September 25, 2013

Challenges to registration examination scores, and test disclosure on review

Administrative Law
Freedom of Information
Health Professions Review Board
Professional Regulation
Registration and Fitness

Where an applicant for registration fails to pass a mandatory registration exam, but challenges the accuracy of the marking, a professional regulator may face not only a challenge to the scoring, but also a request that the regulator disclose the exam. Whether the regulator must disclose an examination will depend on the rules of the reviewing body,* but the burden to show an error in scoring, given the information available, lies on the applicant challenging the exam results, and thus any resulting registration decision.

The burden of an applicant to prove a scoring error is illustrated in Douse v. College of Nurses of Ontario, 2013 ONSC 5444, affirming 2012 CanLII 12400 (HPARB). An applicant failed the exam for registered practical nurses three times, and failed a fourth sitting the College granted based on exceptional personal circumstances.

The applicant came to believe she did not fail her third examination, based on letters from the College which included an incorrect identification number, and incorrectly referred to her applying to be a registered nurse. She asked the College to allow her to review the exam and her answers. The College refused, indicating “the examinations in fact did not belong to the College, and that if she were permitted to see both the questions and her responses to each question, the College would no longer be able to use the questions in future examinations” (HPARB at para. 10). The College refused to issue her a certificate of registration.

The record before the Ontario Health Professions Appeal and Review Board (the “Review Board”) included examination reports, but not the examination itself, or the applicant’s answers. The College submitted that the Review Board had “no authority to give the Applicant the examination questions or answers”. The Review Board did not, however, address that point. Instead it found no basis for concluding that the Applicant’s examination results were not her results, and no basis for concluding the correspondence errors affected the provision of accurate examination results. [35] The Review Board upheld the College’s decision to refuse her a certificate of registration.

On appeal, the Court upheld the Review Board’s decision as reasonable, noting, “the College had legitimate and reasonable reasons for refusing to allow the appellant to see the results of her examination. The appellant has not demonstrated why, in her particular case, there is any reason to doubt the accuracy of the examination results” (at para. 5). The court noted the exam was a multiple-choice examination marked by a “highly accurate” computerized scanning program, referred to evidence “that numerous quality control measures are taken to ensure the accuracy of the marking process,” and noted the exam administrator offering persons taking the examinations an opportunity to have their examinations re-scored by hand. Finally, the applicant’s scores were consistent across all four examinations.

The Douse case articulates the grounds on which a regulator may withhold exam questions from disclosure, even during a legal challenge. Douse also illustrates various factors a review body may examine to infer accurate scoring, even without the examination. For BC health professions, however, some reviews may unfold differently, as the HPRB may order a college to disclose an exam question to the review board, and possibly to an applicant or to applicant’s legal counsel, albeit on terms.*

Douse v. College of Nurses of Ontario, 2013 ONSC 5444, affirming 2012 CanLII 12400 (HPARB)

* For BC health professions, HPRB Rule 13(2) generally exempts a college from disclosing an examination, exam question or marking criteria. But the HPRB may, under Rule 13(3), order disclosure, subject to terms the board considers necessary to “ensure the confidentiality, integrity and security of the examination or test and the proper administration of justice”.

BC regulators should also be aware that a record of a question to be used on an examination or test is not covered by the Freedom of Information and Protection of Privacy Act (according to FIPPA s. 3(1)(d)).