Judge nixes language probe into New Brunswick nursing exam
Office of the Official Languages Commissioner has found French version of nursing qualification test is unfair to applicants, and a lawsuit is pending
An investigation into a complaint over the francophone version of the exam for admission into the nursing profession in New Brunswick is redundant and unnecessary, a judge has ruled.
But the province’s official languages commissioner is appealing that decision.
The Nurses Association of New Brunswick argued before Court of King’s Bench Justice Danys Delaquis in Fredericton last summer that Official Languages Commissioner Shirley MacLean’s probe into a complaint over the francophone nursing qualification exam should be halted.
The organization - which oversees the nursing profession in the province - contended the investigation stemmed from the third such complaint over the francophone test, and that it was identical to two prior complaints that also gave rise to an investigation by the commissioner’s office.
Josie Marks, counsel for the nurses association, argued last summer the first complaint formed the basis for an ongoing lawsuit in the Court of King’s Bench.
Furthermore, she said, the association and language commissioner’s office previously reached a settlement, agreeing that the parties would allow the fairness of the francophone nursing examination to be determined through that litigation.
Marks argued the acceptance of the subsequent and parallel complaint and new investigation flew in the face of that agreement.
That’s why the association applied for a judicial review of the commissioner’s decision to pursue that third complaint, seeking to quash it.
Marion Sandilands, legal counsel for the languages commissioner, argued the association’s application for judicial review was premature, and that the organization failed to show that commissioner Shirley MacLean acted unreasonably by delving into the third complaint.
But in a decision Dec. 14, Delaquis sided with the association, noting that’s exactly what MacLean did.
“In this case, the [commissioner] did not have the legislative authority to investigate subject matter that had already been investigated and settled, nor to reconsider or redecide a prior decision to refuse to investigate the same complaint and close the file,” the judge wrote, adding he also rejected Sandilands’ argument that the two sides hadn’t reached a binding settlement to let the issue resolve through the lawsuit.
“The respondent also pre-determined two key issues and did not determine, or misconstrued, the material issue of whether a settlement was reached.”
Delaquis ruled there was a settlement agreement between the commissioner’s office and the association, and he quashed MacLean’s investigation into the third complaint.
He also ordered the commissioner to pay costs of $3,500 to the nurses association.
Francophone exam deemed unfair
The first complaint over the nursing exam was filed in 2016, and it eventually led to a May 2018 report from previous language commissioner Katherine d’Entremont that found the exam placed francophone applicants to the nursing profession at a disadvantage.
“There is indeed a significant gap in the exam preparation resources available to one linguistic community compared to the other,” the report stated.
“Whereas there is only one French language question bank tool, with no simulation exam and a limited number of practice questions, there is a vast array of high-quality English-language exam simulations that are commercially available. Therefore, Francophone candidates are not on a level playing field compared to their Anglophone counterparts.”
That report prompted a lawsuit, filed by la Société de l’Acadie du Nouveau-Brunswick Inc. and la Fédération des étudiants et étudiantes du Centre universitaire de Moncton Inc., which is still pending.
The nurses association and commissioner’s office eventually entered discussions that led to an agreement to allow the lawsuit to determine the issue of the fairness of the francophone exam.
In the meantime, a second and third complaint - identical to a previous one - were filed in 2019 with interim commissioner Michel Carrier, who ultimately declined to pursue them because the issue was already being addressed through the litigation over the original complaint.
But when MacLean took over as language commissioner in January 2020, she met with complainants and agreed to investigate the third complaint, prompting the nurses association’s application for judicial review.
On to the Court of Appeal
But MacLean’s office filed a notice of appeal earlier this month, asking the New Brunswick Court of Appeal to reverse Delaquis’ decision to quash the investigation into the third complaint.
The notice of appeal argues Delaquis misconstrued correspondence between the two sides as a settlement and erred by treating the matter as a dispute between private litigants rather than a review of a decision of an officer of the Legislative Assembly of New Brunswick.
It also lists among the grounds of appeal the contention that Delaquis was wrong to bar MacLean from investigating complaints without conducting any kind of analysis about their substance and their effect on the public interest regarding language rights.
Since the matter is now subject to appeal, official languages commissioner’s office spokesperson Patricia Parent told the Fredericton Independent, it wouldn’t be commenting on Delaquis’ decision.
The nurses association didn’t respond to a request for comment.
No date has been set for the appeal to be heard as yet.
Don MacPherson can be contacted at ftonindependent@gmail.com.