Court File and Parties
CITATION: Dr. Rashidan v. The National Dental Examining Board of Canada, 2020 ONSC 4174
DIVISIONAL COURT FILE NO.: 213/19
DATE: 20200810
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lederer, Kristjanson, J.J
BETWEEN:
DR. NAYEREH RASHIDAN
Applicant
– and –
THE NATIONAL DENTAL EXAMINING BOARD OF CANADA
Respondent
Counsel:
Gary Srebrolow and Victoria Mitrova, for the Applicant
Monica Song, for the Respondent
HEARD at Toronto: June 22, 2020
Reasons for Decision
LEDERER, J.
Introduction
[1] This is a judicial review of the refusal of the National Dental Examining Board of Canada to consider an appeal made on compassionate grounds. The Board was asked to set aside the failure of an Applicant for registration as a dentist to pass the third of three required assessments. It refused to consider the appeal. It had been filed outside the time allowed. The Board understood that it had the authority to extend the time but determined that no reasonable explanation for the delay had been provided.
Background
[2] The Applicant, Nayereh Rashidan, was trained and practiced as a dentist in Iran. She completed her dentistry degree in 1974 and obtained a specialization degree in prosthodontics in 1983. In addition to her practice, Nayereh Rashidan was a professor at Tehran University and completed a prosthodontics fellowship at the University of Florida. She came to Canada, from Iran, in 2002.
[3] Nayereh Rashidan determined that she wished to return to her career as a dentist. The program from which she had graduated was not accredited in Canada. The respondent, the National Dental Examining Board of Canada, provides options by which graduates of non-accredited programs can qualify to practice dentistry in this country. Those in this position can complete an accredited program, complete a Qualifying/Degree Completion Program, or complete the Equivalency Process offered by the Board.
[4] Nayereh Rashidan chose to proceed with the third option. The Equivalency Process consists of three "Assessments":
• the Assessment of Fundamental Knowledge,
• the Assessment of Clinical Judgement, and
• the Assessment of Clinical Skills.
[5] During February 2012, Nayereh Rashidan passed the examination that constitutes the Assessment of Fundamental Knowledge and, during June 2014, successfully completed the examination concerning the Assessment of Clinical Skills. The individuals who take part in this program are entitled to three attempts to pass each of its component parts. Nayereh Rashidan has, on three occasions (June 11, 2012, during June 2013 and June 6, 2014), taken the examination that constitutes the Assessment of Clinical Judgement. Each time she failed to obtain a passing grade.
[6] The are two forms of appeal from such failure:
• a manual re-scoring of the examination
• within one week, an individual who believes herself or himself to have been disadvantaged by personal circumstances during or before the exam, that were beyond the control of that person, can ask for what is referred to as a Compassionate Appeal.
[7] On August 7, 2018 counsel for Nayereh Rashidan delivered a letter commencing and containing submissions supporting a Compassionate Appeal concerning the failed assessments of her clinical judgement. These appeals were commenced 6, 5 and 4 years after the three assessments took place.
[8] On November 9, 2018, the National Dental Examining Board of Canada delivered its decision. It found that no reasonable explanation for the delay was provided and that the Compassionate Appeal would not be heard.
[9] This is an application for judicial review of the failure to hear that appeal insofar as it dealt with the Assessments of Clinical Judgement of June 11, 2012 and June 6, 2014. On the first occasion, in the hours before the exam, Nayereh Rashidan was advised of the serious illness of her father and on the second occasion, of her husband, both of whom were in Tehran while she was in Canada. There is no reason to doubt that the receipt of this information, just before the taking of the examination, was both difficult and disorienting. The issue raised is not as to the substance of the requested appeal but as to the delay in bringing it.
[10] At the outset of the hearing, the Court raised concerns not raised or dealt in the material. Following submissions on these issues, the Court determined to exercise its discretion and dismiss the application, with reasons to follow. These are those reasons.
Is the Ontario Divisional Court the place where this should be heard?
[11] The National Dental Examining Board of Canada is, as its name suggests, a national board, at least in the sense that it operates and has responsibility across the country. It was established, in 1952, by a federal statute, the National Dental Examining Board Act, S.C. 1952, c. 69. It is not among the federal boards, commissions or other tribunals identified in the Federal Courts Act R.S.C. 1985 c. F-7 s. 28 as those where jurisdiction to hear a judicial review rests with the Federal Court of Appeal. There are a number of cases where the Divisional Court of Ontario has heard applications seeking judicial review of this Board. The explanation is that, while the National Dental Examining Board of Canada was established through an Act of the federal parliament, the admission to the profession of dentistry is regulated at the provincial level. In Ontario that regulation is found in the Dentistry Act 1991, S.O. 1991, c. 24 and the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. On this understanding the National Dental Examining Board of Canada is not a "federal board" as that term is defined in the Federal Courts Act R.S.C. 1985. c. F-7at s. 2(1):
federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under section 96 of the Constitution Act, 1867
(Emphasis by underlining added)
[12] The authority of the National Dental Examining Board of Canada does not originate from "an Act of Parliament". Its jurisdiction and power are established through provincial legislation:
The respondent [The National Dental Examining Board of Canada] is… subject to… provincial law generally with regard to both the form and content of its decisions as to the qualification and licensing of dentists. No federal law is involved in such decisions.
[W]e think it quite clear that, at best, Parliament could do no more than vest [The National Dental Examining Board of Canada] with the capacity to receive power from other sources. The whole of the licensing and examining scheme envisaged by the [National Dental Examining Board of Canada Act], as paragraphs 7(a) and (b) make quite plain, must rely for its force and effectiveness on the appropriate action being taken by provincial licensing authorities, of whose representatives the respondent is in large measure composed. The fact that the respondent has been federally incorporated, whether by statute or otherwise, is simply irrelevant to the exercise of the "jurisdiction or powers" whose exercise the present applicant seeks to review.
(Rosenbush v. The National Dental Examining Board of Canada, 1992 14745 (FCA), 1992 CarswellNat 196, [1992] 2 F.C. 692)
[13] This explains why judicial reviews of the National Dental Examining Board of Canada, properly commenced in Ontario, would be heard and have been heard by this Court. The problem is with the jurisdiction to hear this particular matter. Nayereh Rashidan lives and, at the times material to the two assessments under review, lived in Vancouver which is to say that the authority of the Board arose not from Ontario legislation but from whatever legislative scheme existed, at the relevant time, in British Columbia. It may be, as the Board submitted, that its purpose is to establish "qualifying conditions for a national standard of dental competence for general practitioners", that "obtaining a licence to engage in the practice of dentistry in a province is generally subject to common requirements" and that these asserted factors suggest common treatment across the country. This misses the point. The authority to deal with a judicial review that arises in British Columbia is to be found in its legislation, not in Ontario. In these circumstances, why would a court in Ontario be left to respond to and consider the authority provided by a legislative scheme from British Columbia?
[14] The test to be applied in determining whether a province has jurisdiction in any given circumstance, both as between nations and provinces, is whether there is a real and substantial connection between the issue and the place (as between nations see: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 SCR 572 and as between provinces see: Airia Brands Inc. v. Air Canada, 2017 ONCA 792 and College of Optometrists of Ontario v. Essilor Group 2019 ONCA 265).
[15] In this case, it is difficult to see what connection there is between the issues and Ontario. In the affidavit sworn by Nayereh Rashidan on August 26, 2019, she identifies herself as "of the City of Vancouver, in the Province of British Columbia". On each of the three occasions that she undertook to be assessed as to her "clinical judgement" she lived in Vancouver. On the two occasions for which she seeks a "compassionate appeal", in response to being notified, first as to her father's health and second, as to her husband's, she travelled to Iran and returned to Vancouver. There is no suggestion that she intends to, or has ever indicated a desire to practice dentistry in Ontario.
[16] On being asked for submissions, both counsel proposed that the requisite connection is demonstrated by the fact that the offices of the National Dental Examining Board of Canada are located in Ontario (Ottawa) and counsel for Nayereh Rashidan added, as a second indication, that both counsel were located in this province. This is not enough to demonstrate the "real and substantial connection" the law requires. The proposition that the location of the Board is sufficient detracts from the idea that it is a national institution serving the public across the country according to the registration requirements in each province. The location of lawyers is about who acts for the parties. It does not touch on the parties themselves, or the issues at stake. It should not be that a party could influence the location of the review by the choice of counsel he, she or it makes.
[17] There is no basis for this judicial review to have been brought in Ontario. It should have been heard in British Columbia.
Does the by-law that applies allow for the extension of time for this judicial review to be commenced after one week following the conclusion of the assessment?
[18] The submission made to the Board in support of the compassionate appeals and the request that the appeals be considered even though they were commenced more than one week after the completion of each of the two assessments makes no reference to the specific form of the By-law being relied on.
[19] In his submissions to this Court, counsel for Nayereh Rashidan, in asking for the extension beyond one week, relied on the By-law in the form that was in force on August 7, 2018, the day the submission was dated. It had been adopted on October 21, 2017 and amended during January 2018 (the "2018 By-Law). The affidavit evidence filed by the Board on the judicial review application also refers to the 2018 By-Law. Under the heading "Compassionate Appeal" the January 2018 By-law provides at paragraph 23.01A:
23.01A: A Candidate, Participant or DSCKE Participant who is prevented from demonstrating his/her ability during the assessment or examination by virtue of a serious health circumstance or unanticipated extenuating circumstances beyond the control of the Candidate, Participant, or DSCKE Participant and which occurred immediately before or during the examination or assessment may, within one (1) week after the examination or assessment has concluded, submit a Compassionate Appeal to the Executive Committee and request to void the results of the Examination or Assessment by permitting the Candidate, Participant, or DSCKE Participant to withdraw from the Examination or Assessment and grant permission to the Candidate, Participant, or DSCKE Participant to register for the Examination or Assessment at another scheduled session of the Examination or Assessment. For the purpose of this By-law "immediately before" means twenty-four hours before the commencement of the Examination or Assessment.
[20] This is the section that allows for the compassionate appeal but requires that it be made within one week. Paragraph 23.04 of the January 2018 Bylaw notes:
23.04: In the event the Candidate, Participant, or DSCKE Participant submits the Compassionate Appeal after the one (1) week time period stated in By-law 23.0l(A), then the Candidate, Participant, or the DSCKE Participant must provide to the Executive Committee, together with the Compassionate Appeal submission, a reasonable explanation for not filing the Compassionate Appeal within the one (1) week time period stated in By-law 23.0l(A). If the Executive Committee is not satisfied with the explanation then, the Executive Committee will not hear the Compassionate Appeal and the Assessment or Examination will be graded without consideration of the Compassionate Appeal. The decision of the Executive Committee is final.
[21] This is the section that provides recourse if the appeal is not commenced within one week after the assessment has been concluded. While these provisions were in effect at the time the submission was made, as will become apparent later in these reasons, they were not present in the By-Law extant when the assessment was concluded or for the week thereafter.
[22] The decision of the National Dental Examining Board of Canada does not refer to the 2018 By-Law. Rather the decision refers to "By-law 24.1 (NDEB By-laws 2017)". On the judicial review application, fresh evidence introduced by the Board was that identification of the 2017 By-Law in the decision was a "typographical error". The record contains no earlier notification of this error. The Board may submit that the reference to 2017 is wrong, but the identification, in the decision, of section 24.00 as the operative section is from the 2017 By-law. In the 2018 By-Law it was section 23.00. It seems clear that the Executive Committee of the Board had the 2017 By-Law before it. This raises the concern of how far the assertion of a typographical error is being stretched. Be that as it may, a decision cannot be amended by a subsequently sworn affidavit. In the end this confusion does not matter. Section 24.04 of the 2017 By-Law referred to in the Decision of the Board is exactly the same as section 23.04 of. the 2018 By-Law.
[23] Whichever of the two by-laws the Board relied on, it was wrong to do so. The possibility of an extension did not exist at the time the assessments of the clinical judgement of Nayereh Rashidan were completed. The subsequent amendments, allowing for the extensions, did not recognize them as having any retroactive application. The 2017 By-Law has no connection to the actions taken that are relevant to any right to extend the time for the appeal. The only connection that the 2018 By-Law has, is that it was in place at the time the request for an extension was made.
[24] The Application Record includes the By-Law governing the activities of the Board commencing in January 2014 (the "2014 By-Law"). The 2014 By-Law was in place at the time that the second of the two assessments that were appealed was concluded and for the week thereafter. It states:
21.11 A person who considers themselves disadvantaged either immediately or during an Examination or Assessment by a personal circumstance beyond the person's control may, within one week of the event beyond the person's control occurring, request that the Board or the Executive Committee, acting for the Board, make a special consideration to void the results of the Examination or Assessment by permitting the person to withdraw from the Examination or Assessment and grant permission for the person to register for the Examination or Assessment at another scheduled session of the Examination or Assessment. The person may also request special consideration for a refund of up to 50% of the fee or such refund amount as may be determined from time to time by the Board.
[25] I note that the 2014 documentation includes a further discussion under the heading "Compassionate Appeal Process". It is unclear whether this is part of the By-Law or a separate statement of Policy. The document commences with a title page: "NDEB By-Laws and Policies Regarding Examinations and Assessments" followed by a Table of Contents which separates the By-Law from the "Assessment of Clinical Skills Appeals Process" and the "Compassionate Appeals Process". It says nothing that would permit an extension of the one-week time frame within which a Compassionate Appeal was to be made. The Application Record also contains a document dated June 2014 entitled "Equivalency Process Assessment of Clinical Judgement June 2014 Protocol"). At paragraph 17 (Application Record at p. 184), the Protocol contains a shorter version of the instruction quoted above as section 21.11 of the 2014 By-Law:
A participant who considers themself disadvantaged by a personal circumstance beyond the participant's control, occurring either immediately before or during the Assessment may, within one week of this personal circumstance occurring, request that the NDEB make a special consideration to void the results of the Assessment. The NDEB may grant permission for the participant to withdraw from the Assessment. The participant may also request special consideration for a refund of up to 50 percent of the Assessment.
[26] The point is that the documents that were effective at the time the assessment of clinical judgement was completed did not provide for, or recognize the possibility of, extending the one-week period within which a compassionate appeal could be brought. In her Affidavit, Nayereh, Rashidan says that for the week after the completion of the assessments of June 11, 2012 and June 6, 2014 she was preoccupied, respectively, with the death of her father and the health of her husband. She did not follow up "until recently". This is unfortunate but does not change the fact that if she had followed up earlier it would not have mattered. The By-Law, policies and protocol in force at the time the assessments were completed did not allow for any extension.
[27] Counsel for Nayereh Rashidan submitted that an extension was not prohibited and, on that foundation, should be taken as being possible. This is not tenable. The National Dental Examining Board of Canada, like virtually every administrative board and tribunal, is a product of the statutory scheme that creates, authorizes and empowers it. The National Dental Examining Board of Canada Act S.C. 1952, c. 69, s. 8 states:
8(1) The Board may make such by-laws and regulations, not contrary to law or the provisions of this Act, as it may deem necessary or advisable for
(a) that government and management of its business and affairs;
(b) the selection and election or appointment and remuneration of officers and employees and prescription of their respective powers and duties;
(c) the imposition and collection of dues or fees; and
(d) carrying into effect of the purposes of the Board and its powers under this Act.
[28] The amendments made to the By-Law in 2018 were not the last. Subsequent amendments were approved during October 2018 (effective January 1, 2019), March 2019 (effective April 1, 2019, October 26, 2019 (effective January 1, 2020), May 8, 2020 and June 5, 2020 (effective June 8, 2020). At some point, over the course of these amendments, section 27.00 was added:
27.00 The provisions pertaining to appeals contained in By-laws 24.00 through 26.00 shall apply to all examinations taken after the enactment of these By-laws, including examinations or assessments taken prior to the enactment of these By-laws.
[29] At first reading this would seem to demonstrate an intention for the sections mentioned to have a retroactive effect. However, sections 26.04 to 26.08, which are those that provide for compassionate appeals make no reference to the possibility of an extension for the commencement of such an appeal beyond the "seven (7) days after the examination is concluded" set out in section 26.04. Even so, it would not matter to this case. The issue of any extension would be resolved by section 26.08:
26.08 In any event and under no circumstances will the Executive Committee hear a compassionate appeal that has been received by the NDEB on or after the day on which the grades for an examination or assessment have been released by the NDEB to an examinee.
[30] At the material time, that is immediately after the assessments of the clinical judgement of Nayereh Rashidan were concluded, the National Dental Examining Board of Canada was without authority to extend the time period within which a compassionate appeal could be commenced. There was nothing to suggest that any subsequent amendment to the by-laws that permitted such extensions, could have been applied retroactively. In the absence of authority, a judicial review seeking to set aside the failure of the Board to allow such an extension cannot succeed.
The impact of a decision granting the application.
[31] Nayereh Rashidan asks for an order "setting aside the failing grading of the June 2012 ACJ Exam and/or June 14 ACJ Exam" (Factum of the Applicant at para. 78). Judicial review is a discretionary remedy. If there was jurisdiction and authority would it be appropriate that the order sought be granted? Counsel for Nayereh Rashidan made submissions concerning the impact of a refusal to grant judicial review. He considered that impact from her perspective: this was her last chance to complete the Equivalency Process. If she is unsuccessful her chances of becoming a licenced dentist in Canada are "very remote". She has spent approximately $150,000 to date in furtherance of her efforts to complete the equivalency process. There is another perspective. The purpose of licencing is to protect the public. In this situation, it is to ensure that individuals who require dental care can be confident that those who offer this service are qualified to do so. Nayereh Rashidan completed her Assessment of Fundamental Knowledge during February 2012 and her Assessment of Clinical Skills during June 2014. This was eight and six years ago. After this lengthy delay, the Court can have no assurance that Nayereh Rashidan has maintained her clinical skills and retained the fundamental knowledge, both of which are necessary to meet the standards that apply to practicing dentists in Canada. Moreover, although there is no evidence to support it, surely the Court can take judicial notice of the evolution of the knowledge and the development of the technology that has taken place over the last eight and six years that has affected most if not all areas of medical treatment. This confirms the concern that the Court cannot be assured that Nayereh Rashidan continues to have the clinical skills and fundamental knowledge to meet the required standards.
[32] Even if the Court had the jurisdiction and the law provided the authority to grant the extension and overturn the failing grade we would not do so. The Court would exercise its discretion and refuse to grant the judicial review that is requested. The delay and the concerns it raised are the core issue.
Standard of Review
[33] These reasons have not, as yet, raised the issue of the standard of review. Establishing the appropriate standard of review is not a factor that is determinative of the issues in this case. The jurisdiction of the Court (should this case have been heard in British Columbia?) is for it to decide. That determination is not the review of any decision made by the National Dental Examining Board of Canada. The same can be said of the Court's determination to exercise its discretion and, on the basis of the delay, refuse to make the order sought.
[34] While it is generally recognized that administrative Boards and tribunals are able to consider and rule on the scope of their own jurisdiction, this is not an unfettered mandate. The Court has a role to play:
There comes a point where an administrative decision-maker adopts a view of its statutory powers and the statutory scope of its authority that is neither acceptable nor defensible. When that happens, reviewing courts acting under the reasonableness standard will quash the administrative decision, thereby keeping the administrative decision-maker within its authority.
(Canadian Copyright Licensing Agency (Access Copyright) v. Canada, 2018 FCA 58 at para. 75)
[35] The 2014 By-Law did not allow the National Dental Examining Board of Canada to extend the time within which a compassionate appeal could be commenced. The By-Laws extant in 2017 and 2018, whichever one the Board is taken to have relied on, could not be applied retroactively. Whether correctness or reasonableness is utilized as the appropriate standard of review this Court finds that the Board was without jurisdiction to extend the one-week limitation. The authority was not present at the applicable time.
[36] Based on the reasons reviewed, the application for judicial review is dismissed. Nonetheless, one further issue is considered.
The sufficiency of the reasons of the Board
[37] The substantive submission made seeking to quash the decision of the Board is that no reasons were given for the decision that was made. The entire decision is one paragraph long:
The participant did not submit the Compassionate Appeal within one week of taking the Assessment of Clinical Skills pursuant to By-law 24.1 and failed to provide a reasonable explanation for not filing the Compassionate Appeal within the one-week time period. Therefore, the Executive Committee did not hear the Compassionate Appeal and the Participant's result remains unchanged.
[Emphasis added]
[38] Given our conclusion that the Board applied the wrong by-law, there is no use examining the sufficiency of the reasons in this case. The Compassionate Appeal having not been submitted within the one-week time period, that was the end of the matter. We observe, however, that given the by-law the Board thought it was applying, the reasons should have dealt with the explanation Nayereh Rashidan gave for not submitting her appeal within the one-week time period and the issue of the six and four-year delay thereafter. Indeed, had the Board grappled with the issues raised, it may well have realized and then dealt with its lack of jurisdiction to apply the 2018 By-Law. As set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 128: "…However, a decision maker's failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning…".
[39] We make this observation because this is the second time this year the issue of the sufficiency of reasons provided by the National Dental Examining Board of Canada has arisen (see: Mattar v. The National Dental Examining Board of Canada, 2020 ONSC 403).
[40] The application is dismissed.
Costs
[41] The parties agreed as to costs. However, in our view, the substance of the hearing and these reasons reflect issues raised by the Court and not found in the facta that were filed. No costs are awarded, each party will bear its own.
Lederer, J.
I Agree
Backhouse, J.
I Agree ______________________________
Kristjanson, J.
Released: August 10, 2020
CITATION: Dr. Rashidan v. The National Dental Examining Board of Canada, 2020 ONSC 4174
DIVISIONAL COURT FILE NO.: 213/19
DATE: 20200810
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Backhouse, Kristjanson
BETWEEN:
DR. NAYEREH RASHIDAN
Applicant
– and –
THE NATIONAL DENTAL EXAMINING BOARD OF CANADA
Respondent
REASONS FOR JUDGMENT
LEDERER, J.
Released: August 10, 2020