Sep 28, 2020

Where an entry-to-practice examination involves clinical skills, it is particularly difficult to challenge (or defend) the outcome. The scoring typically involves the application of professional judgment, even where the criteria are explicitly set out. Courts dealing with judicial review applications of such outcomes generally apply a fair degree of deference to the examination body. This was demonstrated in Kabiri v The National Dental Examining Board of Canada, 2018 BCSC 1938, <http://canlii.ca/t/hvxxd> where the court upheld the failing grade given in a dentistry examination. The failure related to excess amalgam used in a filling and holes in a dental dam intended to prevent debris from reaching a patient’s throat. The candidate questioned how the excess amalgam was measured and also provided photographs that he asserted revealed no holes or tears in the dam.

The Court made the following points:

  • Judicial review was available, even though the examination body was a private corporation, because its examination was relied upon by statutory regulatory bodies for registration purposes.
  • Deference must be exercised since the examination involved the application of expertise.
  • Judicial review did not exist for the way in which the examination was structured; it just existed for the actual administration of the examination itself. For example, the court would not require the examiners to develop an alternative and more objective method of measuring excess amalgam.
  • In this case the examining body provided adequate reasons for dismissing the candidate’s internal appeal. For example, it explained why the close up photographs of the dam that did not reveal any holes or tears was not a sufficient basis to overturn the examiners’ on-site observations.
  • An examination body is permitted to defend the reasonableness of its decision on judicial review, particularly where there was no one else to argue the matter.

This decision gives guidance on how an examination body should manage internal appeals.