Docket: T-2138-10
Citation: 2011 FC 1386
Ottawa, Ontario, November 29,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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NYALL ENGFIELD
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application by Nyall Engfield brought under subsection 18.1 of the Federal
Courts Act, RSC 1985, c F-7,seeking to set aside a decision of the Patent
Agent Examining Board (Board) concerning its review of his failing grades in a
patent-agent examination written over four days in April 2010.
Mr. Engfield complains in his Notice of Application that the Board failed
to observe the principles of procedural fairness and made its decision to deny
his appeal on the basis of reviewable errors of fact and without regard to the
evidence. The first of these issues must be assessed on the basis of
correctness and the second on the basis of reasonableness.
[2]
At
the commencement of the hearing, it was agreed that the only proper Respondent is
the Attorney General of Canada and the style of cause is amended accordingly.
[3]
It
is undisputed that Mr. Engfield received failing grades on three of the
four papers he had written in answer to the Board’s patent-agent examination.
The examination rules set by the Board require a grade of at least 50% on each
of the answers to four questions posed and a 60% overall average for all four
answers. Any mark of 60% or more on a paper will stand as a credit on
subsequent examinations.
[4]
The
record discloses that Mr. Engfield received marks of 36% on drafting, 47%
on validity, 55.5% on examination and 60.5% on infringement and, accordingly, he
failed the 2010 examination. However, his grade of 60.5% on the infringement
question was accepted by the Board as a credit against any future qualifying
examinations.
[5]
On
September 24, 2010, Mr. Engfield filed an appeal to the Board challenging all
four of his grades. He claimed in a detailed submission that his answers
warranted grades respectively of 71.8%, 65.25%, 74.5% and 82%.
[6]
The
Board disagreed. It increased his mark for the second answer from 47% to 48%,
but declined to adjust any of the remaining grades. In the result, his appeal
failed.
[7]
Mr. Engfield
acknowledges that the patent-agent examination is difficult to pass. Each
question is imposing and each must be answered within four hours. The
examination is administered on four successive days and the answers are rigorously
graded against detailed marking guides. In 2008 and 2009, the pass rate for
first-time applicants was below 5% and the overall pass rate was below 20%. In
short, the majority of those who sit the examination receive failing grades.
[8]
In
argument before me, it was apparent that Mr. Engfield misunderstood both
the scope of the appellate review that was available before the Board and the
scope of judicial review that is open to the Court.
[9]
Judicial
review is not a process by which the Court can remark Mr. Engfield’s
examination. That is a task assigned to the Board by subsection 14(1) of the Patent
Rules, SOR/96-423. The functions of setting and marking the annual
patent-agent examination fall squarely within the Board’s specialized expertise
and it is fully entitled, as it has done, to set exacting standards for entry
to this profession. Therefore, Mr. Engfield misconstrues the scope of
available judicial review where he argues between paragraphs 25 and 53 of his
Memorandum of Fact and Law that the Court should effectively re-grade his
answers.
[10]
The
authority of the Board to sit on an appeal from a failed examination is also
constrained. The Board’s Review Policies and Procedures state that the grounds
for review are limited to clerical errors concerning the physical manipulation,
addition or reproduction of a candidate’s answer book or where the marks awarded
are inappropriate having regard to the content of the marking guides. An
appeal based on an argument that a marking guide was deficient will not be
entertained.
[11]
The
Board is entitled to a high degree of deference in setting and marking its
patent-agent examinations. The Board has appropriately adopted very exacting
standards for gaining admission to a very exclusive and learned profession. In
an extreme case where there is evidence in the record that the Board manifestly
failed to assess a candidate’s answers, the Court can intervene on judicial
review. However, in this case I have no evidence from Mr. Engfield, or
from any witness on his behalf, to establish that the Board’s review of his
answers was unreasonable. Mr. Engfield has presented arguments to that
effect but no evidence. In any event, the fact that he is able to advance a
more favourable interpretation of his answers than that adopted by the
examiners is no basis for concluding that the appeal results were
unreasonable. To the extent that Mr. Engfield takes issue with the
adequacy of the Board’s marking guides, his challenge falls outside of the
scope of the Board’s review authority and, therefore, cannot be relied upon on
judicial review.
[12]
Mr. Engfield
also complains that the Board acted unfairly by failing to provide sufficient
reasons to allow him to understand why his arguments for passing grades were
not accepted. This argument is untenable.
[13]
It
is not entirely clear from the record that Mr. Engfield ever asked for the
Board’s reasons before bringing this application. The only reference in the
record to the provision of reasons is found in Mr. Engfield’s letter of
appeal dated September 24, 2010. That letter requests “complete reasons for
the enclosed exam so I am able to understand the marker’s reasoning”. This
appears to me to be a request for reasons for the original assigned grades and
not for the anticipated reasons from Mr. Engfield’s pending appeal. There
is no follow-up request for reasons in the record before me and, given the
ambiguity in Mr. Engfield’s request, I do not think the Board can be
faulted for failing to do more than it did.
[14]
In
any event, the Board’s fairness obligations in the context of an examination review
are minimal. It will generally be required to honour its own procedural
protocols and, of course, it must always act in good faith. The Board is also
required to consider an applicant’s submissions to the extent that they are
germaine to the Board’s review authority. However, the Board has no duty to provide
reasons beyond the provision of the marking guides, the examination questions,
the answers and the record of the conclusions reached by the reviewers. With
the provision of those materials, an applicant has all of the information
required to understand the process and to assess the reliability of the
assigned grades. In this case, Mr. Engfield had sufficient information to
prepare a detailed argument to challenge the initial assigned grades in the
prosecution of his appeal and he suffered no apparent prejudice in mounting a
substantive, albeit misguided, attack on the test results before the Court.
[15]
According
to the Federal Court of Appeal in Gardner v Canada (AG), 2005 FCA 284,
[2005] FCJ no 1442 (QL), the duty to provide reasons will be minimal where, by
virtue of one’s intimate involvement in the process leading to a decision, a
person has the means to understand its rationale. This is in keeping with the
observation in Baker v Canada (MCI), [1999] 2
SCR 817, 147 DLR (4th) 193, that the content of the duty of fairness will vary according
to the nature of the decision and the decision-making process. Here the
decision-making process is one of a paper review that does not resemble a
judicial adjudication. There is also nothing in the Board’s written policies
to suggest that any justification is required either for the initial assignment
of grades or in connection with their subsequent review.
[16]
It
is of additional significance that an examination failure is subject to appellate
review and it does not preclude subsequent attempts to rewrite. Indeed, it
appears that many failed applicants continue to be retested until they
succeed. The Board’s practice of protecting grades above 60% also militates,
to a degree, the rigour of the Board’s methods. These are matters that lessen
the practical significance of an examination failure.
[17]
Mr. Engfield
argues that there is nothing in the Board’s records to show that his submission
was ever considered. I do not agree. It is clear from the record that the
individual reviewers were provided with copies of his submission and, in at
least one instance, the reviewer made notations on that document. The
reviewers were not required to carry out an issue-by-issue response to
Mr. Engfield’s submission. Their task was to reassess his answers against
the marking guides, not against his interpretations. To the extent that
Mr. Engfield took issue with the adequacy or content of the marking guides,
his argument was misplaced and exceeded the scope of the available review.
[18]
Mr. Engfield’s
criticisms about the length and complexity of the Board’s examination and its
use of half marks are trivial and of no legal significance. He wrote the same
examination as the other candidates and was marked under the same set of
criteria. The fact that he found the examination too taxing does not support
an inference that the process was unfair.
Conclusion
[19]
For
the foregoing reasons, this application for judicial review is dismissed with
costs payable to the Respondent in the amount of $2,000.00 inclusive of
disbursements.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the only proper Respondent is the Attorney General
of Canada and the style of cause is amended accordingly.
THIS COURT’S FURTHER
JUDGMENT is that this application for judicial review is dismissed with
costs payable to the Respondent in the amount of $2,000.00 inclusive of
disbursements.
"R.L.
Barnes"
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