Kouzonikov v. Nova Scotia Board of Examiners in Psychology

Kouzonikov v. Nova Scotia Board of Examiners in Psychology Court Supreme Court Date 2007-04-23 Citation 2007 NSSC 124 Docket SH 262285 Judge/Registrar/Adjudicator McDougall, Glen G. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Kouzovnikov v. Nova Scotia Board of Examiners in Psychology 2007 NSSC 124 Date: 20070423 Docket: SH 262285 Registry: Halifax Between: Konstantin Kouzovnikov Applicant v. Nova Scotia Board of Examiners in Psychology Respondent Judge: The Honourable Justice Glen G. McDougall Heard: June 5, 2006, in Halifax, Nova Scotia Counsel: Sean Foreman, Ll.B., for the applicant Michael J. Wood, Q.C., for the respondent By the Court: [1] Konstantin Kouzovnikov (the “applicant”) has applied for: (1) An Order in the nature of certiorari pursuant to Rule 56.02 quashing the November 18, 2005, decision of the Respondent Nova Scotia Board of Examiners in Psychology to remove the Applicant’s name from the Register of Candidates; (2) An Order in the nature of prohibition pursuant to Rule 56.02 preventing the Respondent Nova Scotia Board of Examiners in Psychology from proceeding with any disciplinary action against the Applicant in connection with the Respondent’s letter to the Applicant of March 16, 2005; (3) Costs of this proceeding on a solicitor and client basis; and, (4) Such further relief as this Honourable Court deems just. [2] The applicant’s own affidavit was filed in support of his application. Sometime after the filing of the notice of application an affidavit of Dr. Rosemarie Sampson, Ph.D., was also filed in support. [3] The Nova Scotia Board of Examiners in Psychology (the “Board”) filed: (1) The return required by Civil Procedure Rule 57.08 which included: (i) the decision; (ii) the material relied upon by the respondent Nova Scotia Board of Examiners in Psychology; and (iii) all other papers or documents in the matter. (2) An affidavit of the Board’s Registrar, Ms. Meredith Burns. BACKGROUND [4] The applicant seeks judicial review of two decisions: (1) the decision of the Board to remove the applicant from the Register of Candidates; (2) the decision of the Investigation Committee of the Board to suspend its investigation into a complaint made against the applicant. [5] The applicant is a graduate of Leningrad State University, Leningrad, Russia. He attained a Master of Science Degree in Psychology in 1987. [6] In 1988 he immigrated to Canada. His credentials were reviewed by the University of Toronto’s Comparative Education Service and were found to be comparable to that of a Master’s Degree in Psychology from a Canadian university. [7] After working in Newfoundland and Labrador for several years, Mr. Kouzovnikov applied for registration as a candidate with the Board in late 1996. The Board is the organization which registers and licenses psychologists in Nova Scotia. It derives its authority from the Psychologists Act, S.N.S. 2000, c. 32. [8] Registration of psychologists in Nova Scotia is based on a two-tiered system. To be admitted to the Register of Psychologists an individual must have the necessary educational background and have completed the required examinations and periods of supervised work. Such individuals are designated as psychologists or registered psychologists. Individuals who possess the necessary educational background but who have yet to complete the required educational and work components may be registered to the Register of Candidates. [9] In order to qualify as a psychologist, a candidate must pass a written and oral examination and complete the required years of supervised work experience. As part of the work experience, a candidate must meet with his or her supervisor at least two hours every month. A supervision report detailing the nature of the work performed during the reporting period, discussions between the candidate and his or her supervisor and on-going process evaluation would then have to be prepared. These reports would then be submitted to the Board. Generally the reports are submitted semi-annually but in instances where the Board is concerned with the progress of a candidate more frequent monthly reporting could be required. [10] Initially Mr. Kouzovnikov was required to report monthly. This was later changed to semi-annual reporting. He and his supervisor were oftentimes late filing these reports and had to be regularly reminded to fulfil this requirement. Indeed, at the time of receiving notice of his removal from the Candidate Register on November 18, 2005, the last supervisory reports received by the Board from Mr. Kouzovnikov covered the period from January 2004 to June 2004. They had been signed by the supervisor on October 4, 2004 and by Mr. Kouzovnikov on January 12, 2005. [11] At the time of his application to the Board, Mr. Kouzovnikov was a registered psychologist in Newfoundland and Labrador. On February 25, 1997 the Board informed Mr. Kouzovnikov in writing that his application for admission to the Register of Candidates in Nova Scotia had been approved. The Psychologists Act, R.S.N.S. 1980, c. 14 (the “old Act”) and the Psychologist Regulations, N.S. Reg, 152/81 (the “old Regulations”) in force at that time, governed the terms and conditions of his registration. [12] Those terms included a minimum of six (6) years full-time supervised work experience requiring monthly meetings of not less than two (2) hours duration with an approved supervisor. A candidate was further required to write and pass the Examination for the Professional Practice in Psychology (the “EPPP”) during the period of supervision or within three (3) years of having completed the six (6) years of supervised work. After successful completion of these two requirements, the candidate would then be required to successfully complete the Board’s oral examination. [13] Initially Mr. Kouzovnikov was advised by the Board that if he failed the EPPP three times or if he did not write or pass the examination within three years of having achieved the minimum work experience requirements, the Board could conduct a special review with the possibility of removing his name from the Register of Candidates. [14] In 1999, the Board’s policy regarding the EPPP changed. Mr. Kouzovnikov was advised of the change by way of a memorandum from the Board dated July 22, 1999. The memorandum stated: ..., the Board has decided to require candidates to write the EPPP during the candidacy period. [15] A new Psychologists Act, S.N.S. 2000, c. 32, (the “new Act”) was enacted by the Nova Scotia Legislature. It was proclaimed on May 31, 2002 and came into force on June 3, 2002. The old Act was repealed. [16] New Regulations, (N.S. Reg 70/2002), Psychologists Regulations, were passed and became effective on the same date that the new Act came into force. [17] Mr. Kouzovnikov wrote the EPPP on three occasions: June 2003, June, 2004 and March 2005. Unfortunately he was not successful on any of these occasions. He was successful, however, in convincing the Board to allow him to write a fourth time. He was given until February 20, 2006 to do so. In effect, the conditions that were in place when he was first accepted to the Register of Candidates on February 25, 1997 were again made available to him. [18] Prior to receiving this confirmation from the Board by letter dated May 6, 2005, Mr. Kouzovnikov received a telephone call from Matthew Wagner, Assistant to the Registrar of the Board on February 14, 2005. Mr. Wagner informed him that the Board had received a telephone call from a lawyer of a client at the East Coast Forensic Hospital expressing a concern that he (Mr. Kouzovnikov) had signed a report that had failed to identify his “Candidate” status. [19] Mr. Kouzovnikov sent a copy of the signature page of the report to Mr. Wagner on February 16, 2005 and by letter dated February 17, 2005 he explained that it was due to a clerical error. It should be noted that Mr. Kouzovnikov had previously been warned about a similar mistake in February, 1998. [20] On March 14, 2005 Meredith Burns, Registrar of the Board, wrote to Mr. Kouzovnikov stating: As you are aware the Nova Scotia Board of Examiners in Psychology (NSBEP) received a call expressing concerns. The individual making the call stated you had not signed your report as a Candidate and this individual also raised concerns with respect to your competency. They stated you made “huge leaps” in reaching conclusions. I have reviewed your letter to Matthew Wagner dated 17th February 2005 in which you indicate the failure to sign as a Candidate occurred as a result of a clerical error. However, in 1998 Rilda van Feggelen wrote to you regarding a similar issue and as such it is my responsibility to ensure you are consistently abiding by the requirement that you clearly identify yourself as a Candidate Register Psychologist. .... As a result of these concerns I am forwarding your file to an Investigation Committee for review. I would ask that you respond to this in writing within thirty (sic) and include the report in question for examination. Following this the Chair of the Investigation Committee will contact you to advise you of the next step in the review process. [21] With the assistance of legal counsel retained for him by his then employer, a written response was prepared and sent to the Registrar of the Board on April 13, 2005. In it, Mr. Kouzovnikov raised concerns about the lack of specificity regarding the complaint of “huge leaps” in reaching conclusions. He noted that the report was not simply his report. It had been prepared by an interdisciplinary team of which he was a member. The process that created the report was done in accordance with his employer’s internal protocols. A letter explaining the protocols and the process followed by the interdisciplinary team was also sent to the Registrar. [22] An Investigation committee comprised of three members was struck to examine the complaint. Before completing its mandate Mr. Kouzovnikov notified the Registrar of the Board by letter dated September 26, 2005 that he would be leaving Canada to begin a three-year Ph.D. program in Psychology (Clinical Neuroscience) at the University of Hull, United Kingdom. In this letter he wrote: .... I would like the Board to provide me with information regarding my registration options. It is clear that I will not be able to take the EPPP before the end of the Summer 2006, if not later. I am especially interested if I am in position to request a leave of absence until I resume my practice in this province. It is my deep hope that the outstanding issues which are before the NSBEP will be resolved soon as it is my understanding that the Board has been very close to arriving at a decision. Please address your correspondence to me via Mrs. Allison Kouzovnikov, my wife. [23] This letter was received by the Registrar on October 3, 2005 which is the day after Mr. Kouzovnikov indicated in his letter that he would be commencing his studies in England. [24] By letter dated the 18th day of November 2005 the Board, over the signature of the Registrar, notified Mr. Kouzovnikov that he had been removed from the Register of Candidates. Included in the letter was the following: .... The primary mandate of NSBEP is protection of the public. The EPPP examination is a benchmark used across North America to help ensure that psychologists have the foundational knowledge necessary to practice ethically and competently. Given the fact you have not succeeded in your attempts to pass this examination and that you have an outstanding complaint against you at this time, your failure to submit the required supervision forms is viewed as inexcusable. As such, as of 18th November 2005, you have been removed from the Register of Candidates. [25] Notice of the removal of Mr. Kouzovnikov’s name from the Candidate Register was posted on the Board’s website and published in the Chronicle Herald newspaper on November 19, 2005. It further indicated that he was no longer permitted to practice psychology in Nova Scotia. [26] It is interesting to note that although Mr. Kouzovnikov and his supervisor were often late and had to be reminded from time to time to file the supervisory reports, the notice of November 18, 2005 was the first time it was raised as a concern in any type of formal way. In the past, any tardiness on the part of Mr. Kouzovnikov or his supervisor in filing these supervisory reports was usually remedied quite quickly upon receipt of a friendly reminder from the Board. Yet it was included as one of the reasons for the Board’s decision to remove Mr. Kouzovnikov’s name from the Register of Candidates. [27] It is also interesting to note that the Board sent its notice to Mr. Kouzovnikov in care of his wife but they would not provide her with any information on the status of the complaint when she inquired on his behalf. Eventually the Board Registrar did reply directly to Mr. Kouzovnikov after receiving an e-mail message sent by him to the Deputy Registrar on January 5, 2006. This e-mail reply dated January 6, 2006 stated: Dear Mr. Kouzovnikov: I am in receipt of your e-mail message sent to me through Matthew Wagner on 5th January 2006. At the time you left the jurisdiction, the Investigation Committee was in the final stages of their investigation. Disciplinary action was to be taken and the next step was to invite you to attend a meeting with the Investigation Committee. The committee received no notification of your intent to leave Nova Scotia and on learning you had done so, made the decision to place the complaint on hold. As such there is still an outstanding complaint against you. In response to the British Psychological Society’s question to you, your answer should be yes, you are still facing a disciplinary action with the Nova Scotia Board of Examiners in Psychology, (NSBEP). Sincerely, Meredith Burns, M.Sc. Registrar RELIEF SOUGHT [28] The applicant has applied for: (i) An order in the nature of certiorari pursuant to Civil Procedure Rule 56.02 quashing the November 18, 2005 decision of the Respondent Nova Scotia Board of Examiners in Psychology to remove the Applicant’s name from the Register of Candidates; (ii) An order in the nature of prohibition pursuant to Civil Procedure Rule 56.02 preventing the Respondent Nova Scotia Board of Examiners in Psychology from proceeding with any disciplinary action against the Applicant arising out of a complaint described in the Board’s letter to the applicant bearing the date of March 16, 2005. [29] The applicant also seeks costs on a solicitor and client basis and such further relief as this court deems just. LAW AND ANALYSIS [30] The Psychologist Act, S.N.S. 2000, c. 32, governs the profession of psychology in Nova Scotia. In the case of Psychologist “Y” v. Nova Scotia Board of Examiners in Psychology, [2005] N.S.J. No. 350 (N.S.C.A.) at paragraphs 14 and 16, Cromwell, J.A. writing for the panel stated: ¶14 The complaint against the appellant was filed under the new Act. It came into force in June of 2002 and repealed the old Act. Without going into unnecessary detail, the new Act establishes a disciplinary process that applies to both registered psychologists and candidates. Complaints are to be investigated by an investigation committee and referred to a hearing committee. The hearing committee is to determine whether the registered psychologist or registered candidate is guilty of charges relating to a discipline matter and, if so, may cancel or suspend the registered psychologist's registration, remove the name from the Register of Candidates and impose various other sanctions. The psychologist has a right of appeal from the findings of a hearing committee to this Court on any point of law. .... ¶16 In summary, under the new Act, unlike the old one, the disciplinary regime, code of ethics and an array of disciplinary sanctions apply to persons on both the psychologists and candidates registers.... [31] Although the applicant was first registered as a candidate under the old Act, the complaint referred to the Investigation Committee by the Registrar, coming as it did after the new Act was proclaimed, is governed by the current legislation. [32] A complaint is defined in Section 2(d) to mean ...any complaint, report or allegation in writing.... regarding the conduct, actions, competence, character, fitness, health or ability of a registered psychologist or candidate.... or any similar complaint, report or allegation initiated by the Registrar; [33] Section 30 of the new Act deals with the initiation of complaints. It states: 30 Complaints may be initiated by (a) ... (b) the Registrar; or (c) ... [34] The Board under section 35 of the new Act is required to appoint an investigation committee or committees. Sub-section (5) of section 35 imposes a mandatory duty on an investigation committee to: (a) investigate complaints regarding a discipline matter concerning any registered psychologist or candidate; (b) investigate any matter referred to the committee by the Registrar; (c) perform such other duties as may be assigned to it by the Board. [35] After conducting an investigation the Investigation Committee has a number of options available to it under sub-section (11) of section 35. It also has the power to temporarily suspend the registration of the person being complained of if it determines that it may be desirable in the public interest to suspend or restrict the registration. (See s. 36(1)(a), (b) and (c)). [36] Included in the various options open to an Investigation Committee under sub-section (11) of section 35 is the option to “refer the matter, in whole or in part, to a hearing committee;” (See sub-section 11(d)). [37] It is from a decision of a hearing committee that a “registered psychologist or candidate complained against may appeal on any point of law..... to the Nova Scotia Court of Appeal”. (See section 48(1)) [38] As indicated in the e-mail sent to the applicant by the Board Registrar on January 6, 2006: ...,the Investigation Committee was in the final stages of their investigation. Disciplinary action was to be taken and the next step was to invite you to attend a meeting with the Investigation Committee. The committee received no notification of your intent to leave Nova Scotia and on learning you had done so, made the decision to place the complaint on hold.... [39] In deciding whether to grant the application for certiorari, this court must first determine the appropriate standard of review. The pragmatic and functional approach articulated in Pushpanathan v. Canada (Minister of Citizenship & Immigration, [1998] 1 S.C.R. 982 requires an examination and weighting of four contextual factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal; (3) the purpose of the statute in issue as a whole and the provisions in issue in particular; and (4) the nature of the problem and whether it involves questions of law, fact or mixed fact and law. [40] I will not provide an exhaustive analysis of these four factors as it relates to the matter before me. Suffice it to say that I have concluded that the proper standard of review should be one of reasonableness. Given the purpose of the legislation, the expertise of the tribunal and the nature of the problem as well as the statutory right of appeal on matters of law, the decision made by the investigation committee to put the investigation on hold and by the Board to remove the applicant’s name from the Candidate Register should be accorded considerable deference. [41] In effect, the applicant’s decision to interrupt his clinical practice to pursue further education left the investigation committee with little choice but to place their work on hold. Although the applicant notified the Board Registrar and not the chair of the Investigation Committee of his decision to commence a three year Ph.D. program in England on September 26, 2005 (not received until October 3, 2005 which is the day after his intended departure from Nova Scotia), I am satisfied that this is sufficient notice to the committee. [42] In this letter the applicant asked for registration options and raised the possibility of a leave of absence; however, the new Act only contemplates a leave of absence for “...any period exceeding two consecutive months and not exceeding two consecutive years.” (See N.S. Reg. 70/2002 - Regulation 8 sub-section (1)). There is no provision for a leave of absence of three years under the new Act. [43] Regardless of this, the applicant was fully aware of the complaint and if he wanted to know the exact status of the investigation he could have easily enquired prior to his announced departure. [44] After the new Act was passed and the standards for registration were changed, the Board, albeit after some pleading by the applicant, allowed him to write the EPPP’s based on the rules that were in place when he first registered. [45] At the time of his removal from the Register of Candidates, the applicant had not only departed the province but he had also indicated he would not be able to write the EPPP’s “before the end of the Summer 2006, if not later.” He had already received permission to write a fourth time, but it was with the condition that he do so by February 20, 2006. [46] He had also been granted other concessions regarding the filing of supervisory reports. He and his supervisor from time to time had to be reminded to file these reports. He was more often late then not in doing so. It would have been inappropriate for the Board to remove the applicant’s name from the Register if this had been its only concern, especially in circumstances where he had not been put on notice save for the many “friendly reminders” sent to him and his supervisor by the Registrar or her designate. [47] The Board, under section 14 sub-section (6), has the power to: 14(6) The Board may fix conditions, limitations and restrictions applicable to persons whose names are entered on the registers. [48] Furthermore, under subsection (7) of section 14: (7) The Board may, in its discretion, remove from either register the name of any person, who, in the opinion of the Board, does not comply with a condition, limitation or restriction applicable to that person. [49] The Investigation Committee and, ultimately, the Board had both the authority and good reason for making the decisions that were made. I am not prepared to interfere with either of the decisions taken and the application for certiorari is therefore denied. [50] The applicant also sought an order of prohibition to prevent the Board from proceeding with any disciplinary action in connection with the letter of complaint from the Registrar dated March 16, 2005. This is somewhat moot given the Investigation Committee’s decision to put the investigation on hold. Indeed, it was suggested that a more appropriate remedy might have been an order for mandamus to require the Investigation Committee to complete its work. [51] The case of Psychologist “Y” v. Nova Scotia Board of Examiners in Psychology, supra, is directly on point at paragraphs 24 and 25, Cromwell, J.A., stated: ¶24 These considerations are particularly pertinent here for two reasons. The Psychologists Act, in common with many other statutes regulating self‑governing professions, sets up a comprehensive statutory scheme for addressing issues of professional discipline and competence. It is generally undesirable ‑ although of course there are exceptions ‑ for the courts to intervene in these matters until there has been a full hearing and determination on the merits: see generally, Mullan, supra, at paras. 667‑669. Moreover, a statutory professional disciplinary body may be entitled to deference from a reviewing court on some questions of law or mixed law and fact. For example, we held recently that this was the case in defining the standard of professional conduct for dentists: Creager v. Provincial Dental Board of Nova Scotia (2005), 230 N.S.R. (2d) 48; [2005] N.S.J. No. 32 (Q.L.)(C.A.) at paras. 23‑34; James T. Casey, The Regulation of Professions in Canada, looseleaf, (Carswell, 2003) at pp. 15‑5 to 15‑6. Where some deference may be due to the tribunal on the point in issue, it will generally be better for the court not to intervene by prohibition unless the tribunal's decision to proceed clearly exceeds the bounds of any deference owed to its decisions. Intervening by prohibition other than in very clear cases is to be avoided because it will generally preclude judicial deference and short‑circuit the statutory division of labour between the tribunal as a first instance decision‑maker and the court as an appellate review body. ¶25 In summary, it seems to me that prohibition will generally only be appropriate where it is clearly shown, taking appropriate judicial deference into account, that the tribunal has no authority to continue with the proceeding. In cases in which the tribunal has not clearly exceeded the bounds of any deference which may be due to it on the critical legal question, or in which further fact‑finding is necessary or in which the answer to the legal question is not clear, it will generally be better to let the proceeding run its course before the tribunal, subject to appellate review or appeal at its conclusion. [52] Prohibition is not an appropriate remedy in this case. If and when the applicant returns to Nova Scotia he can request the investigation to continue. Until then the decision of the investigation committee should stand. [53] The appellant also raised a suggestion of bias based on the composition of the Investigation Committee. In particular, one of the members of this committee works at the East Coast Forensic Hospital which is where the subject of the report co-authored by the applicant was being treated. It would only be in exceptional circumstances that a court would intervene in the process prior to a decision being rendered. The Investigation Committee has decided to put a hold on its activities while the applicant remains outside the jurisdiction. Until such time as the committee resumes its work, presumably upon the applicant’s return to Nova Scotia and with his request or on the committee’s own initiative, it would be premature to rule on the allegation of bias. (See Air Canada v. Loreny, [2000] 1 F.C. 494 (F.C.T.D.) [54] Counsel for the Board also raised a preliminary concern regarding portions of the applicant’s affidavit. I agree that certain portions of the affidavit are speculative in nature and in other instances the source of the information is not identified. Those portions of the affidavit that do not conform with the accepted principles governing affidavits have been largely discounted, if not entirely discounted, in reaching this decision. In so doing, I have followed the leading case of Waverley (Village Commissioners) v. Nova Scotia (Acting Minister of Municipal Affairs) (1993), 123 N.S.R. (2d) 46 (S.C.), a decision of the Honourable Justice John M. Davison of this court. [55] I will leave it to counsel to try to agree on costs. If they are not successful I invite them to contact the court to make arrangements for a further hearing on this issue. J.