The Divisional Court recently considered the College of Psychologists of Ontario’s appeal of a decision from the Health Professions Appeal and Review Board (Board). College of Psychologists of Ontario v. Ontario (Health Professions Appeal and Review Board) focuses on the roles of the College’s Registration Committee and the Board when addressing registration applications.
In 2016, Ms. Manley obtained a Masters of Science in clinical psychology from Capella University. Capella is an online correspondence program university based in the US that does not have a physical campus. For the most part, the master’s program was delivered through asynchronous instruction: students watch pre-recorded lectures and interact with faculty and other students through posts on an online message board.
After completing her master’s program in June 2016, Ms. Manley applied to the College of Psychologists for a certificate of registration as a psychological associate in supervised practice (rather than autonomous practice).
After receiving Ms. Manley’s application, the College Registrar referred her application to the Registration Committee because of concerns about her master’s degree. Since then, there have been a series of decisions regarding her application.
The Statutory Framework
Under the Health Professions Procedural Code, the College has the statutory authority to make regulations prescribing the standards and qualifications for issuing certificates of registration as a member of the College.
The Psychology Act and the Regulation regarding registration provide for two classes of registration: psychologist and psychological associate. For registration as a psychological associate, the applicant must complete a master’s program, preceded by a full course of undergraduate studies in psychology, and must meet prescribed criteria.
Subsection 16(1) of the Regulation sets out the requirements applicable to the applicant’s master’s degree program:
Subsection 16(3) of the Regulation prescribes one small exemption. If the master’s program meets the first two requirements but not the third, it is deemed to have met the third requirement if:
The phrase “resident graduate study and training” is not defined in the Regulation or the Code. However, according to a College Guideline, “resident study and training consist of in-person participation in courses, seminars, practica and internships with face-to-face contact with faculty and other students.”
The Decisions Below
The First Registration Committee Decision
In October 2016, a panel of the Registration Committee conducted a review of Ms. Manley’s application. The panel found that while Ms. Manley attended an authorized degree-granting institution, the master’s program did not require 576 hours of undergraduate instruction in psychology for admission nor a minimum of one academic year of full-time resident graduate study and training. Accordingly, the panel directed the Registrar not to register Ms. Manley.
She sought a review of that decision by the Board, but the review did not proceed as the College agreed to reconsider her application.
The Second Registration Committee Decision
In May 2018, after reconsideration, the panel again directed the Registrar to refuse Ms. Manley’s application for registration.
This time, the panel found that the master’s program still did not meet the third requirement: the minimum of one academic year of full-time resident graduate study and training. The panel considered whether the exception applied but found that the program could not be “substantially similar” to a program with one academic year of full-time resident graduate study and training.
The panel specifically noted that the “technology used in the delivery of [the] program’s courses did not sufficiently approximate in-person (real-time) participation in courses with face-to-face interaction between course instructors and other students.” In-person participation with face-to-face contact was a crucial component of graduate education and training in professional psychology, referring to the Canadian Psychological Association’s accreditation standards.
Again, Ms. Manley sought a review of the decision by the Board.
The Board’s First Decision
Before the Board, Ms. Manley argued that the College was obligated to treat applicants with the same degree in a similar fashion. Other graduates of Capella University had been registered as members of the College under previous regulations, which had been in place when she began her program. She argued that the Registration Committee had wrongly imported the requirement of “in-person” or “face-to-face” interaction into the Regulation.
In its December 2018 decision, the Board found that Ms. Manley’s program was “substantially similar” to a program that provided a minimum of one academic year of full-time resident graduate study and training. As a result, the Board returned the matter to the Registration Committee for reconsideration, recommending that the applicant be registered.
The Registration Committee’s Third Decision
The Registration Committee reconsidered Ms. Manley’s application in June 2019. Again, the panel found that the program did not satisfy the Regulation and no exemption applied. The Registration Committee again directed the Registrar to refuse Ms. Manley’s application for registration. In doing so, the panel emphasized that it had significant subject-matter expertise and must act in accordance with the College’s duty to regulate the profession in the public interest.
The panel found that it did not have a sufficient basis to exercise its discretion to depart from the resident study regulatory standard for academic programs in this case. To find the program substantially similar would be a significant deviation from the intent of the Regulation.
Again, Ms. Manley sought a review by the Board.
The Board’s Second Decision
In May 2021, the Board decided to order the Registration Committee to direct the Registrar to issue Ms. Manley a certificate of registration. The Board found that the Registration Committee had exercised its powers improperly because it had not accepted the Board’s prior finding that Ms. Manley’s master’s program was “substantially similar.”
The Board noted that the Registration Committee had not appealed the Board’s 2018 decision to the Divisional Court in accordance with section 70 of the Code, nor had it sought to have it reconsidered under the Board’s Consolidated Rules of Practice and Procedure and Practice Directions.
The Board found that the Registration Committee was “bound” by the Board’s prior finding regarding substantial similarity. The Board concluded that the Registration Committee had exercised its power improperly, meaning “illegally, unfairly or arbitrarily,” opening the door to an order requiring the Registration Committee to direct the Registrar to register Ms. Manley under section 22(6) of the Code.
The College appealed to the Divisional Court, challenging the Board’s decision.
The Divisional Court’s Decision
The Divisional Court found that the Board had erred in finding that the Registration committee had exercised its powers improperly.
The improper conduct relied on by the Board was based on the erroneous conclusion that the Board’s prior decision bound the Registration Committee. In 2018, the Board had recommended that the applicant be registered. The Registration Committee did not do so. The Board saw that failure to follow the Board as improper. Therefore, the Board concluded that the requirement of an improper exercise of power had been met.
The Divisional Court held that this approach was contrary to the legislative scheme. The Registration Committee was not bound by the Board’s 2018 decision about substantial similarity. The Registration Committee panel was obliged to consider Ms. Manley’s application and the Board’s reasons and recommendations. It did so. Although different from the Board’s recommendations, the decision reached was not an improper exercise of power.
The Board’s interpretation of this Registration’s Committee’s action transformed the word “recommendation” into an order, and this was contrary to the Code. Accordingly, the Divisional Court allowed the appeal and referred the application for registration back to the Registration Committee. The Divisional Court directed that the College shall constitute a new panel of the Registration Committee to treat the Board’s Decision as reasons with a recommendation and reconsider the application, including the expanded record before the Board.
In reaching its decision, the Divisional Court also considered the issue of deference. The College had been given the responsibility to establish the requirements for registration. Panels of the Registration Committee are required to be comprised of members of the profession and one public member. In contrast, the Board is comprised of members who are not permitted to be members of any health profession. The Board is a civilian overlay on the operation of self-governing health professions.
While the Board is a specialized tribunal with expertise in reviewing registration applications, the Registration Committee has expertise in the psychology profession, including the education required to enter the profession.
The Board should have been more deferential to the Registration Committee’s interpretation of “substantial similarity” because the Committee had special expertise in this regard. The Divisional Court noted that the most the Board could have done if it disagreed with the panel about “substantial similarity” would have been to send the matter back to the Registration Committee for further reconsideration in light of its reasons and recommendations.
Unfortunately, Ms. Manley has been caught in a seemingly endless battle between the College and Board. Whether she is successful in receiving her certificate of registration after six years remains to be seen.
Our blog does not replace legal advice tailored to your specific situation. At Wise Health Law, we have extensive experience in guiding regulated health professionals through College proceedings, including registration matters. Please contact us to find out if we are able to assist you.
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