NB Court upholds Commissioner’s power to investigate language issues in nursing licensure exam

The NB Court of Appeal had upheld the Commissioner of Official Languages’ power and authority to investigate complaints concerning a licensure examination for nursing students in New Brunswick.

The dispute in Commissioner of Official Languages for New Brunswick v. Nurses Association of New Brunswick, 2023 NBCA 60, arose out of a complaint filed with the Office of the Commissioner of Official Languages against the Nurses Association of New Brunswick concerning its licensure examination for nursing students seeking to practice in New Brunswick. The examination is known as the National Council Licensure Examination for Registered Nurses (NCLEX-RN).

The complaint raised concerns about the disadvantage to the francophone students because the exam was not properly translated from English to French. The complaint also highlighted the limited availability of French language resource materials compared to the much greater availability of English language resources designed to assist students in preparing for the exam.

Commissioner Katherine d'Entremont commenced an investigation in 2016 and found that the association violated the Official Languages Act. The association applied for judicial review. Discussions ensued between the association and a different Commissioner, appointed interim to replace Katherine d'Entremont following her retirement. These discussions eventually led to the withdrawal of the judicial review application, but the issue of the availability of the French language resource materials remained unresolved.

Following the appointment of current commissioner Shirley MacLean, a complaint was filed asking the commissioner to revisit her predecessor's decisions. The association objected and filed another application for judicial review, seeking an order to prohibit the investigation from taking place, largely on the basis the withdrawal of the first judicial review application had settled the matter. The application judge agreed with the association, finding that the commissioner's office and the association had concluded a "settlement" which precluded the investigation contemplated by the new commissioner. The judge ordered a prohibition of the investigation and awarded costs against the commissioner.

The commissioner brought the matter to the NB Court of Appeal, which ruled to set aside the application judge's decision. The court noted that the commissioner's appeal of the application judge's decision addresses the framework of her legislative mandate to investigate the complaints filed with her office under the Official Languages Act and asserts that the judge committed an error prohibiting that investigation from occurring.

The court emphasized that the rights protected under the Official Languages Act are fundamental and, as a result, the commissioner's power to investigate is the critical tool to monitor the protection and realization of those rights.

Reasonableness standard

One of the pivotal issues on appeal is "Did the judge properly apply the reasonableness standard to the Commissioner's decision to investigate?"

The court's role in assessing whether the application judge correctly applied the reasonableness standard is to step into their shoes and conduct a de novo assessment of the impugned administrative decision. The court warned that a judge must resist the temptation to decide the issue on judicial review of an administrative decision. The court pointed out that the task is not for the judge to determine how the matter should have been decided and whether the administrative decision-maker's disposition measures up. Instead, the judge is to focus on the decision and its rationale to see if it bears the hallmarks of transparency, justification, and intelligibility. If it does, it passes the test of reasonableness and is not to be disturbed, even when the judge completely disagrees with the decision. The court found this rule differed from what the application judge applied in this case.

Deviations from reasonableness assessment

The court found that one of the indications that the application judge's analysis strayed from the reasonableness standard was his finding the commissioner lacked jurisdiction to investigate. That finding was largely based on his preliminary determination that a "settlement" reached by the interim commissioner ousted Commissioner MacLean's jurisdiction to proceed. Rather than review her rationale relating to her legislative authority, the judge conducted his analysis of the act and concluded nothing in it could permit Commissioner MacLean to "reconsider and/or redecide a prior decision."

The appeal court, however, found that Commissioner MacLean provided an analysis of her authority to conduct an investigation, which had nothing to do with any prior decision by her predecessor. The court said that "an administrative decision-maker's interpretation of their powers under a home statute is subject to a reasonableness review and is owed deference."

The court further said that the judge must strictly consider the commissioner's decision, regardless of what interpretation the judge might have favoured, and determine whether it met the hallmarks of reasonableness. If the decision exhibits these hallmarks, nothing more is needed to conclude it is reasonable.

Moreover, the court said that the most obvious deviation from the reasonableness assessment is the application judge's undertaking of his review of the record to address the issues of statutory interpretation of the exceptions to investigate and the issue of the "settlement" agreement. The court pointed out that rather than focus on the commissioner's reasons concerning these two issues, the judge's focus on his interpretation led him to conclude the commissioner had predetermined these issues before rendering her decision. The court held that "not only does the record not support any finding of predetermining issues, but the commissioner had invited the parties to make further submissions specifically on these and other issues before making her decision."

The court noted that the commissioner's decision addressed the four objections raised by the association and considered each of the objections within the commissioner's statutory framework. The commissioner concluded that the complaints were neither vexatious nor abusive and that she was obligated to carry out her legislative mandate to investigate. The court also found that the commissioner provided a global analysis of all four objections.

Reasonableness of the commissioner's decision

Commissioner MacLean cited jurisprudence to support her position that her role and authority had to be interpreted in light of the object and importance of the law. The court held that her analysis and decision bore the hallmarks of transparency, intelligibility and justification, which made it reasonable.

The court further noted that the application judge did not discuss why he deemed it appropriate to order prohibition, particularly where courts have generally described this remedy as "drastic" and to be avoided unless an unusual or exceptional circumstance warrants it.

Accordingly, the court concluded that the commissioner reasonably interpreted her statutory duties and her decision to investigate is owed deference. The court underscored that the commissioner cannot be prevented from investigating as she must carry out her quasi-constitutional mandate to oversee the protection of language rights under the act.