COURT FILE NO.: 741/03

DATE: 20050415

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, CAPUTO AND sWINTON JJ.

B E T W E E N:

GAY LEREW

Applicant

• and -

THE ST. LAWRENCE COLLEGE OF APPLIED ARTS AND TECHNOLOGY

Respondent

Peter J. Chapin, for the Applicant

Christopher G. Riggs, Q.C., for the Respondent

HEARD at Toronto: March 17, 2005

Swinton J.:

1This is an application for judicial review of a decision of the College Student Appeals Committee of St. Lawrence College of Applied Arts and Technology (“the College”) dated April 1, 2004. The issue in this appeal is whether the Applicant, a former student, was denied procedural fairness by the Committee.

Background Facts

2The Applicant, Ms. Lerew, was 55 years old at the time of the decision. She has cerebral palsy, which leaves her with some impaired mobility and a speech impediment. She was enrolled in the Registered Practical Nurse Program at the Kingston campus of the College. While the program normally lasts for five semesters, she was given advanced standing and credit for two and a half semesters because of her earlier studies at George Brown College in Toronto. By February, 2003, she had completed all of the requirements for the first four semesters except the clinical course NURS 4505.

3On February 24, 2003, Professor Angela Tidman of the College Department of Health Sciences removed the Applicant from the clinical course NURS 4505, noting,

Due to the lack of significant improvement over time, and Gay’s continued demonstration of inappropriate behaviours and sublevel performance, I am withdrawing Gay from this rotation.

She then assigned the Applicant a failing grade in the course. In a document entitled “Anecdotal Record”, Professor Tidman set out a number of concerns: poor communication skills, including interrupting and a lack of active listening skills; poor organizational and prioritization skills, by failing to meet clients’ needs in a timely manner; poor time management, which reflects inadequate planning and decision-making skills; and poor provision of basic hygiene and comfort measures.

4The Applicant appealed this decision, stating, “I feel that this report does not accurately or fairly reflect my abilities and knowledge of Nursing”. An internal Step 1 review was conducted by Margaret Smith, the Dean of the School of Health Sciences. She rejected the appeal.

5The Applicant then appealed to the College Student Appeals Committee. This is a committee made up of staff members and students, whose procedures are set out in its written Student Appeals Procedure. Its purpose is set out at p. 2:

The Appeals Committee exists to provide an independent, internal review of administrative and academic decisions at the step one appeal level. Its responsibility is to ensure that College procedure has been followed and that fairness has been achieved in arriving at the decision in question. The Committee acts within the limits of the College’s mandate and existing College policy. The decision of the Appeals Committee is final.

6At a meeting, the Appeals Committee is to hear summaries of the issues in dispute. When the information is complete, there is to be a discussion of possible, mutually agreeable solutions. Following that discussion, the Committee is to meet privately and come to a decision, with the Chair or designate to issue a written summary to the appellant within one day.

7By letter dated April 14, 2003, the Committee denied the Applicant’s appeal. According to the material she has filed, her representative had appeared before the Committee and requested an adjournment, which was granted. Subsequently, the Committee decided to dismiss the appeal. The Applicant then brought an application for judicial review of this decision. The College responded on February 16, 2004 with a decision to appoint a new panel to hear her appeal de novo. Ultimately, the application for judicial review of the April 14, 2003 decision was abandoned.

8The second panel of the Appeals Committee held a hearing on March 31, 2004. Ms. Lerew was represented by counsel, who notified the Committee the day before the hearing that he would be raising issues of discrimination on the basis of disability and age and the duty to accommodate. Prior to the hearing, the College had refused a request to provide a court reporter. At the hearing, the Committee refused to allow Ms. Lerew to use the services of a court reporter whom she had retained. The Committee also refused to hear evidence from Ms. Bujara of the Queen’s University Human Rights Office, who was to be called to give expert evidence on behalf of the Applicant on the issues of discrimination and accommodation.

9The Committee met at 11:45 AM and heard from the Applicant and the College. They adjourned at 3:05 PM. The next day a one page decision was issued. After describing what occurred, they said,

The Appeal Committee reviewed the administrative and academic decisions at the Step 1 appeal. The Committee is satisfied that College policy and procedures were followed and that fairness was achieved in arriving at the decision in question. The unanimous decision of the Committee is to uphold the Step 1 decision of Margaret Smith and, therefore, not grant the appeal of Gay Lerew.

The Committee then mentioned that the Applicant was eligible to apply to return to her program to retake NURS 4505. Nowhere in the reasons was there any explanation for the decision not to hear the expert witness.

The Issues

10The Applicant argues that the Committee denied her procedural fairness in failing to give adequate reasons and in failing to permit her to call the expert witness. She also argues that she was denied her right to counsel, and the Committee acted improperly because it refused to allow a court reporter to be present to record the proceedings. Finally, she argues that the Committee was bound by the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

Conclusions

The Statutory Powers Procedure Act

11The Statutory Powers Procedure Act does not apply to the proceedings of the College Student Appeals Committee. That Act applies only to a tribunal which exercises a “statutory power of decision”, defined in s. 1(1) as

“statutory power of decision” means a power or right, conferred by or under a statute, to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person is legally entitled thereto or not …

Section 3(1) provides,

Subject to subsection (2), this Part applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding the opportunity for a hearing before making a decision.

12The Committee here does not exercise a statutory power of decision, as it is not exercising a specific power or right conferred by statute to make the decision (Paine v. University of Toronto (1981), 1981 1921 (ON CA), 34 O.R. (2d) 770 (C.A.) at 772; Re B and W (1985), 1985 2048 (ON SC), 52 O.R. (2d) 738 (H.C.J.) at 745).

The Duty to Give Reasons

13The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 held that “in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision” (at para. 43). The Court held that in cases “where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of written reasons should be required” (ibid.). There, an individual was entitled to written reasons with respect to her application for an exemption, on humanitarian and compassionate grounds, from the requirement in immigration legislation that she apply for immigrant status from outside Canada. The requirement for reasons was met by giving her the notes of the subordinate reviewing officer.

14This Court has applied Baker in Daneshvar v. National Dental Examining Board of Canada, [2002] O.J. No. 2487 (Div. Ct.) to a decision of the Appeals Committee of the National Dental Examining Board, a body created by federal statute to establish national standards for the practice of dentistry. The Committee’s decision was described by the Divisional Court as a conclusion, without reasons. Again, the Court emphasized the importance of the decision to the applicant, a foreign-trained dentist, who was seeking to qualify to practise dentistry in Canada. There, the Court observed that the reasons need not be like those given by courts or more formal boards or tribunals. What is required, however, is an explanation for the decision (at para. 18).

15As in Daneshvar, the decision of the College Student Appeals Committee has had a profound effect on the Applicant’s academic career. Without the successful completion of NURS 4505, she could not go on to enroll in the two final courses in semester five, which would complete her program. Moreover, the appeal resulting in the decision under review was the second hearing of the appeal of the Applicant. While the Appeals Committee is a lay tribunal, not an administrative tribunal created by statute, it nevertheless had an obligation to give some explanation for its conclusion, given the importance of its decision and in the unusual circumstances of this case. Instead, it gave only a conclusion when it rejected the appeal, and it gave no reasons for the refusal to hear the expert witness.

16As the Supreme Court of Canada observed in Baker, the kind of reasons expected will vary from one decision maker to another (at para. 40). Nevertheless, there is a need, in an unusual case such as this, to explain to the Applicant why the Committee decided as it did when it denied her appeal. The failure to give reasons was a denial of procedural fairness.

The Failure to Hear the Expert Witness

17The Applicant argues that she was denied natural justice because the committee refused to hear the expert witness on discrimination and accommodation. A tribunal’s refusal to hear relevant evidence is a denial of natural justice (Timpauer v. Air Canada, 1986 6890 (FCA), [1986] 1 F.C. 453 (C.A.) at paras. 16-17). The Committee gave no reasons for excluding the expert evidence.

18In the form submitted by the Applicant to launch her appeal, there was no mention of discrimination, nor was there mention of discrimination or accommodation in her response to Professor Tidman. Instead, she responded to the substance of the evaluation, and gave no indication that her disability had affected her ability to meet the expectations of the course.

19While the College was aware that she was a special needs student with brain damage and a speech impediment, it had no medical evidence respecting her disability and accommodation other than a medical certificate from her physician dated April 30, 2003. It indicated that she required more time to write examinations. There is nothing to indicate that any request for accommodation had been made with respect to the clinical course.

20Whether the College has discriminated against Ms. Lerew is the subject matter of a human rights complaint launched August 28, 2003. The relief suggested in the complaint is the modification of the expectations of the course or the design of a remedial education program.

21The task of the Appeals Committee was to review the information before it and to determine whether Ms. Lerew had been fairly assessed in the clinical course. They were to do so in the context of the College’s policies. The Committee did not explain why it refused to hear the expert evidence, and it should have given reasons explaining why it came to its conclusion.

The Right to Have a Court Reporter

22The Applicant also challenged the refusal of the Committee to permit her to have a court reporter present. In my view, she was not denied her right to counsel because of the lack of a court reporter. This is not a case like Re Mroszkowski and Director of the Vocational Rehabilitation Services Branch of the Ministry of Community and Social Services for Ontario (1978), 1978 1631 (ON SC), 20 O.R. (2d) 688 (Div. Ct.), where the board forbade counsel’s student from taking notes and refused access to the board’s own record.

23Nor was there a violation of s. 5(1) of the Evidence Act, R.S.O. 1990, c. E.23. It reads:

Despite any Act, regulation or the rules of court, a stenographic reporter, shorthand writer, stenographer or other person who is authorized to record evidence and proceedings in an action in a court or in a proceeding authorized by or under any Act may record the evidence and the proceedings by any form of shorthand or by any device for recording sound of a type approved by the Attorney General.

The Committee proceedings are not “proceedings authorized by or under any Act”, and the section deals with the credentials of reporters, not the obligation of a tribunal to have its proceedings recorded.

24Moreover, the Committee’s proceedings are informal, as demonstrated by the Procedures governing the Committee. Witnesses are not sworn, and the Procedures specifically provide that the Committee Chair is to take notes of the proceeding. Therefore, the Committee made no error in law in refusing to allow the presence of a court reporter.

25For these reasons, the application is granted. The decision of the College Student Appeals Committee dated April 1, 2004 is set aside, and the Applicant’s appeal is remitted to a new panel to determine the appeal in light of these reasons. Counsel for the College suggested that the matter be returned to the same panel of the Committee, so that the members could provide fuller reasons. Given that a year has gone by since their deliberations, and memories will have faded, it is fairer to set aside the decision and return it to another panel to determine the appeal. It will be the task of the new panel, as well, to determine whether the expert witness can give relevant evidence and to give reasons if it refuses to hear the witness. While the Committee is not obliged to allow the presence of a court reporter, it may be wise to permit the Applicant to record the proceedings in some manner, given the history of difficult relations between the parties and the fact that this will be the third hearing in this appeal.

26If the parties can not agree on costs, they may make brief written submissions within 21 days of the release of this decision.

Swinton J.

O’Driscoll J.

Caputo J.