N.B. languages commissioner can investigate complaints about nurses' exam, top court rules

New Brunswick's top court has cleared the way for the province's languages commissioner to investigate two complaints against the Nurses Association of New Brunswick over the exam nurses take to get a licence.

The association had previously twice blocked the commissioner's office from pursuing the matter, which began seven years ago and centres on the high failure rate among francophone nurses after the association adopted the National Council Licensure Examination for Registered Nurses, or NCLEX-RN.

Complainants have alleged poor translation and limited availability of French-language study materials.

In a written decision last week, the Court of Appeal of New Brunswick ruled Official Languages Commissioner Shirley MacLean "reasonably interpreted her statutory duties and her decision to investigate is owed deference.

"She cannot be prevented from investigating as she must carry out her quasi-constitutional mandate to oversee the protection of language rights under the Act," Justice Charles LeBlond wrote on behalf of the three-justice panel.

Students' future may depend on outcome

LeBlond noted the matter has "been without resolution for several years and there are many francophone nursing students whose future may depend on the outcome of the commissioner's investigation.

"It is high time she was permitted to undertake it."

Nurses association CEO Denise LeBlanc-Kwaw declined to comment Monday, saying the association had just received a copy of the Thursday decision and "has not yet had an opportunity to fully review" it.

The association, which regulates the profession, has maintained it has no control over the exam, which is created in the U.S., nor over the preparation, quality, and distribution of the French preparatory resource materials.

MacLean declined to comment, noting the decision may still be subject to appeal.

The New Brunswick Nurses Union also declined to comment.

There are an estimated 1,200 vacant nursing positions in the province, union vice-president Maria Richard said earlier this year.

First complaint filed in 2016

A complaint against the Nurses Association of New Brunswick was filed with the Office of the Commissioner of Official Languages in July 2016 over the January 2015 adoption of the National Council Licensure Examination for Registered Nurses.

The complaint raised two main issues with the entry-to-practice examination used to assess the competence and abilities of all nursing students wishing to enter the nursing profession in New Brunswick.

First, it alleged francophone students were placed at a disadvantage compared with their anglophone colleagues because the exam was not properly translated from English into French.     

In addition, it alleged francophone students were put at an even greater disadvantage because of the limited availability of French-language study/resource materials.

Association found in violation of act in 2018

Then-commissioner Katherine d'Entremont investigated and in a report released in May 2018, found the association in violation of the Official Languages Act on both counts.

D'Entremont made several recommendations, including that the association report back within four months on what steps it had taken to comply with the act.

Instead, the association filed an application in August 2018 for judicial review of d'Entremont's findings, seeking to have them quashed by the court.

D'Entremont subsequently retired and the interim languages commissioner, Michel Carrier, engaged in talks with the association, which led to the withdrawal of the application for judicial review on Jan. 14, 2019.

But the issue regarding the availability of French language resource materials remained unresolved.

2 new complaints filed in 2019

In July and August 2019, two additional complaints were filed with the interim commissioner's office by two new complainants. They raised the same issue as the first but further alleged the association had not taken any steps in response to d'Entremont's recommendations.

Carrier advised the complainants his office would not investigate because a private action, involving different parties, had been filed regarding the lack of resource materials. The interim commissioner said he could not investigate while the matter was before the courts.

The association successfully challenged that lawsuit by the Société de l'Acadie du Nouveau-Brunswick and the student federation at the University of Moncton, which called to have NCLEX-RN declared invalid on the basis it infringed Charter rights and breached the Act. The regulatory body challenged the standing of the plaintiffs to bring the action and the case was dismissed.

Although the appeal court later set aside that January 2020 Court of Queen's Bench decision, allowing the plaintiffs to amend their pleadings to determine if standing could be established, the case never proceeded.

Asked to revisit predecessor's decision

In March 2020, following the appointment of the current commissioner, MacLean, a further complaint was filed by one of the 2019 complainants, asking her to revisit Carrier's decision and to investigate the matter to see what the association had done since d'Entremont's report.

MacLean confirmed in October 2021 she would investigate and opened two files to determine if the association was in breach of the act, which states: "No person shall be placed at a disadvantage by reason of exercising his or her right to choose an official language in which to fulfil requirements imposed by a professional association."

The association objected and filed another application for judicial review, seeking an order to prohibit the investigation from taking place, largely based on the argument the matter had been settled by the withdrawal of the first judicial review application. The proposed "reinvestigation was vexatious and an abuse of process," it argued.

The application judge agreed with the association. He found the commissioner's office and the association had reached a settlement, which precluded the investigation contemplated by MacLean and awarded costs against the commissioner.

MacLean appealed, arguing the judge erred in prohibiting her investigation. Her case was heard on May 11.

The appeal court agreed the application judge "erred in law" when he interpreted the association's 2019 withdrawal of its application for judicial review as a "settlement" between the two parties.

According to the decision, the interim commissioner told the association's lawyer he was prepared to agree the translation of the NCLEX-RN was correct and that d'Entremont's report did not conclude the translation breached the act. Carrier also acknowledged the association's efforts in making French resource materials available, but left the issue of their availability up to the courts "out of respect for the litigation process," he said in French.

Carrier "erred in delegating to the courts his statutory duty to investigate this issue," the appeal court found. It was his position, which arguably triggered the second judicial review application, which formed the basis of the appeal, LeBlond noted in the written decision.

The appeal court awarded costs of $7,000 to the commissioner.

The other members of the three-justice panel included former chief Justice Ernest Drapeau and Justice Kathleen Quigg.