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Professionals - Examinations. Mirza et al. v. Law Society of Ontario
In Mirza et al. v. Law Society of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) a JR argument challenging a "decision to void the Applicants’ exam results", here where 'cheating keys' had been leaked. This aspect of the ruling was separate from an argument against punitive administrative sanctions, which was allowed (located at 'Professionals - Penalties'):Was the LSO decision to void the Applicants’ exam results reasonable?
[16] The decisions of the LSO, other than with respect to procedural fairness, which is discussed below, are subject to a reasonableness standard of review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653. We find that the decision to void the Applicants’ exam results was reasonable.
[17] Counsel for the Applicants did not take issue with the fact that the exam results had been compromised and that therefore one reasonable option was for the LSO to require that all candidates re-write the exams. It follows that the LSO had every right to narrow the group that had to re-write to minimize the inconvenience. The LSO also had every right to take an expansive view of the number of candidates who should re-write. As such, it was reasonable for the LSO to decide that a candidate should re-write if the candidate’s examination results were marked by statistical anomalies and if the candidate had any known association or contact with NEG.
[18] Ms. Mirza initially denied any use of NEG. When the LSO wrote her advising that it had evidence to the contrary, her response was to claim that under the Charter, she had the right to join any group or social media. Ms. Mirza then accused the LSO of committing the offence of “spying” by asking her about NEG. The LSO could certainly draw an adverse inference from such a response. The LSO also reasonably regarded her response as containing an inadvertent, tacit admission of association with NEG. The LSO, therefore, was justified in requiring Ms. Mirza to re-write the exam.
[19] Ms. Okoro had no known association with NEG. The Caveon report, however, concluded that it was 145 times more likely than not that Ms. Okoro had the benefit of a cheating key. Whatever questions or issues might be raised with respect to the Caveon report, Caveon was an independent entity with expertise in detecting examination fraud. For the limited purpose of determining who should re-write an exam, it was certainly reasonable for the LSO to rely upon the Caveon report.
[20] In short, the portion of the LSO’s decision that voided the Applicants’ exam results was reasonable. It addressed the LSO’s duty to maintain the integrity of the exam process and did not breach the requirement of procedural fairness.
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