Date:
20140331
Docket:
T-718-13
Citation:
2014 FC 309
Ottawa, Ontario,
March 31, 2014
PRESENT: The
Honourable Madam Justice McVeigh
BETWEEN:
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STEVE ALJAWHIRI
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Applicant
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and
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PHARMACY EXAMINING BOARD OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision dated August 29, 2012, by
the Pharmacy Examining Board of Canada (PEBC), that refused to grant the
Applicant an additional fifth attempt to write Part 1 (MCQ) of the PEBC Pharmacist
Qualifying Examination (PEBC qualifying exam).
[2]
The
provinces each have licensing boards to determine if you can practise pharmacy
in that province. All of the provinces except Quebec require that you pass the
PEBC tests. You can only write the tests three times and then after completion,
of remedial assistance you can attempt with permission a final fourth time
which is consistent with a number of the other medical professions.
[3]
As
a preliminary matter the parties disagree as to whether the court has
jurisdiction to hear this application. I asked that the parties argue the
jurisdictional issue first and then the application for an extension of time to
file the application and finally the merits. I told the parties at the start of
the hearing that ITO - International Terminal Operators Ltd v Miida
Electronics Inc, [1986] 1 S.C.R. 752 (ITO) was the applicable authority
to determine jurisdiction. Though the parties did not argue it in their written
submissions, they were both familiar with it.
Legislative
Context
[4]
The
PEBC is the national certification body that regulates access to the pharmacy
profession across Canada, except in Quebec.
[5]
The
PEBC is a non profit corporation incorporated in 1963 pursuant to a special act
of federal parliament, An Act to Incorporate the Pharmacy Examining Board of
Canada, 1963, SC 1963, c 77, (the PEBC Act). The purpose of the PEBC is set
out in section 5 of that act. Among its purposes are to (1) establish the
qualifications for pharmacists acceptable to participating provincial licensing
bodies, (2) promote enactment of provincial legislation necessary to supplement
the act, and (3) administer a fair and equitable examination process to issue
certificates of qualification for pharmacists and (4) register certified pharmacists.
[6]
The
PEBC works in close collaboration with the provincial licensing bodies that
establish the education and examination requirements necessary for issuance of
a Certificate of Qualification to practice as a pharmacist in the particular
province.
[7]
In
Ontario, section 3 and 4 of the Pharmacy Act, 1991, SO 1991, c 36,
defines the scope of the practice of pharmacy and the authorized acts a
pharmacist can perform.
[8]
The
regulations adopted pursuant to that act establish the requirements for the
issuance of certificates of registration as a pharmacist, including (1)
successful completion of the qualifying examination of the PEBC, (2) the number
of attempts and limitation periods a candidate can have to write the qualifying
examinations and (3) additional requirements imposed on candidates trained from
outside Canada (Pharmacy Act, 1991, O Reg 202/94, s 6(1)(4), s 6(7), s
6(8) and s 7 (the Regulations)).
[9]
With
respect to the PEBC qualifying exam, the Regulations oblige applicants seeking
a certification of registration to pass the PEBC qualifying exam either within
three attempts, or on a fourth attempt following successful completion of
further education or training as required by either the PEBC, or a Panel of the
Ontario provincial registration Committee (Regulations s 6(7)).
[10]
Under
the Regulations, applicants that are unsuccessful in four attempts to pass the
PEBC exam are required to obtain a new bachelor’s degree in pharmacy if they
want to begin the PEBC examination process again (Regulations s 6(8)).
Factual Context
[11]
The
Applicant obtained a Bachelor of Science (Honours) degree in Pharmacy, and a
PhD in pharmaceutical microbiology, both from the University of Brighton in the United Kingdom.
[12]
In
1999, the Applicant began the qualification process prescribed by the PEBC,
with the intention of registering as a licensed pharmacist in the province of Ontario.
[13]
The
Applicant first wrote the PEBC qualifying exam in the fall of 1999 and on
November 15, 1999, he was informed by the PEBC that he had failed his first
attempt to pass the qualifying exam.
[14]
In
December 20, 1999, the Applicant requested his quartile standing in the
examination and any other information that would assist him in understanding
his score. The PEBC informed the Applicant that PEBC policy did not permit the
release of actual examination results but they said that among candidates who
failed the exam, he ranked in the 26th to 50th percentile, or within the third
25% from the top.
[15]
After
failing the first time over the next several years, the Applicant pursed PhD
studies in pharmacy in the United Kingdom.
[16]
The
Applicant attempted the PEBC qualifying exam a second time in the spring of
2007 and on June 27, 2007, the PEBC informed the Applicant by letter he had
failed both Parts 1 and 2 of the PEBC qualifying exam. The parties agreed the
Applicant did not request feedback following this failed attempt.
[17]
After
the second failure the Applicant attempted the PEBC qualifying exam for a third
time at the next available sitting, in fall of 2007.
[18]
On
December 13, 2007, the PEBC informed the Applicant by letter that he had failed
both Parts 1 and 2 of the PEBC qualifying exam for the third time. They also
explained that as a condition to qualify for a fourth and final attempt to
write the exam he needed to complete one of the following three options: (1)
one full University course in Pharmacy, or (2) 78 continuing education units in
correspondence courses, or (3) 500 hours of practice experience under the
supervision of a licensed pharmacist.
[19]
In
a letter dated February 20, 2008, the Applicant responded to the PEBC letter
with an application to attempt for a fourth time the May 2008 PEBC qualifying
exam. The Applicant said he would fulfill the condition to write for a fourth
time by completing 500 hours working in an accredited pharmacy under the
supervision of his brother who was a licensed pharmacist.
[20]
On
June 26, 2008, the PEBC informed the Applicant that he had failed his fourth
attempt to pass the PEBC qualifying exam. Moreover, the PEBC explained that
since the Applicant had been made aware that the fourth attempt was his final
attempt, he could not proceed towards further PEBC certification.
[21]
On
July 10, 2008, following receipt of a letter dated July 4, 2008, from the
Applicant requesting rescoring of his examination, the PEBC confirmed that the
Applicant’s examination answer sheets had been rescored and there was no change
in the result.
[21]
[22]
On
February 5, 2009, the Applicant requested a meeting with Dr. John Pugsley,
Registrar Treasurer of the PEBC, to discuss:
•
his
status regarding his attempts at obtaining PEBC certification;
•
what
options were available to him, and
•
how
to proceed forward to complete the PEBC certification process.
[23]
On
February 9, 2009, Dr. Pugsley responded by refusing the Applicant’s request for
a meeting and explaining the position of the PEBC with respect to the
Applicant’s final fourth attempt at certification. Specifically, Dr. Pugsley,
refused to grant the Applicant an additional attempt at writing the exam
because, (1) to be fair to all applicants, the PEBC adhered to the limit of
four attempts permitted to candidates seeking to pass the qualifying exam, (2)
the PEBC had not been in receipt of a letter within 7 days of the Applicant’s
writing of the May 2008 qualifying exam outlining reasons that could have
affected his performance.
[24]
On
September 30, 2011, the Applicant sent another letter to the PEBC requesting
copies of all his previous examination results, and stating he wanted to
explore options available to him to achieve licensure.
[25]
In
response, the PEBC sent copies of its three prior letters sent to the Applicant
communicating his failure in each of his second, third and fourth attempts at
passing the qualifying exam.
[26]
On
April 23, 2012, the Applicant sent another letter to the PEBC requesting a
fifth attempt to write the PEBC qualifying exam following completion of the
International Pharmacy Graduate Program.
[27]
Following
the failure of the PEBC to respond, the Applicant consulted with legal counsel
David Matas in Winnipeg, Manitoba.
[28]
On
August 2, 2012, the Applicant’s counsel wrote to the PEBC, requesting once
again an exception to let the Applicant to write the PEBC qualifying exam a
fifth time. The Applicant’s legal counsel stated that he was aware of the
regulations in Ontario specifying that the Applicant had four attempts to pass
the PEBC qualifying exam, after which, another attempt required candidates to
obtain a new undergraduate degree in pharmacy. The Applicant’s legal counsel
proposed the Applicant follow the requirements under regulations in Manitoba which they read to have no limits on the number of attempts candidates have to
pass the PEBC qualifying exams.
[29]
On
August 29, 2012, the PEBC responded and refused the Applicant’s request to
write the exam for a fifth time. The PEBC offered the following as
justification for it’s refusal:
•
the
limit on four examination attempts to pass the PEBC qualifying exam is a
national policy that the PEBC applies consistently across all jurisdictions
within its mandate, irrespective of whether provincial regulations specify the
four attempt limit or not;
•
PEBC
adherence to its own policies is necessary so as to ensure fairness to all
candidates seeking certification, and in the interest of public protection;
•
the
Applicant did not follow the PEBC procedure outlined on its website for
requesting a additional attempt to rewrite the exam for medical procedures or
compassionate grounds if there had been any.
Extension of
Time
[30]
On
March 26, 2013, the Applicant filed a motion with this court seeking leave to
issue its Notice of Application beyond the thirty day limit. This Motion was to
be dealt with at the hearing. There was disagreement and argument on the date
the application should have been filed but they both agreed it was out of date
no matter what date was used.
[31]
The
Applicant claims the delay in meeting the deadline was justified as:
•
He
retained legal counsel in Ontario with experience in administrative law and
regulation of health professionals in Ontario on December 10, 2012;
•
The
unique nature of the case justified the time required by legal counsel to
review the file, investigate the facts, evaluate the merits, and advise the
Applicant;
•
The
Applicant acted diligently and as expediously as could be reasonably expected
in pursuing his application for judicial review;
•
The
delay does not prejudice the PEBC, owing to the complexity of the legal and
factual issues;
•
The
Applicant has an arguable case on the merits of his application for judicial
review;
•
As
a matter of fairness and justice, the prejudice to the Applicant and lack of
prejudice to the PEBC justifies proceeding on the merits.
Analysis
[32]
The
question that needs answered first is whether the Federal Court has
jurisdiction to hear this application.
[33]
The
Applicant submits that the PEBC amounts to a federal board, commission, or
other tribunal as defined in section 2 of the Federal Courts Act, RSC,
1985, c F-7 (Federal Courts Act), that exercises or purports to exercise
jurisdiction or powers conferred by or under an Act of Parliament. The
Applicant argues the Federal Court has exclusive jurisdiction as counsel would
have brought the application in Ontario Divisional court, as there is no time
limit there so it would have been easier for them as they would not have had to
ask for an extension of time as they did here.
[34]
The
Applicant relies on Judicial Review of Administrative Action, the Brown and
Evans loose leaf, (pages 2-50 to 2-52), as authority that Federal Court
jurisdiction is determined by the source of the body’s authority and exists
where there is a nexus between legal authorization for the impugned
administrative action and federal law.
[35]
The
Applicant argued that the source of Federal authority with respect to the PEBC
is the PEBC Act, which apparently was incorporated into the Letters Patent
incorporating the PEBC under the Canada Corporations Act, through a reference
the Letters Patent Application to the purposes and powers in the PEBC Act.
[36]
The
Applicant submits the decision at issue is within powers conferred by the PEBC
Act and as such amounts to a direct nexus between action and federal law.
Specifically, the Applicant points to (1) subsection 5(b), which provides that
the purpose of the PEBC includes providing fair and equitable examinations for
issuance of certificates of qualification for pharmacists, and (2) subsection
11(c) which grants the authority to the PEBC to establish the terms and
conditions under which persons can obtain certificates of qualification.
[37]
The
Applicant said the Federal Court of Appeal got it wrong in Rosenbush v
National Dental Examining Board, [1992] 2 FC 692 (FCA) (Rosenbush).
In Rosenbush, the Federal Court of Appeal found the Federal Court did
not have jurisdiction over decisions of the National Dental Examining Board.
The Applicant said even though the Court of Appeal got it wrong it is still
distinguishable since the Act to Incorporate the National Dental Examining
Board of Canada (the Dental Board Act) does not contain provisions
analogous to subsections 5(b) and 11(c) of the PEBC Act. The Applicant’s
position is that Rosenbush is only binding on the National Dental
Examining Board.
[38]
While
the Supreme Court has held that the definition of “federal board, commission,
or other tribunal” at section 2 of the Federal Courts Act is sweeping (Canada (Attorney General) v TeleZone Inc, 2010 SCC 62, at para 3),
nonetheless this list is still limited to decision makers whose activities fall
within the jurisdiction of the Federal Court.
[39]
For
the Federal Court to have jurisdiction, there must be a statutory grant of
jurisdiction from Federal Parliament. This follows an interpretation of section
101 of the Constitution Act, 1867, as given by the Supreme Court in ITO,
above.
[40]
In
my view, before addressing the question raised by the parties as to whether the
PEBC amounts to a federal board, commission, or tribunal, under section 2 of
the Federal Courts Act, it first requires examining whether the activities of
the PEBC are such that they fall within the constitutional limits of the
jurisdiction of the Federal Court.
[41]
The
test for jurisdiction of the Federal Court was established in ITO and requires
satisfying the following three criteria:
•
a
statutory grant of jurisdiction by Parliament;
•
an
existing body of federal law, essential to the disposition of the case, which
nourishes the statutory grant of jurisdiction; and
•
the
law underlying the case must be "a law of Canada" as the term is used
in s.101 of the Constitution Act, 1867 (ITO at page 760).
[42]
While
no explicit reference is made in Rosenbush to ITO, it is apparent
from the reasons and the language used that those criteria were applied. Justice
Hugessen found in Rosenbush that there was no body of federal law
serving to nourish the grant of jurisdiction under the Federal Courts Act to
review administrative decisions (Rosenbush at page 3, 1st para). The
Court of Appeal found that decisions of the National Dental Examining Board of
Canada could not be reviewed by the Federal Court since the activities of that
Board did not amount to activities exercising jurisdiction or powers conferred
by an Act of Parliament (Rosenbush at page 2, last para).
[43]
In
“Part 1: Jurisdiction of the Federal Courts: An Overview” and under the
“General Principles” section in Federal Courts Practice by Saunders, Rennie,
and Garton those authors instruct that questions of jurisdiction of the Federal
Court require application of the ITO test (see page 3 of the 2014 edition).
[44]
Brown
and Evans in the section titled “Constitutional Limits: Existing body of
Federal Law”( pages 2-49), says before a determination of whether a body
amounts to a federal board, commission or other tribunal under section 2 of the
Federal Courts Act, you need to determine the constitutional limits to
jurisdiction using the ITO test.
[45]
Like
in Rosenbush, at issue here is whether the decisions of a body involved
in administering and evaluating the educational and technical qualifications of
aspiring members of the pharmacy profession are subject to review by the
Federal Court.
[46]
The
Federal Court of Appeal in Rosenbush concluded there was simply no
jurisdiction to review the decisions of the National Dental Examination Board.
On those facts there was no body of federal law statutory or otherwise, which
served to nourish the grant of jurisdiction under the Federal Courts Act so as
to permit to review the decisions of a body testing the qualification of
aspirant members of the dental professions, a purely provincial manner.
[47]
The
distinctions between the PEBC Act and the Dental Board Act are neither
material, nor amount to a sufficient basis on which to distinguish the PEBC Act
from the Dental Board Act.
[48]
There
is similarity between subsection 6(d) of the Dental Board Act and subsection
5(c) of the PEBC Act which both provides that the purpose of each Board is to
promote enactment of such provincial legislation necessary to supplement the
provisions of the Act, and both acts contain references to provincial licensing
bodies.
[49]
By
analogy, it is clear evaluating education and qualification of aspiring
pharmacists also amounts to a provincial matter as the parties have pointed to
provincial regulations outlining the educational requirements for pharmacists
in Ontario (Pharmacy Act, 1991, O Reg 202/94: see subsection 6(1)).
[50]
With
respect to federal law, the Applicant only pointed to subsection 12(1) of the
PEBC Act to support their contention that the PEBC Act amounts to a federal law
that grants jurisdiction to the Federal Court to review decisions of the PEBC.
[51]
In
my view this is a limited grant of authority to allow judicial review of only
certain removals from the Pharmacy register that PEBC administers where quasi
criminal allegations underlie the removal. Consequently, this subsection alone
does not amount to a sufficient “body of federal law statutory or otherwise,
which serves to nourish the grant of jurisdiction” as required under ITO
to find that the Federal Court has jurisdiction to review a broader scope of
activities of the PEBC. This broader scope would include decisions determining
whether applicants fulfilled the educational and testing requirements for
listing as a pharmacist on the register.
[52]
Applying
ITO and Rosenbush, the activities of the PEBC at issue in this
case do not fall within the jurisdiction of the Federal Court.
[53]
The
Applicant has not persuaded me the Federal Court has jurisdiction to hear this
matter.
[54]
As
the Federal court has no jurisdiction to hear this matter, I will not determine
if I would have granted the extension of time nor will I deal with the merits
as I have no jurisdiction to do so.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
Judicial Review is dismissed;
2.
Costs
in the amount of $250.00 is payable by the Applicant forthwith.
"Glennys L.
McVeigh"
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