Court File and Parties
CITATION: Alsaigh v. University of Ottawa, 2012 ONSC 2313
DIVISIONAL COURT FILE NO.: 465/11
DATE: 20120425
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Dr. Manal Alsaigh, Applicant
and:
University of Ottawa, Respondent
BEFORE: Swinton, Herman, van Rensburg JJ.
COUNSEL: Douglas H. Christie and Barbara Kulaszka, for the Applicant Sally Gomery and Jamie Macdonald, for the Respondent
HEARD at Toronto: April 11, 2012
Endorsement
[1] The applicant, Dr. Manal Alsaigh, seeks an order setting aside the decision of the Senate Appeals Committee (“the Appeals Committee”) of the respondent University of Ottawa dated March 11, 2011. The Appeals Committee upheld the decision of the Residency Program Committee (“RPC”) of the Faculty of Medicine to not allow the applicant, a postgraduate medical resident in Cardiac Surgery, to advance to year four of the program (“PGY4”), and to require her to enter a six-month remediation period.
[2] The applicant also seeks an order reinstating her to the Postgraduate Cardiac Surgery Program on a full and immediate basis at the PGY4 level.
[3] This application for judicial review raises two issues: (i) Was the decision of the Appeals Committee reasonable?; and (ii) Was the applicant denied procedural fairness?
Was the decision reasonable?
[4] The applicant submits that the decision of the Appeals Committee was unreasonable, particularly in view of the fact that the applicant had passed her various rotations.
[5] In reaching its decision to uphold the decision of the RPC, the Appeals Committee based its decision on: the applicant’s lack of academic progress; instances of unprofessional behaviour; and the applicant’s apparent lack of insight into her own limitations.
[6] With respect to the allegations of lack of academic progress, the Appeals Committee considered the results of the applicant’s In-Training Evaluation Reports (ITERs), written and oral exams, allegations about lack of research activity and the lack of academic continuity due to several medical and other leaves. The Appeals Committee recognized that the applicant had not failed any of the ITERs, but observed that there was a noticeable decline in her results after she returned from her last leave. The Appeals Committee also noted that the applicant had done poorly on several exams.
[7] The Appeals Committee reviewed several incidents raised by the Faculty and determined that the Faculty had reasons to be concerned about the applicant’s professionalism.
[8] Finally, the Appeals Committee considered the Faculty’s claim concerning the applicant’s lack of awareness of her own limitations. In the view of the Committee, the Faculty had made various attempts which were not intended to be punitive but, rather, were meant to provide aid or guidance. However, these measures were met with levels of resistance on the part of the applicant.
[9] Courts are reluctant to interfere in the core academic functions of universities (Mulligan v. Laurentian University, 2008 ONCA 523, at para. 20). By enrolling in a university, a student becomes subject to the institution’s discretion in resolving academic matters (Gauthier c. Saint-Germain, 2010 ONCA 309, at para. 47).
[10] In our opinion, the Appeals Committee had ample evidence before it to reach the conclusion it did. The decision of the Appeals Committee to uphold the decision of the RPC fell within a range of possible, acceptable outcomes. Its decision was defensible in respect of both the facts and the law.
Was the applicant denied procedural fairness?
[11] The applicant submits that she has been denied due process and procedural fairness. She provides three bases for this submission: (i) there was a reasonable apprehension of bias at the RPC stage; (ii) she did not have the opportunity to give evidence or cross-examine witnesses; and (iii) the reasons provided by the Appeals Committee for its decision were inadequate.
[12] In Paine v. University of Toronto (1981), 1981 1921 (ON CA), 34 O.R. (2d) 770 (C.A.), the Court of Appeal articulated the principle that courts should only interfere in university affairs in cases of “manifest unfairness.” That principle has been affirmed in more recent cases (Hayat v. University of Toronto (1999), 1999 3803 (ON CA), 181 D.L.R. (4th) 496 (O.C.A.) at para. 14; Zhang v. The University of Western Ontario, 2010 ONSC 6489 (Div. Ct.); Deng v. University of Toronto, 2011 ONSC 835 (Div. Ct.) at para. 32).
Procedural Chronology
[13] On June 29, 2009, the RPC decided that the applicant should enter into a six-month remediation period before proceeding to the next level of the residency program. The RPC was comprised of physicians within the Cardiac Surgery Program at the University of Ottawa. The applicant was not present when that decision was made.
[14] Under the provisions of the Faculty of Medicine Postgraduate Medical Education Appeal Mechanism, the applicant was entitled to appeal to the RPC for a review of its decision. The applicant appealed the decision to the RPC. She provided written submissions and attended at a meeting of the RPC with her lawyer. According to the Minutes, the Chairman advised the applicant that the level of appeal did not contemplate lawyers as spokespersons but other options were provided to her. The applicant declined the opportunity to provide further updates and to ask questions of the Committee. The RPC decided not to change its original recommendation of non-promotion and remediation.
[15] The applicant appealed to the Chair of the Department of Surgery. He reviewed her submission and the submission of the Cardiac Surgery Program. The Chair upheld the decision of the RPC.
[16] The next level of appeal was to an Appeal Subcommittee of the Postgraduate Medical Education Committee, comprised of four active physicians in the Faculty of Medicine, who had not participated in the evaluation of the postgraduate training of the applicant, and two resident representatives. The applicant was present at the hearing, along with her legal counsel. The Report of that Subcommittee notes that the parties had equal time and opportunity to present their submissions and respond to the other party’s remarks. The Subcommittee members also had an opportunity to ask questions. The Subcommittee voted unanimously to uphold the original decision based on the evidence which showed: a lack of academic progress; a lack of professionalism; and the applicant’s lack of awareness of her limitations and insight into her performance.
[17] The applicant then appealed to the Faculty Council. The applicant was present with her legal counsel. She made submissions. Members of the Faculty Council also asked the applicant a number of questions. Faculty Council concluded that there were enough grounds to show lack of progress and that there were deficiencies that needed to be addressed. The Council noted that the applicant had been warned about the difficulties multiple times but appeared to lack any insight into her problems.
[18] The Minutes of the Faculty Council meeting also refer to procedural issues. The majority of the Council was of the view that the process had been sufficiently and substantially adhered to. It noted further that it saw no evidence of bias. The Faculty Council upheld the decision of the RPC.
[19] The final level of appeal was to the Appeals Committee. The applicant provided written submissions, as did the Faculty of Medicine. The applicant and her counsel were given the opportunity to appear but chose not to do so.
(i) Reasonable apprehension of bias
[20] There is no allegation of a reasonable apprehension of bias on the part of the Appeals Committee. Rather, the applicant’s submission is with respect to the involvement of Dr. Bragg, Vice Dean, Postgraduate Education, and Dr. Rubens, Program Director for Cardiac Surgery, earlier in the process. In her submission, the reasonable apprehension of bias created by their involvement cannot be cured by any lack of bias on the part of members of the Appeals Committee.
[21] The applicant submits that the evidence of complaints by administrative staff, which evidence was relied on by the Appeals Committee, is tainted because the complaints were investigated by Dr. Bragg. Dr. Bragg was the subject of a grievance filed by the applicant prior to his investigation of the complaints from his office staff.
[22] We cannot conclude that Dr. Bragg’s involvement in the investigation of the complaints gives rise to a reasonable apprehension of bias. The applicant was given an opportunity to respond to the complaints. Furthermore, in assessing the complaints, the RPC and the various levels of appeal, including the Appeals Committee, would have had copies of the e-mails in which the staff members outlined their concerns and copies of e-mails from the applicant. Indeed, the Appeals Committee in its reasons refers to “the inflammatory tone of her [the applicant’s] e-mails”.
[23] The applicant also submits that the presence of Dr. Rubens on the RPC raises a reasonable apprehension of bias. Dr. Rubens was also the subject of a grievance filed by the applicant.
[24] The respondent acknowledges that the RPC is not an independent tribunal. Rather, it is comprised of faculty members whose function is to evaluate a resident’s performance in the postgraduate medical program in accordance with the University’s “Policies and Procedures for the Evaluation of Postgraduate Trainees”.
[25] Dr. Rubens was not a member of any of the subsequent committees or panels that reviewed the decision of the RPC. In the academic context and given the role of the RPC, it is not unreasonable that Dr. Rubens, the Program Director, was one member of the RPC. There were four other members of the RPC involved in its initial decision and six other members who participated in the appeal.
[26] The only indication that bias in the RPC decision was raised prior to this application for judicial review is a reference in the Faculty Council Minutes that the Council did not see any evidence of bias. The Minutes do not specifically mention the nature of bias that had been alleged. There is no indication that a reasonable apprehension of bias was raised before the Appeals Committee, whose decision is being judicially reviewed.
[27] The Appeals Committee had ample evidence before it to reach the conclusions it did. We cannot conclude that the fact that Dr. Rubens and Dr. Bragg were the subject of a grievance filed by the applicant gives rise to a reasonable apprehension of bias in the circumstances.
(ii) Opportunity to give evidence and cross-examine
[28] The applicant submits that the process was manifestly unfair. The proceedings, including the proceeding at the Appeals Committee, did not involve witnesses and cross-examination.
[29] The required elements of the duty of procedural fairness will vary depending on the context and the rights affected. As noted in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 8817, at para. 22:
… the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
[30] The following circumstances are, in our opinion, important in determining the requirements of procedural fairness in this case.
[31] Firstly, this case involves an academic decision, which should only be interfered with in the case of “manifest unfairness”.
[32] Secondly, unlike the situation in Volochay v. College of Massage Therapists of Ontario, [2011] O.J. No. 1643 (Div.Ct.), a decision relied upon by the applicant, the applicant’s right to continue in her profession and employment was not at stake.
[33] This case is also unlike another case relied upon by the applicant, Hajee v. York University (1984), 11 O.A.C. 72 (Div. Ct.). In that case, Krever J. concluded that the applicant had been denied natural justice and procedural fairness when the Senate Committee decided he would not have the opportunity to cross-examine the witnesses. The determination of the allegation against the applicant depended on the credibility of two persons. Furthermore, the case involved serious allegations of dishonesty. Krever J. noted that “It would be impossible to think of any greater insult to the integrity of an academic institution or to an academic community than that of dishonesty”.
[34] The purpose of the RPC’s decision that the applicant should participate in a six-month remediation program was to ensure that she had the necessary skills and knowledge before proceeding to the next level. It was not intended as a punitive measure and was not comparable in seriousness to a decision that she could not continue in her profession (as in Volochay) or that she was guilty of dishonesty (as in Hajee).
[35] Finally, the applicant never asked for the opportunity to call or cross-examine witnesses. Indeed, she did not even appear at the Appeals Committee.
[36] Given these circumstances, it is our opinion that the requirements of procedural fairness were met. In particular, the applicant had notice of the Faculty’s concerns and the reasons for the decision to require remediation. She also had the opportunity to provide her own account where there were any disagreements about the facts, both at the RPC level and at the various levels of appeal. The Appeals Committee had considerable evidence before it and was aware of the applicant’s position with respect to the various issues when it made its decision.
(iii) Adequacy of reasons
[37] The applicant submits that the reasons for the decision of the Appeals Committee were so inadequate as to amount to an error of law. According to the decision of the Supreme Court in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, where reasons have been given, any challenge to the reasoning of a tribunal occurs as part of the analysis of the reasonableness of its decision, and not in the guise of a claim of procedural unfairness (at para. 22). We have already considered the evidence on which the Appeals Committee arrived at its decision, and have concluded that the decision of the Appeals Committee was reasonable. As such, the applicant’s submission on this ground must fail.
Conclusion
[38] For the reasons set out above, the application is dismissed.
[39] Costs to the respondent are fixed at $7,500.00.
Swinton J.
Herman J.
van Rensburg J.
Date: April 25, 2012