Disability Not Necessarily a Basis for Nullifying an Unsuccessful Examination Attempt

Regulators offering a limited number of examination attempts face frequent requests to nullify an attempt by candidates who have been unsuccessful the maximum number of times. Increasingly, the basis for such requests is grounded in a disability, often temporary, of the candidate. In Martino v. College of Nurses, 2017 ONSC 6892, the Divisional Court found that it is sometimes reasonable to refuse such a request. Her request was summarized as:

her personal circumstances that her mother had died about a year before the attempt and she suffered depression and anxiety as a consequence, and she was taking medications with side effects such as blurred vision, headaches, anxiety, depression, drowsiness and fatigue. She submitted a report from a registered psychologist which stated that the medications “can, in fact, lead to a state of drowsiness, fatigue and confusion.”

The Court said:

The appellant had the onus to establish her mental and emotional state at the time of the examination and the direct impact of those circumstances on her inability to comprehend their effect on her examination performance. The evidence respecting her state of mind at the time of the first examination was essentially limited to that of the appellant. Ms. Hannell [the psychologist] did not assess the appellant around the time of the first examination; rather, she relied on the appellant’s own account of the history of her condition in making her report. More importantly, Ms. Hannell did not give an opinion that the appellant was confused at the time of the first examination, nor that the appellant was unable to comprehend her inability to pass the examination.

The [reviewing] Board concluded that the appellant could have and should have assessed the side effects of her medications and the impact of her mother’s death well before the examination. That is a reasonable conclusion, given that the appellant’s mother died a year earlier, and the appellant had been taking the medications for some time before the examination.

The Board expressed sympathy for the appellant’s situation. That does not mean the Board found her evidence persuasive, as her counsel argues.

The Board considered the evidence and found that it did not demonstrate exceptional circumstances that would warrant the extraordinary relief of the annulment of the first examination.

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