COURT FILE NO.: 283/07

DATE: 20070817

Ontario

Superior Court of Justice

Divisional Court

Bryce Mulligan et al v. Laurentian University

Counsel for the applicants: Peter Rosenthal Michael A. Leitold

Counsel for the Respondent: Thomas N.T. Sutton Jeffrey E. Feiner

HEARD: August 15, 2007

By the Court:

[1] Based on s. 21 of An Act to Incorporate Laurentian University of Sudbury, we find that the statutory power of decision in question is the power to exercise discretion to admit or not admit an applicant to graduate studies; that does not attract the remedies of certiorari and mandamus.

[2] We turn then to the line of cases in Ontario and elsewhere that indicate that courts should be reluctant to interfere in the core functions of universities including the provision of education, the conduct of research and the evaluation of students. Courts will intervene where the applicants demonstrate that there has been a flagrant violation of the rules of natural justice. [Baxter v. Memorial University of Newfoundland (1998) 166 Nfld. & P.E.I.R. 183]

[3] The content of procedural fairness depends on the context which requires us to consider 4 factors. [Khan v. University of Ottawa (1997) 148 D.L.R. (4th) 577 O.C.A.] The decision to admit or not is discretionary; one made daily in an academic environment. The applicants challenge the recommendations of the Oversight Committee and the decision of the Dean in a pre-contractual relationship. The decision will have serious effects on the careers of the applicants but they have no right to be admitted.

[4] The last factor is the nature of the decision. In view of the review by the Ontario Council of Graduate Studies and the response by the Biology Department, the nature of the decision involves the policy of the Council of the Biology Department to have regard to factors that include the availability of research funds. This policy was applied to all applicants. It is not our role to second-guess the interpretation placed on the words in the policy, whether the policy should be waived, or whether the policy established by motion at a meeting of the Council needed to be recommended to the Senate and incorporated in a regulation.

[5] The context of the recommendation by the Oversight Committee suggests that some degree of procedural fairness is required. It is, however, minimal. The applicants have failed to satisfy us that, in this context, they have been treated with such manifest unfairness that there has been a flagrant violation of the rules of natural justice.

[6] We reject the suggestion that the applications were refused because the applicants are plaintiffs in an action against the university.

[7] There is no direct evidence of any bias on the part of those involved in the decision not to admit. Nor are we prepared to draw such an inference.

[8] The application is dismissed.

Carnwath, J.

Kiteley J.

C. Campbell J.

Released: August 17, 2007