Akhtar v. Canadian Board for Certification of Prosthetists and Orthotists, (2015) 317 Man.R.(2d) 1 (QB)

• Judge: Edmond, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 19, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 317 Man.R.(2d) 1 (QB);2015 MBQB 46

Akhtar v. CBCPO (2015), 317 Man.R.(2d) 1 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. AP.036

Sajjad Akhtar (applicant) v. Canadian Board for Certification of Prosthetists and Orthotists (respondent)

(CI 12-01-80393; 2015 MBQB 46)

Indexed As: Akhtar v. Canadian Board for Certification of Prosthetists and Orthotists

Manitoba Court of Queen's Bench

Winnipeg Centre

Edmond, J.

March 19, 2015.

Summary:

Akhtar was a foreign-trained orthotist who applied for certification with the Canadian Board for Certification of Prosthetists and Orthotists. He was unsuccessful in his attempts to pass the certification examination. He appealed to the Board, asserting that the examiners had failed to properly assess him. The Board denied the appeal. Akhtar applied for judicial review.

The Manitoba Court of Queen's Bench dismissed the application.

Administrative Law - Topic 262

The hearing and decision - Right to a hearing - When right exists - [See Administrative Law - Topic 2272 ].

Administrative Law - Topic 266

The hearing and decision - Right to a hearing - Persons not entitled to a hearing - [See Administrative Law - Topic 2272 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Administrative Law - Topic 2272 ].

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (inc. extent of duty) - Akhtar was a foreign-trained orthotist who applied for certification with the Canadian Board for Certification of Prosthetists and Orthotists - He failed the certification examination - He appealed to the Board, asserting that the examiners had failed to properly assess him - The Board denied the appeal - Akhtar applied for judicial review - He submitted that he did not have a meaningful opportunity to fully and fairly present his case to the Board because he was denied an in-person hearing to present his evidence orally and to be assisted by legal counsel in his appeal - The Manitoba Court of Queen's Bench dismissed the application - The duty of procedural fairness required the Board to provide Akhtar with the reasons for his failure - It did not require that he receive an oral hearing - The Board was entitled to establish its own procedures and appeal process - Akhtar was informed of the details of his performance and the reasons for failure - He was given an opportunity to respond to the assessments and appealed the decisions at two levels - The appeal process was followed and all evidence provided by Akhtar was reviewed and considered - Akhtar was provided with procedural fairness - See paragraphs 44 to 85.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Administrative Law - Topic 9102 ].

Administrative Law - Topic 3204

Judicial review - General - Agencies or tribunals subject to review - Akhtar applied for judicial review of a decision of the Canadian Board for Certification of Prosthetists and Orthotists which dismissed his appeal of his failure to pass the certification examination - The Board submitted that it was a private, not-for-profit corporation and was therefore not subject to judicial review - The Manitoba Court of Queen's Bench held that the Board's decision was subject to judicial review - Although it was a private, not-for-profit corporation, the Board served a public function by ensuring that minimum standards for the treatment of patients receiving orthotic or prosthetic care were met in Canada - The decisions of the examiners and the Board in the appeal process affected the rights, interests and privileges of individuals seeking to be certified as orthotists - See paragraphs 33 to 39.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - Akhtar was a foreign-trained orthotist who applied for certification with the Canadian Board for Certification of Prosthetists and Orthotists - He failed the certification examination - He appealed to the Board, asserting that the examiners had failed to properly assess him - The Board denied the appeal - Akhtar applied for judicial review - The Manitoba Court of Queen's Bench held that the standard of review was reasonableness - First, a clear appeal process was established by the Board which governed all members of the organization - That appeal process included a privative clause which stated that the decision of the Board was final - Second, the examiners in the first instance, the examination appeal committee and the Board had special expertise to determine the qualifications of its members and to determine whether applicants had successfully completed the required examinations for certification - See paragraphs 40 to 43.

Professional Occupations - Topic 210

Boards and tribunals - Domestic tribunals - Judicial review of decisions of - [See Administrative Law - Topic 3204 and Administrative Law - Topic 9102 ].

Cases Noticed:

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 34].

Rankin et al. v. Alberta Curling Federation Appeals Committee (2005), 390 A.R. 246; 262 D.L.R.(4th) 484; 2005 ABQB 938, refd to. [para. 35].

Ferguson v. Canadian Counselling Association et al. (2007), 315 N.B.R.(2d) 115; 815 A.P.R. 115; 2007 NBQB 46, refd to. [para. 35].

Knox et al. v. Conservative Party of Canada et al. (2007), 422 A.R. 29; 415 W.A.C. 29; 286 D.L.R.(4th) 129; 2007 ABCA 295, leave to appeal refused (2008), 385 N.R. 390; 454 A.R. 121; 455 W.A.C. 121 (S.C.C.), refd to. [para. 36].

Maltais v. Port of Dalhousie Inc. (2011), 377 N.B.R.(2d) 312; 972 A.P.R. 312; 343 D.L.R.(4th) 114; 2011 NBCA 84, refd to. [para. 37].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, appld. [para. 41].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, appld. [para. 44].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 45].

Daneshvar v. National Dental Examining Board of Canada (2002), 161 O.A.C. 342; 43 Admin. L.R.(3d) 256 (Div. Ct.), refd to. [para. 50].

Cougar Aviation Ltd. v. Canada (Minister of Public Works and Government Services) et al. (2000), 264 N.R. 49; 26 Admin. L.R.(3d) 30 (F.C.A.), refd to. [para. 61].

Surette v. Eastern Regional Integrated Health Authority (2010), 305 Nfld. & P.E.I.R. 160; 948 A.P.R. 160; 2011 NLTD(G) 31, refd to. [para. 77].

Baxter v. Memorial University of Newfoundland (1998), 166 Nfld. & P.E.I.R 183; 511 A.P.R. 183 (Nfld. T.D.), refd to. [para. 77].

Mulligan et al. v. Laurentian University (2008), 241 O.A.C. 11; 302 D.L.R.(4th) 546; 2008 ONCA 523, refd to. [para. 78].

Tsimidis v. Certified General Accountants of Ontario (2014), 323 O.A.C. 363; 2014 ONSC 4236 (Div. Ct.), dist. [para. 79].

Counsel:

Jennifer L.M. Gaba, for the applicant;

Ryan D. Savage and Peter A. Mueller, for the respondent.

This application was heard before Edmond, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on March 19, 2015.