Sep 28, 2020

Some regulators are permitted to consider exemptions (sometimes called waivers) for applicants for registration who do not meet the technical requirements. Typically these exemptions permit an applicant to demonstrate that they meet the necessary competencies through an alternative means (e.g., experience as well as formal education). It is necessary for regulators to consider whether an exemption should be granted. Failing to analyze the availability of the exemption can nullify the determination. That was the case in Yates v Nova Scotia Board of Examiners in Psychology, 2018 NSSC 43,

In the Yates case the applicant had a “non-practising” registration status in Saskatchewan. Nova Scotia did not have such a category. The Court held that the applicant did not qualify under the Agreement on Internal Trade as Nova Scotia was not required to create such a category for her. However, the regulator now had to consider whether she qualified under the existing requirements for applicants. The Nova Scotia legislation permitted persons without an approved degree to receive individual consideration if registered elsewhere (even in a non-practising capacity). As a result of the policies and procedures adopted by the regulator, it did not actually consider whether this applicant should receive the waiver. Failing to do so resulted in the matter being returned for fresh consideration. The Court said:

The protection of the public is not solely achieved by powers of exclusion. It is also served by the permissive power to consider the inclusion of individuals, where appropriate, whom the authority feels may be able to assist in protecting the public by the delivery of competent, professional services, notwithstanding their technical inability to meet all of the requirements ….

The Court was also concerned that some materials had not actually been provided to the decision makers on the basis that staff thought the materials were not relevant. Rather, only a verbal summary of the materials was provided. The Court noted that the materials were potentially relevant to the issue of whether an exemption should be granted and, as such, procedural unfairness resulted.