Alavi v. York University Tribunal, 2010 ONSC 3738

CITATION: Alavi v. York University Tribunal, 2010 ONSC 3738

COURT FILE NO.: 599/09

DATE: 20100713

SUPERIOR COURT OF JUSTICE – ONTARIO

(DIVISIONAL COURT)

RE: SYED ALI ALAVI

Applicant

• and -

YORK UNIVERSITY TRIBUNAL

Respondent

BEFORE: JENNINGS, LEDERMAN and SWINTON JJ.

COUNSEL: Aliamisse O. Mundulai Lisa Constantine and Alexi Wood

for the Applicant for the Respondent

HEARD at Toronto: June 23, 2010

ENDORSEMENT

1On May 5, 2009 Local Adjudicator John Amanatides issued a decision pursuant to York University’s Student Code of Conduct finding the applicant, a doctoral student in Chemistry, had violated the Code. Complaints about the applicant’s threatening and disruptive behavior had been filed with the Office of Student Conduct and Dispute Resolution by each of the applicant’s supervisor and the Chair of the Chemistry Department. This was the second time the applicant had been found to have violated the Code because of his conduct towards his supervisor.

2The decision imposed significant restrictions both upon the applicant’s contact with his supervisor and his entry into the university building where the laboratory was located in which he did his research work (AR tab 12). For example, he could not contact his supervisor except in a manner approved by the Chair of the Chemistry Department, and he could not enter the Petrie Building unless accompanied by the Chair. However, if his supervisory committee determined that he needed access to the laboratories there, the Chair of the department would provide written instructions on access. These restrictions were to be in place for one year.

3Pursuant to the Code, the applicant requested a hearing before the University Tribunal to review the adjudicator’s decision. The request was considered in writing, as contemplated by the Code, and denied by Tribunal member Sean Hillier in his decision released June 9, 2009. (AR tab 14).

4The applicant appealed the decision of the member to the Appeal Tribunal, pursuant to the provisions of s.7 of the Code. After considering written submissions, including two written submissions from the applicant’s counsel, the panel dismissed the appeal without an oral hearing on the grounds that the applicant had failed to raise any of the four permissible grounds for review set out in the Code. The panel’s written decision is dated October 21, 2009 (AR tab 3).

5Meanwhile, on May 14, 2009, the Graduate Program in Chemistry determined that the applicant was not making sufficient academic progress and required him to withdraw from the doctoral program (Responding AR tab 2E). The applicant appealed the decision to the Petitions Committee of the Faculty of Graduate Studies. The Committee determined that it would permit the applicant to continue his studies on conditions. It also directed the Faculty of Graduate Studies “… to assist [the applicant] with securing alternate supervision for his doctoral dissertation work …” and to assist him with securing the necessary space and equipment to conduct his research (emphasis added).

6The applicant now seeks judicial review of the Tribunal’s decision of June 9, 2009, and the Appeal Panel’s decision of October 21, 2009, on the grounds of lack of procedural fairness and apprehension of bias. The applicant also seeks an order in the nature of mandamus requiring York University to provide him with a qualified supervisor, if necessary by locating one at another university.

7Notwithstanding that the time period for the restrictions placed upon the applicant by the Local Adjudicator has expired, we did not give effect to the respondent’s submission that the application for judicial review of the two appeal decisions was now moot. We are of the opinion that there will presumably now be a note of disciplinary action contained in the applicant’s file, notwithstanding that the restrictions no longer apply. The respondent expressed agreement with the position we adopted.

8The Code provides a process for dealing with complaints. It was followed to the letter by the adjudicator and the two appellate Tribunals. The applicant was given notice of the complaints that had been made. He appeared before the adjudicator to make oral and written submissions. At each of the two appeal stages, the Code provides an opportunity for an appellant to make further written submissions. The applicant did so, and in the second appeal with the assistance of counsel. From the record it is clear that the procedural fairness to which the applicant is entitled as set out in the Code was accorded to him. Considering the factors determining the content of the duty of fairness set out in Baker v. Canada, 1999 699 (SCC), [1999] 2 S.C.R. 817 we find there was no denial of procedural fairness. Baker does not require an oral hearing in every case. Here oral submissions were received at the initial hearing stage. Credibility in this proceeding was not an issue, as the applicant had admitted disruptive behavior. As a result, Khan v. University of Ottawa (1997), 1997 941 (ON CA), 34 O.R. (3d) 535 (Ont. C.A.), heavily relied upon by the applicant, is not applicable to the facts on the record before us.

9With respect to bias, there is simply nothing in the record to support that claim, which was not seriously pursued in argument.

10Contained in the lack of procedural fairness submissions was the submission that the adjudicator had no power to impose restrictions prohibiting contact with the applicant’s supervisor and denying the applicant laboratory access. The adjudicator had the authority to impose restrictions on behavior pursuant to article 9(a)(vi) of the Code. However, he did not have the authority to order a suspension, and the applicant argues that he effectively did so, given the restrictions ordered.

11We disagree. First, the decision was not in reality a suspension. The adjudicator imposed conditions governing future contact and future access, as set out above.

12Second, the Code provides in s. 9(a)(vi) that the adjudicator may impose restrictions on behavior. Here the adjudicator was faced with a difficult task: to balance the need to protect members of the university community from threats and unruly conduct with the need to maintain a student’s ability to pursue his studies. The decision of the adjudicator to impose time limited restrictions did just that. The decision was well within the jurisdiction conferred upon the adjudicator by the Code.

13With respect to the relief directed at the academic aspect of this application for judicial review, mandamus does not lie on the facts before us. The uncontradicted evidence is that the Graduate Program Director in Chemistry and the Interim Dean of the Faculty of Science and Engineering interviewed all possibly qualified professors in the Chemistry Department in its efforts to find a replacement for the applicant’s former supervisor. Unfortunately, the applicant works in a highly specialized field. No one was willing to act as his supervisor, either because the professor did not feel qualified to do so or because of concerns about the applicant’s lack of progress. It was not suggested by anyone that it was appropriate for the applicant to continue with his former supervisor.

14The evidence is that an applicant for graduate studies seeks out a suitable supervisor for the study to be undertaken and attempts to make a case to the proposed supervisor that he or she accept the responsibility of acting as supervisor. The suggestion that a supervisor must be provided as of right to a student, and that supervisor forced to act against her or his will, would introduce a practice wholly foreign to the close-knit community of graduate studies. It would also run counter to the pre-conditions for mandamus set out by this court in ETR Concession Co. v. Ontario (2005), 2005 49963 (ON SCDC), 82 O.R. (3d) 703. To obtain mandamus, the applicant must demonstrate a clear legal right to have the thing sought to be done by the person sought to be coerced. The applicant has not met this test.

15In the result the application must be dismissed. Having had the benefit of submissions from counsel, costs to the respondent fixed at $3,500 payable forthwith.