A land surveying graduate will receive compensation from the Land Survey Board (LSB) for not awarding her a passing grade after she sought a review of her result in a viva voce (oral) exam in February last year.
In a written decision, Justice Joan Charles set aside the decision of the LSB to mark her unsuccessful in the examination, and held that it was irrational, illegal, unreasonable and tainted with bias for the board to fail to award her the passing grade, after she reviewed her results.
The LSB was also ordered to award Kiara Medina a passing mark of 71 per cent for the examination and to pay damages, interest and costs to be assessed by a High Court master.
Charles said it was clear from the evidence the LSB breached the Land Surveys Act by having seven, instead of five, examiners quiz Medina during her exam and that one of them was not a registered surveyor but questioned her on technical issues.
The judge also found one of the members of the panel, who was a registered surveyor, questioned Medina on an old version of the Land Acquisition Act.
She held that the conjoined effect of these actions would have served to “appreciably lower the applicant’s marks since the answers given to questions on the old legislation may have been adjudged as wrong by the examiners, especially if the applicant’s answers were based on the current legislation.”
Charles added, “It is baffling to this court that the other members of this examining panel were oblivious of what should have been a glaring error and purported to not only grade her on this erroneous basis but to fail her.
“It is shocking that a board established to conduct examinations for entry into an important profession such as land surveying could have committed such egregious errors amounting to grave breaches of the legislation governing the conduct of their core function – that of assessing the suitability of land survey graduates into the profession."
She said the impact of these errors would be serious, since she was wrongly deprived of an opportunity to enter a profession for which she had worked hard.
The judge said it was wrong for the LSB to “callously condemn the applicant to a third exam instead of giving her a passing grade which any reasonable, fair-minded examiner would have awarded her.”
She also accepted that a third exam would have negatively affected her career, as it would suggest incompetence on Medina’s part, and it was difficult for the court not to conclude that an alleged battle between the board and her sister on another matter had an effect on what happened.
“…I am also of the view that the applicant has been subjected to hardship and loss of income occasioned by the illegal and tainted procedure adopted by the board.”
In her claim against the LSB, Medina said she received her undergraduate degree in geomatics engineering and land management at UWI and was registered as a graduate land surveyor in June 2014. She began practical training for two years and completed it in cadastral surveying, one of the requirements to become registered as a land surveyor. She also completed the professional assessment project in cadastral surveying which was approved by the board.
In 2016, Medina was recommended to do her trial survey, but faced delays from the board in assigning it. She did not receive an e-mail from the LSB about a meeting to discuss trial surveys for graduates, but eventually collected hers and was told of increases in exam fees.
She sought an extension to do the trial survey, since she would be out of the country during the time she was to complete it, and was advised to reapply after six months.
Medina protested and appealed to the Minister of Agriculture in September 2018, when it was revealed that the increased exam fee was invalid and although other graduates were reimbursed, she was not.
Medina filed a claim for judicial review and after it was served, she was told she was shortlisted for a trial survey in January 2019. She withdrew her claim and in March 2020, was told she had passed. She took the viva voce examination in June 2020 and was told in July she had received a final grade of 65 per cent and was unsuccessful. She was also told she had to wait six months to be re-examined.
In February, she sat a second viva, conducted by seven members of the board – although the regulations provide for five – and it was at this exam she was asked questions about the repealed legislation. She received a grade of 67.5 per cent and asked for a review, since she missed the pass mark by 2.5 per cent and was told she was failed.
Medina was represented by attorney Matthew Gayle. The LSB was represented by attorneys Colvin Blaize and Kathy Ann Joseph.