Lay Scrutiny of Specialist Registration Applications

How does a lay tribunal, made up entirely of non-practitioners, review registration matters where the original decision is made by an expert regulatory panel including practitioners of the profession? This issue came to a head in the case of College of Psychologists of Ontario v. Ontario (Health Professions Appeal and Review Board), 2022 ONSC 1365 (CanLII), https://canlii.ca/t/jn1vs. The applicant for registration had been refused registration because relevant portions of their education had been done remotely and asynchronously. The regulator interpreted the registration requirement as requiring the interaction associated with instructors and students to occur simultaneously.

On a previous occasion, the review Board had returned the application to the regulator with a recommendation that the regulator accept asynchronous education. After further review the regulator declined to accept that recommendation. On a further review by the Board, it ordered the applicant to be registered.

On appeal, the Court reversed the decision of the review Board. In doing so, it provided guidance on the role of the Board on a review. The Court stated that the “standard of review” was not an issue. First, the Board was not reviewing the decision of the regulator; under the language of the legislation, it was reviewing the application for registration. More significantly, the role of the Board was set out in the statute. The Board could only direct the registration of the applicant where the regulator had exercised its powers improperly and the Board found that the applicant substantially qualified for registration.

In this case, the Board had incorrectly concluded that the regulator had exercised its powers improperly because it rejected the Board’s previous recommendation. The Board was required to assess the regulator’s reasoning to ascertain whether its reasoning amounted to an improper exercise of its powers.

The Court also addressed how the Board should respect the expertise of the regulator in accordance with the decision of College of Physicians and Surgeons of Ontario v. Payne, 2002 CanLII 39150 (ON SCDC), https://canlii.ca/t/7bh9. The Court concluded that on issues like whether an unapproved educational program was substantially similar to an approved program, the Board was required to defer to the expertise of the regulator. However, as is often the case on Board reviews, where additional information is before the Board than was before the regulator, the impact of the regulator’s expertise changes:

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.

The Court sent the matter back to the regulator to consider the new information presented to the Board that was not before the regulator.

Under this legislative scheme, at least, the final decision in most registration matters will rest with the regulator.

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