Citation and Court Information
CITATION: Kahsay v. Humber College Institute of Technology, 2012 ONSC 138
DIVISIONAL COURT FILE NO.: 351/10
DATE: 20120104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, PEPALL AND HARVISON YOUNG JJ.
BETWEEN:
TEWABECH KAHSAY Applicant
– and –
THE HUMBER COLLEGE INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING Respondent
Andrew J. MacDonald, for the Applicant
Frank Cesario, for the Respondent
HEARD at Toronto: January 4, 2012
Oral Reasons for Judgment
HARVISON YOUNG J. (ORALLY)
[1] The applicant seeks judicial review to set aside a decision that was made by the Dean of Nursing at Humber College suspending her from a clinical placement in which she was registered and the appeal from that decision. Because of the academic circumstances of the applicant at the time, and the fact that she was on academic probation at the time of the Dean’s decision, the effect of the decision was to require the applicant’s withdrawal from the program.
[2] At the outset we would state that we agree with the applicant that she was entitled to a relatively high standard of procedural fairness given the issues at stake (see Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, see also Kane v. University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105).
[3] We acknowledge the applicant’s submission that the Court should consider the cumulative effect of the various procedural shortcomings that she submits amounted to a denial of procedural fairness. We acknowledge that Ms. Kahsay’s academic future and potential employment were seriously affected by the impugned decisions. If we conclude that there has been a breach of the duty of procedural fairness that has not been cured by the appeal, then the decisions must be set aside.
[4] With respect to the substantive decision, in the absence of such breaches of the duty of fairness, the Courts take a very deferential stance in relation to the discretionary decisions of academic institutions concerning academic matters and the standard of review is one of reasonableness (see Dawson v. University of Ottawa, (1994) 72 O.A.C. 232).
[5] In essence, the applicant raises three grounds for setting aside the decisions. First, she submits that the actions of the Dean give rise to a reasonable apprehension of bias which tainted all subsequent proceedings including the appeal. Second, she submits that the College breached its duty of fairness to the applicant by failing to apply its own professional suitability policy. Third, the applicant submits that given the serious and fundamental nature of the breaches of the duty of procedural fairness, the appeal did not cure any defects. These grounds will be considered in turn.
[6] With respect to the claim that the actions of the Dean gave rise to a reasonable apprehension of bias, we are of the view that this submission must fail. The applicant bears the onus of establishing bias and the threshold of proof is a high one. The applicant bases her claim of bias on a number of factors set out at paragraph 57 of her factum. Mr. MacDonald, for the applicant especially focused on the distinction between the first email actually sent by Mr. Limpiada, Ms. Kahsay’s preceptor and the document that was revised by the Dean and/or the Associate Dean in consultation with Ms. Limpiada.
[7] We have carefully reviewed the changes to the original email and find that the changes were not substantive in nature and were submitted to Ms. Limpiada with clear instructions that she review it for accuracy (see pages 522-529 of Volume 2 of the Application Record).
[8] In any event, the applicant did not raise the issue of bias before the Appeal Committee. This is not one of those exceptional cases where an applicant ought to be permitted to raise a claim of bias on judicial review when it was not raised at the time. We note that the applicant was represented by counsel at the appeal hearing. In addition, the documents in issue including the email both as sent and as amended were before the Appeal Panel and had been provided to the applicant in advance of the appeal.
[9] None of the other alleged actions of the Dean in the course of making her decision meet the high threshold necessary to establish a reasonable apprehension of bias seen individually or accumulatively.
[10] Second, the applicant submits that the College breached its duty of fairness to the applicant by failing to apply its own professional suitability policy. We are satisfied that there was substantial compliance with that policy. While there was no explicit period specified in the Dean’s letter of April 7, 2010, the clear context of the letter concerned the clinical placement which was of an eight week duration was within the ambit of the authorized penalties. It should be noted that concerns relating to professional suitability according to the policy relate to conduct that is assessed as compromising patient’s safety. In addition, the fact is that the larger context of the consequences for the applicant in this case was the fact that, because she was on probation as per the Dean’s letter of March 2008, which decision is not at issue in these proceedings, the decision to suspend in any event resulted effectively in her withdrawal from the program.
[11] The final submission is that the appeal was not a hearing de novo and therefore could not cure the alleged earlier defects which the applicant characterizes as procedural unfairness. We disagree.
[12] Having reviewed the record, it is clear that this was a hearing de novo. Oral testimony was tendered. There was full documentary disclosure before the hearing. The applicant was represented by counsel and cross examined witnesses. She was given the opportunity to testify but declined to do so.
[13] The applicant claimed at the hearing that she had not had the opportunity to meet with Ms. Limpiada, that is, to confront her accuser. She was asked by the Appeal Committee whether she felt that it needed to adjourn for this reason. There was no clear request for an adjournment and the applicant’s counsel agreed to continue with her presentation notwithstanding the absence of Ms. Limpiada.
[14] In the circumstances the applicant had a full opportunity to reply to the evidence adduced by the College. There is no hint in the decision that the Appeal Panel afforded any deference to the Dean’s decision.
[15] We also note that the decision of the Dean and the Appeal Committee did not rest entirely on the email and related documentation. The Appeal Panel explicitly took into account Ms. Limpiada’s absence in its reasons.
[16] In conclusion, the applicant has failed to establish a breach of procedural fairness that would justify setting aside the decisions in issue. The application is therefore dismissed.
HARVISON YOUNG J.
ASTON J.
PEPALL J.
Date of Reasons for Judgment: January 4, 2012
Date of Release: February 10, 2012
CITATION: Kahsay v. Humber College Institute of Technology, 2012 ONSC 138
DIVISIONAL COURT FILE NO.: 351/10
DATE: 20120104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, PEPALL AND HARVISON YOUNG JJ.
BETWEEN:
TEWABECH KAHSAY Applicant
– and –
THE HUMBER COLLEGE INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING Respondent
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: January 4, 2012
Date of Release: February 10, 2012