Sardar v. University of Ottawa

CITATION: Sardar v. University of Ottawa, 2014 ONSC 3562

COURT FILE NO.: 13-DC-1973

DATE: 20140613

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE DIVISIONAL COURT AT OTTAWA

RE: Yasmin Sardar, Applicant

AND:

University of Ottawa, Respondent

BEFORE: Heeney R.S.J., Lofchik J., Kiteley J.

COUNSEL: Yavar Hameed, for the Applicant

Karen A. Jensen, for the Respondent

HEARD: June 10, 2014

ENDORSEMENT

Kiteley J.:

[1] This is an Application for Judicial Review in which the Applicant seeks an order quashing the August 29, 2013 decision of the Senate Appeals Committee of the University of Ottawa (‘SAC”) which dismissed her appeal of a decision of the Faculty Council Appeals Committee of the Faculty of Medicine (“FCAC”). For the reasons that follow, the Application is dismissed as I am satisfied that the Applicant was provided procedural fairness and its decision was reasonable.

Background

[2] In September, 2008, Dr. Sardar started her residency with the Obstetrics and Gynecology program of the Faculty of Medicine (the “Program”). On the basis of her previous experience, she started her training at the level of a third-year resident, referred to as a Postgraduate Year Three, or PGY3. Throughout the program, performance is evaluated as being “successful”, “unsuccessful” or “borderline”. A resident must be “successful” to be considered to have met the required level of performance for that rotation. The program is overseen by the Residency Training Committee (RTC) and is expected to comply with the Evaluation Policies and Procedures.

[3] What follows is a review of the minutes of the RTC between January 9, 2009 and May 6, 2011 that contain references to steps taken to monitor Dr. Sardar’s progress and the decisions that were made to assist her.

[4] The minutes of September 11, 2009 indicate that she had been promoted to PGY4 before it became known that she had failed her core rotation at both the Civic and General Campuses and that the Chair of the RTC had met with Dr. Sardar and placed her on three month remediation as she had not met the requirement of the PGY3 level.

[5] As a result of an incident that involved patient safety, Dr. Sardar was suspended from November 6 to November 17, 2009. At the meeting on December 15, 2009, the RTC decided that the outcome of her period of remediation was to place her at the PGY2 level.

[6] At the meeting on April 9, 2010, the minutes note that the outcome of the remediation was unsuccessful. However, Dr. Bragg, Associate Dean of Postgraduate Education, had advised the Chair of the RTC that it was not open to that committee to demote Dr. Sardar to PGY2 and that she had to remain at PGY4 level. The minutes also note that it was a unanimous decision to place Dr. Sardar on probation.

[7] The minutes of the meeting held on June 18, 2010 indicate that the Chair had met with Dr. Sardar to explain the outcome of placing her on probation and had discussed the possibility of transferring out of ObGyn and perhaps into the Family Medicine Program. According to the minutes, Dr. Sardar agreed that that might be the best option and she agreed to pursue the possibility of transferring out of the Program and into Family Medicine. The minutes indicate that an agreement was made to delay submitting the probation contract to elicit the transfer to a Family Medicine Program but that a probation contract would be submitted to Dr. Bragg’s office should efforts to transfer to Family Medicine not be evident by July 1, 2010.

[8] The minutes of September 24, 2010 indicate that Dr. Sardar was still a resident in the program but she had been assigned to do ambulatory electives over the summer in the Department of Family Medicine in Ottawa and electives in Hamilton. According to the minutes, Dr. Sardar had been given the deadline of December 31, 2010 after which time she would be placed on probation with the University of Ottawa.

[9] The minutes of the meeting on November 5, 2010 indicate that Dr. Sardar had been doing an elective at McMaster University and if her request to transfer to McMaster was not accepted, she would be placed on probation in January.

[10] The minutes of January 14, 2011 indicated that Dr. Sardar’s elective with McMaster had ended and her transfer to McMaster had not been approved. Dr. Sardar was offered three options: to withdraw from the Program; to be placed on probation for two months; or to take a mental health leave of absence and, on returning to the Program, be placed on probation. Dr. Sardar chose the third option and signed an agreement to that effect.

[11] The minutes of the meeting on March 25, 2011 indicate that Dr. Sardar remained on a mental health leave of absence and that the conditions for her returning had been explained in a meeting with her and later in a letter and were as follows: mandatory monitoring of good health by the OMA Physician Health Program; formal approval of eligibility to return to work as provided by the OMA Physical Health Program; and completion of independent medical evaluations as recommended or required by the OMA Physical Health Program.

[12] The minutes of May 6, 2011 indicate that Dr. Sardar had provided an updated medical certificate extending her leave of absence from training until July 11, 2011 and that Dr. Sardar had requested to view her resident file at the Post-Graduate Medical Education Office.

Appeal to the Faculty Council Appeals Committee

[13] In 2012, Dr. Sardar launched an appeal of the decision of the RTC to place her on probation. Extensive documentation was provided to the FCAC which heard the appeal on January 21, 2013. The Committee members consisted of four physicians and an undergraduate medical school student member along with legal counsel to advise on legal issues. Dr. Sardar attended, accompanied by her spouse and her lawyer, Dr. Yavar Hameed. In its written decision dated February 4, 2013, the FCAC unanimously rejected the appeal.

Appeal to the Senate Appeals Committee

[14] Dr. Sardar’s appeal to the SAC was heard on July 26, 2013. The Committee members consisted of six full-time regular professors, one undergraduate student and one graduate student. Again extensive documents and written submissions were provided. Dr. Sardar attended and was accompanied by a representative from the University’s Student Appeal Centre. Dr. Sardar spoke to the members of the committee and gave an overview of her time in the residency training program leading up to the decision to place her on probation in April 2010. According to the written decision dated August 29, 2013, Dr. Sardar highlighted certain aspects of her submissions, arguing in particular that:

• the feedback she received during her time in the Program was always positive;
• she was not kept informed of concerns relating to her professionalism or competence;
• procedural errors occurred in the treatment of her case, including a failure to adhere to the Faculty of Medicine’s Policies and Procedures for the Evaluation of Postgraduate Trainees (PGME Evaluation Policies) and a failure to inform her of RTC decisions relating to her in writing;
• she was the victim of a fraudulent and illegal conspiracy to exclude her from the program.

[15] The decision also notes that, in response to their question as to the remedy she sought, she said she was asking to be reinstated as a PGY4 resident at the Faculty of Medicine in good standing. Members of the Committee asked questions of Dr. Sardar and her answers were summarized.

[16] The decision reflects some of the discussion that followed after the departure of Dr. Sardar and her representative. A concern was raised about whether steps had been taken to ensure that Dr. Sardar was fully aware of the implication of her signing the extended training contract. The Committee concluded that the steps taken by the Program to inform her of the remediation period and her right to appeal had been adequate. The following is taken from the decision:

With respect to Dr. Sardar’s claims that she had received only positive feedback from her supervisors, the Committee was unanimously of the view that the documentary record alone shows that Dr. Sardar could not have been unaware that the feedback she was receiving was not unreservedly positive, with several “borderline” and “unsatisfactory” daily evaluations and written comments on the “satisfactory” evaluations that stressed her need to continue to improve certain skills. In addition, she had failed several rotations. The Committee therefore found that the Appellant had been made aware of weaknesses and areas for improvement in a timely, careful and constructive manner and in line with the PGME Evaluation Policies. The Committee therefore rejected Dr. Sardar’s submissions that it would be appropriate for her to be reinstated in the program based on alleged violations of the PGME Evaluation Policies.

The Committee then turned to the portion of Dr. Sardar’s submissions relating to procedural fairness. The Committee was generally in agreement with the Faculty’s view that, if minor procedural errors had been made in the treatment of Dr. Sardar’s file, they were to be understood in the real-world context of competing demands on administrative and other resources in an intensive clinical education setting. Further, the Committee considered that procedural deficiencies, if any, at the RTC-level were remedied by the de novo Faculty Council Appeals Committee hearing of January 21, 2013. There was extensive production of documents prior to the hearing and the resident was given an opportunity to make written and oral submissions. Counsel accompanied Dr. Sardar to the meeting and was able to provide advice and support to his client. The Senate Appeals Committee also noted that the resident and her representative participated fully in the Committee hearing of July 26, 2013, itself a de novo hearing.

The Committee also concluded that, even if it had found that there were procedural deficiencies and insufficient feedback, the remedy requested by the Appellant – to be reinstated as a PGY4 resident at the Faculty of Medicine in good standing – would not be appropriate. As stated previously, the Committee does not have the jurisdiction to conclude that the resident successfully completed her rotations or remediation when her supervisors concluded that her performance was unsatisfactory. Nor is the decision to place her on remediation the subject of this appeal. The decision that the resident did not successfully complete her remediation was based on serious concerns about patient safety and professionalism. The Committee was in agreement that the determination of whether the Appellant has the knowledge and skills required to successfully complete her rotations or her residency must be taken by persons with expertise in the medical field. The only remedy that the Committee could grant in these circumstances, if it decided to grant the appeal, would be to return the file to the RTC for reconsideration in light of concerns about the fairness of the procedure followed in reaching the decision to place her on probation.

With respect to the FCAC’s decision of January 21, 2013, the Committee found that the FCAC fulfilled its mandate as required by its Terms of Reference and that the conclusions reached by the FCAC were based on the evidence, materials and submissions before the Committee. In general, it was clear to the Committee that significant efforts had been made to aid Dr. Sardar in overcoming her difficulties while balancing patient safety. Further, regarding the Appellant’s claims that procedural errors had been made at the FCAC level, the Committee did not find that the FCAC had made any procedural errors that would justify overturning that decision on procedural grounds.

In their submissions, the resident and her counsel also made serious allegations that she was the target of an illegal and fraudulent conspiracy. The Committee concluded that there was no evidence to support this allegation. The Committee was of the view that it is normal and, indeed, necessary for faculty to discuss the progress of residents amongst themselves in the ordinary course of running a residency program. The mere fact of such discussions is not, in itself, proof of a conspiracy. A request to document concerns about the knowledge and skills of a resident is simply normal administrative procedure. The resident could provide no plausible reason why the Faculty would engage in the alleged conspiracy. Given the serious concerns about the resident’s medical knowledge and skills and her professionalism, the Committee concluded that the more likely explanation for the decisions taken in this case is that the Faculty was acting for valid reasons based on incidents that raised concerns for patient safety and other incidents that suggested that the resident had not yet understood the norms of the medical profession.

After a full consideration of the Appellant’s written and oral submissions as well as those of the Faculty, the Committee rejected the Appellant’s arguments relating both to procedural fairness and the application of the PGME Evaluation Policies during her time in the Program. Following further discussion, the Committee found no grounds to rescind the decision of the Faculty of Medicine in this case.

Issues

[17] Counsel for the Applicant raises these issues:

Did the SAC violate procedural fairness?

Was the decision of the SAC unreasonable?

Standard of Review

[18] The SAC is a committee of the Senate of the University of Ottawa, which is incorporated pursuant to the University of Ottawa Act[^1]. The decision under review constitutes a statutory decision within the meaning of s. 2 of the Judicial Review Procedure Act[^2].

[19] On the issue 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.[^3] University committees or appeal tribunals must act fairly when considering academic appeals, which requires them to make reasonable inquiries into whether university policies have been followed or violated. The degree of fairness required is context specific, but a high degree of fairness is required in circumstances where one’s professional career is at risk of being terminated.[^4]

[20] Decisions of university bodies such as the SAC deserve a high degree of deference and should only be interfered with in cases of manifest unfairness, where there has been a flagrant violation of the rules of natural justice.[^5]

[21] As the Court held in Dawson v. University of Ottawa[^6]:

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.

[22] And more recently by Perell J. when he struck out a statement of claim in Dawson v. University of Toronto[^7]:

Authorities . . . establish that apart from a judicial review function about procedural fairness and natural justice, the court does not have jurisdiction over matters of an academic nature. Where the essential character of the dispute is of an academic nature, the dispute remains exclusively a matter to be dealt with by the school’s own procedures provided that the school does not breach the principles of natural justice.

[23] With respect to the merits of the dismissal decision, counsel agree that the standard of review is reasonableness in the context of the high degree of deference referred to above.[^8]

Analysis

A. Did the SAC violate principles of procedural fairness?

[24] Prior to the hearing, counsel for the Applicant had sent an email to the Assistant Director of the University Secretariat in which he attached a letter dated September 21, 2012 which had been sent to the FCAC in which he identified documentary deficiencies. He asked that it be included in the material provided to SAC as the basis upon which he intended to make a preliminary objection. The Record of Proceedings indicates that his letter was provided to the SAC. At paragraph 101 of his factum in this court, counsel for the Applicant listed what he described as 13 manifold violations of university policies, primarily as to notification to the Applicant of steps taken and other failures in communication. Counsel argues that the failure of the SAC to address the documentary disclosure issues in his preliminary objection, the violations of university policies and other deficiencies constituted manifest unfairness and flagrant violation of the rules of natural justice. He also argues that the conclusion by the SAC that, if there were minor procedural errors they had to be understood in the “real-world context of competing demands on administrative and other resources” and the failure of the SAC to review in detail the alleged deficiencies meant that the decision on these crucial issues was not transparent or intelligible.

[25] I disagree. As is apparent from the excerpt from the decision above, the SAC was alive to the allegation of procedural unfairness and dealt with it throughout its decision. While not conceding that procedural errors had occurred, the SAC specifically found that they did not justify overturning the decision of the FCAC on procedural grounds. A Tribunal cannot look at procedural errors in a vacuum with regard to the consequences of the errors. It is clear that the SAC weighed the allegations of procedural errors against the compelling evidence on which FCAC relied to conclude that the appeal from the RTC should be dismissed.

[26] It is the case that the record was less than perfect. For example, the minutes show that in December 2009, the RTC decided that the outcome of Dr. Sardar’s period of remediation was to place her at the PGY2 level. But the minutes in April, 2010 make it clear that that was not a permissible outcome and Dr. Sardar had to be returned to the PGY4 level. This discrepancy was not reported to Dr. Sardar at the time. Indeed, she only received copies of the minutes in contemplation of the FCAC appeal. It is also the case that not all complaints and not all written evaluations were shared with Dr. Sardar. These and other examples caused her counsel to take the position that she had been denied procedural fairness. But as the SAC held, looking at the entirety of the record, whatever errors occurred were minor and did not justify returning the file to the RTC. A Tribunal is not held to a standard of perfection. Without condoning deficiencies, the reality is, as the SAC held, minor procedural errors must be understood in the real-world context of competing demands on administrative and other resources in an intensive clinical education setting.

[27] Counsel also argued that, since the FCAC had not addressed the allegations of procedural fairness in detail in its decision, and particularly the preliminary objections to the documentary disclosure, then one could not be confident that the SAC did so. Counsel took the position that the Applicant was denied procedural fairness because the reasons of the SAC do not provide an adequate basis for meaningful judicial review and did not provide intelligible, transparent and justifiable reasons explaining whether the Program violated the policies of the Faculty or whether the SAC understood and considered the preliminary objections.

[28] Reasons must be tested functionally and in the context of the specific case. Reasons are required to provide a party and a reviewing court with an understanding of the path taken by the decision-maker to reach the outcome.[^9] Decision-makers are not required to deal with all aspects of the evidence or submissions.

[29] In reviewing the foregoing decision, it is apparent from the questions to the Applicant that the SAC had read the voluminous record, understood the issues, could assess the allegations of procedural unfairness in that context and addressed the concerns raised.

[30] Furthermore, as the SAC indicated, it had conducted the hearing de novo. As courts have held[^10], the closer the appeal is to a new hearing, the more likely it is that any lack of natural justice or procedural fairness in the preceding process will be cured. We are not persuaded that the Applicant was denied procedural fairness in any aspect of the SAC proceeding.

B. Was the decision reasonable?

[31] Aside from procedural fairness, the decision must also be considered from the standard of review of reasonableness.

[32] As the record reveals, Dr. Sardar had performed poorly throughout her residency, had acted in an unprofessional manner on several occasions, was unwilling to accept constructive criticism, and had committed several errors in her treatment of patients, some of which were potentially life-threatening. It was for these reasons that the SAC concluded that the decision to place her on probation was justified.

[33] Six of the members of the SAC were experienced academics who brought to the hearing the expertise necessary to assess the merits of the appeal including the challenges to procedural fairness. The essential character of the dispute is of an academic nature and therefore the dispute remains exclusively a matter to be dealt with by the university’s own procedures. As the Supreme Court held in Dunsmuir v. New Brunswick:[^11]

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.

[34] The decision of the SAC meets those criteria. In the circumstances of this case, the decision is within the range of possible, acceptable outcomes and is therefore reasonable.

ORDER TO GO AS FOLLOWS:

[35] The application for judicial review of the decision of the Senate Appeals Committee of the University of Ottawa dated August 29, 2013 is dismissed.

[36] If by June 20, 2014 counsel have not agreed as to costs, then counsel will make submissions in writing not exceeding 3 pages plus costs outline on this schedule: by counsel for the Respondent by June 27, 2014; by counsel for the Applicant by July 4, 2014.

Kiteley J.

Heeney R.S.J.

Lofchik J.

Date: June 13, 2014

[^1]: S.O. 1965, C.137 [^2]: R.S.O. 1990, Chap. J.1 [^3]: London (City of) v. Ayerswood Development Corp., 2002 3225 (C.A.) at para.10 [^4]: Khan v. University of Ottawa et al (1997), 1997 941 (ON CA), 148 D.L.R. (4th) 577 (Ont.C.A.) at para. 14 [^5]: Paine v. University of Toronto (1981), 1981 1921 (ON CA), 34 OR (2d) 770 (CA) [^6]: [1994] O.J. No. 1148 at para. 7; affirmed (1994), 72 O.A.C. 232 (CA) [^7]: 2007 4311 (ON SC), [2007] O.J. No. 591 (Ont Sup Ct) at para 18; aff’d 2007 ONCA 875 (Ont CA) [^8]: Dunsmuir v. New Brunswick (2008), 2008 SCC 9, 95 LCR 65 (SCC); Alghaithy v. University of Ottawa, 2012 ONSC 142 [^9]: R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.) [^10]: King v. University of Saskatchewan, 1969 89 (SCC), [1969] S.C.R. 678 at 689 cited in Khan v. University of Ottawa (1997), 1997 941 (ON CA), 148 DLR (4th) 577 (Ont.CA); Alghaithy v. University of Ottawa, 2012 ONSC 142 (Ont. D.C.) [^11]: 2008 SCC 9 at para. 47; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 13 - 16