CITATION: Deng v. University of Toronto, 2011 ONSC 835
DIVISIONAL COURT FILE NO.: 164/09
DATE: 20110208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROWN RSJ, MOLLOY, HERMAN JJ.
BETWEEN:
HONG LIN DENG
Applicant
– and –
THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO
Respondent
Glenroy K. Bastien, for the Applicant
S. John Page and Taryn McCormick, for the Respondent
HEARD at Toronto: October 7, 2010
BROWN RSJ.:
REASONS FOR JUDGMENT
I. Nature of Proceeding
[1] The applicant, Hong Lin Deng (the “applicant’) seeks judicial review of the decision of the Academic Appeal’s Committee (the “Committee”) of the Governing Council of the University of Toronto (the “respondent”) dated August 14, 2008, whereby the applicant was involuntarily withdrawn from the Radiological Technology Program (the “Program”) at the University of Toronto (“U of T”).
[2] The applicant seeks an order quashing the Committee Decision and readmitting the applicant to the Program.
II. BACKGROUND
[3] The applicant was admitted to the Program at the U of T in 2002. The program lasts three years and consists of theoretical courses during the first two years followed by three clinical courses in the summer of year two and in year three: Clinical Practicum I, Clinical Practicum II and Clinical Practicum III.
[4] The applicant successfully completed the theoretical courses and commenced the third year of the Program in the Fall term of 2004. In that term, he was required to take only two courses, a clinical project and Clinical Practicum II. The project was completed successfully, but the applicant had difficulties in the practicum course. After the course ended, the Board of Examiners (“BOE”) decided to place the applicant on a program – initiated leave of absence with remediation. A remediation plan was devised, which the applicant completed successfully during the Winter term of 2005. In accordance with the BOE decision, the applicant then, in May 2005, returned to repeat Clinical Practicum II with the status of “Remediation with Probation”.
[5] The applicant’s instructors and supervisors in that Practicum were dissatisfied with the applicant’s performance to the extent that the Program Review Committee recommended his dismissal from the Program and the BOE in a decision dated July 19, 2005, accepted this recommendation. This decision was appealed to the Appeals Committee of the Faculty. That Committee allowed the appeal in a decision dated August 16, 2005. The applicant accordingly was readmitted into the Program and repeated Clinical Practicum II in the Fall term of 2006. The applicant successful completed this repeated practicum and proceeded in the Winter term of 2006 to start Clinical Practicum III, still on probation.
[6] During this practicum, at Scarborough General Hospital (“SGH”), the applicant’s supervisors were noting the same type of flaws in his performance that had led to the failure in Practicum II. Generally, these were lapses in technical application, problems in properly positioning patients, difficulty in communication, a tendency to reject or react adversely to critical appraisals, and difficulty in adapting his techniques to the more difficult challenges sometimes met in a major primary care hospital’s radiology department.
[7] The applicant proposed to take a leave of absence of about one month from mid-May to mid-June, 2006, to visit his homeland. On May 3, 2006, the Chair of Medical Radiation Sciences wrote to the applicant. This letter advised the applicant that he had not satisfied all the requirements of the practicum and that he was being granted a four-week extension of his placement at SGH in order to complete them. The matters to be completed, and in one case, repeated, were set out. The applicant was warned that, if the requirements were not met within the extension period, which was scheduled to take place after his return from his intended visit home, he would not be granted a further extension of the practicum.
[8] Upon his return from his leave, the applicant resumed his extended practicum at SGH on June 26, 2006. On June 27, 2006 an “incident” involving the applicant and a patient was observed and reported by a medical radiation technologist, Mr. Paul. The patient (“Mr. Sawh”) arrived at the Emergency Department of the SGH with a fractured and dislocated shoulder. Staff placed his arm in a sling to immobilize it. According to Mr. Paul, he entered the x-ray room to find the applicant x-raying the patient whose arm was out of the sling. He intervened both because the applicant should have consulted with him before taking images and because it was contrary to hospital protocols to remove the sling. Mr. Paul told the applicant that he was not to remove an emergency patient’s sling and reported the incident to the Clinical Coordinator. The Clinical Coordinator completed an incident report within 24 hours of the events at issue.
[9] There were two meetings between the applicant and representatives of the Program. The first was on June 29, 2006 (two days after the incident) and the second was on July 4, 2006. On both occasions, the applicant acknowledged that when he x-rayed Mr. Sawh’s shoulder, his injured arm was not in the sling. However, he insisted that he had not removed the arm from the sling, but that the patient himself had taken off the sling because it was easier to move his arm without it.
[10] In determining what actions to take following the incident, the BOE concluded that the applicant should be dismissed from the program. The BOE’s decision was released on September 5, 2006. This decision was appealed to the Faculty of Medicine Appeals (“FMA”), which denied the appeal. It was then appealed to the Committeewhich conducted a two-day hearing at which both parties were represented by counsel. The Committee deliberated in camera and delivered a written decision dated August 14, 2008 dismissing the appeal.
III. THE COMMITTEE DECISION
[11] The Committee defined the issues in the appeal as follows:
The Faculty’s position is that the “incident”, serious as it was, was not the sole justification for the decision to terminate the Student. It was the substandard performance which, capped by this episode involving danger to a patient’s health, led to the conclusion that the Student could not be allowed to continue in the Program. Nevertheless, the “incident” was the event which triggered the termination process, and your Committee believes that, if it had not occurred, then (barring a subsequent similar event), the Student would have been allowed to finish his extended term. He would then have been evaluated on the entire practicum in the usual way, and might or might not have been passed.
Essentially, the Faculty decision which is challenged here is a decision based upon an evaluation by the University’s examiners. If the evaluation was correct, the ultimate termination decision was justified. Leaving aside momentarily the fact that the occurrence of the “incident” is challenged by the Student, and also the possibility of bias tainting the evaluations, the appeal would necessarily fail at this point.
[12] The Committee concluded that the decision under review was “fairly arrived at” and that there was “no evidence of any bias against the student which would have tainted the decision”.
[13] The Committee’s approach to the happening of the incident was as follow:
This brings your Committee to the ‘incident’. The happening of the ‘incident’ is denied before your Committee, and the Student has adduced evidence from the very patient whose safety was supposed to be at risk, corroborating the denial. Your Committee holds that, in the circumstances of this case, if the ‘incident’ did not happen as alleged, it could affect the vital issue as to whether the evaluations which led to the crucial decisions were ‘fairly arrived at’. The decisions to suspend immediately, although made in good faith, could then be fundamentally flawed, and, if so, justice would then require at least that the Student be allowed to finish out the practicum before being evaluated.
[14] The Committee reviewed and considered the evidence relating to the occurrence of the incident of June 27, 2006, including: the evidence of Mr. Paul (which was submitted by way of a sworn written statement); the evidence of the applicant; the evidence of Mr. Sawh; a reporting letter from Dr. Cameron (an orthopaedic surgeon who reviewed the x-rays) and the written evidence of a pharmacologist as to the possible effects of the medication taken by Mr. Sawh.
(i) Mr. Paul’s Evidence
[15] Mr. Paul was a medical radiation technologist on duty at the time of the incident. His evidence was submitted by way of a sworn written statement.
[16] Mr. Paul’s evidence was that, on June 27, 2006 the patient, Mr. Sawh, came to the Emergency Department of SGH with a fractured and dislocated shoulder. Initially, staff in the Emergency Department placed the patient’s arm in a sling to bind his arm tightly against his body in order to immobilize it. The applicant took the patient and the x-ray instructions and commenced the prescribed x-rays.
[17] Mr. Paul states that he was in the adjacent room when he noticed the applicant was x-raying the patient. This concerned him because the applicant should have consulted Mr. Paul before taking the images and also because the patient’s arm was out of the sling. Mr. Paul entered the imaging room, placed the patient’s arm back in the sling and took a third prescribed x-ray himself. The removal of the sling was a breach of Hospital protocols for x-raying this type of injury.
[18] According to Mr. Paul, one of the x-rays taken by the applicant could not have been achieved if the patient’s arm had remained in the sling. On this issue, the Committee also considered the evidence of Dr. Cameron, an orthopaedic surgeon who reviewed the x-rays of the patient at the applicant’s request. Dr. Cameron stated that no x-rays were done which would require removal of a sling and said he could not tell if the patient was or was not wearing a sling based on the x-rays.
[19] Because of the seriousness of this breach of protocol, Mr. Paul reported the incident to the Clinical Coordinator who completed an Incident Report within 24 hours of the events at issue. In addition, Mr. Paul spoke with the applicant within minutes of the incident and reiterated that he is never to remove a sling or move the patient’s arm when it is a trauma/emergency patient.
(ii) The Applicant’s Evidence
[20] The applicant testified at the hearing and denied that he removed the patient’s sling or that the sling had been removed while he was x-raying the patient. The applicant also denied that he manipulated in any way the injured arm and shoulder.
(iii) Mr. Sawh’s Evidence
[21] Mr. Sawh supplied both a sworn written statement and attended in person as a witness at the hearing. He swore that the applicant had placed him standing before a wall and had taken an exposure when a second man entered the area, watched the applicant take a second image and then took a third image himself.
[22] The Committee reviewed the evidence of a professor of pharmacology filed by the Program relating to the drug that the patient had been given to render him unconscious for treatment. The drug was said to sometimes cause amnesia with respect to events that occur “almost concurrently” to the drug administration and that patients are also unaware that their memory may have been impaired. The Committeenoted that it had not been given any evidence as to the possible scope in time of the phrase “almost concurrently”.
(iv) The Committee’s Analysis of the Evidence and Conclusions
[23] In rendering its final decision, the Committee instructed itself as to the standard of proof required in the circumstances:
Your Committee is divided upon the proper finding to be made upon the happening of ‘the incident’. Your Committee was instructed by the Chair that, in matters such as this which have grave consequences on a professional career, Ontario courts insist that courts and tribunals such as this one act on ‘clear, convincing and cogent evidence’, although, given that evidence, issues are still to be decided on the civil standard of proof, i.e., the balance of probabilities, and not the criminal standard of ‘beyond a reasonable doubt’.
[24] The Committee recognized that the evidence of Mr. Paul was given only in writing and that it was open to it to draw an adverse inference based on the failure of the University to call him as a witness at the hearing. The Committee held:
Although Mr. Paul’s evidence was submitted in a sworn written statement, he did not attend the hearing and was not available to be cross-examined on behalf of the Student or questioned by your Committee. No explanation was offered as to why he was not at the hearing, other than that the Faculty had decided against calling him. Under these circumstances, your Committee was charged by the Chair that they might, but need not draw an inference adverse to the Faculty from his failure to appear for questioning.
[25] In approaching the evidence of Mr. Sawh, the Committee concluded that he was honest and that he believed what he told the Committee to be true, but that time, or in the alternative, the drug administered, may have made his memory unreliable.
[26] The Committee’s assessment of the applicant’s testimony was influenced by his two prior inconsistent statements. The Committee noted that there were two reports relating to meetings held between the applicant and representatives of the Program. The report of the first meeting, held on June 29, 2006, indicates that the applicant insisted that he did not remove the patient’s sling but that the patient had removed it.
[27] A further report of a meeting between the applicant and representatives of the Program, held on July 4, 2006, indicates that the applicant insisted that he did not remove the sling but the patient did because it was easier for the patient to move his arm without the sling.
[28] Based on the inconsistent evidence given by the applicant, the Committee found that the applicant “has given different and incompatible explanations regarding the sling”.
[29] Ultimately, the Committee decided the following:
The majority of your Committee finds that the incident happened substantially as described by Mr. Paul. They believe that Mr. Sawh was honest, in that he believes what he told us was true, but that time, or in the alternative, the drug administered to him have made his memory unreliable. The Student has given different and incompatible explanations regarding the sling. Therefore, the majority finds that the Program was not acting under a false assumption as to a key and fundamental fact when the Student was suspended and then terminated, and there is therefore no basis to challenge the evaluations which led to the Student’s dismissal. The majority would dismiss the appeal.
IV. STANDARD OF REVIEW
[30] The appropriate standard of review in this application is that of reasonableness.
[31] In Mulligan v. Laurentian University, 2008 ONCA 523, para. 20, the Court of Appeal for Ontario, in a decision rendered after the Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9, determined that reasonableness was the appropriate standard of review in relation to decisions of universities:
…however the funding policy is characterized, – the standard of review to be applied is whether the University acted reasonably in making the discretionary admission decision that it did: New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9. In this regard, it has long been accepted that courts should be reluctant to interfere in the core academic functions of universities: see Baxter v. Memorial University of Newfoundland, 1998 St. J. No. 2430 (unreported); O’Reilly v. Memorial University of Newfoundland, [1998] N.J. No. 234 (Nfld. T.D.); Dawson v. University of Ottawa, [1994] O.J. No. 1148 (Ont. Div. Ct.).
[32] In Dawson v. University of Ottawa (1994), 72 O.A.C. 232 at para. 7 (Div. Ct.) the Ontario Divisional Court set out the circumstances where the decisions of educational institutions could be the subject of review on the basis of natural justice:
There is a reluctance in this court to intervene in decisions of educational institutions relating to academic evaluation, save where the applicant has shown that he has been treated with such manifest unfairness that there has been a flagrant violation of the rules of natural justice.
V. ISSUES
[33] The applicant raises four grounds for review of the Committee decision:
(i) Did the Committee violate the applicant’s right to natural justice?
(ii) Did the Committee err in law by failing to consider the relevant evidence provided by the applicant and his witness?
(iii) Did the Committee err in law in failing to correctly apply the “clear, convincing and cogent evidence” test?
(iv) Did the Committee make findings of fact in the absence of evidence?
VI. ANALYSIS
(i) Did the Committee violate the applicant’s right to natural justice?
[34] The applicant submits that his right to natural justice was denied by 1) the failure of the applicant’s accuser, Mr. Paul, to appear before the Committee and be subjected to cross-examination and 2) the denial of procedural fairness by the Program.
(a) The Right to Cross-Examine
[35] The applicant submits that credibility played a significant role in these proceedings and relies, in particular, on the Divisional Court’s decision in Hagee v. York University (1985), 11 O.A.C. 72 at para. 3 (Div. Ct.), where Krever J. (as he then was) said as follows:
We are quick to acknowledge that natural justice or the requirements of fairness do not always require adherence to what has become known as the audi alteram partem principle or even to an absolute right to cross-examine. Nevertheless, in a case such as this, not only because of the potential consequences to the student but also because of the nature of the case against him, depending as it does on the credibility of 2 persons – Mr. A. Singh and Mr. B. Singh, the former of whom did not appear at the hearing and whose evidence was given by way of his statutory declaration, the applicant was entitled to greater consideration than he received….there can be no justification for refusing the applicant the opportunity to test the accuracy of the critical, direct evidence of Mr. B. Singh in the light of the known position of the applicant that he denied Mr. Singh’s evidence.
[36] What makes this case different from Hagee v. York University, supra, is that at no time did the applicant, who was represented by counsel, seek the opportunity to cross-examine Mr. Paul on his statement. If the applicant wished to cross-examine any witnesses, the onus was on him to request the opportunity to do so. In Re: County of Strathcona No. 20 v. Maclab Enterprises (1971), 20 D.L.R. (3d) at 204-5 (Alta. C.A.), the Alberta Court of Appeal concluded that “failure to apply to be permitted to cross-examine may deprive that party of a right to complain if it is not given to him”.
[37] Counsel for U of T provided Mr. Paul’s affidavit to the Committee on the day that it was sworn, March 12, 2008. The Committee forwarded the affidavit to counsel for the applicant on April 3, 2008, 25 days before the original Committee hearing date. Counsel for the applicant indicated that he did not receive Mr. Paul’s affidavit until after he had submitted the applicant’s reply. As such, he requested an adjournment in order to prepare new reply material.
[38] Counsel for U of T consented to the adjournment. As a result, counsel for the applicant was in possession of Mr. Paul’s affidavit for over two months prior to the commencement of the hearing.
[39] In response to Mr. Paul’s affidavit, the applicant provided a Supplementary Reply including a document entitled “Reply to the Affidavit of Anton Paul”.
[40] During this time, counsel for the applicant made no request that Mr. Paul be produced at the hearing to be cross-examined nor did he seek an order from the Committee that Mr. Paul be ordered to attend at the hearing to be cross-examined.
[41] In these circumstances, it could reasonably be inferred that counsel for the applicant’s failure to seek to cross-examine Mr. Paul, or to seek to have him present at the hearing was a strategic tactic on counsel’s part to have Mr. Paul’s evidence considered by the Committee in the best possible terms for the applicant. That is, the applicant would have the benefit of having the Committee consider Mr. Paul’s evidence in circumstances where the Committee might draw an adverse inference against the university from Mr. Paul’s failure to appear for questioning, while at the same time having the viva voce testimony of the applicant supported by the evidence of the patient. It would have been open to counsel to request an adjournment if caught by surprise by the failure of Mr. Paul to attend in person. Counsel did not do that, electing instead to urge the Committee to draw an adverse inference based on the failure of Mr. Paul to testify and to therefore reject his evidence where inconsistent with that of the patient and the applicant. The fact that this strategy did not result in an outcome favourable to the applicant does not constitute a denial of natural justice.
[42] I accept that a university student threatened with the loss of an academic year or, as in this case, termination from the Program is entitled to a high standard of justice. See Re: Khan and University of Ottawa et al (1994), 148 D.L.R. (4th) 577 (Ont. C.A.). That being said, in the circumstances of this case, the inability of the applicant to cross-examine Mr. Paul cannot be considered so manifestly unfair as to amount to a violation of the rules of natural justice.
(b) Procedural Unfairness
[43] The applicant argues that the procedures undertaken by the Program resulted in a denial of procedural fairness to the applicant.
[44] The applicant’s complaints under the headings of procedural unfairness of procedures at the Program level actually relate, in substance, to evaluation by the Program. That is, they are academic decisions falling within the core function of the U of T. As noted previously in Dawson, supra, the court is reluctant to intervene in decisions of educational institutions relating to academic evaluation unless the applicant has shown that he has been treated with such manifest unfairness that there has been a fragrant violation of the rules of natural justice.
[45] The Committee directly addressed the procedures of the Program and the Faculty of Medicine and held as follows:
The majority of your Committee finds that the decision was fairly arrived at. It finds no evidence of any bias against the Student which could have tainted the decision.
[46] The applicant argues that the Program Initiated Temporary Leave was improperly applied because the incident which prompted the leave “would hardly be considered a serious urgent infraction placing the patient in danger”. The standards with which the Program evaluates its students and the threshold determination of whether or not a given behaviour threatens the safety of a patient is an academic decision that falls within the mandate of the Program.
[47] The applicant further argues that he was denied procedural fairness by the Program because “No investigation took place, the patient was not questioned, nor was the applicant provided the evaluations and summations that he was entitled to pursuant to its Student Handbook”.
[48] In fact, the Healthcare Incident Reporting System procedure was invoked and the applicant was questioned and offered a chance to present his version of events. Two meetings were held following the incident. These meetings included the applicant and representatives of the Program. Notes of these meetings specifically indicate that the applicant was questioned and had an opportunity to respond to the concerns of the Program.
[49] Throughout his attendance at the Program, the applicant was provided with evaluations, personalized feedback, and one-on-one assistance in order to support him in meeting the requirements of the Program.
[50] To the extent that the applicant argues that there was procedural unfairness in the Program’s decision to require him to leave the Program, these matters constitute academic evaluation, and as determined by the Committee, should not be interfered with “on the grounds that the judgment was wrong, if it was fairly arrived at”.
[51] The procedures complained of by the applicant were, in essence, academic evaluations of the Program. The applicant has failed to show that in such academic evaluations he was treated with such manifest unfairness that there has been a flagrant violation of the rules of natural justice.
(ii) Did the Committee commit an error in law by failing to consider the relevant evidence provided by the applicant and his witness?
[52] The applicant submits that the Committee failed to consider the relevant evidence of the applicant and the evidence of the applicant’s witness, Mr. Sawh.
[53] A review of the Committee’s reasons demonstrates that it carefully and fairly reviewed all of the evidence before it and determined that the incident happened substantially as described by Mr. Paul. The evidence of the applicant, the patient Mr. Sawh, and the written opinion of Dr. Cameron in his written report dated March 14, 2008 were also reviewed by the Committee. The Committee appears to have accepted the evidence of Dr. Cameron. However, Dr. Cameron could not say definitively that the sling was not removed; he could only say that the removal of the sling cannot be confirmed by the x-rays.
[54] The Committee gave careful consideration to the evidence of Mr. Sawh and found him to be honest. However, they did not find his evidence to be reliable, whether because of a memory lapse or the effect of the medication he was given. By the time of the hearing, two years had passed since the x-rays were taken.
[55] The Committee did not fail to take the applicant’s evidence into account. It simply did not accept the applicant’s version, noting that he “has given different and incompatible explanations regarding the sling.” This was an evidentiary finding that was open to the Committee to make. In doing so, the Committee committed no reviewable error.
(iii) Did the Committee err in law in failing to correctly apply the “clear, convincing and cogent evidence” test?
[56] The applicant submits that the Committee erred in law in not properly applying the clear, convincing and cogent evidence standard on the facts of this case.
[57] The Committee was properly instructed by its chair that tribunals must act on clear, convincing and cogent evidence in matters which have grave consequences on a professional career. See Law Society of Upper Canada v. Neinstein (2007), 85 O.R. (3d) 446 (Div. Ct.) rev.d on different grounds: 2010 ONCA 193. The Committee reasonably applied this test and made a credibility finding that the incident happened as described by Mr. Paul. Again this was an evidentiary finding that was open to the Committeeto make. In doing so, the Committee committed no reviewable error.
(iv) Did the Committee make findings of fact in the absence of evidence?
[58] The applicant submits that the Committee made numerous findings of fact in the absence of evidence. The reasons and decision of the Committee establish that there was ample evidence in both the documentary record and the written and oral evidence submitted at the hearing to support the findings made by the Committee. The decision of the Committee is one that can be rationally supported based on the evidence before it.
VII. CONCLUSION AND COSTS
[59] The reasons of the Committee are transparent and intelligible and provide ample justification for the conclusions reached. For the reasons set out above, I conclude that the decision of the Committee was reasonable in that it fell within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law” as the reasonableness test has been defined by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47. It has long been established that courts should be reluctant to interfere in the core academic functions of universities. In this case, the applicant has failed to show that he was treated with such manifest unfairness that there has been a violation of the rules of natural justice. Accordingly, I would dismiss the application for judicial review.
[60] After considering all the submissions and the specific circumstances of this case, I would fix costs at $2,500, all inclusive, payable forthwith by the applicant to the respondent, if demanded within thirty day (30) days of the date of this decision.
BROWN RSJ.
MOLLOY J.
HERMAN J.
Released:
CITATION: Deng v. University of Toronto, 2011 ONSC 835
DIVISIONAL COURT FILE NO.: 164/09
DATE: 20110208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M.F. BROWN RSJ, MOLLOY, HERMAN JJ.
BETWEEN:
HONG LIN DENG
Applicant
– and –
THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO
Respondent
REASONS FOR JUDGMENT
BROWN RSJ.
MOLLOY J.
HERMAN J.
Released: February 8, 2011