November 15, 2020

When extra opportunities for exam-writing are an undue hardship on the public interest

Administrative Law
Professional Regulation
Registration and Fitness

Where a provisional registrant has failed four times to pass an exam that may ordinarily be written only three times, a regulatory authority may reasonably refuse to allow a fifth attempt, regardless of the registrant’s learning disability, to preserve the integrity of the exam results: Lockerbie v. College of Occupational Therapists of Nova Scotia, 2020 NSSC 279.

In this case, a provisional registrant (who met all registration requirements except passage of a certification exam) wrote the exam twice, without asking for accommodations, and failed to obtain passing scores. She then discovered she suffered from a learning disability, and she made a third attempt after asking for and receiving accommodations in the form of extra time to write the exam, and a separate room. She did not pass the exam on her third attempt. The college eventually let her write the exam a fourth time, with further accommodations, but she did not pass. The college’s credentials committee declined to afford the registrant a fifth writing, and vacated her provisional registration. She applied for judicial review of the committee’s decision to refuse a fifth writing.

Respecting the various issues raised by the applicant, the court rejected her assertions of procedural fairness issues, [98] or that any classification applied that warranted a “correctness” review, e.g., a general question of law of central importance ot the legal system as a whole, or a question relating to the jurisdictional boundaries between two tribunals. The court came to two key conclusions.

First, the first two exam writings had been “fair” given that the registrant had not sought accommodations. Furthermore, the committee reasonably concluded “fairness” based in part on it granting her a fourth opportunity at the exam. [203]

Second, the board had evidence before it that repeat testing was unreliable due to the use of repeated questions from previous exams. The rationale for a three-attempt limit includes preventing undue exposure to exam content. Accordingly, the committee had a basis to conclude that multiple writings could enhance the registrant’s chance of passing the examination by chance, and that further accommodating her, by allowing her to write the exam a fifth time, involved an undue hardship and was contrary to the public interest.

Lockerbie v. College of Occupational Therapists of Nova Scotia, 2020 NSSC 279.

Lisa C. Fong, Q.C. and Michael Ng