CITATION: College of Psychologists of Ontario v. Ontario (Health Professions Appeal and Review Board), 2022 ONSC 1365
DIVISIONAL COURT FILE NO.: 480/21
DATE: 20220311
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
WILTON-SIEGEL, LEDERER & MATHESON JJ.
BETWEEN:
COLLEGE OF PSYCHOLOGISTS OF ONTARIO
Appellant
– and –
ONTARIO (HEALTH PROFESSIONS APPEAL AND REVIEW BOARD) and AIMEE MANLEY
Respondents
Andrew M. Porter and Lidiya Yermakova, for the Appellant
Steven Bosnick, for the Respondent Ontario (Health Professions Appeal and Review Board)
Lisa Buckley, for the Respondent Aimee Manley
HEARD at Toronto (by videoconference): February 17, 2021
REASONS FOR DECISION
Matheson J.:
[1] The College of Psychologists of Ontario appeals the decision of the Ontario Health Professions Appeal and Review Board dated May 18, 2021. The Board decision arises from the respondent Aimee Manley’s application to be registered as a psychological associate after completing a master’s degree through an online university in the United States.
[2] This appeal is focused on the roles of the College’s Registration Committee and the Board when addressing applications for registration. In the decision under appeal, the Board ordered that the Registration Committee direct the College Registrar to register Ms. Manley despite the Registration Committee’s view that the registration criteria were not satisfied by the master’s program in question.
[3] For the reasons set out below, I would grant the appeal. The statutory prerequisites to the order made by the Board were not met. The Board cannot make the above order unless an applicant “substantially qualifies” for registration and the Registration Committee panel “exercised its power improperly” in denying the applicant’s registration.
Application for registration
[4] In 2011, Ms. Manley obtained a Bachelor of Arts degree in psychology from Trent University and, in 2012, a Bachelor of Education. In 2016, she obtained a Master’s of Science in clinical psychology from Capella University. Cappella is an online correspondence program university based in Minneapolis that does not have a physical campus.
[5] Educational institutions draw a distinction between types of technology-assisted learning based on whether they are “synchronous” or “asynchronous”. Synchronous instruction is presented live – the students and professor are present simultaneously, whether in a physical or virtual place. Asynchronous instruction is on demand, with pre-recorded lectures that are watched by students when they initiate them, and student interactions with faculty and other students by posts on online message boards.
[6] With the exception of in-person educational interactions totalling 121.5 hours over 16.5 days, Ms. Manley’s master’s program did not include face-to-face synchronous contact with faculty and students. She also completed a 600-hour practicum, which included learning interactions through online discussion posts and emails.
[7] The master’s program at issue did not use the type of remote learning in which people are participating in person with face-to-face contact in a virtual classroom through an online service such as Zoom. Nor is this a case about the accommodations that may arise due to the COVID-19 pandemic, which post-dates the program at issue.
[8] In June 2016, Ms. Manley applied to the College for a certificate of registration as a psychological associate in supervised practice (rather than autonomous practice).
Statutory framework
[9] The issues in this case are governed by the statutory scheme set out in the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”), including the Health Professions Procedural Code (the “Code”), and the Psychology Act, 1991, S. O. 1991, c. 38 (the “Psychology Act”) and its Registration regulation, O. Reg 74/15 (the “Regulation”).
[10] Section 3 of the Code sets out the College’s statutory objectives, including the objectives to regulate the practice of the profession, to develop, establish and maintain programs and standards of qualification, to develop, establish, and maintain standards of knowledge and skill and programs to promote continuing competence among the members, and the overarching duty, in s. 3(2), to serve and protect the public interest. In its submissions about the importance of these objectives, the College underscores that, as set out in s. 4 of the Psychology Act, members of the College are authorized to communicate diagnoses of psychological disorders to members of the public and to treat them by means of psychotherapeutic techniques.
[11] Pursuant to s. 95(1)(c) of the Code, it is the College that has statutory authority to make regulations prescribing the standards and qualifications for the issue of certificates of registration as a member of the College. Those requirements are set out in the Regulation.
[12] The Psychology Act and the Regulation provide for two classes of registration: “psychologist” and “psychological associate”. A psychologist must complete a PhD program that meets the accreditation criteria of the Canadian Psychological Association or another accreditation body that has been approved by the College. For registration as a psychologist associate, the class at issue here, the applicant must compete a master’s program, preceded by a full course of undergraduate studies in psychology, and must meet prescribed criteria.
[13] Registration as a “psychological associate” may be sought for either autonomous practice, interim autonomous practice, or, as in this case, supervised practice.
[14] Subsection 23(1) of the Regulation provides that an applicant for registration as a psychological associate with a supervised practice must meet the requirements of s. 16(1) 1 and 2 of the Regulation and provide a signed undertaking from two supervisors. Those supervisors must undertake to train, supervise, and evaluate the proposed member’s practice, and report to the College.
[15] Subsection 16(1)1 of the Regulation sets out the requirements applicable to the applicant’s master’s degree program:
• Subsection 16(1)1 i focuses on the degree-granting institution and is not at issue here.
• Subsection 16(1)1 ii requires, as a prerequisite for admission to the program, that the applicant have taken a minimum of 576 hours of undergraduate instruction in psychology. This requirement is no longer at issue.
• Subsection 16(1)1 iii sets out the content and training required in the master’s program and is at issue. Subsection 16(1)1 iii (C) requires that an applicant complete “at least one academic year of full-time resident graduate study and training” or the equivalent in part-time resident graduate study and training.
[16] The phrase “resident graduate study and training” is not defined in the Regulation or the Code. According to a College guideline, “resident study and training consists of in-person participation in courses, seminars, practica and internships with face-to-face contact with faculty and other students”.
[17] The requirements of s. 16(1)1, including that of s. 16(1)1 iii (C), are non-exemptible, subject to ss. 16(2) to (8). The exemption at issue here is in s. 16(3) of the Regulation, which allows a master’s program that meets the requirements in ss. 16(1)1 i and ii, but not iii, to be deemed to have met the requirements of iii if the following criteria are met:
(a) the program is considered by a panel of the Registration Committee to be substantially similar, but not equivalent, to a program that meets the requirements; and
(b) the applicant successfully completes the additional education or training, if any, that is specified by a panel of the Registration Committee. [Emphasis added.]
[18] On receipt of an application for registration, the College Registrar will either register the applicant or refer the application to the College’s Registration Committee. Where the application is referred to the Registration Committee, the applicant receives notice and has the right to make written submissions, as set out in ss. 15(3) and 18(1) of the Code.
[19] After considering the application and submissions, the panel of the Registration Committee may direct the Registrar to take certain steps. Subsection 18(2) of the Code provides for a number of different directions, as follows:
After considering the application and the submissions, the panel may make an order doing any one or more of the following:
Directing the Registrar to issue a certificate of registration.
Directing the Registrar to issue a certificate of registration if the applicant successfully completes examinations set or approved by the panel.
Directing the Registrar to issue a certificate of registration if the applicant successfully completes additional training specified by the panel.
Directing the Registrar to impose specified terms, conditions and limitations on a certificate of registration of the applicant and specifying a limitation on the applicant’s right to apply under subsection 19 (1).
Directing the Registrar to refuse to issue a certificate of registration.
[20] If registration is refused, the applicant may seek a review by the Board. Subsection 21(1) of the Code gives the applicant a choice between a review of the application and supporting documents, or a hearing.
[21] As set out in s. 22(6) of the Code, the Board shall, after the review or hearing, make an order doing any one or more of the following:
Confirming the order made by the panel.
Requiring the Registration Committee to make an order directing the Registrar to issue a certificate of registration to the applicant if the applicant successfully completes any examinations or training the Registration Committee may specify.
Requiring the Registration Committee to make an order directing the Registrar to issue a certificate of registration to the applicant and to impose any terms, conditions and limitations the Board considers appropriate.
Referring the matter back to the Registration Committee for further consideration by a panel, together with any reasons and recommendations the Board considers appropriate.
[22] Subsection 22(7) constrains the above powers of the Board. The Board cannot require the Registration Committee to direct the Registrar to issue a certificate of registration under paragraph 3 unless the applicant “substantially qualifies” for registration and the panel “exercised its powers improperly.” In this case, the Board purported to proceed under s. 22(7) on its second review of Ms. Manley’s application.
Proceedings regarding Ms. Manley
[23] After receipt of Ms. Manley’s application, the College Registrar referred her application to the Registration Committee because of concerns about her master’s degree. Since then, there have been a series of decisions regarding her application.
[24] 2016 Registration Committee Decision: In October 2016, a panel of the College’s Registration Committee conducted a review of the application. The panel found as follows:
(i) that the master’s degree was from a psychology program offered at a legal authorized degree-granting institution in the United States, satisfying the requirement in s. 16(1) 1 i; and,
(ii) that the master’s program did not require the prerequisite of 576 hours of undergraduate instruction in psychology for admission, nor a minimum of one academic year of full-time resident graduate study and training, and as a result the requirements in s. 16 (1) 1 ii and iii were not met.
[25] The panel therefore directed the Registrar not to register Ms. Manley. She sought a review of that decision by the Board. The Board review did not proceed because, as a result of a decision concerning a different applicant, the College agreed to reconsider Ms. Manley’s application.
[26] In September of 2017, the panel found that the requirement of s. 16 (1) 1 ii had been met and requested more information about aspects of the program relevant to s. 16 (1) 1 iii. Ms. Manley had the opportunity to make further submissions as well providing the requested information.
[27] 2018 Registration Committee Decision: In May 2018, the panel again directed the Registrar to refuse Ms. Manley’s application for registration. The panel noted the prior conclusions that her master’s program satisfied s. 16(1)1 i and ii. The panel found that s. 16(1)1 iii was still not satisfied.
[28] Because the first two requirements of s. 16(1) 1 were satisfied, the panel considered whether the exception in s. 16(3) applied. Specifically, the panel considered whether the master’s program was “substantially similar” to at least one academic year of full-time resident graduate study and training, as required under s. 16(1) 1 iii (C).
[29] The panel did not find the program to be “substantially similar” to a program that would meet the s. 16(1) 1 iii requirements. They noted that the “technology used in the delivery of [the] program’s courses did not sufficiently approximate in-person (real-time) participation in courses with face-to-face interaction between course instructors and other students.” The panel indicated that in-person participation with face-to-face contact was a crucial component of graduate education and training in professional psychology, referencing the Canadian Psychological Association’s accreditation standards.
[30] Ms. Manley again sought a review of the decision by the Board.
[31] 2018 Board Decision: Before the Board, the applicant submitted that the College was obliged to treat applicants with the same degrees in a like fashion and that other graduates of Capella University had been registered as members of the College under the previous regulation, which had been in place when she began her program. She further submitted that the Registration Committee had wrongly imported the requirement of “in person” or “face-to-face” interaction into the Regulation.
[32] After conducting its review, the Board agreed with the Registration Committee that s. 16(1) 1 iii (C) had not been satisfied. The Board therefore went on to consider whether the program was “substantially similar” under s. 16(3).
[33] The Board rejected the position of the College that the Board did not have the expertise needed to come to a contrary conclusion from the Registration Committee on the issue of substantial similarity.
[34] The Board acknowledged that there was little empirical research about outcomes of new technologies in education but found that there was some ability to assess whether that type of education was effective. The Board noted that the College had accepted people who graduated from programs that were largely completed on-line. The Board further found that the applicant had complete a 600-hour practicum, which included in-person communication with clients and a supervisor, as well as 121.5 hours of in-person residency tracks, with no indication of issues.
[35] The Board found that the applicant’s program was “substantially similar” to a program that meets the requirements of s. 16(1) iii (C) and that there was no need for additional education. Given that the application was for supervised practice, the Board noted that there would be supervision and reporting, among other requirements, before the applicant could be registered for autonomous practice.
[36] By its decision dated December 20, 2018, the Board returned the matter to the Registration Committee for reconsideration, recommending that the applicant be registered (assuming she also satisfied s. 23(1)2 of the Regulation, regarding supervision).
[37] 2019 Registration Committee Decision: The Registration Committee reconsidered Ms. Manley’s application. In June of 2019, the panel again found that the Capella program did not satisfy s. 16(1)1 iii (C) and that the program was not saved by s. 16(3). The Registration Committee again directed the Registrar to refuse Ms. Manley’s application for registration. In doing so, the panel emphasized the following reasons:
(i) that s. 16(1)1 iii (C) was a critically important component of the academic requirement for registration and the determination of whether a program was substantially similar;
(ii) that there was a consensus about the importance of a resident study requirement study among organizations responsible for ensuring adequate academic training for professional psychologists;
(iii) that the panel had significant subject-matter expertise;
(iv) that the use of technology to facilitate remote education may meet the requirement for substantial similarity but did not in this case; and,
(v) that the panel was acting in accordance with the College’s duty to regulate the profession in the public interest.
[38] The panel found that it did not have a sufficient basis to exercise its discretion to depart from the resident study regulatory standard for academic programs in this case, and that to find the program substantially similar would be a significant deviation from the intent of the Regulation.
[39] Ms. Manley again sought a review by the Board and made further submissions to the Board.
[40] 2021 Board Decision (the decision at issue): On May 18, 2021, the Board decided to order the Registration Committee to direct the Registrar to issue Ms. Manley a certificate of registration. To do so, the Board had to satisfy s. 22(7) of the Code, which required findings that the applicant substantially qualifies and that the panel of the Registration Committee had exercised its powers improperly.
[41] The Board found that the Registration Committee had exercised its powers improperly because it had not accepted the Board’s prior finding that Ms. Manley’s master’s program was “substantially similar.” The Board drew this conclusion even though its prior decision was a referral for a reconsideration based on its recommendations, not an order directing the issuance of a certificate of registration.
[42] The Board noted that the Registration Committee had not appealed the Board’s 2018 decision to the Divisional Court pursuant to s. 70 of the Code nor had it sought to have it reconsidered under r. 16.5 of the Board’s Consolidated Rules of Practice and Procedure and Practice Direction. The Board proceeded to find that the Registration Committee was “bound” by the Board’s prior finding regarding substantial similarity. The Board concluded that the Registration Committee had exercised its power improperly, meaning “illegally, unfairly or arbitrarily”, opening the door to an order requiring the Registration Committee to direct the Registrar to register Ms. Manley under s. 22(6) of the Code.
[43] The Board indicated that there was no need for it to address the new reasons for decision of the Registration Committee. The Board noted that it had considered – but was not persuaded by – the Registration Committee’s reasons and the College’s submissions that the master’s program at issue was not “substantially similar”. The College’s submissions included letters from educational institutions and studies regarding different types of online education programs that were not before the panel of the Registration Committee when it made its decision.
[44] The Board therefore made the decision at issue, requiring the Registration Committee to make an order directing the Registrar to issue a certificate of registration to Ms. Manley, under s. 22(6) 3 of the Code (described by the Board, in error, as an order under s. 22(6) 1 in the Decision).
[45] The College then brought this appeal, challenging the Board’s decision.
Standard of review
[46] There is no issue about the standard of review on this statutory appeal. On questions of law, the standard of review is correctness. On questions of fact and mixed fact and law, the standard of review is palpable and overriding error, unless there is an extricable question of law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-18; 26-37.
Issues
[47] The issues on this appeal are as follows:
(1) What approach must the Board take when reviewing the application for registration? Is a standard of review imposed on the Board, or deference owed, in relation to the decision of the Registration Committee?
(2) Did the Board err in finding that the Registration Committee had acted improperly in not considering itself bound by the 2018 Board finding that the program at issue was substantially similar?
[48] The College describes the first issue on this appeal as one of deference or a standard of review as between the Board and the Registration Committee. More specifically, the College submits that the Board, when conducting its review, should have deferred to the expertise of the Registration Committee and erred in failing to do so.
[49] The Board objects to what is described as an attempt to impose a “standard of review” analysis on top of the express provisions of the Code. The Board further submits that the only role for deference arises under s. 22(6) of the Code, which limits the Board’s choice of disposition. Ms. Manley largely adopts the position of the Board.
[50] The starting point is the legislation. Applied correctly, there is no need to introduce the concept of a “standard of review” as between the Registration Committee and the Board.
[51] The legislation shows that the review being conducted by the Board is not a review of the decision of the Registration Committee. As set out in s. 21(1) of the Code, the Board is required to review “the application” for registration. In contrast, other provisions of the Code do expressly provide for a Board review of “a decision” (specifically, a decision of the Inquiry, Complaints and Reports Committee): see s. 29 and related provisions.
[52] The phase “standard of review” is therefore not helpful terminology because, in this case, the Board is not reviewing a prior decision of another decision-maker.
[53] Once the Board’s review of the application is complete, the Board is limited to certain dispositions, which are set out in s. 22(6) and (7) of the Code. As set out in s. 22(7), the Board cannot require the Registration Committee to make an order directing the Registrar to issue a certificate of registration and to impose terms, conditions and limitations the Board considers appropriate unless two requirements are met:
(i) the Board must find that the applicant substantially qualifies for registration; and,
(ii) the Board must find that the panel of the Registration Committee “has exercised its powers improperly.”
[54] The Code therefore determines the question of when the Board can substitute its view. Focusing on the second prerequisite, it can only do so when the Registration Committee has acted improperly. This regime provides that the decision of the Registration Committee normally prevails. This is underscored by the other orders open to the Board under s. 22(6), all of which either confirm the Registration Committee’s decision or leave the ultimate outcome to the Registration Committee.
[55] Regardless of its finding that the applicant is substantially qualified and the College’s submission that there should have been some deference in that regard, the Board erred in finding that the Registration Committee had exercised its powers improperly.
[56] The improper conduct relied on by the Board was based on the erroneous conclusion that the Registration Committee was bound by the Board’s prior decision. In 2018, the Board had recommended that the applicant be registered. The Registration Committee did not so. The Board saw that failure to follow the Board as improper. The Board therefore concluded that the requirement of an improper exercise of power had been met. This approach is contrary to the legislative regime.
[57] The Registration Committee was not bound by the Board’s 2018 decision about substantial similarity. On the contrary, as set out in s. 22(6) 4, the Registration Committee panel was obliged to further consider the application together with the “reasons” and “recommendations” of the Board. The panel did so. The decision reached, although different from the Board’s recommendations, was not an improper exercise of power.
[58] The Board’s interpretation amounts to saying that it can create an improper exercise of power by making a recommendation that is not followed. This transforms the word “recommendation” into an order and is contrary to the Code.
[59] Moreover, the fact that the Registration Committee was not bound by the Board’s prior decision is a necessary corollary of the absence of a standard of review.
[60] It was therefore not open to the Board to make the order that it made.
[61] There then remains the issue of deference. In the course of both Board proceedings, the College submitted to the Board that there should be deference to the view of the Registration Committee on the subject of substantial similarity. This submission was based on the legislative regime, the constitution of the Registration Committee as compared to the Board, and the prior decision of this court in College of Physicians and Surgeons of Ontario v. Payne (2002), 2002 39150 (ON SCDC), 219 D.L.R. (4th) 350 (Ont. Div. Ct.).
[62] It is the College that has been given the responsibility to establish the requirements for registration. Further, panels of the Registration Committee are required to be comprised of members of the profession and one public member. In contrast, the Board is comprised of members who are not permitted to be members of any health profession: Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998, S.O. 1998, c. 18, Sch. H., s. 4.
[63] In effect, the Board is a civilian overlay on the operation of the self-governing health professions: Payne, at para. 19. It is a specialized tribunal with expertise in the review of registration applications: Marshall v. College of Psychologists of Ontario, 2018 ONSC 6282 (Div. Ct.), at paras. 31-32, citing Barbosa v. Health Professions Appeal and Review Board, 2012 ONSC 176 (Div. Ct.), at paras. 25-27. In contrast, the Registration Committee has expertise in the psychology health professions, including in the education required to enter the profession.
[64] As set out in Payne, there is a role for deference to the Registration Committee where the issues fall within the special expertise of that Committee. For those issues, it would be inappropriate for the Board to simply substitute its own views: Payne, at para. 20.
[65] The Board submits that the references to deference in Payne are obiter. In Payne, like this case, there was another flaw in the Board’s decision. I recognize that those comments were obiter, yet they properly recognize the special expertise of the Registration Committee as compared to the Board. However, the Board also has a significant role, given the legislative regime.
[66] To begin with, the Board has a fact-finding role. Although not requested in this case, an applicant may request a hearing of the application before the Board under s. 21 of the Code (rather than a review of the application and the documentary evidence in support of it). Although not at issue here, the findings of fact arising from a Board hearing would ordinarily be owed some deference by the Registration Committee.
[67] The Board may also receive documentary evidence when doing a review under s. 21, in addition to the information that was before the Registration Committee. That did occur in this case. For example, as mentioned, the College submitted a number of letters from educational institutions with information and opinions about a different types of online education programs. In turn, the evidentiary record before the Board was not the same as the record before the Registration Committee.
[68] Because the Board may have a different evidentiary record from the Registration Committee, the Board may reach a different view even if there is some deference owed to the expertise of the Registration Committee. It would therefore be an overstatement to say that the Board must defer to the view of the Registration Committee when conducting a review, even on issues within the Registration Committee’s special expertise. In those circumstances, absent evidence that the Registration Committee exercised its powers improperly, the Board is limited in what it can do. It cannot do more than refer the application back to the Registration Committee for further consideration by a panel on the basis of the more extensive evidentiary record together with the Board’s reasons and recommendations.
[69] In this case, the Board was preoccupied with what it saw as a failure to follow its prior recommendation. The Board noted that because it previously found the program was substantially similar, there was no need for the Board to address the new reasons of the Registration Committee. Nonetheless, the Board went on to address the Registration Committee’s reasons and the additional evidence briefly, without any deference to the expertise of the Registration Committee.
[70] Instead, the Board was obliged to conduct a full review of the application and related materials. In doing so, the Board ought to have considered which issues fell within the special expertise of the Registration Committee. For those issues, there should be some consideration of that special expertise in the review, subject to the differing evidentiary record. The Board erred in summarily rejecting any role for the special expertise of the Registration Committee in the Board’s review on the question of substantial similarity.
[71] I need not address the impact of this error on the resulting decision of the Board that the master’s program was substantially similar. The other prerequisite for the Board’s order was not met. The Board’s order cannot stand in any event.
[72] The most that the Board could have done if it disagreed with the panel about substantially similarity would have been to send the matter back to the Registration Committee under s. 22(6) 4, for a further reconsideration in light of its reasons and recommendations.
Disposition of this Appeal
[73] Pursuant to s. 70(3) of the Code, the court has all the powers of the panel and of the Board on this appeal. Given the protracted course of this application for registration, I am not inclined to send this matter back to the Board. As put by Ms. Manley, she has been caught in a seemingly endless battle between the College and the Board. The Board’s reasons, albeit brief, adequately reflect its views. Although the College has raised some other issues about those views, they need not be addressed in the context of what is a non-binding recommendation, given the circumstances of this case.
[74] I therefore conclude that the appropriate remedy is to substitute an order under s. 22(6) 4 in place of the Board’s decision. The matter is therefore returned to the Registration Committee as set out below.
Orders
[75] This appeal is granted. The application for registration shall be referred back to the Registration Committee under s. 22(6) 4. The Registration Committee shall treat the Board’s Decision as reasons with a recommendation and reconsider the application, including the expanded record that was before the Board. A newly constituted panel of the Registration Committee shall conduct the reconsideration.
[76] The successful party does not seek costs. There shall be no order as to costs.
Justice W. Matheson
I agree _______________________________
Justice H. Wilton-Siegel
I agree _______________________________
Justice T. Lederer
Released: March 11, 2022
CITATION: College of Psychologists of Ontario v. Ontario (Health Professions Appeal and Review Board), 2022 ONSC 1365
DIVISIONAL COURT FILE NO.: 480/21
DATE: 20220311
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
WILTON-SIEGEL, LEDERER & MATHESON JJ.
BETWEEN:
COLLEGE OF PSYCHOLOGISTS OF ONTARIO
Appellant
– and –
ONTARIO (HEALTH PROFESSIONS APPEAL AND REVIEW BOARD) and AIMEE MANLEY
Respondents
REASONS FOR decision
Released: March 11, 2022