Regulators have had to deal with a number of examination breaches in recent years. Regulators obviously take such matters seriously. However, in one recent case, a regulator was found to have taken the issue too far.
In Thibeault v Saskatchewan (Apprenticeship and Trade Certification Commission), 2020 SKQB 192, http://canlii.ca/t/j8wnr the regulator suspended a practitioner’s certificate on the basis that it was obtained by “misrepresentation or fraud”. The practitioner acknowledged accessing past examinations and training materials and distributing them to other candidates. However, the practitioner had written a different examination that was not compromised. The Court held that conduct did not breach the wording of the legislation in that there was no misrepresentation or fraud in the successful completion of the examination actually written:
To find fraud, the Appeal Committee would have had to have before it evidence of, and a finding of, actual knowledge on the part of Mr. Thibeault that what he was doing was wrong or prohibited. A finding that he ought to have known does not constitute fraud.
A subsequent amendment to the legislation did not apply at the time of the conduct.
The Court also held that the reasons for decision were inadequate in that they did not address what constituted misrepresentation or fraud in the context of the provision.
While not a basis for its decision, the Court also expressed concerns that the appeal tribunal deciding the matter contained Board members who had received extensive briefings on the ongoing examination breach concern. Since the legislation did not require that they serve on the tribunal, it was inappropriate for them to hear this case when they had already received such extensive information on the events in issue.