In a recent court decision, the Supreme Court of British Columbia addressed requirements of procedural fairness and reasonableness owed by a professional certifying body which administered a standardized examination as part of its certification process. The petitioner, a foreign-trained applicant (the “Applicant”) seeking licensure as a dentist in British Columbia, had to acquire a certificate of the National Dental Examining Board of Canada (NDEB), a non-profit corporation created under a federal statute. The NDEB determined that the petitioner failed his National Dental Examination of Clinical Competence (NDECC) test, but did not provide written reasons. The petitioner asserted that the NDEB’s failure to provide reasons breached its duty of procedural fairness and created an unreviewable decision. The court concluded that the NDEB did not owe the Applicant a more rigorous duty of fairness than was fulfilled by the decision, and that it was reasonable in the context of the circumstances. Fadaei v. The National Dental Examining Board of Canada, 2025 BCSC 1527.
This decision is important for colleges that establish and administer their own examinations. This decision may also be useful for colleges answering queries about the processes of external bodies from whom the college’s bylaws require certification or membership.
Case Background
The Applicant completed his dentistry education in the Philippines and applied for licensure in Canada. Since his dental institution was not accredited, he chose to pursue accreditation through an equivalency process, a component of which is successful completion of the National Dental Examination of Clinical Competence (NDECC), a 2-day examination consisting of multiple skills modules administered by the National Dental Examining Board of Canada (NDEB). The NDEB establishes qualifying conditions for a national standard of dental competence for general practitioners and issues Certificates of Qualification to dentists who successfully meet this standard.
During the Applicant’s fourth attempt of the NDECC, he received a failing grade in the Provisional Crown Restoration component, which resulted in failure of the examination overall. The NDEB communicated that the Applicant had made one or more of the 14 categories of errors that result in a failing grade for this component and did not elaborate further on its reasoning. The Applicant alleged that the NDECC breached procedural fairness by failing to provide written reasons for its decision, which rendered it opaque and unreviewable.
Procedural Fairness: A Limited Obligation to Provide Reasons
The duty of procedural fairness is not absolute, but flexible and context-specific. In the Applicant’s case, the court assessed whether the NDEB owed a duty to provide detailed reasons for his failure in the NDECC based on the five Baker factors (which refers to Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 CanLII 699, and establishes that the following factors are relevant to procedural fairness):
- Nature of the Decision and Process: The NDEB’s exam was a standardized, non-adversarial assessment without consideration of submissions by the Applicant or a broad exercise of discretion by the examiners. The decision was simply a pass or fail result with respect to one of a series of anonymized examinations. Therefore, the Applicant was not owed the same rigorous duty of fairness as would have been expected in a quasi-judicial process.
- Statutory Scheme: While the NDEB’s process does not include any substantial appeal mechanism, the Applicant is permitted to re-attempt the NDECC any number of times within a 5-year timeframe. This suggests that the examination decision is not “determinative of the issue” and is distinguishable from cases where an applicant is only allowed a limited number of tries to pass an examination, in which case a written explanation for a failing result becomes more important.
- Importance of the Decision: The NDECC outcome decision carried significant personal and economic importance to the Applicant and impacted his ability to pursue his chosen profession. While this would favour greater procedural protections, the NDECC does not represent a singular opportunity for licensure. The Applicant’s circumstances are mitigated by entitlement to unlimited re-takes within a 5-year timeframe, and the option of alternate pathways to accreditation accepted the regulator.
- Legitimate Expectations: The Applicant asserted that a decision without a reason is inherently arbitrary, which is contrary to his legitimate expectations of a non-arbitrary process. The court found that the NDEB had published its processes and grading criteria and had provided the Applicant with his examination results, the specific skill failed, and the grading criteria required to achieve a pass. The Applicant did not have a reasonable basis for expecting to receive anything other than a pass/fail grade.
- Choices of Procedure: The court recognized that a purpose of the NDEB, pursuant to its enabling statute, is to provide for conducting examinations in a fair and equitable manner. It gave important weight to its chose of procedures and its expertise in selecting the appropriate procedures for conducting dental clinical competency examinations.
Conclusion: When determining the content of the duty of fairness, it must be balanced against administrative efficiency and the burden associated with providing written reasons. The court found that while the NDEB owed the Applicant a duty of procedural fairness, the contents of said duty ought not to be particularly onerous. In the circumstances, it did not extend to an obligation to provide written reasons.
Reasonableness: Does the Lack of Reasons Render the Decision Unreasonable?
In assessing whether the NDEB’s lack of written reasons for the examination decision rendered it unreasonable, the Court applied the framework set out in Vavilov. The standard of reasonableness requires that a decision be justifiable, intelligible, and transparent, but it does not require a formal, detailed justification in every case. In the latter circumstances, the review is of the outcome rather than the decision maker’s reasoning process.
The Court considered that the NDEB’s detailed grading criteria were regularly updated and publicly available. It was satisfied that the decision was reviewable, having regard to the established decision-making process, and was satisfied that the NDECC outcome was justifiable and showed no indication of bad faith or internal incoherency. The Applicant’s petition was dismissed.
Conclusion
The NDEB, established under statute, owes procedural fairness to its applicants. It has, however, both a power to establish qualifications, a power to prescribe compulsory examinations as evidence of qualifications, and an implied power to control its own processes. Courts will provide deference to decisions of such bodies, which reflects its expertise of administrative decision-maker. In the circumstances, the applicant had no reasonable basis for an expectation that he would receive anything other than a pass/fail grade.
The finding of a fair process in this case notably depended, however, on the NDEB’s published detailed grading criteria which set legitimate expectations for candidates, provided context for a reviewing court, and explained non-apparent aspects of the decision-maker’s reasoning process. Colleges that administer their own examination or assessment processes – especially exams that involve greater discretion or individualized judgment – should consider the merits of publishing their evaluation criteria in a clear and accessible manner, if they do not already.
Fadaei v. The National Dental Examining Board of Canada, 2025 BCSC 1527
Sabrina Zhu