Citation and Court Information

CITATION: Ezzat v. University Health Network, 2019 ONSC 5833

DIVISIONAL COURT FILE NO.: 108/19

DATE: 2019/10/30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Corbett and Sutherland JJ.

BETWEEN:

Shereen Ezzat Applicant

– and –

University Health Network Respondent

Counsel: Michael Fraleigh and Jared B. Schwartz, for the Applicant Paul Fruitman and Larissa Vermeersch, for the Respondents

HEARD at Toronto: October 2, 2019

REASONS FOR DECISION

[1] On October 2, 2019, we heard and dismissed an application for judicial review for reasons to follow. These are those reasons.

[2] The Applicant sought to quash the decision of Dr. Brian Hodges, the Executive Vice-President Education of the University Health Network (“UHN” or the “Respondent”), dated May 2, 2018 (the “Decision”). In the Decision Dr. Hodges upheld a sanction imposed on the Applicant for research misconduct that (a) prohibited him from conducting research at the UHN as a principal investigator, (b) prohibited him from applying for grants for research at UHN, and (c) permanently closed his research laboratory at UHN.

[3] The parties did not contest this court’s jurisdiction to hear the matter and agreed that the standard of review that we are to apply to the Decision is reasonableness.

[4] The Applicant argues that the Decision was unreasonable for a number of reasons. In particular:

(a) The Decision did not properly take into account various mitigating factors, including the Applicant’s status as a world-renowned cancer researcher, his previously unblemished record, and the character evidence filed;

(b) The sanction imposed was disproportionately harsh, given the nature of the research misconduct at issue, which did not involve an intent to deceive, and the findings in a report known as the Ellwood Report;

(c) The Decision did not adequately consider the fact that there was a lesser penalty that could have satisfied the interests at stake;

(d) The Decision failed to appreciate that the Applicant had shown insight into his behaviour;

(e) The Decision did not adequately reflect the fact that the Applicant’s research laboratory had already been closed for three years; and

(f) The Decision did not adequately take into account its devastating consequences to the Applicant.

[5] The Decision dealt with the fact that the Applicant was a world-class researcher and that he had no history of prior complaints as follows:

Thus, while I accept that you have no history of prior complaints or concerns that predate the allegations that were the subject of these investigations, in my opinion, the findings of both ICs [Investigation Committees] (as upheld by the Divisional Court decisions) definitively establish that systemic and persistent problems existed at your laboratory for a decade.

Moreover, although you submit that you are world-class cancer researchers, and that this should be a mitigating factor in any sanction decision, a world-class researcher is not just an individual who leads scientific discoveries, but is rather one who holds him or herself to the highest standards of his or her field and provides the highest quality supervision and mentorship of trainees and staff. Based on the evidence before me, you have not demonstrated the latter two characteristics.

[6] It is clear from these paragraphs that Dr. Hodges concluded that the Applicant’s prior unblemished record did not compensate for the fact that the research misconduct at issue had persisted over such a long period of time, which is indicative of a systemic problem. Further, the Applicant’s status as a world-class researcher only increased his obligation to ensure that the people working in his laboratories were trained and behaved to the highest standards. Dr. Hodges, as the senior administrator at UHN in education, has an expertise in the role that research laboratories play in the training and mentoring the people who work in those laboratories. His assessment of these issues is entitled to considerable deference by this court.

[7] On the issue of character evidence Dr. Hodges read and considered this evidence. However, he concluded

…that this character evidence is of limited use to me on this appeal, for the reason being that this appeal is not about your clinical competencies, nor is it about your collegial relations or leadership qualities outside of your research laboratory. This appeal is about whether, in light of the significant findings of research misconduct against you, the Sanction Decision is within the range of reasonable potential outcomes. In other words, even if I accept – which I do – that your peers and patients “have the utmost respect for you” and that you are considered by them to provide care in a “helpful, professional manner”, the opinions of your peers and patients do not detract from the findings that you have failed to comply with accepted research standards and failed in your roles as Principal Investigators to ensure that the people working in your research laboratory, comply with these standards as well.

[8] It is true that one of the letters relied upon by the Applicant does address the Applicant’s skills as a mentor. In particular, it states that the writer of the letter had heard from people who had trained under the Applicant that they had derived “remarkable educational value” from the Applicant’s “insightful comments”, his “obvious expertise”, and that he took time to teach his trainees “by reviewing the basic and advanced principles of investigation and management”. However, this letter does not address the specific concern raised by the misconduct at issue – the training and mentorship provided in the Applicant’s laboratory to ensure that the people in that laboratory comply with accepted research standards. It was reasonable for Dr. Hodges to place little weight on character evidence that did not speak to this concern.

[9] In dealing with this point it is important to note that the sanction imposed by the Decision does allow the Applicant to continue to work as a clinician at UHN and does not prohibit him from conducting research, as long as he is not the one in charge of that research.

[10] On the question of lack of intent, Dr. Hodges accepted that “no finding has been made that you deliberately and willfully caused the image irregularities to be present”, but he found that the misconduct was nevertheless “very serious and troubling”, given the systemic and long-standing nature of that misconduct. The fact that the misconduct persisted over a period of ten years distinguishes the Applicant’s case from others where lesser penalties were imposed. Again, Dr. Hodges has the expertise to assess the seriousness of the Applicant’s misconduct and, in particular, the impact on the reputation of an institution such as UHN of having a research laboratory where research misconduct occurred over a ten-year period.

[11] Dr. Hodges also addressed the Ellwood Report and reasonably found that it was a report that spoke to whether certain findings of misconduct should have been made, not a report that dealt with sanctions. (Dr. Hodges’s role on appeal was limited to considering the appropriateness of the sanction.) Given that the report was filed after the findings had been made and appealed, it would be inappropriate for him to give it any weight.

[12] The Applicant proposed a lesser penalty to Dr. Hodges – namely that for a period of one or two years the Applicant’s laboratory and research would be subject to certain conditions. According to the Applicant, this penalty would have satisfied all of the interests at stake and, thus, it should have been the one that Dr. Hodges imposed. The Decision addressed this argument as follows:

I do not believe that your proposed “way forward” is reasonable in light of the seriousness of the findings and the length of time over which your misconduct persisted, nor do I think it strikes the appropriate balance. A sanction must have some element of “loss of reward” or detriment. [Three of the proposed conditions] are all standard practices that are expect in every research laboratory at UHN and therefore do not constitute a “sanction”. You should have been performing those responsibilities at all times, and it was the failure to adequately discharge these responsibilities over 10 years that constituted research misconduct. To simply now advise that you will engage in these expected practices does not, to me, constitute a sufficient enough sanction given the seriousness of the findings made against you, and the length of time over which you were found to have been non-compliant with accepted standards.

[13] The Applicant’s response to the Decision’s expressed concern that the alternative sanction was not “punitive” enough is that the Decision fails to take into account the fact that the Applicant’s research activities had been suspended for over three years prior to the Decision being released.

[14] In our view it was reasonable for Dr. Hodges to decide that the interests at stake would not be satisfied if the Applicant continued to operate as a principal investigator or to have his own laboratory. A ten-year persistent history of problems managing a research laboratory is enough of a history to justify an institution coming to the conclusion that someone can no longer be trusted in this role. As Dr. Hodges explicitly found, this does not mean that they cannot continue to do research or cannot continue to see patients. It just means that they can no longer be in charge of managing that research. Dr. Hodges also noted that this did not mean that the Applicant can never again be a Principal Investigator. He left the door open for a possible re-instatement of some or all of the entitlements (e.g. after extensive courses of remediation, evidence of high standards of research practices).

[15] The Applicant argued that he had shown insight into his behaviour and acknowledged the need to improve his practice. While the Applicant did not acknowledge that he had committed research misconduct, he did acknowledge that “errors occurred in the preparation of the images” and that steps should be taken to improve the practices in his laboratory. Dr. Hodges did not agree that the Applicant had shown insight, in particular because of the Applicant’s continued position that “image manipulation should be disregarded if there is no impact on the scientific findings”. As put in the Decision:

While I accept the fact that you were at liberty to advance whatever arguments you choose in order to defend yourselves from the allegations of research misconduct, I interpret your repeated argument that modifications of the images are not important if the scientific conclusions are not changed, as a continued rejection of the standards held by the scientific community.

[16] According to the Applicant, this finding rendered the Decision unreasonable as it failed to properly acknowledge the Applicant’s right to defend himself against the allegations.

[17] We make no finding as to whether there is a problem with this portion of the reasons as, even if there is, this does not make the Decision unreasonable. Reasons are to be considered as a whole and not parsed in a search for minor errors.

[18] The Applicant submitted that the Decision did not adequately consider the sanction’s devastating consequences on his career. In support of this argument he relied on case law concerning the need for a high standard of justice when a sanction results in the termination of a person’s career and livelihood. This argument has no merit as the sanction did not end the Applicant’s career. As already noted, he can remain as a member of the UHN community; he can still be a clinician; and he can still conduct research as long as he is not managing that research. Further, the Decision does not prohibit him from moving to another institution and setting up a research laboratory there.

[19] In conclusion, read as a whole, we find that the Decision was reasonable.

Sachs J.

I agree _______________________________

Corbett J.

I agree _______________________________

Sutherland J.

Released: October 30, 2019

CITATION: Ezzat v. University Health Network, 2019 ONSC 5833

DIVISIONAL COURT FILE NO.: 108/19

DATE: 2019/10/30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Corbett and Sutherland JJ.

BETWEEN:

Shereen Ezzat Applicant

– and –

University Health Network Respondent

REASONS FOR DECISION

Released: October 30, 2019