The appeal court said the trial court failed to adequately explain why it dismissed the physicians’ case
A group of internationally-trained physicians who failed their Canadian qualifying exams and accused the Royal College of Physicians and Surgeons of Canada of mishandling the scoring process can relitigate their claims in a new trial, the Ontario Court of Appeal ruled this week, stating that the trial judge in the case failed to explain why she ruled in favour of the association.
The appellants, who obtained medical degrees and completed training in psychiatry outside of Canada and the US, “spent years studying, training, and working with the goal of practicing independently as psychiatrists in Canada,” the OCA said in its decision Tuesday.
“The only additional hurdle was the Royal College’s qualifying exam,” the appellate court added. “Given the impact the Royal College’s decision that they had not passed the exam would inevitably have on their lives and careers, the appellants are entitled to a reasoned decision by a trial judge on the expert evidence, as well as the other issues, after full consideration of the parties’ written and oral arguments.”
The Royal College sets standards for physicians practising in Canada. It accredits university programs that train resident physicians for specialized practices and administers exams that residents must pass to be certified as specialists.
The appellants took the written component of a two-part qualifying psychiatry exam in August 2020. On its website, the Royal College stated that the pass score for the exam was 70 percent and that exams would not be graded on a bell curve. The association said that instead, its exams are “criterion-referenced,” a process that includes “an in-depth analysis of all examinations after they are written.”
Weeks after taking the exam, the appellants were told they’d failed. They later learned that they all initially scored between 70.45 and 75.76 percent on the exam, before the Royal College made adjustments in accordance with its post-exam quality review process.
That process resulted in the cut score for certification being set at 76.5 percent and all examinees’ scores adjusted downward by 6.5 percent. The appellants’ final grades were between 63.95 and 69.26 percent.
The appellants sued the Royal College in January 2021. They argued that because they paid $4,415 to the association to write the August 2020 exam, the association had a contractual obligation to grade the exams per its own stated principles and standards.
The appellants argued that the association failed to meet this obligation and asked an Ontario court for a declaration that they had passed the qualifying exam for independent psychiatric practice. They said the court needed to resolve the central factual issue of whether the Royal College’s 6.5 percent downward adjustment of their exam scores was sound.
The trial court dismissed the lawsuit, concluding it was “not for [the Superior Court] to step into the shoes of the Royal College and essentially regrade the examination.” The trial court also found that it was “psychometrically justifiable” for the Royal College to reduce the scores of all 2020 certification candidates by 6.5 percent.
The appellants asked the OCA to review the trial court’s decision. Both parties requested the appellate court to decide the case based on the trial record.
The OCA declined, stating it is not the appellate court’s function to perform the role of a trial court. Instead, concluding that the trial judge’s reasons for her judgment were insufficient, the OCA remitted the case to the lower court for a new trial.
“The trial judge did not address key issues identified by the parties’ submissions, including whether each appellant had a contract with the Royal College, the terms of any contract and whether it was breached,” the OCA said.
The appellate court noted that the trial judge expressed a preference for the Royal College’s expert witnesses over the appellants’ witness, but failed to explain why. Instead of meaningfully engaging with the appellants’ breach of contract claim, the trial judge said it was not the court’s role to “essentially regrade the examination,” the OCA added.
Brooke MacKenzie, a sole practitioner who represented the appellants, told Law Times by email on Wednesday that in her experience, “losing parties often take issue with a trial judge's reasons, but rarely do deficiencies in the reasons warrant a new trial.”
The OCA’s decision clarified that a court’s reasons “need to offer more than a summary of the parties’ positions and the judge’s conclusion – it must justify and explain the result, and explain to the losing party why they lost,” MacKenzie said. She added that the decision also confirmed that trial judges need to explain “in some level of detail” why they prefer the evidence of one expert over another, in cases where this evidence is critical to deciding an issue.
Gavin MacKenzie, who also represented the appellants, noted that all the appellants were certified to practice psychiatry in other jurisdictions, including the United Kingdom, Ireland, and the US. One of the plaintiffs, who had been practising as a certified psychiatrist in Ireland and Florida, gave evidence that he and his wife had decided to immigrate to Canada “because they understood that Canada was friendly to immigrants.”
The lawyer said, “Particularly at a time in our country when our populace are in need of assistance from qualified mental health practitioners, you will appreciate the sense of unfairness that motivated them to call into question the Royal College’s process that led to the outcome that they challenged.”
Counsel for the Royal College did not immediately respond to a request for comment.
