There are daunting challenges for regulators facing the possibility that there may have been cheating on a licensing exam, especially by multiple candidates. It is rare that direct evidence of such attempts exists (although, depending on the type of scheme employed, strong statistical evidence may be available). The regulator needs a reliable method of distinguishing the suspected participants from the remainder of the cohort who were not involved in the cheating. There is almost always significant time pressure to release the exam results. All of these pressures exist even before the regulator must face the thorny problem of choosing an appropriate remedy for the suspected participants.
The Ontario Court of Appeal has provided guidance on the latter question, at least, in Afolabi v. Law Society of Ontario, 2025 ONCA 257 (CanLII).
The regulator obtained compelling evidence that one of their licensing exams was compromised; the evidence included copies of illicit answer keys. Statistical evidence suggested that 150 candidates had “anomalous” results consistent with engaging in “prohibited activities” in relation to the exam. The regulator notified the relevant candidates of the concerns and the actions it was contemplating and gave them repeated opportunities to make written submissions.
The regulator then took several steps including:
- Voiding the applicants’ examination results.
- Deeming the applicants to not meet the requirements for licensure. The legislation contained a provision authorizing this where an applicant provided false or misleading information on their application.
- Advising the applicants that they could not reapply for licensure for a period of one year and that if they did reapply the issue of their good character could be raised.
- Notifying other regulators of the concerns.
The lower court accepted that the voiding of the examination results was an administrative action that was appropriately done on the basis of allowing only written submissions from the candidates. However, it ruled that nullifying in their entirety the candidates’ applications for licensure involved making credibility findings and imposing consequences that could only be done at a hearing, which had not been provided.
The Court of Appeal ruled that both voiding the exam results and nullifying the application could appropriately be accomplished through a written process alone. Licensure is an administrative process. The legislative scheme as a whole suggested that hearings were not required in order to make licensure decisions. While the applicants would face significant consequences, the decision was not analogous to a disciplinary finding or even a determination that the applicants were not of good character. The regulator had not created an expectation that a hearing would be offered. Given that the regulator processed hundreds of applications for licensure a year, it was reasonable for the regulator to choose a written procedure for such matters (excluding a formal finding that an applicant was not of good character, for which the legislation expressly required a hearing).
Of significance in the decision is the legislative provision permitting the regulator to deem that licensure requirements were not met where the applicant provided false or misleading information. Regulators with such provisions in their legislation have been reluctant to employ them since the decision in Haramic v. College of Registered Psychotherapists and Registered Mental Health Therapists of Ontario (Registrar), 2017 ONSC 5668 (CanLII), in which the Court suggested that a hearing-type procedure was likely required, at least when action was being taken against current registrants. In light of Afolabi, more regulators may now be seeking to add such provisions to their registration regulations or by-laws.
The candidates will now be required to restart their applications for licensure from the beginning, potentially facing more intense scrutiny.
The Afolabi decision reinforces the authority of regulators to deal expeditiously with applicants who are suspected of cheating in a licensing exam or similar evaluation.