Executive Summary: Key Legal and Evidentiary Issues

• Alleged “insouciance grave” (gross carelessness) by the Ordre des infirmières et infirmiers du Québec (OIIQ) in designing and administering its admission exam, despite known validity and reliability problems.
• Disputed scope of statutory immunity under article 193 of the Code des professions and whether serious carelessness can pierce that immunity at the authorization stage.
• Reliance on detailed expert and commissioner reports revealing methodological flaws, questionable pass-mark setting, and potential “false negatives” in exam results as the core evidentiary foundation.
• Legal sufficiency of a class-wide cause of action for all candidates who failed at least once between September 2022 and September 2023, even though some would likely have failed a valid exam.
• Application of the low “mere possibility of success” threshold under article 575(2) C.p.c. and the requirement of common issues under article 575(1) C.p.c. in a professional regulation context.
• Assessment of whether a large, dispersed group of unsuccessful candidates can be efficiently represented through a class action, including the adequacy of the proposed representative and his claimed damages.

Background and parties

Jason Aurélien obtained his college diploma in nursing in December 2021 and, like all aspiring nurses in Québec, had to pass the professional admission exam administered by the Ordre des infirmières et infirmiers du Québec (OIIQ) to obtain a practice permit. The OIIQ is a non-profit professional order whose core statutory mandate is the protection of the public, particularly by controlling admission to the profession and issuing permits only to those who meet its requirements. Two exam sessions are held each year, and candidates must pass within two years of their first eligibility. They must generally sit the first exam session after graduation and, if they fail, take the next session, with a right to two re-takes in total. Aurélien wrote the OIIQ exam for the first time in March 2022 and failed with a grade of 53%. He failed again in September 2022 with a much lower grade of 32%. When the March 2023 exam approached, the OIIQ put in place an “administrative tolerance” that allowed candidates to choose whether to sit that exam and, if they did, not to have it counted toward their maximum number of attempts. Aurélien chose to sit the March 2023 exam, failed once more with a grade of 50%, and then finally passed the exam in September 2023, although he says he wrote it while extremely fatigued and anxious.

Alleged harms suffered by the representative and group members

Aurélien claims that these repeated failures had serious personal and financial consequences. He describes fear of never qualifying as a nurse, persistent doubts about his own abilities, feelings of shame and isolation, low self-esteem and helplessness, as well as periods of depression. Because he could not obtain a full nursing position during this period, he alleges a loss of income and unnecessary expenses linked to repeated preparations for and attempts at the exam. He values his non-pecuniary damages at $7,500 and his loss of income at $22,500. Beyond his own situation, he contends that all candidates who failed at least one OIIQ exam between September 2022 and September 2023 suffered similar stress, anxiety, and financial losses from preparing for, sitting, and failing what is alleged to have been a structurally flawed admission process.

Context of historically low pass rates and external scrutiny

The case arises against a backdrop of sharply declining success rates on the OIIQ exam. According to the allegations, pass rates that had been as high as 89%–96% in 2020 fell to 80% in 2021, then to 71% in March 2022 and 51.4% in September 2022. March 2023 saw a pass rate of 53.8%, and September 2023 about 69%. By contrast, after the OIIQ later modified its exam process, the March 2024 pass rate reportedly jumped to 91.8%. The abnormally low results in September 2022 triggered complaints from candidates and media scrutiny, leading the Commissaire à l’admission aux professions (Commissioner for admission to professions) to launch a special audit. In January 2023, the Commissioner issued a first “Étape 1” report focused on the unexpectedly low results and the potential need for remedial measures.

Findings on exam validity and reliability

A more detailed “Étape 2” report in May 2023, prepared with the assistance of an expert who had run national dental exams in Canada for over two decades, examined data from 2,904 candidates who sat the September 2022 exam and surveyed candidates and educational institutions. The Commissioner identified major concerns about both the validity and reliability of the exam. On the validity side, the report noted that key methodological documents underpinning the exam had not been revised for over 10 years; the central exam blueprint dated back to 1999. There was no contemporary task analysis of the nursing profession specifically geared to exam construction, and no assurance that different sittings of the exam—across dates—maintained a comparable level of difficulty. On reliability, the expert found that the exam’s reliability coefficient was too low for such a high-stakes test. About 12% of questions were deemed problematic in quality or construction, and 75% of respondents to the September 2022 exam survey reported that questions and answer choices were unclear. The expert concluded that deficiencies in question design likely explained failures more than true differences in candidates’ competence. The exam was said to provide weak differentiation between candidates, so small shifts in scores or in the pass mark could move many candidates from failure to success or vice versa, creating a risk of “false negatives” among those who scored just below the pass mark.

Setting of the pass mark and disputed methodology

One of the most sensitive issues was how the OIIQ set its pass mark. It had fixed the passing grade at 55% for the September 2022 exam, even in the face of an unusually low pass rate. The expert suggested that if a different, methodologically sound approach had been adopted—including how measurement error was treated—around 500 additional candidates might have been classified as passing rather than failing. The Commissioner also highlighted an extract from OIIQ board minutes in February 2021, where the board acknowledged that the exam did not actually show whether a person was competent but instead functioned as a kind of barrier “in terms of public protection.” This raised concerns about whether the exam was truly assessing competence, as the Code des professions requires, or rather serving as a crude gatekeeping device. The Commissioner further noted that the OIIQ had had misgivings about the exam since at least March 2021, yet had not made timely changes. In a later “Étape 3” report in October 2023, the Commissioner remained unsatisfied with the OIIQ’s response to earlier recommendations. The Commissioner concluded that unresolved flaws in validity, reliability and pass-mark setting remained the main explanation for the abnormally low September 2022 pass rate and that the OIIQ had not provided tangible, comprehensive follow-up. The hypothesis that low success rates were primarily due to weaker training during the COVID-19 pandemic was not confirmed. The Commissioner also found that the March 2023 exam yielded an even lower reliability index than September 2022, again pointing to poorly constructed questions as a central cause.

Statutory obligations and immunity provisions at issue

Aurélien’s legal theory is anchored in the Code des professions. He invokes article 62.0.1(7), which imposes specific duties on the board of directors of every professional order with respect to admission processes. The board must ensure that these processes are equitable, objective, impartial, transparent, efficient and expeditious, and that they facilitate admission to the profession, including for internationally educated applicants. In the plaintiff’s view, subjecting candidates to an exam whose validity and reliability had been seriously questioned—and which the board itself allegedly knew did not adequately distinguish competent from incompetent candidates—breached this statutory obligation. At the same time, the OIIQ relies on article 193 of the Code des professions, which grants partial immunity from civil suits to the board, its members, and senior officers for acts done in good faith in the exercise of their functions. For the plaintiff to succeed ultimately, he will have to establish something more than ordinary fault: jurisprudence requires proof of “insouciance grave” or serious carelessness that amounts to a fundamental breakdown in the exercise of power, from which an absence of good faith can be inferred.

Alleged serious carelessness and the role of administrative tolerances

The plaintiff characterizes the OIIQ’s conduct as serious carelessness on several fronts: maintaining a high-stakes exam despite known methodological weaknesses; failing to promptly address or redesign the exam after internal concerns and external audit findings; keeping a pass mark methodology that generated a statistical aberration; and continuing to administer exams with low reliability indices in March and September 2023. The OIIQ counters that its decisions are essentially policy choices, shielded by statutory immunity, and that it was not legally obliged to follow the Commissioner’s recommendations. It argues that it was already at work on reforms and disputes aspects of the Commissioner’s analysis. In response to the Commissioner’s recommendation to postpone the March 2023 exam, the OIIQ opted to go ahead but adopted administrative “tolerances”: candidates could choose to defer to September 2023; the March 2023 attempt would not count toward their maximum number of tries; and candidates who had already failed three times in September 2022 could benefit from an extra attempt in March or September 2023. Later, in June 2023, the OIIQ renewed similar tolerance measures for the September 2023 exam. The court notes that while these tolerances may become important in the ultimate liability analysis, they do not, on their face, negate the possibility of serious carelessness and are issues more appropriately addressed at trial.

Definition of the proposed class and alleged common harm

The proposed class consists of “all persons who failed at least once the OIIQ professional admission exam between September 2022 and September 2023.” The OIIQ contests the idea that every such candidate has a valid claim, arguing it would be implausible to assume that, but for the criticized flaws, the pass rate would have been 100%. Some candidates would likely have failed any valid exam, and the order should not be liable for all failures. The court accepts that, at this preliminary stage, it is defensible to argue that all candidates who failed were subjected to the same allegedly defective evaluation process and that they all suffered a form of prejudice in their professional trajectory, save those who achieved at least the pass mark. While individual causation and quantum may vary, the alleged existence of a structurally flawed high-stakes exam that did not reliably measure competence provides a sufficient common thread to support a class action.

Authorization test under article 575 C.p.c.

The judgment is an authorization decision under article 575 of the Code of Civil Procedure, not a ruling on the merits. The court recalls that, at this stage, the threshold is intentionally low: the motion judge must filter out only frivolous or manifestly unfounded claims. Alleged facts are taken as true, aside from purely legal assertions or vague, imprecise or clearly inaccurate allegations. The plaintiff needs to establish only a mere possibility of success on the merits. Applying this standard, the court finds that the evidence available at authorization—especially the Commissioner’s reports and expert analysis—provides sufficient factual substance to the allegation of serious carelessness and to the claim that the exam lacked validity and reliability. The court emphasizes that deciding now whether the statutory immunity defense under article 193 ultimately succeeds would require weighing evidence and making determinations on complex factual and contextual issues, which is impermissible at the authorization stage.

Common questions and procedural suitability of the class action

The court identifies several common questions that will advance the litigation in a non-trivial way for all class members. These include whether the OIIQ failed to respond appropriately to rising failure rates and to the Commissioner’s recommendations; whether it displayed serious carelessness in administering the admission exam, sufficient to overcome statutory immunity; what effect the administrative tolerances had on class members’ rights; whether class members are entitled to compensation for pecuniary and non-pecuniary damages; and what portion of any damages can be determined collectively versus individually. The court notes that even if answers to some questions may differ for subgroups or individuals, that does not undermine their common character. If needed, the class can later be modified or split. Given the large number of affected candidates, their province-wide dispersion, and the impracticality of individual joinder or mandates, the court finds that a class action is the optimal procedural vehicle.

Adequacy of the representative and scope of the group

On the issue of adequate representation, the court applies a liberal, “minimalist” standard. The proposed representative must have a general understanding of the case, a personal interest aligned with the group’s, no conflict of interest, and the capacity to instruct counsel. Aurélien meets these requirements: he personally experienced multiple failures during the relevant period, alleges both pecuniary and non-pecuniary harm, and is supported by counsel experienced enough to manage a complex class proceeding. There is no suggestion of any conflict with other candidates. The court also notes that hundreds of individuals have already expressed interest through counsel’s website and that the Commissioner’s analysis suggests that potentially hundreds of candidates might have passed under a sounder methodology. These factors confirm the existence of a sizeable, diffuse group for whom collective proceedings make practical sense.

Outcome and absence of a quantified monetary award

In the result, the Superior Court authorizes the institution of a class action and appoints Jason Aurélien as representative for a group defined as all persons who failed at least once the OIIQ professional admission exam between September 2022 and September 2023. It formulates the common questions and records the conclusions sought, including claims for $7,500 in non-pecuniary damages and $22,500 in pecuniary damages for Aurélien, along with individual recovery for other class members. The court also orders that judicial costs, including the costs of publishing the notice to class members, be borne in accordance with the judgment, but it does not specify any dollar figures. The successful party in this authorization decision is therefore the plaintiff, Jason Aurélien, and the only concrete financial order at this stage relates to costs and notice expenses; no damages or total monetary award have yet been granted or quantified in his favour, and the exact amounts of any costs and future damages cannot be determined from this decision alone.