CITATION: AlGhaithy v. University of Ottawa, 2012 ONSC 142

DIVISIONAL COURT FILE NO.: 292/11

DATE: 20120404

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Then R.S.J., Swinton and Harvison Young JJ.

B E T W E E N:

DR. WALEED ALGHAITHY Applicant

• and -

UNIVERSITY OF OTTAWA Respondent

Barbara Kulaszka and Douglas H. Christie, for the Applicant

Sally Gomery and Jamie A. Macdonald, for the Respondent

HEARD at Toronto: November 28, 2011

Swinton J.:

Overview

1Dr. Waleed AlGhaithy (“the applicant”) has brought this application for judicial review of a decision of the University of Ottawa’s Senate Appeals Committee (“the Appeals Committee”) dated January 28, 2011, dismissing him from the neurosurgery residency program of the Faculty of Medicine because of his unprofessional and disruptive behaviour.

2For the reasons that follow, I would dismiss the application, as I am satisfied that the applicant was provided procedural fairness by the Appeals Committee, and its decision was reasonable.

Factual Background

3The applicant received his medical degree and practised medicine in Saudi Arabia for several years. In June 2005, he began a neurosurgery residency at the University of Ottawa (“the University”). The program requires a six-year period of residency and in-hospital placements.

4Each year, a resident is required to sign a new appointment letter, in which he or she agrees to abide by the University’s academic rules. Residents are governed by the Faculty of Medicine’s “Policies and Procedures for the Evaluation of Postgraduate Trainees” (the “Evaluation Policy”). This policy sets out the principles governing the evaluation of residents, as well as the responsibilities of supervisors, the Program Director and the Residency Program Committee (the “RPC”) in evaluating residents.

5The applicant progressed successfully through the first two years of the program. However, towards the end of his third year, in April 2008, the then Program Director, Dr. Richard Moulton, placed the applicant on a formal remediation period because of his unprofessional interaction with hospital staff and patients. Specific weaknesses identified in the remediation contract signed by the applicant were interpersonal difficulties with attending staff, nurses and allied health; failure to attend the ward when requested by nurses; failure to attend ORs; and failure to provide adequately for ongoing care after periods of on-call. The applicant successfully completed the remediation in the summer of 2008 and was promoted to fourth year.

6In his fourth and fifth years, faculty members were again concerned about the applicant’s behaviour. For example, in February 2009, he did not write a neurosurgery practice examination after he learned that some residents were being allowed to take the exam at later dates. He informed the administration that he felt this was unfair.

7As well, in March 2009, the applicant began to criticize the quality of the program in various emails sent to Dr. Paul Bragg, Associate Dean of Postgraduate Education; to Dr. Moulton, Chair of the Neurosurgery Division and at one time, the Program Director; and to Dr. John Sinclair, the new Program Director. In some cases, the emails were sent only to these doctors; in other cases, they were copied to other residents in the program.

8The applicant’s criticisms included the failure to treat foreign-trained residents equally and without discrimination, the failure to provide consistent academic days where teaching took place, and the failure to include residents in a dinner for a visiting scholar. In the spring of 2009, the applicant and two other residents also made a complaint of racial and ethnic discrimination against Dr. Eve Tsai, an assistant professor. Nevertheless, he was promoted to his fifth year of residency (PGY-5) on July 1, 2009.

9On July 13, 2009, the applicant was asked to meet with Dr. Sinclair, the current Program Director, and Dr. Moulton, the Chair of the Division of Neurosurgery. They provided him with a letter setting out the conditions for successful completion of his residency. Along with designated types of training, including three months of neuropathology training, the letter required his attendance at divisional academic events and specified:

• Maintenance of professional comportment and behavior including but not exclusive to written and oral communication with faculty, resident colleagues, and others. Failure in this regard will be dealt with according to the applicable policies of the university and/or hospital.

10On receiving the letter, the applicant sent an email asking for supporting evidence, but received no response.

11On July 24, 2009, Dr. Moulton wrote a private email to Dr. Bragg, the Associate Dean, Postgraduate Education, stating that the applicant did not require a sixth year of residency to function as a competent consultant. However, the Royal College of Physicians and Surgeons of Canada subsequently refused the applicant’s application to write his exams in April 2010 (that is, at the end of his fifth year, rather than the required six years).

12Starting in late August, 2009, the applicant performed a rotation in neuropathology under the supervision of Drs. Woulfe and Jansen at the Ottawa Civic Hospital. On October 20, 2009, Dr. Woulfe recorded a passing grade for the rotation.

13The applicant sent an email to Dr. Bragg, protesting some of Dr. Woulfe’s marginal domain evaluations. In an exchange of emails between Drs. Bragg, Woulfe and Jansen, Dr. Jansen wrote that he would have failed the applicant on the basis of poor attendance. Dr. Woulfe wrote that his recorded “pass” had been made in consultation with Dr. Jansen.

14On November 24, 2009, the applicant made an official complaint of unprofessionalism against Dr. Moulton because of the latter’s alleged use of profanity at a meeting with residents on November 13, 2009. Dr. Bragg received this complaint and forwarded it to Dr. Moulton and Dr. Sinclair, the Program Director, who discussed it by email.

15On November 29, 2009, Dr. Sinclair sent an email and a letter to Dr. Bragg, stating that he was concerned about the applicant’s “escalating disruptive behaviour”, and stating he would strongly advocate the dismissal of the applicant from the program. By this point, medical staff at both the Ottawa Hospital and the Civic Hospital had refused to provide further training to the applicant.

16The following day, Dr. Moulton sent a copy of a draft dismissal letter to Dr. Worthington, a physician at the Ottawa Hospital. Dr. Moulton clarified that dismissal would depend on the RPC’s decision regarding the applicant’s neuropathology rotation, and the RPC would meet the following evening about the matter.

17The Division of Neurosurgery met on December 1, 2009. The minutes of the meeting record a “serious issue” related to the applicant’s excessive absenteeism during the neuropathology rotation, which was to be discussed at the next RPC meeting.

18An in camera meeting of the RPC was also held that day to discuss the applicant’s “neuropathology rotation, his failure to fulfill his professional responsibilities and his unprofessional, disruptive conduct” (Minutes, December 1, 2009). Four of the six physicians attending voted to fail the applicant in his neuropathology rotation because of his absenteeism. Dr. Tsai attended the meeting, but she abstained from voting, given that the applicant had made a complaint against her earlier that year. Dr. Moulton voted, although he was ineligible to do so.

19According to the very brief minutes, the RPC then considered the applicant’s disruptive and unprofessional conduct. Dr. Sinclair moved to have the applicant dismissed from the residency program. There was no recorded vote. However, the minutes state that “The program will not continue to tolerate this behavior. It was agreed that this is the only option.”

20In a letter from Dr. Moulton dated December 11, 2009, the applicant was informed of the RPC decision. However, the RPC meeting is said to have occurred December 2, 2009, not December 1. The applicant was informed of the failure in his neuropathology rotation. As well, the letter documented his lack of professionalism, as evidenced by his poor attendance at that rotation, refusal to attend divisional rounds and other educational events, and his continued false and unprofessional emails to faculty and students. The RPC concluded that there was no reasonable possibility of remediation and, therefore, recommended dismissal from the program to the Faculty Postgraduate Evaluation Subcommittee (“PEC”).

21The applicant appealed his failing grade, and a combined Evaluation and Appeal Subcommittee of the PEC held a meeting on March 23, 2010 to consider his appeal and the recommendation of the RPC. The subcommittee issued a decision April 28, 2010 in which it found that the applicant had engaged in disruptive behaviour that demonstrated a lack of professionalism unbecoming of a physician. Therefore, it approved the recommendation to dismiss the applicant from the program. It also rejected the appeal of the failure of the neuropathology rotation.

22The applicant then appealed to the Faculty Council of the Faculty of Medicine, which heard a presentation from the applicant at a meeting on September 20, 2010. The Faculty Council allowed the appeal respecting the failing grade on a vote of 23 to 2, because the absenteeism problem had not been adequately documented. However, the Faculty Council voted 14 to 11 to dismiss the applicant’s appeal of the dismissal decision, stating,

There is a sufficient basis to find that the resident’s pattern of behavior was unprofessional and disruptive. The resident was told to stop the unprofessional and disruptive behavior and yet it persisted.

23The applicant then appealed to the Senate Appeals Committee.

The Decision of the Senate Appeals Committee

24The applicant provided written materials to the Appeals Committee in advance of the meeting. In addition, he appeared with counsel and made submissions and was questioned by various committee members over a period of more than three hours.

25The decision of the Appeals Committee is set out in a 13 page extract from its Minutes. It includes a discussion about various procedural irregularities at the RPC, PEC and Faculty Council stages. However, the Appeals Committee concluded that it need not resolve the issue whether there had been procedural irregularities, as its jurisdiction extended to a consideration of the merits of the case before it and, where necessary or appropriate, it could hold a hearing de novo.

26The Appeals Committee rejected the applicant’s arguments that it should not deal with the case on its merits, and it proceeded to consider the merits of the case de novo. The Committee was of the unanimous view that the applicant had “engaged in a pattern of conduct that was both unprofessional and disruptive as defined in the relevant policies and regulations”, as evidenced by:

• A series of email messages sent by the applicant throughout 2009 “were frequently unprofessional in their tone and content. Virtually all were confrontational, uncooperative or disrespectful of their addressees or others.” The Appeals Committee also described them as often “inflammatory” and crossing the line of acceptable communications in a professional setting, even if the applicant had any well-founded grievances to express.

• The applicant’s persistent rate of absenteeism, both in rotations in 2007 and 2009 and in respect of other academic events, was both unprofessional and at times disruptive.

• The applicant’s “seemingly wilful defiance of program protocols, procedures and policies” was further evidence of unprofessional conduct.

27The Appeals Committee took note of the evidence showing the applicant to be a “gifted physician in many respects and in particular to display strong academic, surgical and clinical skills”. Some members voiced the view that it would have been preferable if further steps had been taken to address the disruptive behaviour. However, the Appeals Committee concluded that the steps taken by the program had been adequate, including the earlier remediation and the numerous communications from the program administrators throughout 2009, including the meeting with Drs. Sinclair and Moulton in July 2009 and a further meeting in October 2009 in which the applicant was informed that his conduct had led to refusals by two local hospitals, the Ottawa Hospital and the Civic Hospital, to provide further training to him. The Appeals Committee concluded,

This documentary record alone shows that Dr. Al-Ghaithy could not have been unaware that his conduct was considered unprofessional and disruptive by his colleagues and superiors; what was required of him in order to bring his behaviour into conformity with professional expectations; or what channels he should pursue if he had concerns of his own to address.

28The Appeals Committee considered the applicant’s advanced residency status, as well as his apparent mastery of professional standards in certain evaluation forms, but concluded that these factors made his unprofessional and disruptive conduct “all the more inexcusable.” After summarizing its findings, the Appeals Committee concluded that the “pattern of conduct was sufficiently serious and disruptive to the program to warrant Dr. Al-Ghaithy’s dismissal therefrom.”

The Issues in this Application for Judicial Review

29The applicant argues that the decision of the Appeals Committee should be quashed for the following reasons:

1. The applicant was denied procedural fairness.

2. The Appeals Committee erred in its decision to dismiss him from the Program.

3. The decision results in a denial of the applicant’s right to freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms and cannot be justified under s. 1.

The Standard of Review

30With respect to issues of procedural fairness, this Court need not engage in a standard of review analysis. Rather, the Court must determine whether the applicable principles of procedural fairness have been breached (London (City of) v. Ayerswood Development Corp. at para. 10).

31With respect to the merits of the dismissal decision by the Appeals Committee, the standard of review is reasonableness. Courts are reluctant to interfere with the academic decisions of universities unless there has been “manifest unfairness” in the procedure adopted (Paine v. University of Toronto (1982), 34 O.R. (2d) 770 (C.A.) at p. 776), or the decision is unreasonable (Mulligan v. Laurentian University, 2008 ONCA 523 at para. 2).

32The task of a court when applying the standard of review of reasonableness is set out in Dunsmuir v. New Brunswick, 2008 SCC 9 (at para. 47):

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Was there a denial of procedural fairness?

33The applicant argues that he was denied procedural fairness by the RPC and the PEC, and this could not be cured by the hearing before the Appeals Committee. He was not given adequate notice of the hearing before the RPC nor an opportunity to respond, and the proceedings were tainted by a reasonable apprehension of bias, because Dr. Tsai was present and Dr. Moulton voted. Both doctors had been the subjects of complaint by the applicant and, in his view, the proceedings before the RPC were initiated in bad faith by Dr. Moulton in retaliation for the most recent complaint made by the applicant.

34The applicant also submits that the proceedings before the PEC and Faculty Council were tainted by a reasonable apprehension of bias because of the participation of Drs. Bragg, Bradwejn and Poulin, as well as the participation of University legal counsel at the Faculty Council meeting. In oral argument before this Court, the applicant also took issue with the process before the Appeals Committee, because he had no opportunity to cross-examine those who had made allegations against him.

35The University argues that the Appeals Committee provided a full and fair hearing. The applicant had adequate notice and an opportunity to make both written and oral submissions with the assistance of legal counsel. The Appeals Committee noted possible problems with the procedures followed by the RPC and the composition of the APEC. However, it held what it described as a hearing de novo into the merits of the case that cured any procedural unfairness below.

36In my view, there was cause for concern in the way in which the earlier proceedings unfolded - for example, the way in which the RPC meeting of December 1, 2009 was called, the presence of Dr. Tsai, and Dr. Moulton’s participation in the vote. Moreover, the subcommittee of the PEC should not have been constituted as a combined Evaluation and Appeal Subcommittee, as University policy provided that program directors were not to participate in a dismissal decision.

37However, this application for judicial review seeks to overturn the decision of the Appeals Committee, not those earlier decisions. Therefore, the issue for this Court to determine is whether the hearing of the Appeals Committee met the requirements of procedural fairness and cured any procedural defects in the earlier stages of the proceedings.

38A number of cases have held that a hearing de novo may cure procedural defects occurring at an earlier stage of proceedings (see, for example, McNamara v. Ontario (Racing Commission), [1998] O.J No. 3238 (C.A.) at para. 26). As the majority stated in Khan v. University of Ottawa (Ont. C.A.) at para. 41:

Curing errors made at first instance depends on the seriousness of the initial error, the procedures followed by the appellate body, the powers of the appellate body, the way these powers were exercised and the weight the appellate body attributes to the initial decision. The closer the appeal is to a complete reconsideration, with fair procedures, by a body that does not attribute significance to the initial decision, the more likely the defects will be cured.

39In Khan, the Appeals Committee hearing did not cure the procedural defects. The applicant student had failed a course after she was graded on the basis of three examination booklets marked by the examiner. She appealed, claiming that she had handed in four examination booklets. The Court of Appeal found that she was denied procedural fairness at the Faculty level, because she was not given an opportunity to appear before the Examinations Committee to explain her position. That unfairness was not cured at the level of the University’s Senate Committee, because the Committee had not conducted a hearing de novo at which the applicant was allowed to appear and make representations (at para. 40).

40In the present case, the Appeals Committee decided to proceed with a new hearing on the merits. In doing so, it put no weight on the decisions reached below. Rather, it made its own assessment of the written material before it, the oral submissions of the applicant and his counsel, and the information provided by the applicant at the hearing, including his answers to committee members’ questions. The issue then becomes whether the procedures adopted by the Appeals Committee met the requirements of procedural fairness.

41The content of procedural fairness depends on the context, turning on factors such as the nature of the decision being made, the nature of the regime, the importance of the decision to the individuals affected, the legitimate expectations of those individuals, and the procedures chosen by the decision-maker (Baker v. Canada (Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 23-27). Here, the academic future of a medical resident was at stake. Procedural fairness required that the student have notice of the case to be met and an opportunity to respond.

42The Appeals Committee concluded that there could be no surprise to the applicant if it proceeded to determine the merits of the appeal, as his legal counsel was aware that the Appeals Committee had such jurisdiction, and knew that it did not confine itself to a procedural review of decisions. Moreover, the material that had been submitted by the Faculty of Medicine and its written argument went to the merits, as did the applicant’s response. Therefore, he had adequate notice of the case to be met before the Appeals Committee, and no adjournment was requested by his counsel.

43In oral argument before this Court, the applicant also complained of the lack of opportunity to cross-examine those who had made allegations against him. He had made a similar objection to the Appeals Committee, which rejected his argument, holding that its proceedings were not adversarial in nature. In the view of the Appeals Committee, the applicant had a full opportunity to respond to the case against him, since the Faculty’s case was based entirely on documentary evidence that had been disclosed to the applicant well in advance of the hearing. The Appeals Committee pointed out that it had heard from the applicant and his counsel over the course of three hours, with the Faculty having had no opportunity to respond, and the applicant had not sought further time to present his case.

44In the course of its reasons, the Appeals Committee made a finding of credibility unfavourable to the applicant, but it did so only after hearing from him and his counsel. It rejected his oral evidence pertaining to his attendance at his neuroradiology rotation in 2007 and his neuropathology rotation in 2009, observing that he had been “evasive and hesitant in committing to an estimate of his rate of attendance” in 2007 and “evasive and vague” in his recollection about 2009. The Appeals Committee preferred the contemporaneous notations of his rotation supervisors found in the documents concerning his attendance. In the circumstances, there was no denial of procedural fairness because of the lack of opportunity to cross-examine those supervisors. The applicant put forward his version of events, and he was not believed by the Appeals Committee.

45In this case, the hearing before the Appeals Committee cured any deficiency in the proceedings before the other decision making bodies, including the RPC and the PEC. The Committee made its decision on the basis of the record before it and in light of the information and submissions from the applicant and his counsel and gave clear and thorough reasons for its decision. I am satisfied that the applicant knew of the case to be met and he had an adequate opportunity to respond to the allegations of unprofessional and disruptive behaviour. There was no denial of procedural fairness at the Appeals Committee stage.

Was the decision of the Appeals Committee reasonable?

46The applicant argues that the Appeals Committee decision was unreasonable: he was dismissed from the program for unprofessional and disruptive behaviour, despite a lack of evidence that his conduct negatively affected patient care. He submits that the Appeals Committee inappropriately focused on the impact of his conduct on the clinical and academic training component of the program, rather than on patient care.

47He also argues that the decision was unreasonable, because he was not given sufficient notice of the conduct alleged to be unprofessional, as the only written notice he had received was the letter in July 2009. Moreover, the decision was based on conduct that had long been condoned, as he had since been promoted through the program. For example, the Faculty Council had reversed the RPC decision to fail him in the neuropathology rotation because of excessive absenteeism. Finally, the decision was unduly harsh, given his academic success in the program.

48The University argues that the decision was reasonable, based as it was on a course of conduct that continued throughout the applicant’s enrolment in the graduate program. In particular, a concern about his lack of professionalism emerged in 2006 and continued through 2009.

49In my view, the decision of the Appeals Committee to dismiss for unprofessional conduct was reasonable. While the applicant argues that he had not been informed of the program’s concerns about his conduct and he was not given a chance to respond, the evidence in the record belies that argument. In July 2009, the applicant was given a letter following a meeting with the Program Director, Dr. Sinclair, and Dr. Moulton that set out expectations respecting his behaviour if he wished to succeed in the program. The words of the letter are clear: “successful completion of residency will be predicated upon the following”, followed by a list that included “maintenance of professional comportment and behaviour including but not exclusive to written and oral communication with faculty, resident colleagues and others.”

50This letter should not be read in isolation. The Record of Proceedings includes a series of emails from the spring of 2009 that show the difficult relationship between the applicant and those responsible for the direction of the academic program. For example, in an email to Dr. Moulton dated June 3, 2009 and circulated widely, the applicant described the program as a “corrupted dictatorship”. In another email to Dr. Moulton dated June 4, 2009 (and again circulated to a number of recipients), the applicant wrote a poem protesting the exclusion of residents from a dinner.

51As well, there had been an earlier string of emails in March 2009 between the applicant and Dr. Sinclair in which Dr. Sinclair made a number of efforts to obtain information from the applicant as to why he had missed the mandatory neurosurgery exam on February 20, 2009 and to compel him to assist in the completion of medical charts. On March 20, 2009, Dr. Sinclair wrote,

Your refusal to abide by my requests and seeming lack of concern regarding examination attendance are very concerning from my perspective as program director as they are reflections of your professional attitudes/behaviour. This is especially worrying in the context of your past documented record of professional interpersonal difficulties which led to your formal remediation in the spring of 2008.

52Shortly after this message, the applicant refused to meet further with Dr. Sinclair, because the latter had been 45 minutes late for an appointment with the applicant. Dr. Sinclair had been detained because he had to care for a patient, and his assistant had tried unsuccessfully to contact the applicant about the delay. Around this time, Dr. Moulton, the Chair, began to deal with the applicant instead of Dr. Sinclair, the Program Director.

53Moreover, the letter of July 13, 2009 was not the only feedback prior to the decision to recommend dismissal by the RPC. In an email to Dr. Moulton dated October 4, 2009, the applicant refers to a meeting he had with Dr. Moulton on October 3, 2009 in which upcoming rotations were discussed, as well as a decision that the applicant would not be allowed to do further adult neurosurgery rotations in Ottawa because others refused to work with him.

54I note as well that the Minutes of the RPC dated October 21, 2009 make reference to the “ongoing issue” of the applicant’s email use “because it was felt that he has crossed the line after many requests to stop.” As the applicant had not responded to the Program Director and the Chair, the Minutes state that the postgraduate office had been asked to intervene.

55This entry in the Minutes led the applicant to reply on November 2, with wide distribution, that the program and division had started a “public trial based on a faulty accusations”. He went on to describe the RPC as “illegitimate”.

56Therefore, I am satisfied, as was the Appeals Committee, that the applicant was well aware of the concerns of the program’s administrators and faculty prior to the RPC meeting in December 2009, as well as the actions he should take to deal with those concerns.

57In coming to its decision that the applicant’s conduct was unprofessional, the Appeals Committee considered the University’s policies and regulations. These included the Evaluation Policy and the Faculty of Medicine’s Standards of Ethical and Professional Behaviour. The Evaluation Policy states that a resident may be asked to leave the program if he or she “does not maintain the standards of the profession as described in the Standards of Ethical and Professional Behaviour.” Those Standards set out ethical commitments that include working in partnership with other colleagues and respecting others.

58These standards were incorporated in the contract between the applicant and the University, which was signed each year of the program. The contract stated that the applicant was required to act “in a manner befitting the profession as a whole and subject to University regulations.”

59The Appeals Committee also referred to the “Guidebook for Managing Disruptive Physician Behaviour” issued by the College of Physicians and Surgeons of Ontario. However, it did so only for the purpose of establishing that disruptive behaviour by a physician constitutes unprofessional conduct.

60The Appeals Committee based its decision on a number of factors, including the circulation of inflammatory emails, the pattern of unexcused absenteeism, and the defiance of program procedures, protocols and policies.

61I have mentioned a number of the emails earlier in these reasons when dealing with the issue of notice. There are many other examples in the Record of Proceedings. For example, when the applicant was informed that the Division of Neurosurgery had determined that it could not offer an adult neurosurgical rotation at the Ottawa Hospital, he replied on October 14, 2009 with an email calling the division a “corrupted dictatorship.” In another message, he wrote that the academic days he was expected to attend were “a real waste of time” and “programmed harassment.”

62The applicant’s counsel conceded that some of the language used was “inflammatory” and that some of the emails “did come close to the line in terms of dialogue between professionals.” The Appeals Committee very reasonably concluded that the language used was inflammatory and “clearly crossed the line of what constituted acceptable communications in a professional setting, whether or not he had any well-founded grievances against the program or its administration.”

63In addition to the unacceptable language used, the Appeals Committee found that the wide dissemination of many of the messages was disruptive. It noted that the applicant was repeatedly asked by program administrators to stop circulating the messages and to pursue his complaints through appropriate channels. On this issue, it concluded,

In short, the manner in which he chose to express his grievances in the subject e-mails appeared to the Committee to have been calculated to be seriously disruptive. The Committee could not accept that this was a professional way of engaging in even rigorous disagreement with or criticism of decisions or policies of the neurosurgery program or its administrators.

64The Appeals Committee also took into consideration the applicant’s pattern of unexplained absences. He argues that this was unfair, given that the Faculty Council of the Faculty of Medicine had decided to reverse the failure of his neuropathology rotation in 2009 because the absenteeism had not been properly documented.

65I see nothing unreasonable in what the Appeals Committee did when considering the absenteeism. It found that there was an overall pattern of unexcused absenteeism over the course of the program, including two rotations and other academic events. In the Appeals Committee’s view, this showed a lack of professionalism and, at times, caused disruption to the program. It described the conduct as wasteful of academic resources and disrespectful of supervisors and peers. Again, the Appeals Committee noted, the mandatory attendance requirements and the deficiencies of the applicant’s performance were drawn to his attention on a number of occasions.

66In addition, the Appeals Committee took into account the applicant’s disregard for university policies - for example, he continued to run a seminar series for invited residents called the Brain Academy on university premises after he had been asked not to do so unless he had the permission of the RPC. He disagreed with the requirement of RPC approval, so he continued to run the seminar on campus without seeking permission. The Appeals Committee concluded,

The Committee discerned in this pattern of behavior – which was also reflected in Dr. Al-Ghaithy’s e-mail correspondence and his frequently deliberate refusal to comply with mandatory attendance policies, both referred to earlier – a predisposition to arbitrary disregard for stated protocols, policies or authority, and an apparent preference for confrontation or insubordination over collaborative and cooperative approaches to resolving differences of opinion. It was observed by several Committee members that working constructively in any institution – whether a university, hospital or other healthcare facility – requires respect for recognized procedures, the authority of established decision-makers, and institutional hierarchies.

67There was ample evidence to support the Appeal Committee’s conclusion that the applicant engaged in unprofessional and disruptive conduct over a lengthy period of time, despite requests that he cease such conduct from the Program Director and from Dr. Moulton.

68I disagree with the applicant’s submission that the decision was unreasonable because there was no evidence that patients were at risk because of his behaviour. It is true that the Guidebook of the College of Physicians and Surgeons defines disruptive behaviour as inappropriate conduct that interferes with or has the potential to interfere with quality health care delivery (at p. 5). However, the Guidebook was not the basis for the Appeals Committee’s decision. Rather, the Appeals Committee determined that the applicant demonstrated conduct to faculty members and other participants in the program that was unprofessional and disruptive, even if patient care was not at risk. On the record before it, the Appeals Committee reasonably concluded that the applicant’s conduct should no longer be tolerated in the university community. That decision is deserving of deference.

69The remaining issue is whether the applicant’s conduct was so serious as to warrant dismissal from the program, given that he had successfully completed four years of the program and had commenced his fifth year. There is no question that he has met the academic requirements to date in the program, and the decision to dismiss at this stage of his studies will undoubtedly have very serious repercussions for him.

70The Appeals Committee considered the applicant’s positive academic record in some detail. It considered whether additional, formalized steps should have been taken to deal with the applicant’s behaviour but concluded,

However, all members were of the view that the steps taken by the program in this regard had been adequate, particularly in the real-world context of competing demands on administrative and other resources in an intensive clinical education setting. (Record, p.22)

71The Appeals Committee concluded that a penalty other than dismissal was not warranted. Despite numerous communications from Program Administrators indicating concerns about his conduct and what was required of him, as well as a period of remediation in 2008, the applicant continued to send inflammatory emails and to challenge the policies and decisions of the Program Administrators. Moreover, the Appeals Committee found the conduct particularly serious in light of his advanced residency status.

72The Minutes of the Appeals Committee show that it carefully weighed the seriousness of the applicant’s conduct against other factors in favour of a lesser penalty, such as another period of remediation. Its decision to dismiss the applicant from the program fell within the range of reasonable outcomes, given the seriousness of his unprofessional and disruptive conduct and his refusal to adapt his behaviour so that he could work in an acceptable manner with others in the program.

Did the decision result in a denial of Charter rights?

73The Canadian Charter of Rights and Freedoms applies to activities of governments (see s. 32). The University is not part of government, as the applicant concedes (McKinney v. University of Guelph, [1990] 3 S.C.R. 229).

74However, the Charter can apply to a university’s actions where the university is implementing “a particular activity that can be ascribed to government” – for example, by implementing a specific statutory scheme or a government program (Eldridge v. British Columbia (Attorney-General), [1997] 3 S.C.R. 624 at para. 44).

75The applicant argues that the University was implementing a statutory scheme because the residency program was accredited by the Royal College of Physicians and Surgeons of Canada, and once the University’s program was accredited, the University was acting as an agent of the Ontario government by training medical residents in postgraduate specialties in accordance with the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, the Medicine Act, 1991, S.O. 1991, c. 30 and the regulations made thereunder.

76I disagree. At issue in the present application is the University’s decision to dismiss a student from an academic program because of unprofessional and disruptive conduct. The legislation governing the University provides that “the management, discipline and control of the University shall be free from restrictions and control of any outside body” (Act respecting the University of Ottawa, S.O. 1965, c. 137, s. 8). Moreover, courts have long respected the autonomy of universities in academic matters (see, for example, Dickason v. University of Alberta, [1992] 2 S.C.R. 1103 at para. 35).

77The Ontario Court of Appeal has held that the decision of a university to bar a student from registration for three years because of misconduct did not give rise to Charter review “given the autonomous nature of the university” (Freeman-Maloy v. Marsden (2006), 79 O.R. (3d) 401 (C.A.) at para. 16). See also Blaber v. University of Victoria, [1995] B.C.J. No. 558 (S.C.) at paras. 31-32.

78The applicant relies on a decision of the Court of Queen’s Bench of Alberta, Pridgen v. University of Calgary, [2010] ABQB 644, which held that a decision of the University of Calgary to discipline students was subject to Charter scrutiny. An appeal of that decision is under reserve at the Alberta Court of Appeal at this time. In any event, the case is distinguishable, given that Alberta legislation requires universities to carry out a specific government objective of facilitating access to post-secondary education. There is no equivalent legislation in Ontario.

79The University was not implementing a government program or policy nor exercising a power delegated by the Royal College of Physicians and Surgeons of Canada or the College of Physicians and Surgeons of Ontario when it disciplined the applicant. Instead, the Appeals Committee was making a decision about an internal matter, the dismissal of a student for a violation of standards of academic conduct. Therefore, the Charter of Rights does not apply in the circumstances, and I need not consider the argument that s. 2(b) of the Charter was infringed.

Conclusion

80As the Appeals Committee reached a reasonable decision in a process that met the requirements of procedural fairness, this application for judicial review is dismissed.

81If the parties cannot agree on costs, they may make written submissions through the Divisional Court Office within 30 days of the release of this decision.

Swinton J.

Then R.S.J.

Harvison Young J.

Released: April 4, 2012

CITATION: AlGhaithy v. University of Ottawa, 2012 ONSC 142

DIVISIONAL COURT FILE NO.: 292/11