discretion to take into account an Appellant’s actual education or experience but rather limits it to the education or experience obtained within their PhD program [emphasis added]; and
c. The Appellant’s education and experience would in all likelihood have satisfied the Committee under the prior guidelines.
[46] Having articulated these concerns, the Board concluded that it could not override the requirements in the current regulation pertaining to non-exemptible education requirements for registration. It held at paragraphs 47, 48 and 51 that,
While the Applicant has substantial supervised experience over the years, and while he is prepared to augment his doctorate with additional supervision, the regulatory provision requires equivalency of a doctoral program. As the Applicant has not been able to link supervised practice experience and pre-doctoral internship to his doctoral program, it is not possible to include such elements as part of his doctoral program in an equivalency assessment.
If the Applicant had been able to demonstrate that his extensive experience under the supervision of registered psychologists had somehow been recognized within his doctoral degree program as equivalent to a practicum and internship, then the Applicant might have satisfied the onus showing he qualified under the current regulatory standards.
Given the Board’s finding that the Appellant’s program is not equivalent based on criteria 12 and 13 related to practice and internship [in that his program did not contain the requisite number of practicum training or internship hours], the Board will not further address other aspects of the Appellant’s doctoral program in relation to equivalency criteria employed by the College.
[47] The Board is a specialized tribunal that was interpreting its home regulatory provisions. The Board provided a line of analysis that lead it to its conclusions. Its decision is therefore entitled to deference in respect of its determinations of fact and its decision.
[48] The Board reasonably interpreted the word “psychology program that is considered ….to be equivalent to a program…..” to mean that, notwithstanding its concerns about fairness, the Regulation required a comparison of the Appellant’s PhD program and a psychology program accredited by the Canadian Psychological Association or by another approved accrediting body.
Conclusion
[49] We agree with the concerns voiced by the Board that:
a. It is in the public interest and the interest of fairness to registrants to review the actual education and experience not just the requirements of their PhD program to ensure that their overall education and experience meet the expectations of the College;
b. The Fairness Commissioner has suggested the process is not fair;
c. The Appellant would likely have met the requirements in existence at the time he obtained his PhD as the requirement prior to 2015 was that the doctoral degree be from a program of study “with content that is primarily psychological in nature as required in the guidelines”;
d. If the Committee had the discretion to obtain experience and/or pursue further education outside the program to achieve equivalency, this would allow for greater diversity of psychological skills and expertise within the profession of psychology while assuring equivalency to the standards expected in providing clinical services as a registered member of the College;
e. The ability to augment educational qualifications would enable individuals who have chosen psychology as their profession and have doctoral degrees in psychology, to demonstrate that they meet the requirements of the College without having to obtain a second doctoral degree in psychology;
f. These modifications to the existing regulatory requirement are consistent with the legislative mandate to protect the public by ensuring that members have met the requisite professional standards;
g. The Appellant holds verifiable qualifications including a PhD in psychology, extensive experience, and significant national and international contributions to learning in psychology, yet cannot qualify under the 2015 Regulation to become a registered as a psychologist with the College (though he may well have qualified under the Regulation extant at the time he earned his PhD); and
h. The Regulation may create an unintended advantage to those who obtained their degrees outside of Canada and the United States as they may experience more flexibility in determining whether their degree is “substantially similar” to an accredited program in Canada or the United States.
[50] Moreover, we understand the Appellant’s frustration that the Board’s finding that he does not meet the requirements of the new Regulation (as some of his knowledge and experience were obtained outside the scope of his PhD program), means that he is required to complete another PhD program.
[51] However, the wording of section 12 of Regulation 74/15 is that “a program” must be accredited or equivalent.
[52] The word “program” is not a defined term. However, it is always used in the singular (“a program” or “the program”). The Board’s interpretation that those words refer only to the PhD program the Appellant was enrolled in, is reasonable.
[53] In this proceeding neither the Board nor this Court has the authority to overturn the Committee’s decision because the Regulation is not reasonable or fair. Moreover, given the definition of program, this court cannot consider the Appellant’s actual education and or experience, outside of his doctoral program to determine whether his qualifications are equivalent. The 2015 requirements set out in section 12 of Regulation 74/15 are “non-exemptible” and they refer to “a psychology program that is … equivalent [to one accredited by the Canadian Psychological Association or another accrediting body]”.
[54] The fairness of the Regulation can only be addressed by the legislature.
[55] For these reasons the Appeal is dismissed.
[56] It is agreed that under the circumstances, there will be no order as to costs.
Thorburn J.
I agree
Marrocco A.C.J.S.C.
I agree
D. Edwards J.
Date of Release: October 23, 2018
CITATION: Marshall v. College of Psychologists of Ontario, 2018 ONSC 6282
DIVISIONAL COURT FILE NO.: 627/17
DATE: 20181023
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Marrocco A.C.J.S.C., Thorburn and D. Edwards JJ.
BETWEEN:
LIAM MARSHALL Appellant
– and –
THE COLLEGE OF PSYCHOLOGISTS OF ONTARIO
– and –
THE HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondents
REASONS FOR JUDGMENT
Released: October 23, 2018