The Precendential Effect of Emergency Exemptions

During the pandemic, many regulators enacted emergency exemptions from certain registration requirements driven by the need to ensure that services could continue to be provided. One example was an exemption from the requirement to successfully complete the registration examination (which examinations were often not available during the pandemic). The concern, of course, is that once such exemptions are seen as acceptable, applicants will want them to apply even after the emergency has passed. A recent decision of the Health Professions Appeal and Review Board (HPARB) indicates that such exemptions need not be offered in perpetuity: Trivedi v College of Physiotherapists of Ontario, 2023 CanLII 35742 (ON HPARB).

In that case an applicant had successfully completed all the registration requirements except the registration examination. The applicant had tried and failed the examination twice. The applicant did not make a third attempt before 2019 when the examination became unavailable because of the pandemic. The regulator had created an exemption policy that excused completion of the examination for many applicants. However, this applicant did not qualify under the policy because he had failed the examination twice.

The applicant sought a review to HPARB of the refusal for registration. The applicant submitted, among other things, that the frequent exemption of other applicants indicated that the examination was not an essential determinant of competence. The applicant submitted several alternative pieces of evidence of competency including years of experience under supervision, self-study, letters of reference, and the absence of complaints made against him. The applicant also argued that the examination process, particularly during the pandemic, was unfair and even discriminatory.

HPARB upheld the refusal of registration. It relied on several pre-pandemic cases about the importance of the examination requirement to demonstrating objective evidence of competence for which practice experience was an inadequate substitute. It noted that the applicant was not eligible for exemption under the pandemic exemption policy. It also accepted the regulator’s concerns about the length of time the applicant had not been practising (only some of which was attributable to the pandemic) and the limitations of the reference letters. HPARB also noted that the exemption policy was on the verge of being rescinded now that an examination was available.

Emergency exemptions do not necessarily mean that the requirement at issue has been irredeemably discounted.

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