Court File and Parties

Citation: Spence v. University of Toronto, 2017 ONSC 3803 Divisional Court File No.: 272/17 Date: 2017-06-21 Superior Court of Justice – Ontario Divisional Court

Re: Dr. Christopher Spence, Applicant And: University of Toronto, Respondent

Before: Spies J.

Counsel: Darryl Singer, for the Applicant Benjamin Zarnett, for the Respondent

Heard at Toronto: June 16, 2017

Endorsement

Introduction

[1] The applicant, Dr. Christopher Spence, brings this motion to stay proceedings scheduled to proceed before the University of Toronto’s University Tribunal (the “Tribunal”), pending the outcome of an application for judicial review to the Divisional Court of Tribunal Chair, Bernard Fishbein’s decisions made on May 17, 2017. At that time Chair Fishbein, made two decisions: he dismissed Dr. Spence’s motion asking him to recuse himself and his motion to re-argue a motion already heard and dismissed by the Chair seeking an order to disqualify the firm Paliare Roland Rosenberg Rothstein LLP (“Paliare Roland”) from acting for the University of Toronto (the “Interim Decisions”).

[2] The hearing before the Tribunal is to hear charges against Dr. Spence brought in March 2013 by the Provost of the respondent, the University of Toronto (the "University"). The charges filed under the University's Code of Behaviour on Academic Matters (the “Code”) allege that Dr. Spence committed plagiarism in the thesis he submitted in partial completion of the requirements for a doctoral degree at the Ontario Institute for Studies in Education at the University.

[3] The University brought a cross-motion seeking an order that the application for judicial review brought by Dr. Spence be quashed. Given the hearing before the Tribunal on the merits was scheduled to commence on June 20, 2017, I advised counsel on June 19, 2017 that I had decided to dismiss the applicant’s motion and grant the respondent’s cross-motion with reasons to follow. These are my reasons.

The Issues

[4] There are two issues raised on this motion and cross-motion:

1. Should the proceedings before the Tribunal be stayed pending the outcome of the judicial review?

2. Should Dr. Spence's application for judicial review of the Interim Decisions be quashed as premature?

[5] For the reasons that follow I found that Dr. Spence’s application for judicial review has been brought prematurely and that finding resulted in my determination that a stay of the Tribunal hearing should not be granted and that the application for judicial review should be quashed.

The Facts

[6] Despite the passage of over four years since the charges were filed, the hearing on the merits of the charges facing Dr. Spence has not yet started. Counsel provided the detailed chronology of all of the procedural steps that have occurred in this four-year period. The chronology for the purpose of my decision is as follows.

[7] On March 17, 2014, Dr. Spence served a motion record seeking two orders:

1. an order that Paliare Roland be removed as counsel for the University and prosecutor in this case ("First Disqualification Motion"); and

2. an order that the matter be stayed as an abuse of process due to delay ("First Abuse of Process Motion").

[8] Due to numerous procedural delays, it took over two and half years for Dr. Spence's motion to be heard. On December 6, 2016, Chair Fishbein dismissed both motions and ordered that the hearing on the merits commence in February 2017. Ten days before the hearing was to commence, Dr. Spence retained his third lawyer, and brought further motions seeking to have Chair Fishbein recuse himself due to a reasonable apprehension of bias, and to re-argue the First Disqualification and First Abuse of Process Motions, which Chair Fishbein had already dismissed.

[9] On May 17, 2017, Chair Fishbein made his Interim Decisions and ordered that the five-day hearing proceed on the merits starting on Tuesday, June 20, 2017. Chair Fishbein also ordered that Dr. Spence could re-argue the First Abuse of Process Motion as part of the merits of the hearing

[10] In response, Dr. Spence commenced an application to the Divisional Court for judicial review of the Interim Decisions. He did not seek leave to have the application heard on an urgent basis and, in the usual course; it would not be heard until the fall of 2017. Dr. Spence also sought an adjournment of the University's disciplinary hearing which was denied by Chair Fishbein.

[11] The procedure for the Tribunal Hearing is also relevant to these motions. The University enacted the Code, which was approved by the Governing Council on June 1, 1995 and became effective August 18, 1995. The Code creates a number of academic offences, one of which is plagiarism. Where the University Provost files charges against a graduate of the University who is believed to have committed an offence prior to graduating, the charges and (if the student is convicted) appropriate sanction will be determined by the University’s Tribunal following a hearing with full natural justice protections. The hearing takes place before a three-person panel comprising of a legally trained Chair, a faculty member, and a student member of the University.

[12] The Code places the burden of proof on the prosecutor presenting the case on behalf of the Provost. The Code provides that there shall be a Discipline Counsel, and one or more assistants to the Discipline Counsel, appointed by Governing Council on the recommendation of the Provost to prosecute cases on its behalf.

[13] Governing Council has also created the Discipline Appeals Board ("DAB"), which hears appeals from decisions of the Tribunal. Students may appeal from a conviction upon a question which is not one of fact alone, or from a sanction imposed by the Tribunal. The DAB has broad powers of appeal and may allow the introduction of fresh evidence which was not adduced at the hearing before the Tribunal. Furthermore, an appeal results in an automatic stay of the decision pending the outcome of the appeal.

Analysis

[14] A stay of the proceedings of a statutory tribunal is an extraordinary and discretionary remedy. It is granted only in exceptional circumstances. The test for a stay is well known and is set out in RJR - MacDonald Inc. v Canada (Attorney General), 1994 117 (SCC), [1994] 1 SCR 311. Dr. Spence must establish:

a) There is a serious issue to be tried;

b) The moving party will suffer irreparable harm if the stay is not granted; and

c) The balance of convenience favours the granting of a stay.

[15] The threshold to establish that there is a serious issue to be tried is a low one. However, the question of whether or not the underlying application for judicial review is premature is properly considered under the heading of whether or not there is a serious issue to be tried; see Rew v. Association of Professional Engineers of Ontario (Discipline committee), 2016 ONSC 4043 (Div. Ct.) at para. 17. If the application for judicial review is premature, Dr. Spence's claim for relief on this motion is contingent upon his establishing that there are exceptional circumstances present in his underlying application for judicial review.

[16] Dr. Spence is challenging the Interim Decisions of Chair Fishbein. Both of the underlying decisions were made before this academic discipline case has even started. Depending on the outcome of that hearing, should it be permitted to proceed, his application for judicial review may be moot. Moreover, he has a full internal right of appeal following the completion of the case on any question of law or mixed fact and law, and the DAB may even consider evidence that was not before the Tribunal.

[17] There is a longstanding principle that courts will not intervene through an application for judicial review during the proceedings of an administrative tribunal, unless there are exceptional circumstances; see Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 70 and Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 at paras. 30-33.

[18] The Divisional Court has repeatedly held that applications for judicial review on the grounds of bias are premature if they are brought before the completion of the administrative proceedings. The Divisional Court has also held that it should have the benefit of a tribunal's full reasoning and final decision prior to entertaining any judicial review application founded on an allegation of a reasonable apprehension of bias.

[19] This issue was considered by the Divisional Court in Wong v. The Globe & Mail, 2013 ONSC 2993 (Div. Ct.). In that case the Court was dealing with an application for judicial review of an interim arbitration award which dismissed the applicant’s motions which included a motion that the arbitrator recuse herself on the grounds of reasonable apprehension of bias.

[20] Swinton J. on behalf of the Court held as follows:

[38] In Volochay, the Ontario Court of Appeal recently stated that issues characterized as questions of jurisdiction or allegations of a denial of procedural fairness are not automatically “exceptional circumstances” warranting early judicial intervention (at paras. 67 and 70). Moreover, if there is an adequate alternative remedy, the courts should not intervene before the administrative process has run its course.

[39] In the present application, we considered and ultimately determined the application on the merits, because there was an initial concern as to whether the arbitration process would be fatally flawed if the applicant were denied standing and the arbitration proceeded.

[40] However, having heard and rejected the applicant’s argument on standing, we have also concluded that the present application for judicial review is premature. In particular, it is premature to determine any allegation that the applicant will be denied natural justice if the proceeding continues with Union carriage. It is impossible to know at this early stage of the arbitration proceeding whether the Union’s representation of the applicant will be adequate or not. More importantly, the applicant has an alternative remedy through the OLRB to challenge the quality of Union representation, which she has not pursued.

[41] Similarly, the request for an order prohibiting the Arbitrator from proceeding because of a reasonable apprehension of bias is premature, especially given the fact that the applicant agreed in the MOA that the Arbitrator would arbitrate the dispute in question. The Court should have the benefit of the Arbitrator’s full reasoning and final decision prior to entertaining any judicial review application founded on an allegation of reasonable apprehension of bias (Air Canada v. Lorenz (T.D.), 1999 9373 (FC), [2000] 1 F.C. 494). [Emphasis added]

[21] I recognize that the comments of Swinton J. were in part on the issue of the applicant’s standing and as Mr. Singer argued, with respect to the issue of recusal, she was influenced by the fact that the applicant had agreed to the particular arbitrator. However, in my view the reasons on the recusal issue are clear that this issue was premature and that the court should have the benefit of the arbitrator’s full reasoning and final decision prior to entertaining any judicial review application founded on an allegation of reasonable apprehension of bias.

[22] Similarly in Pereira v. Hamilton (City) Police Service, 2017 ONSC 924, the Divisional Court considered whether or not judicial review of a decision of a hearing officer declining to recuse himself after finding the applicant guilty of certain charges was premature. Nordheimer J. on behalf of the Court found at para. 5 that it was.

[23] The Federal Court has also explicitly held that an allegation of bias, ipso facto, does not constitute exceptional circumstances justifying review before the tribunal has rendered its final decision; see Air Canada v. Lorenz, 1999 CarswellNat 1768 (Fed Ct – Trial Div) at para. 39.

[24] In light of these authorities, the fact that the Interim Decisions of Chair Fishbein cannot be appealed internally at this time is not relevant. The application for judicial review on the issue of alleged bias of the Chair does not raise exceptional circumstances such that it should not be stayed.

[25] Counsel were not aware of any cases where the issue of prematurity has been considered with respect to Chair Fishbein’s decision not to disqualify Paliare Roland from prosecuting this matter. However, I have concluded that the underlying principles are the same. As Nordheimer J. stated in Pereira at para. 5, as “a general rule extraordinary remedies, such as judicial review, are not to be entertained if there is another avenue of relief available to the party: [Citation omitted]”. Should this remain an issue after the conclusion of the hearing and an internal appeal, this Court will benefit from the reasons of the Chair and the evidence led at the hearing.

[26] Furthermore, the observations of the Supreme Court of Canada in Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 SCR 561 at p. 593 are of assistance. This was a case in which a university student had been expelled. The student appealed to the university council, which decided against him after hearing only from the university and not giving him an opportunity to be heard. He had a further right of appeal to the University Senate, but instead commenced judicial review proceedings in the court seeking certiorari. The Supreme Court upheld the Saskatchewan Court of Appeal's decision that certiorari should be denied:

The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right. I believe the correct view was expressed by O'Halloran J. in The King ex rel. Lee v. Workmen's Compensation Board, 1942 241 (BC CA), [1942], 2 D.L.R. 665 at pp. 677-678 dealing with mandamus but equally applicable to certiorari:

Once it appears a public body has neglected or refused to perform a statutory duty to a person entitled to call for its exercise, then mandamus issues ex debito justitiae, if there is no other convenient remedy ... If however, there is a convenient alternative remedy, the granting of mandamus is discretionary, but to be governed by considerations which tend to the speedy and inexpensive as well as efficacious administration of justice ... [Emphasis in original]

[27] I see no reason to distinguish the issue of the disqualification of the Paliare Roland firm when considering the principle of prematurity. I do not accept Mr. Singer’s submission that permitting the hearing to proceed would somehow prejudice an appeal by Dr. Spence on the disqualification issue. If such an appeal were successful and the record before the tribunal contains evidence that it should not have heard, a term could be made that that evidence be subject to a sealing order so that it would not impact on any new hearing.

[28] In my view, permitting Dr. Spence to challenge the Interim Decisions of Chair Fishbein prior to the completion of the discipline proceedings and the internal appeal does not promote a speedy, inexpensive, and efficient administration of justice. Here, Dr. Spence would not be denied a remedy if this application is quashed as premature. If he is convicted following the proceeding before the Tribunal, he can raise the issue of bias and conflict on appeal to the DAB. That internal appeal is available on all questions of law and mixed fact and law and the DAB has the jurisdiction to accept new evidence, even where that evidence does not meet the standards of fresh evidence. If that appeal is unsuccessful, he could then bring an application for judicial review. I see no reason why Dr. Spence should not be required to exhaust his remedies under the Code before approaching the court for relief, just like any other litigant.

[29] Having found that the application for judicial review is premature, there is no reason to consider the balance of the RJR test; see Rew, supra. at para. 21.

Disposition

[30] For these reasons Dr. Spence's motion for a stay is dismissed.

[31] Counsel agreed that I have jurisdiction as a single judge of the Divisional Court to quash Dr. Spence’s application for judicial review on the basis that it is “manifestly premature”; see, for example, Franssen v. Assn. of Professional Geoscientists of Ontario, 2015 ONSC 651 at para. 7. For the reasons stated I find that his application for judicial review is manifestly premature in that the hearing on the merits has not proceeded and, if the outcome is unsatisfactory to Dr. Spence, he will be able to appeal the Tribunal’s decision to the DAB. Dr. Spence has failed to articulate any exceptional circumstances which would justify this Court interrupting the Tribunal's administrative process at this stage.

[32] For these reasons the University’s cross-motion to quash Dr. Spence’s application for judicial review is granted.

Costs

[33] Counsel agreed that costs in the amount of $5,000 all-inclusive be awarded to the successful party. Accordingly, Dr. Spence shall pay costs in the all-inclusive amount of $5,000 to the University within 30 days of this endorsement.

SPIES J.

Date: June 21, 2017