CITATION: Said v. University of Ottawa, 2011 ONSC 6179

DIVISIONAL COURT FILE NO.: 10-DV-1675

DATE: 2011/12/30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM ACJ, VALIN, and RADY JJ.

BETWEEN:

IBRAHIM SAID

Applicant

– and –

UNIVERSITY OF OTTAWA

Respondent

Chris Rootham/Janice B. Payne, for the Applicant

Sally Gomery/Jamie A. Macdonald, for the Respondent

HEARD: October 4, 2011 at Ottawa

REASONS FOR JUDGMENT

Introduction

[1] This is an application for judicial review of a decision of the Joint Committee of the Senate and the Board of Governors of the University of Ottawa (the Joint Committee) dated June 15, 2010 refusing to promote the applicant to the position of Associate Professor. The applicant met the teaching and research requirements necessary for promotion. However, he was denied because the Joint Committee concluded that he failed to meet the professional standards expected, it having been earlier determined that he had sexually harassed a colleague.

Facts

[2] Dr. Said is an anaesthesiologist. He obtained his medical degree in Italy and worked in Israel from 1994 to 2001. He came to Canada to obtain a fellowship in pediatric anesthesia. He began working in this field at the Children’s Hospital of Eastern Ontario (CHEO) in July 2001 and joined the Faculty of Medicine of the University of Ottawa in 2003 as an Assistant Professor, which is a junior faculty position.

[3] Because he did not train in Ontario, Dr. Said requires special registration from the College of Physicians and Surgeons of Ontario (CPSO). As an Assistant Professor, he was able to obtain the requisite academic registration from the CPSO. He was following what is referred to as the clinician‑teacher pathway, meaning he practised medicine and taught it in a practical clinical setting.

[4] Academic registration at the junior faculty level is only available for seven years, subject to extension. In 2008, Dr. Said’s academic registration was due to expire. He applied for and received an extension to July 2010. By then, he needed to become an Associate Professor (or senior faculty) or he would lose his licence to practise medicine in Ontario. As a result, he applied for a promotion on August 1, 2008.

[5] On March 19, 2009, Dr. Melissa Forbes submitted a sexual harassment complaint against Dr. Said. Dr. Forbes was a family practitioner in anesthesia who completed a rotation at CHEO between January and March 2009.

[6] As a result of her complaint, the University of Ottawa appointed an investigator who prepared a fact finding report, after interviewing Dr. Said and Dr. Forbes, as well as six doctors who worked in the anaesthesia department at the relevant time.

[7] The essence of Dr. Forbes’ complaint is that Dr. Said asked her to have dinner with him on two or three occasions. Dr. Said admits that he discussed dinner with her twice. The last time that he did so, Dr. Forbes declined and raised a concern about the power imbalance between them. Dr. Said did not, thereafter, ask Dr. Forbes to have dinner with him. He denies having any sexual intentions.

[8] In accordance with the University’s policy, the fact‑finding report was forwarded to the Dean of the Faculty of Medicine to conduct his own investigation. As a result of his investigation, the Dean recommended to the Administrative Committee that Dr. Said be dismissed as Assistant Professor, which would mean that Dr. Said could not practise medicine in Ontario.

[9] The Administrative Committee rejected the Dean’s recommendation. Instead, it ordered Dr. Said to attend two coaching sessions with the harassment officer and to attend a course on harassment in the workplace. He was placed on probation for one year. One of the terms of probation required a written reprimand to be placed in his employment file in the event of another complaint.

[10] Dr. Said attended the required coaching sessions and course. In the meantime, his application for promotion was making its way toward consideration.

[11] The procedure for promotion is as follows:

(1) The faculty member must apply for the promotion;

(2) The Chair of the department and the Departmental Faculty Promotions Committee (“DFPC”) must evaluate the application and forward its recommendation to the Dean and the faculty’s Clinical Teaching Personnel Committee (“CTPC”);

(3) The Dean is a non‑voting member and chair of the CTPC;

(4) The CTPC makes a recommendation to the Joint Committee;

(5) The Dean makes a separate recommendation to the Joint Committee;

(6) If the initial recommendation of the CTPC is not favourable, the candidate can appeal to the CTPC by requesting a meeting with them, following which it issues a second decision;

(7) If the CTPC’s second recommendation is not favourable, the candidate can withdraw the application or proceed to the Joint Committee;

(8) The Joint Committee’s decision is final and not subject to appeal (except as set out in a grievance procedure that does not apply here).[^1]

[12] The DFPC unanimously supported Dr. Said’s application. Both the internal and external reviewers selected to assess Dr. Said’s application also recommended he be promoted.

[13] On January 15, 2010, the CTPC convened to consider Dr. Said’s application. The Dean did not participate in the discussion of the merits but toward the end of the discussion, the Dean advised the CTPC members that:

(a) a sexual harassment complaint against Dr. Said had been upheld following an internal investigation;

(b) the Administrative Committee had placed Dr. Said on probation for one year commencing November 11, 2009; and

(c) the CPSO was investigating the complaint.

[14] The CTPC unanimously recommended that his application be rejected. Its reasons are recorded as follows:

In summary, Dr. Said has demonstrated excellence in clinical care, particularly with respect to pain control and the management of emergent agitation in children. He strives to optimize care based on feedback from his patients and allied as well as colleague staff [sic]. In his clinical work, he has demonstrated his excellence in clinical care, particularly with respect to pain control and the management of emergent agitation. Administrative roles include his committee work at CHEO as well as his administrative role in coordinating undergrad and postgrad anesthesia activities within the hospital. His teaching at the postgraduate level includes anaesthesia residents and pediatric anesthesia fellows. He has developed and implemented a successful structured teaching program for these trainees. His research is practical, clinical research with modest funding yet successful presentations in manuscript publication.

At its meeting of 15 Jan 2010, the CTPC was made aware of a sexual harassment complaint levelled [sic] against Dr. Said by one of the residents. This complaint was investigated by the University under policy 67a and a decision, upholding the complaint and putting Dr. Said on probation for a year, has been communicated to Dr. Said. The CPSO is also investigating the complaint and has not yet rendered a decision. In view of the decision by the University, and in view of section 3 of the Standards & Procedures for Promotion of Clinical Faculty at the University of Ottawa, the CTPC unanimously decided that the application for promotion cannot be supported at this time. A new application for promotion after a reasonable amount of time from completion of the probation will be considered.[^2]

[15] The Dean communicated the CTPC decision to Dr. Said by letter dated January 21, 2010. The Dean also issued his own negative recommendation, without giving Dr. Said an opportunity to appeal to the CTPC for a meeting. Initially, the Dean suggested that no appeal was available. After the intervention of his counsel, Dr. Said was permitted to appeal. In addition, counsel requested that the Dean recuse himself given his involvement in the harassment complaint and his recommendation that Dr. Said be dismissed. It was submitted that a reasonable apprehension of bias was raised. The Dean refused to do so.

[16] On April 12, 2010, Dr. Said was permitted to make a 15 minute presentation to the CTPC. He then departed. What occurred following Dr. Said’s presentation and after he left the meeting is the source of conflicting evidence. It appears, however, on the Dean’s own evidence that in response to a procedural question from one of the committee members, he responded that it was not the CTPC’s role to re‑open the sexual harassment investigation.

[17] The CTPC voted unanimously to make a negative recommendation, as recorded in the following excerpt from the minutes:

a. Dr. Said’s scholarly activities were judged to be adequate for promotion to the rank of Associate Professor.

b. The committee acknowledged that the University has found justifiable grounds to uphold a complaint of sexual harassment against Dr. Said. The committee determined that Dr. Said did not meet the professional standards expected as per the standards and procedures for promotion for clinical faculty in the Faculty of Medicine.

Recommendations: The committee decided, unanimously, to uphold the earlier decision not to recommend promotion at this time. [Emphasis in original]

[18] Dr. Said declined an invitation to make further submissions before the Dean made his recommendation to the Joint Committee. From Dr. Said’s perspective, the Dean’s mind was made up.

[19] The Dean provided the Joint Committee with the required documents and his negative recommendation.

[20] Dr. Said also provided the Joint Committee with a package of information respecting the investigation of the complaint of sexual harassment, which included a statement outlining why the Dean was in error in concluding that sexual harassment occurred; the fact finding report; the Dean’s report, e‑mail in support of Dr. Said; the result of the coaching sessions and two e‑mails from the Faculty of Medicine, the first soliciting complaints of sexual harassment generally and the second specifically in respect of Dr. Said.

[21] The Joint Committee met on June 15, 2010 and denied Dr. Said’s application on the basis that he did not meet the professional standards for promotion. The following is the record of the Joint Committee’s decision:

On motion duly made, seconded and carried, it was resolved not to grant a promotion to the rank of Associate Professor to Professor SAID, I. (P 50164). The Professor did not meet the professional standards expected for promotion according to Policy 6 – Standards and Procedures for Promotion to Clinical Faculty (unanimous) (JOINT COMMITTEE – 2010/06/15).

No reasons aside from this brief notation were given.

[22] As a result of the Joint Committee’s decision, Dr. Said cannot practise medicine in Ontario. He has returned to Israel where he works as a pediatric anaesthesiologist. Before doing so, he explored the possibility of keeping his position, without a promotion, through a practice assessment. In order to do so, Dr. Said required the support of the University of Ottawa. He asked the chief of anaesthesiology for his support but his request was denied.

The Parties’ Positions

[23] The applicant raises arguments on substantive and procedural grounds. He submits that:

(1) the reasons for the Joint Committee’s decision fall short of the justification, transparency and intelligibility demanded in a decision making process. In the circumstances, it is necessary to go back to the reasons of the subordinate decision makers (i.e. the CTPC and the Dean) in order to discern the reasons for its decision;

(2) the Dean erred in concluding that Dr. Said sexually harassed Dr. Forbes;

(3) the Joint Committee failed to consider whether Dr. Said otherwise met the requirements and standards for promotion;

(4) the Dean’s involvement in the process raises a reasonable apprehension of bias.

[24] The respondent makes the following submissions:

(1) The application is moot because even if he were successful on this application, Dr. Said no longer is licensed to practice in Ontario and he is, therefore by definition, ineligible for professorship;

(2) The court should not interfere with the Joint Committee’s decision. The finding of sexual harassment is not susceptible to review and the Joint Committee’s decision was reasonable;

(3) The Joint Committee’s decision should not be set aside for bias because there was no manifest unfairness.

Analysis

[25] We find it necessary only to deal with the issue of procedural fairness. Before embarking on the analysis, however, it is necessary to deal with the issue of mootness. The decision of the Joint Committee led to Dr. Said’s loss of his licence and his inability to practice medicine in Ontario. It must surely be an untenable result that by doing so its decision making process is sheltered from review. In any event, the court retains a discretion to entertain matters notwithstanding their mootness.[^3]

[26] Where a case is moot, the general policy of the court is to decline to decide the case. The rationale is founded on the absence of an adversarial relationship and a concern for judicial economy. Nevertheless, the court may exercise its discretion to hear a moot appeal “when collateral circumstances justify a decision on the merits or when special circumstances of the case make it worthwhile to apply scarce judicial resources to its resolution.”[^4] This is such a case.

[27] It is common ground that the respondent owes the applicant a duty of fairness in the application process. The duty of fairness is flexible and variable, depending upon the nature of the decision being made, the nature of the statutory scheme, the importance of decision to the individual affected, the legitimate expectations of the individual and the choice of procedures adopted.[^5]

[28] The duty of fairness is high in a case such as this where the refusal of a promotion has such dramatic consequences, namely the applicant’s ability to practise medicine in Ontario. The Court of Appeal has said that “[s]ince the refusal of tenure has such drastic consequences for the respondent’s right to continue in his profession or employment, a high standard of justice is required”.[^6] That comment is apposite.

[29] Further, procedural fairness “requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker.”[^7] The test for reasonable apprehension of bias is found in the dissent of de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board)[^8]:

...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

[30] In Paine v. University of Toronto et al.,[^9] the Court of Appeal found a violation of the rule against bias and a breach of the rules of procedural fairness where a member of a tenure committee who had a preconceived opinion of a candidate’s suitability for tenure, dominated the proceedings and persuaded others to accept his opinion.

[31] It is no longer necessary to demonstrate that the biased individual dominated the proceeding as long as that person played a significant role in the making of decisions.[^10]

[32] In our view, the respondent did not meet its obligation of procedural fairness in the circumstances of this case because of the Dean’s participation at every level of the process, after he had made a determination in 2009 that Dr. Said ought to be dismissed.

[33] In this case, the Dean investigated the allegations of sexual harassment, determined that Dr. Said was guilty[^11] and recommended that he be dismissed. The University disagreed and placed Dr. Said on probation instead, the terms of which Dr. Said complied with as directed. The Dean chaired the meeting of the CTPC and while he was not a voting member, he contributed to its discussion by advising it of the finding made against Dr. Said. Following its first decision, the Dean issued his concurrence, without giving Dr. Said the opportunity to appeal. It was only after the intervention of counsel that Dr. Said was permitted to do so. The Dean continued to be involved thereafter. We are satisfied that a reasonable apprehension of bias is raised. A reasonably informed person would conclude that Dr. Said would not be treated fairly.

Order

[34] An order will issue quashing the decision of the Joint Committee. The applicant shall have his costs of the application fixed at $15,000.

Madam Justice H. Rady

I agree ____________________________________

Mr. Associate Chief Justice D. Cunningham

I agree ____________________________________

Mr. Justice G. Valin

Released: December 30, 2011

CITATION: Said v. University of Ottawa, 2011 ONSC 6179

DIVISIONAL COURT FILE NO.: 10-DV-1675

DATE: 2011/12/30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM ACJ, VALIN, and RADY JJ.

BETWEEN:

IBRAHIM SAID

Applicant

– and –

UNIVERSITY OF OTTAWA

Respondent

REASONS FOR JUDGMENT

Rady J.

Released: December 30, 2011

[^1]: Promotion and Tenure Faculty of Medicine Standard and Procedures for Promotion of Clinical Faculty, Faculty of Medicine

[^2]: Affidavit of Dr. Said, Exhibit “Q”, Application Record p. 122

[^3]: Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342

[^4]: Borowski v. Canada (Attorney General), supra

[^5]: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817

[^6]: Ruiperez v. Board of Governors of Lakehead University (1983), 1983 1835 (ON CA), 41 O.R. (2d) 552 (C.A.)

[^7]: Baker v. Canada (Minister of Citizenship and Immigration), supra

[^8]: 1976 2 (SCC), [1978] 1 S.C.R. 369

[^9]: (1982), 1981 1921 (ON CA), 34 O.R. (2d) 770 (C.A.)

[^10]: Baker v. Canada (Minister of Citizenship and Immigration), supra

[^11]: An appeal from the Dean’s finding does not appear to be possible.