Court File and Parties

CITATION: Mattar v. The National Dental Examining Board of Canada, 2020 ONSC 403

DIVISIONAL COURT FILE NO.: 463/18

DATE: 20200224

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Aitken, Pattillo, and Penny JJ.

BETWEEN:

DR. IRINIE MATTAR Applicant

– and –

THE NATIONAL DENTAL EXAMINING BOARD OF CANADA Respondent

COUNSEL: Gary Srebrolow, for the Applicant Monica Song, for the Respondent

HEARD at Toronto: January 15, 2020

Aitken J.

Nature of Proceeding

[1] Dr. Irinie Mattar (“Mattar”) seeks judicial review of two decisions taken by the National Dental Examining Board of Canada (“NDEB”) which resulted in Mattar failing the Assessment of Clinical Skills for the third and final time. Successful completion of this assessment is required in order to be admitted to the practice of dentistry in Canada/Ontario via the NDEB Equivalency Assessment Process.

[2] Mattar, who was licensed to practice as a dentist in Egypt, came to Canada with her family in 2007. Hoping to qualify as a dentist in Canada, Mattar took part in the NDEB Equivalency Assessment Process. This involved three assessments: the Assessment of Fundamental Knowledge (“AFK”), the Assessment of Clinical Judgment (“ACJ”), and the Assessment of Clinical Skills (“ACS”). Candidates are given three opportunities to pass each assessment. Mattar passed the AFK on her third attempt. She passed the ACJ on her first attempt. She failed the ACS on all three attempts, the last attempt being on June 3-4, 2017.

[3] The day after the ACS in June 2017, Mattar launched a Compassionate Appeal pursuant to NDEB’s By-Law 24.00. She did not yet know the results of the ACS, but she feared that she had failed. That appeal was denied by the Executive Committee of the NDEB on July 7, 2017.

[4] On July 11, 2017, Mattar learned that she had failed the ACS. Mattar appealed the results under NDEB’s By-Law 22.00. In a decision released on December 20, 2017, the NDEB Appeals Panel upheld the overall decision failing Mattar on the ACS.

[5] Mattar seeks the following orders on this judicial review:

• An order in the nature of certiorari setting aside the failing grading of the third ACS result;
• An order in the nature of certiorari setting aside the compassionate appeal decision;
• An order in the nature of certiorari setting aside the regular appeal decision;
• In the alternative, an order in the nature of certiorari compelling the NDEB to remit this matter to another appeals panel, in order to hold a Special Appeal Hearing as a result of a finding of a procedural irregularity on a prima facie basis with respect to the administration of the ACS of such significance that it might change Mattar’s “fail” to a “pass”;
• In the further alternative, an order in the nature of certiorari compelling the NDEB to void the results as a result of a finding that there were circumstances in the administration of the ACS beyond the control of Mattar that disadvantaged her and/or prevented her from demonstrating her ability during the ACS and to provide Mattar with another attempt to take the ACS; and/or
• In the further alternative, an order in the nature of certiorari compelling the NDEB to conduct a Post Evaluation Review and to provide reasons regarding same and in doing so, to grant Mattar particular attention.

Factual Background

Statutory and Assessment Framework

[6] The NDEB is a corporation created by a private act of Parliament, the National Dental Examining Board Act, S.C. 1952, c. 69 as amended by S.C. 1973, c. 55 (“the Act”). Under s. 6 of the Act, the purposes of the NDEB include: (1) to establish qualifying conditions for a single national standard certificate of qualification for general practitioner dentists, and (2) to ensure that the rules and regulations governing examinations will be acceptable to all participating licensing bodies and provide for the conducting of examinations in a manner fair and equitable for all concerned.

[7] To practice general dentistry in Canada, one must be the holder of an NDEB Certificate of Qualification. In order to get this Certificate of Qualification, one must pass the NDEB’s Written Examination and the Objective Structured Clinical Examination, collectively called the Certification Examinations.

[8] There are three ways in which one may qualify to take the Certification Examinations: (1) by virtue of having graduated from an “Accredited Program” in dentistry; (2) by virtue of having graduated from a “Non-Accredited Program” in dentistry and successfully completed the NDEB Equivalency Assessment Process; or (3) by virtue of having graduated from a “Non-Accredited Program” in dentistry and successfully completed a recognized Qualifying/Degree Completion Program. A Qualifying/Degree Completion Program is designed to upgrade the knowledge and skills of dental graduates. Virtually every student enrolled in a Qualifying/Degree Completion Program requires two years to complete the requirements of the program.

[9] The NDEB Equivalency Assessment Process consists of the three assessments referred to above. That was the route chosen by Mattar. She had previously applied to, but had not been accepted into, any Canadian dental schools. Her evidence is that, even if she were now accepted into an Accredited Program in Dentistry, she would not have the financial resources to attend. According to Mattar, she has spent approximately $120,000-$150,000 to date for preparation, tutoring expenses, equipment, and NDEB examination fees to pursue certification through the Equivalency Assessment Process, and she has run out of sources of income for further dental education or training. Thus, much was at stake in the decision rendered by the NDEB to fail Mattar on the ACS for the third time.

ACS Evaluation

[10] The ACS consists of 12 clinical tests that are performed over two days. Each clinical test is assigned one of four overall grades: A+, A, D or E, determined through an analysis of the grades assigned on the sub-categories making up each clinical test. In order to pass the ACS, a participant needs grades of 8 A+/As and no Es, or 9 A+/As and one E. Examiners are required to provide reasons for any grades less than A+ given on each sub-category making up each clinical test. This information is given to the participants with their overall results.

[11] As outlined in the Affidavit of the current Executive Director and Registrar of the NDEB, there is a very comprehensive training and calibration process in place for the ACS to ensure consistency and fairness in the evaluation process. One aspect of this is the Post Evaluation Review. After all evaluations are completed, the Chief Examiner, Assistants to the Chief Examiner, and other selected experienced Evaluators review all the evaluations with particular attention being paid to participants who have received scores within close proximity to the passing score.

Events at the June 3-4, 2017 ACS

[12] Prior to June 3, 2017, participants in the ACS were given a lengthy document entitled “Assessment of Clinical Skills 2017 Protocol” which outlined in great detail what the participants could expect during the assessment. As well, they were given a document reviewing frequently asked questions. Included in these documents were details about the schedules for Day One and Day Two of the ACS, the procedures the participants would have to perform, the equipment and supplies the participants would have to supply, the equipment that would be supplied for the participants, and the grading criteria. Of particular relevance to the facts in this case were the following instructions given to participants in these documents:

• Participants must notify Invigilators immediately if they experience any problem with the supplied equipment, including the typodonts, which are working models of the teeth and gums.
• The Provisional Crown Restoration requirement must be completed on the morning of Day Two. The provisional crown must be submitted by 11:00 a.m. except for participants who have a rubber dam application time on the morning of Day Two. Those participants must submit the provisional crown by 11:45 a.m. [This applied to Mattar.]
• Participants must stop working at the indicated ending time. Participants must exit the clinic when asked to by Invigilators.
• The ACS includes 30 minutes of extra time to compensate for short time delays. A time extension will be given only if time delays total over 30 minutes.
• Participants will be provided with a Participant Communication Form, which may be used by participants to communicate any issues they may have encountered during the ACS to the ACS Examiners.

[13] An orientation took place at 8:00 a.m. on Day One, during which time power point slides and a Participant Orientation Handout were used to reinforce information previously given in the Protocol. Participants were instructed to carefully examine their typodonts and other equipment during the 30-minute set-up period at the beginning of each day and to advise the Invigilator of any pre-existing damage to teeth or gingiva (gum tissue) prior to the commencement of the day’s work. Pursuant to standard instructions given to Invigilators, the Invigilators were required to inspect each participant’s typodonts for pre-existing damage during the 30-minute set-up period. Invigilators were required to have a discussion with each participant about the acceptability of his or her typodont. If a participant agreed with the Invigilator about the acceptability of the typodont, the Invigilator signed the Participant’s Identification Card. If a participant disagreed with the acceptability of the typodont, the Invigilator was required to note this in the Invigilator’s Notes for the participant. If the Invigilator confirmed that there was an irregularity, the participant’s typodont was replaced. If a pre-existing problem was not brought to the attention of the Invigilators during the set-up period, then any problems with the typodont subsequently raised by the participant were deemed to have arisen while in the participant’s care and control.

[14] On Day Two, participants were given the same 30-minute set-up period during which they were to bring to the attention of the Invigilators any pre-existing problems with their typodont. Additionally, on Day Two, participants were advised that, for the provisional restoration on tooth #2.3, they were permitted to make a slight modification to the preparation on that tooth and the neighbouring tooth.

Mattar’s Initial ACS Results

[15] Initially, Mattar received four grades of A+ or A, four grades of D, and four grades of E on the June 2017 ACS. After the regular appeal process, one of Mattar’s D grades (for “Record of Procedures”) was changed to an A grade. Thus, after the regular appeal process, despite one of Mattar’s grades moving to an acceptable level, she still had insufficient grades to be assigned a pass on the overall assessment.

[16] Mattar received the following marks on the twelve clinical tests:

• Day One:
  • Class II Amalgam Restoration – E
  • Class III Composite Resin Preparation – A
  • Class II Composite Restoration – D
  • Metal-ceramic Preparation – E
  • Endodontic Access – A
• Day Two
  • Class IV Composite Resin Restoration – E
  • Class II Amalgam Preparation – D
  • Full Metal Crown Preparation – A
  • Provisional Crown Restoration – E
  • Record of Procedures – D (subsequently changed to A)
  • Rubber Dam Application – D
• Infection Control – A+

[17] As a result of her receiving two E grades on Day One, Mattar would have failed the ACS regardless of how well she did on Day Two.

Compassionate Appeal

[18] By-Law 24.00 of the NDEB’s January 2017 By-laws reads:

24.01 A … Participant … who believes herself/himself to be disadvantaged either immediately before or during an … Assessment by a personal circumstance beyond the person’s control may, within one (1) week of the event beyond the person’s control occurring, submit a Compassionate Appeal to the Executive Committee and request to void the results of the … Assessment by permitting the … Participant … to withdraw from the … Assessment and grant permission to the … Participant … to register for the … Assessment at another scheduled session of the … Assessment. …

24.02 Any such request for a Compassionate Appeal … must be in writing and the … participant … must describe the event or events, which caused the disadvantage in sufficient detail to permit the Executive Committee to make a determination. The … Participant … must also … provide documentation to substantiate the basis for the Compassionate Appeal.

24.03 The Executive Committee may grant the Compassionate Appeal only if satisfied that a personal circumstance, beyond the person’s control, disadvantaged the … Participant … immediately before or during an … Assessment. The determination of the Executive Committee shall be final.

[19] On June 5, 2017, one day after the ACS, Mattar submitted a Compassionate Appeal request in the form of the following email:

On my second day of exam, when I checked the typodont as we were advised by the invigilators at the beginning of exam, I noted a big gingival cut related to tooth #2.3 on its lingual side and I asked the invigilator (Dr. Gille) if he can change it but he refused and he said that it’ll not affect the provisional crown and signed that the typodont was ok. Since I had my rubber dam at 9,00 a.m. so I had to submit my provisional crown at 11,45 a.m. so I was keeping trying to get an unbroken provisional crown from 9,30 till 11,30 a.m. as the temporary material keeps getting stuck in the gingival cut and leads to breakage of the provisional crown in that specific point. I called the invigilator many times for this circumstance to show him what happens but he still refused to change the typodont although it was obvious from all these broken crowns on that specific spot. After a long nerve-wracking devastating time, I finally managed to get an intact one but unfortunately it was time to submit it so I asked the invigilator just to give me a couple minutes just to remove the excess interproximally and submit it but he refused although I tried to explain many times that the delay was not because of me but because of situation out of my control. He insisted that I have to submit it immediately, if not he’ll consider that I didn’t submit it at all. I was asking him to give me a minute till collecting the provisional crowns from other candidates but he didn’t look at me. I was totally surprised because he was keeping my provisional crown with him until finishing all the other candidates and he asked me to wait 5 minutes so he collected all others then return back to my cubical to sign my paper. At that moment I had a nervous breakdown, I was crying so they asked me to come outside to calm down. I was totally shaken and I couldn’t stop crying because I felt that I was not treated fairly because they changed the typodonts for many other candidates with similar situations. Due to that situation which ruined my whole second day, I was panicking till the end of the exam, my whole body was shaking uncontrollably. At the end of the exam, the same doctor … offered me extra 15 minutes that was useless now because I asked only for 2 minutes before I submitted the unfinished crown.

[20] Mattar stated that, due to these unfair circumstances that affected her ability to complete the ACS the way that she normally would do, she would like the results of the ACS voided.

[21] On June 15, 2017, the NDEB acknowledged receipt of Mattar’s request for a compassionate appeal to void her results from the June 2017 ACS. The NDEB advised Mattar that the Day 1 and Day 2 Participant Communication Forms completed by Mattar, the Invigilator Notes completed by the invigilators on those days, and the Day 1 and Day 2 Time Delay forms would be forwarded to the Executive Committee for review during its next meeting. Mattar was advised to submit any further information or submissions that she wished to rely on no later than June 19, 2017. She did not submit any further information or documentation on or before June 19, 2017.

[22] On Day 2, Mattar said the following on her Participant Communication Form:

The temporary crown had a lot of problems and I asked for one extra minute only to adjust it or at least let me be at the end of the line so that I can check the contact but no one was listening.

At the beginning of the day, the gingiva surrounding the crown was too under the gingival. When I asked to replace my dentoform in order to make the crown, the invigilator refused, that is why it was impossible for me to make a crown.[^1]

[23] Mattar made no mention of there being a big gingival cut near tooth #2.3 on which the provisional crown was to be placed.

[24] The Invigilator Notes from Day 2 stated the following:

The candidate refused to put her temporary crown back on. Michel Moreau calmly asked her a few times to return it. I had to intervene and she still refused to do so and kept asking for another minute. She even tried touching it up again in front of us. I mentioned to her that it would be in her best interest to follow instructions. Given that she was making requests in a raised voice, disturbing the other candidates, I asked her to step out so we could talk without disturbing the rest. She replaced her temporary crown while still asking for another minute. We mentioned to her that it was impossible for us to do so. She kept insisting for about 10-15 minutes with Dr. Milot while I was getting an observer from the NDEB (Danielle Joly). We explained to her and asked her to continue her assessment. I gave her an extra 15 minutes for time delay since I was the one who asked her to step out. From 11:46 to 12:00.[^2]

[25] On July 7, 2017, Mattar was provided with the following decision of the Executive Committee denying her Compassionate Appeal:

The Committee reviewed the documentation provided including the Participant Communication Forms and invigilator notes. The participant claims there was a “big cut” on the gingiva which impacted his/her ability to complete the provisional crown requirement in the time allotted. The documentation from the Assessment shows that the Invigilators followed NDEB procedures by signing the ID card indicating the typodont was acceptable. The Participant Communication Form does not indicate a cut in the gingiva, but does mention that “the gingival was too under the gingiva”. Therefore, the Committee concluded that there were no conditions that disadvantaged the participant or prevented him/her from performing the provisional crown restoration requirement. The Committee also noted that there was evidence that the participant was disruptive during the Assessment and did not follow regulations regarding submitting the provisional crown restoration requirement.

[26] This notice to Mattar was identical to the entry regarding Mattar’s appeal in the Minutes of the Executive Committee on the date when the Compassionate Appeal was considered.

[27] On July 10, 2017, Mattar emailed the NDEB, asking for a reconsideration of her Compassionate Appeal. For the first time, she mentioned that she had been suffering from a severe, chronic migraine and that, after the incident with the provisional crown, she had suffered a severe migraine attack that ruined the remaining procedures on Day 2. She volunteered to provide further documentation regarding her health issues. On July 11, 2017, the NDEB advised Mattar that the Executive Committee had considered all of the information that had been provided for the purpose of her Compassionate Appeal, and the decision of the Executive Committee to deny the Compassionate Appeal was final. There was no provision for a reconsideration of that decision.

Regular Appeal under By-Law 22.00

[28] Being unsuccessful on the Compassionate Appeal, on October 10, 2017, Mattar commenced an appeal under By-Law 22.00 dealing specifically with appeals of the ACS. The Appeals Committee of the NDEB has the authority to uphold an appeal if, on consideration of the appeal record, a Panel of the Appeals Committee determines that there was a mistake of fact of such significance that it would have altered the appellant’s fail (By-Law 22.02). If, on the other hand, there was no mistake of fact of such significance that it could have altered the appellant’s fail, then the appeal shall be dismissed (By-Law 22.03). In both cases, the appeal is final. During oral submissions, Mattar’s counsel advised that Mattar was not relying on these provisions.

[29] If, on a consideration of the appeal record, the Appeals Panel determines, on a prima facie basis, that there may have been a procedural irregularity with respect to the administration of the ACS of such significance that it might change the appellant’s fail to a pass, then the appellant’s results of the ACS will be referred to a Special Appeal Hearing (By-Law 22.04). The Appeals Panel at the Special Hearing can uphold or dismiss the appeal, and its decision is final (By-Law 22.05). Mattar is relying on this provision.

[30] Finally, on an extraordinary basis, the Appeals Panel may, in its sole discretion, void the results of an ACS if there were circumstances in the administration of the ACS beyond the control of the appellant that prevented that person from demonstrating their ability during the ACS (By-Law 22.06). The appellant then has the opportunity of taking the ACS at the next available session. It is this route to a successful appeal on which Mattar relied before the Appeals Panel and on which she placed primary emphasis before this court.

[31] In lengthy written submissions dated October 10, 2017, Mattar’s counsel argued that there were several circumstances and procedural issues beyond Mattar’s control which prevented her from being able to demonstrate her skills, including significant defects with the typodont, the unfortunate misunderstanding and conflict that this caused with the invigilator, and the subsequent medical issue Mattar experienced during Day 2, namely a severe migraine headache resulting in shaking hands and blurry vision. According to Mattar’s counsel, these special circumstances called out for the results of the ACS to be voided on an extraordinary basis.

[32] In accompanying submissions, Mattar asked that her grades in regard to the Metal Ceramic Crown Preparation (E), the Class II Amalgam Restoration (E), the Class II Composite Resin Restoration (D), the Class IV Composite Resin Restoration (E), the Class II Amalgam Preparation (D), and the Record of Procedures (D) be re-evaluated. She provided specific reasons as to why she believed her grades should be higher, and she provided photographs of the typodont she used and the dental work she had completed during the ACS. Included in the package of documents was a letter dated July 13, 2017, from Mattar’s family physician summarizing what Mattar had told her about the migraine she had experienced on the morning of June 4, 2017.

[33] On December 20, 2017, Mattar was provided with the Report of the three-person Appeals Panel dated November 26, 2017. In considering Mattar’s appeal, the Appeals Panel had the following documents before it: Mattar’s submissions, the Report of Results for the grades under consideration, typodonts used by Mattar with all assessment teeth in position, Participant Communication Forms, Invigilator Notes, Time Delay Forms, Record of Procedure, Record of Procedure Grading Checklist, Identification Card for Mattar, and the documents relating to the Compassionate Appeal.

[34] Specifically in regard to the Provisional Crown Restoration, for which Mattar had received an E grade, the Appeals Panel found as follows:

The Appellant submitted that there was an issue of a “large cut or deepening on the gingiva” palatal to tooth 2.3. The Appeals Panel noted that during the set-up prior to the start of the assessment participants are required to inspect their typodont and notify an invigilator if there are any irregularities. Towards the end of the set-up time invigilators check with each participant regarding typodont irregularities. The signature of the invigilator on the Identification Card is evidence that there were no irregularities on the typodont reported by the Participant prior to beginning the Assessment on Day 2. In addition, the Appeal Panel inspected the typodont. The damage to the gingiva palatal to tooth 2.3 is so significant that it is not credible that it was not reported to the Invigilator who checked the box “pas d’irrégularities sur le dentoforme” and signed beside the check mark. The Appellant’s comment in the Participant Communication Form does not contradict the finding of credibility. This determination is reinforced by the fact that an Invigilator is not called upon to conduct this examination until after NDEB staff have assembled the typodonts and the Chief Examiner has inspected the typodonts. The significant damage to the gingiva palatal to tooth 2.3 could only have happened subsequent to an examination of the typodont by the Participant, the NDEB staff, the Chief Examiner and confirmed by the Invigilator. At this point, it would have been in the care and control of the Appellant.

[35] Mattar had also raised on the appeal that there was an inherent defect in tooth #2.3 upon which the provisional crown was to be fitted. The Appeals Panel noted that, at the commencement of Day 2, participants were officially notified that they could make slight modifications to the preparation on tooth #2.3 and/or the neighbouring tooth, and Mattar had been at liberty to do so if she deemed it necessary.

[36] The Appeals Panel noted that it was aware that Mattar had made a request for a Compassionate Appeal due to medical issues that happened during the ACS, and that appeal had been denied. As a result, the Appeals Panel did not consider medical issues when determining the appeal under By-Law 22.

[37] The Appeals Panel went on to review in detail each of the other grades that Mattar had asked to be reconsidered. The Appeals Panel summarized Mattar’s submissions and then provided its own detailed technical reasons to support its decision regarding the particular sub-test in question. The Appeals Panel confirmed all the original evaluations, except that in regard to Record of Procedure. It changed that evaluation from a D grade to an A grade.

[38] In conclusion, the Appeals Panel determined that there was no mistake of fact of such significance that it could have altered Mattar’s Fail, and that examiners conducted the ACS in accordance with the procedures established by the NDEB. Consequently, Mattar’s appeal was dismissed, and her results remained a Fail.

Standard of Review

[39] Decisions of the NDEB are subject to judicial review.[^3]

[40] There is a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions, other than a review related to a breach of natural justice and/or the duty of procedural fairness (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 16 and 23). Circumstances in which this presumption can be rebutted[^4] are not present in this case (para. 17). Therefore, the standard of review of NDEB decisions is reasonableness.

Duty of Procedural Fairness

[41] It was not in dispute that, as a matter of procedural fairness, reasons were required to be given to Mattar for the decision taken by the Executive Committee respecting the Compassionate Appeal and by the Panel of the Appeals Committee respecting the regular appeal. This conclusion is supported by the analysis in Baker v. Canada (Minister of Citizenship & Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-22, 39-43, and in Vavilov, at paras. 77-81, regarding the requirement for administrative decision-makers to provide reasons. The circumstances in this case militating in favour of an obligation on the part of the Executive Committee and the Appeals Panel to provide reasons to Mattar are the following:

• Under By-Law 24.00 and By-Law 22.00, the participant seeking an appeal is invited to make submissions in writing setting out the grounds for requesting the appeal and the underlying facts supporting the appeal. The Executive Committee under By-Law 24.00 and the Appeals Panel under By-Law 22.00 are obliged to consider those submissions.
• Although the decisions rendered by the Executive Committee under By-Law 24 and the Appeals Panel under By-Law 22 are final and not subject to further appeal, they are subject to judicial review. A reviewing court requires reasons in order to give proper consideration to an application for judicial review (Vavilov, at para. 81).
• The decisions rendered by the Executive Committee and the Appeals Panel in this case were very important to Mattar. They closed off one avenue to her becoming a qualified dentist in Canada.
• Mattar legitimately expected the Executive Committee and the Appeals Panel to consider all the information and documentation she submitted in support of the appeal that the decision-maker was considering.
• The NDEB set out in detail the Compassionate Appeal procedure and the regular appeal procedure in their By-Laws. Although no hearing is contemplated under By-Law 24.00 or By-Law 22.00 (aside from a Special Appeal Hearing in limited circumstances under 22.04-22.05), comprehensive written submissions are invited, criteria for a successful appeal are identified, and an undertaking to give careful consideration to all of the evidence submitted to the decision-maker can be inferred.

[42] As observed by L’Heureux-Dubé in Baker, at para. 39:

Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review … Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given …

[43] The Supreme Court of Canada in Vavilov, at para. 81, instructed that:

… where reasons are required, they are the primary mechanism by which administrative decision makers show that their decisions are reasonable – both to the affected parties and to the reviewing courts. It follows that the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable.

Reasonableness Review of Executive Committee Decision on the Compassionate Appeal

[44] Vavilov provides guidance as to the nature of a reasonableness review of an administrative decision. The focus of a reasonableness review must be on the decision actually made by the decision-maker, including both the decision-maker’s reasoning process and the outcome (para. 83). The reviewing court considers only whether the decision made by the administrative decision-maker – including both the rationale for the decision and the outcome to which it led – was unreasonable (para. 83). Where written reasons are provided by the decision-maker, the court must start its inquiry into the reasonableness of a decision by examining the reasons so as to understand the reasoning process followed by the decision-maker in arriving at its decision (para. 84).

[45] As stated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47, reasonableness “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. As emphasized in Vavilov, at para. 86, where reasons for a decision are required, it is not enough for the outcome of a decision to be justifiable – the decision must also be justified by way of those reasons to those impacted by the decision. And further at para. 98: “[w]here a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility.”

[46] The Executive Committee is a committee of experts who must make use of their technical knowledge and skills, as well as other factors, when considering Compassionate Appeals. They are not lawyers or judges who are used to writing legal arguments, briefs, or judgments. This must be kept in mind when considering the adequacy of their reasons in the context of the task facing them.

[47] That being said, the reasons provided by the Executive Committee respecting Mattar’s Compassionate Appeal contain a gap that this court cannot fill through speculation as to what the Executive Committee might have been thinking when it made its decision or through the court adding its own justification for the outcome arrived at by the Executive Committee (see Vavilov, at para. 96). Although the written reasons of an administrative body do not have to meet a standard of perfection, they do have to convey to the affected party that his or her key submissions were considered and dealt with in an intelligible and transparent fashion. As stated in Vavilov, at para. 127:

The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.

[48] In her written submissions to the Executive Committee in support of her Compassionate Appeal, Mattar made three key submissions: (1) she had been provided with a defective typodont which the Invigilators refused to replace; (2) the Invigilators refused to give her a few extra minutes to complete the provisional crown restoration; and (3) as a result of the unfair treatment she received from the Invigilators, she suffered “a nervous breakdown”. She was crying, she was totally shaken, and she was panicking until the end of the assessment. According to her, the situation with the Invigilators had ruined her whole second day.

[49] In its reasons for denying Mattar’s Compassionate Appeal, the Executive Committee explained, albeit very briefly, its reasoning process for concluding that there were no conditions relating to the typodont that disadvantaged Mattar and prevented her from performing the Provisional Crown Restoration requirement. As well, the Executive Committee advised that, on the basis of the documentation submitted by Mattar and the Invigilators, the Invigilators had conducted themselves in accordance with NDEB procedures. What the Executive Committee failed to do, however, was to make any reference to Mattar’s mental or emotional state at the time based on her belief that she had been treated unfairly and to explain why the Executive Committee did not consider her evidence in that regard sufficient to warrant success on the Compassionate Appeal. For all Mattar knows, the Executive Committee failed to take her mental health issues into account when rendering its decision on the appeal.

[50] It could be argued that, since the Executive Committee rejected Mattar’s submission that there had been a problem with the typodont and found that the Invigilators had acted appropriately, it followed that the Executive Committee must have found that whatever stress and panic Mattar experienced following the Provisional Crown Restoration test did not arise from circumstances beyond her control. But this is not the only inference that could be drawn from the Executive Committee’s reasons. It is possible that the Executive Committee did not believe Mattar when she claimed to have suffered a sort of panic attack. It is possible that the Executive Committee concluded that Mattar was simply being disruptive after not getting the extra time she wanted to complete the task. It is also possible, however, that the Executive Committee did not turn their minds to Mattar’s third submission at all. We simply do not know. Mattar was entitled to reasons which explained the basis upon which the Executive Committee declined the Compassionate Appeal due to Mattar’s alleged mental or emotional state on the second day of the ACS.

[51] The NDEB pointed to the closing line in the Executive Committee’s reasons to the effect that there was evidence that Mattar was disruptive during the assessment and did not follow regulations regarding submitting the Provisional Crown Restoration requirement. The NDEB urged the court to infer from this statement that the Executive Committee must have taken into account Mattar’s mental and emotional state following the problems she experienced with the typodont. It would be inappropriate for the court to guess at what the Executive Committee was trying to convey through this sentence in its reasons. The obligation was on the Executive Committee to make its reasoning process transparent and intelligible. It did not live up to that obligation.

[52] The Compassionate Appeal decision is set aside and Mattar’s Compassionate Appeal is remitted back to the Executive Committee for reconsideration with an expanded record to include all information and documentation relating to Mattar’s medical issues (including that relating to migraines) provided by Mattar to the Appeals Panel as part of the record on the regular appeal. Although the Executive Committee did not have any information before it regarding Mattar suffering from a migraine on June 4, 2017, Mattar subsequently provided such information to the Appeals Panel as part of the record on the regular appeal. The Appeals Panel declined to consider any evidence regarding Mattar’s medical issues on the day in question, based on the understanding that the Executive Committee had considered these issues when rendering its decision on the Compassionate Appeal. But that, of course, is not apparent from the Executive Committee’s reasons.

Reasonableness Review of the Appeals Panel Decision on the General Appeal

[53] For the following reasons, the application for judicial review of the Appeals Panel decision on the regular appeal is dismissed.

[54] The Report of the Appeals Panel was comprehensive. The Appeals Panel set out in detail the submissions, documentation, typodonts, and assessment teeth that it reviewed prior to rendering its decision. Initially, it reviewed Mattar’s criticism of the procedure followed in regard to the Provisional Crown Restoration and explained why it did not accept Mattar’s submissions that proper procedures under the NDEB had not been followed. The Appeals Panel then reviewed Mattar’s submissions respecting each individual clinical test in regard to which she was challenging the assigned grade. The Appeals Panel explained the technical reasons why it denied the appeal of six of the seven challenged test results, and why it accepted Mattar’s submissions in regard to the final one relating to Record of Procedure. The Report of the Appeals Panel met the requirements of justification, transparency, and intelligibility.

[55] Mattar argued that the Appeals Panel should have made use of By-Law 22.06, void the results of the ACS, and allow Mattar to take the ACS at the next available session. Relief under By-Law 22.06 is used only on an extraordinary basis. Whether to make use of this provision remains in the sole discretion of the Panel of the Appeals Committee hearing the appeal. The pre-condition to use of this provision is a finding that there were circumstances in the administration of the ACS beyond the control of the participant that prevented that participant from demonstrating her ability during the ACS. The Appeals Panel reviewed how the ACS had been administered on June 4, 2017 and concluded that there were no circumstances beyond Mattar’s control that prevented her from demonstrating her ability. The Appeals Panel did an adequate analysis in this regard supported by the record on the appeal, and their reasoning is clear.

[56] Mattar also argued that the Appeals Panel should have ordered a Special Appeal Hearing under By-Law 22.04. Such a hearing is ordered only if the Appeals Panel determines on a prima facie basis, after a review of the record before it, that there may have been a procedural irregularity with respect to the administration of the ACS of such significance that it might change the appellant’s “Fail” to a “Pass”. It is clear from the decision of the Appeals Panel that, in its view, there was no evidence of a procedural irregularity with respect to the administration of the ACS, let alone one of such significance that it might change the final result of Mattar’s ACS. Consequently, it saw no need to order a Special Appeal Hearing. There was adequate evidence in the record before the Appeals Panel to support this conclusion.

[57] Finally, Mattar argued that, had it not been for the problems she experienced on Day Two with the Provisional Crown Restoration and subsequent tests, she may have had only five failing grades which would have put her in the category of participant whose results would be reviewed closely, and not just cursorily, during the Post Evaluation Review after the tests had been graded and before the grades were released to the participants.[^5] This argument is pure speculation and gets no support from the record. Heading into Day Two, Mattar had two Es. These grades were reconsidered and given close scrutiny at the time of her regular appeal, and they were not changed. There was no reason to conclude that, had those grades been reviewed closely during the Post Evaluation Review, they would have been changed to passing grades. Thus, regardless of what happened on Day Two, Mattar had failed the ACS by the end of Day One.

Disposition

[58] The decision of the Executive Committee on Mattar’s Compassionate Appeal under By-Law 24.00 is set aside and the Compassionate Appeal is remitted to the Executive Committee for a reconsideration with an expanded record including all information and documentation relating to Mattar’s medical issues (including migraines) provided by Mattar to the Appeals Committee as part of the record on the regular appeal. The balance of the application for judicial review is dismissed.

[59] The parties have agreed on the issue of costs. The NDEB shall pay Mattar’s costs fixed in the amount of $12,000 inclusive of HST and disbursements.

Aitken J.

I agree

Pattillo J.

I agree

Penny J.

Date of Release: February 24, 2020

CITATION: Mattar v. The National Dental Examining Board of Canada, 2020 ONSC 403

DIVISIONAL COURT FILE NO.: 463/18

DATE: 20200224

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Aitken, Pattillo, and Penny JJ.

BETWEEN:

DR. IRINIE MATTAR Applicant

– and –

THE NATIONAL DENTAL EXAMINING BOARD OF CANADA Respondent

REASONS FOR JUDGMENT

Aitken J.

Date of Release: February 24, 2020

[^1]: English translation of original French version.

[^2]: English translation of original French version.

[^3]: Daneshvar v. National Dental Examining Board of Canada (2002), 161 O.A.C. 342 (Div. Ct.); Alizadeh v. National Dental Examining Board of Canada, 2017 ONSC 3947 (Div. Ct.); and Ibrahim v. National Dental Examining Board of Canada, 2019 ONSC 198 (Div. Ct.).

[^4]: There may be legislated standards of review or statutory appeal mechanisms. Additionally, a correctness review may be required by the rule of law for constitutional questions, general questions of law of central importance to the legal system as a whole, or questions regarding jurisdictional boundaries between administrative bodies.

[^5]: NDEB, Technical Report Assessment of Clinical Skills 2017, p. 22.