Executive Summary: Key Legal and Evidentiary Issues

• Sufficiency of the trial judge’s reasons, particularly regarding analysis of expert evidence and the breach of contract claim.

• Existence and terms of any contract between the appellants and the Royal College, and whether it was breached.

• Justification and transparency of the Royal College’s 6.5% downward adjustment to exam scores.

• Nature of the grading process—whether it was criterion-referenced or norm-referenced, and the psychometric validity of the adjustment.

• Scope of judicial intervention in the Royal College’s exam grading decisions.

• Determination of appropriate remedies, including entitlement to certification and costs.

Facts of the case

The appellants, Oludiran Muyiwa Adewale, Bakri Fawzi Abdulrahman Elymani, Ofokansi Uchenna Gabriel, Moosa Hasnin, Okafor Paternus Ifeanyi, Om Prabha Sudhir Moorti, Okereke Njoku Okereke, Olorunfemi Ayodele Olayinka, Lakshmanan Rajkumar, Sharma Sanjeev, and Ezekwem Chidi Victor, are international medical graduates who sought certification from the Royal College of Physicians and Surgeons of Canada (“Royal College”) to practice psychiatry independently in Canada. Each appellant paid $4,415 to take the 2020 qualifying exam. The exam was originally scheduled for March 24, 2020, but was cancelled on March 13, 2020, due to public health measures related to the COVID-19 pandemic. The clinical/oral component was waived for this cohort, and instead, candidates were required to submit a letter from their clinical supervisors attesting to their competence and standing. The written exam was rescheduled for August 26, 2020. The Royal College advised candidates that passing the written exam would result in immediate certification.

The Royal College’s website stated that the pass score for the written psychiatry exam was 70% and that the exam would be criterion-referenced, not graded on a bell curve. The website also described a post-exam review process involving psychometric and performance analysis, which could result in the removal of certain questions from the final score. However, no further information was provided to candidates before the August 26, 2020 exam about how the post-exam review process might affect scores.

After taking the exam, the appellants were informed they had failed. They later learned that their initial scores ranged from 70.45% to 75.76%. After the removal of three questions during the post-exam review, their adjusted scores remained above 70%. However, the Royal College then set the “cut score” for certification at 76.5% and applied a 6.5% downward adjustment to all examinees’ scores, resulting in final grades between 63.95% and 69.26% for the appellants.

The appellants’ claim and trial proceedings

The appellants commenced proceedings in January 2021, initially as an application and later converted to an action. They pleaded that there was an express or implied contract with the Royal College, which was breached by failing to grade the exam according to the advertised criteria and by not acting in good faith. The appellants sought a declaration that they passed the 2020 exam and were entitled to certification, as well as other relief as the court considered just.

A summary trial was conducted based on an agreed statement of facts, affidavits, and expert evidence. The appellants’ expert, Dr. Sidiq Ali, opined that the 6.5% downward adjustment was not psychometrically justified and that the Royal College used a norm-referenced (bell-curved) approach, contrary to its stated criterion-referenced method. The Royal College’s experts, Dr. Farhan Bhanji and Dr. Jack Boulet, maintained that the process was criterion-referenced and psychometrically justifiable.

Policy terms and grading process at issue

The dispute centered on the Royal College’s representation that the exam would be criterion-referenced and the lack of clear explanation to candidates about the post-exam review process. The appellants argued that the Royal College breached its contractual obligations and duty of good faith by applying an undisclosed and allegedly arbitrary adjustment. The Royal College argued that its standard-setting process was psychometrically sound and that courts should not intervene in its academic decisions.

The trial decision and grounds of appeal

The trial judge dismissed the appellants’ claim, finding the Royal College’s grading process psychometrically justified and declining to “step into the shoes” of the College to regrade the exam. However, the judge did not analyze whether a contract existed, its terms, or whether it was breached, nor did she adequately address the conflicting expert evidence or explain her preference for the Royal College’s experts.

On appeal, the appellants argued that the trial judge’s reasons were insufficient, failed to address the core contractual issues, and did not provide a reasoned basis for preferring one set of expert evidence over another. The Royal College countered that the trial judge had discretion in weighing evidence and that her reasons, read in context, were sufficient.

The Court of Appeal’s ruling and outcome

The Court of Appeal held that the trial judge’s reasons were insufficient, particularly in failing to engage with the expert evidence and the contractual issues. The appellate court found that a new trial was necessary so that the appellants’ breach of contract claim could be properly assessed, including whether a contract existed, its terms, and whether the Royal College’s actions constituted a breach. The court declined to decide the case on the existing record, emphasizing the need for a reasoned decision after full consideration of the evidence and arguments.

The appeal was granted, the judgment and costs order below were set aside, and a new trial was ordered. As the successful parties on appeal, the appellants were awarded costs of the appeal in the inclusive sum of $35,000. The costs of the original trial and the new trial were reserved for determination by the new trial judge. No final determination was made regarding the appellants’ entitlement to certification or further monetary relief, as these issues are to be addressed at the new trial.