Shaune Ford v. University of Ottawa, 2022 ONSC 6828

CITATION: Ford v. University of Ottawa, 2022 ONSC 6828

COURT FILE NO.: DC-22-2735

DATE: 20221207

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, J.A. Ramsay and Leiper JJ.

BETWEEN:

SHAUNE FORD

Applicant

– and –

UNIVERSITY OF OTTAWA

Respondent

Vladimira Ivanov, for the Applicant

Jamie MacDonald, for the Respondent

HEARD at Ottawa (by videoconference): November 15, 2022

REASONS FOR JUDGMENT

Leiper J.

Overview

1Shaune Ford (the “Applicant”), seeks judicial review of a decision of the University of Ottawa’s Senate Appeals Committee (“SAC”) dated February 12, 2021, upholding two prior decisions made by the School of Nursing of the Faculty of Health Sciences to fail him on his final clinical placement practicum (the “Practicum”), after he had completed seven clinical days.

2The Applicant submits that the decision of the SAC was not reasonable, nor were the other decisions in the University’s processes. He also submits that he was denied procedural fairness at every stage of decision-making that affected his academic future.

3The Respondent, University of Ottawa (the “University’) submits that the Applicant received procedural fairness before the SAC, and in the decisions made at the School of Nursing level. The University submits that at every stage, the School of Nursing and the SAC exercised their discretion to make academic decisions and did so after providing the Applicant with an appropriate opportunity to be heard.

Summary of Decision

4I would grant the application for judicial review. I find that the University denied the Applicant the necessary procedural fairness commensurate with the significance of the decision to him. I conclude that the decision to fail the Applicant was an unreasonable outcome, and the reasons provided for the decisions were inadequate to justify the outcome. The subsequent grade review suffered from similar defects in process and outcome. The hearing before the SAC was not a hearing de novo. It did not cure the prior procedurally unfair decisions. Finally, the reasons for decision given by the SAC were not reasonable because they were not responsive to the credibility issues and the Applicant’s complaint about the evaluation and grade review conducted by the School of Nursing.

Background Facts

5The Applicant is a registered nurse in the province of Ontario. In 2015, he entered the School of Nursing’s Nurse Practitioner program. During the program, and prior to the clinical placement in issue here, he received positive feedback about his work in other clinical settings.

The Practicum Requirements, Participants and Grading

6As of the Fall of 2020, the Applicant had completed all but one course. To graduate, he needed to complete the “Integrative Practicum”, which required 419 clinical hours in a clinical setting as well as participation in a series of seminars and on-line academic modules.

7The program syllabus set out the expectations for students enrolled in the Practicum. These expectations include negotiating times in clinic, meeting with their “Preceptor” (the supervising clinician), submitting logs, seeking Preceptor feedback, and communicating with their course “Tutor.”

8According to the syllabus, the student expectations included:

[informing their Tutor or course Director] if conflicts arise concerning the learning plan, or interpersonal, or scheduling issues

Inform[ing] the tutor/instructor early of recurrent learning needs or any issue that may jeopardize the student's ability to meet the course requirements to allow time for the student to make adjustments to meet the course requirements (emphasis added)

Arrang[ing] a meeting with the preceptor at mid and end of placement to discuss:

Complete the on-line self-evaluation component of the Evaluation of Student's Clinical Performance at the conclusion of each placement.

9The clinical Preceptor’s responsibilities according to the Syllabus can be summarized as orienting the student in the clinic, helping to formulate the learning plan, facilitating student acquisition of knowledge and clinical skills, providing constructive feedback at least weekly, discussing learning needs and concerns, and signing any prescriptions or test requisitions.

10Where difficulties or concerns arise with clinical performance, the Preceptor will discuss these with the Tutor and the student by mid-placement or at the “earliest possible time” so that the student can develop a learning plan specific to those needs and to addressing the learning needs.

11The Preceptor is also to provide written assessment of the student’s clinical performance on the Evaluation at the end of the placement to assist the Tutor in determining the final grade.

12The syllabus described how students would be graded on their Practicum course:

Evaluation of Student's Clinical Performance (Clinical preceptor's evaluation and student's self-evaluation) for each placement (at least two evaluations - mid-semester and end of semester).

Evaluation of Student's Clinical Performance - completed by the preceptor and by the student at the conclusion of each placement, and as needed to guide student learning. Discussed by student and preceptor, as well as student and tutor.

13The syllabus also outlined the expectations for the Tutor: to be jointly responsible with the Preceptor for facilitating and evaluating the student’s learning in the Practicum. The Tutor is responsible for negotiating with clinicians in the region to enable students to meet course outcomes, make initial contact with a proposed Preceptor and speak with the Preceptor at the “beginning, middle and end” of each clinical placement to discuss objectives and course outcomes. Tutors were also to complete site visits, when necessary, to observe student interaction with clients, the Preceptor, and others in the setting. The Tutor is also tasked with facilitating “discussion with the student of any difficulties/concerns with respect to the student’s clinical performance.”

14According to the syllabus, the Tutor was also required to facilitate seminars, evaluate assignments, and determine grades. The Tutor was tasked with discussing mid-term and final evaluations with students to determine if they were meeting clinical and course evaluation measures.

15The syllabus outlined how a Tutor was to respond if a student was in academic or clinical difficulty:

-Document the problem, with specific examples,

-Meet with the student and clinical preceptor to formulate a plan of action,

-Proceed with the mutually agreed upon plan, and,

-Inform the course professor and university site coordinator of the student's progress.

16The syllabus sets out the possible grades for the Practicum: satisfactory, unsatisfactory, or incomplete. These marks were to be based on the following measures:

• Written feedback from the Preceptor;

-Progress on student's individual learning objectives;

-Observations in the clinical setting;

-Observations during presentations, and participation in seminars.

The Applicant’s Practicum in Smiths Falls

17The Applicant’s Tutor assigned him to the Smiths Falls Practitioner‐Led Clinic in Smiths Falls, Ontario (the “Clinic”). A nurse-practitioner in the Clinic was assigned to supervise him and act as Preceptor.

September 21, 2020: The Practicum Begins and the Applicant Raises Concerns

18On Monday September 21, 2020, the Applicant started his Practicum at the Clinic. He attended every day that week, except for Wednesday September 23, 2020, because the Preceptor was not available on that day. The Applicant was in class that day with the Tutor, who asked the students how their Practicum placements were proceeding. The Applicant raised concerns with some of the patient care he had observed during his first two days at the Clinic.

19The Tutor’s log, which was part of the record in this Application, recorded the Applicant’s concerns about the standard of practice in the Clinic. The Tutor’s entry for September 23, 2020, reads:

Student expressed concerns about the preceptor during class on zoom, stating unsure about some of the clinical decisions. I suggested student discuss the concerns with preceptor and if it is a care decision student disagrees ask preceptor to talk through the reasoning to assist in student understanding of how the decision was made. Tutor stated get back to me if there is still an issue after speaking with preceptor.

20The Tutor asked the Applicant to provide her with an e-mail update on Friday September 25, 2020.

21On Friday September 25, 2020, the Applicant emailed the Tutor, seeking advice, and describing his worries about working with his assigned Preceptor. That email read:

Hi [Tutor],

Foremost, I am extremely appreciative for having a placement and all the hard work the university has done for me.

I am not sure how to move forward, how can I fix my clinical placement?

After working with my clinical advisor for a week, I have concerns about her practice. Every day this week multiple issues have come forward.

For example, today, we had a patient whom she was titrating off of his antihyperglycemic medication because his A1C fell to 6.0% and she wanted it to sit at 8.5%. He has significant comorbidities.

A second patient today had a repeat pap smear (She completed the first pap smear) because of an abnormal result a few months previous, however she had a complete hysterectomy in 1984. The poor woman was very worried about the abnormal results.

A third patient today had a history of seizures and a stroke in February of this year, subsequently having his licence revoked. My preceptor completed forms today to have his drivers licence reinstated. This was a telephone consult, and no in-person exam in recent history.

How can I proceed? I want to complete IP but i am very worried to continue working with this preceptor.

Thank you for any suggestions you might have.

22The Tutor acknowledged the email and advised the Applicant that she would “touch base Monday when [the course director] returned.”

23On Monday September 28, 2020, the Applicant notified the Clinic and his Preceptor that he had been possibly exposed to COVID-19 from a child in his household. His Preceptor said that he could nevertheless attend the Clinic.

24On September 29, 2020, the Tutor’s log reveals that she spoke with the Preceptor about the placement. That note reads:

1. Declined to do a telephone appointment due to the fact that couldn’t do a physical assessment therefore asked me to do the appointment. I did provide teaching to student that the history taking provides most of the information required for a diagnosis and that the physical assessment does support the history.

2. Student wanted to defer a telephone appointment discussion to me instead of carrying on with the appointment due to the client stating he was following up on what we (him and I) had discussed before. I did provide teaching to student that this kind of comment does occur often (especially when we are working as a team i.e. another NP may have seen the client before seeing me) and that this can be dealt with by exploring what the previous discussion was and to actually carry it forward.

3. Student was late one morning and hadn’t provided a heads up about it.

4. Preceptor also stated she thought student could come to clinic and not self isolate per PHU guidelines however does have to practice physical distancing including wearing a mask at all times while on site.

25The Tutor checked with Ottawa Public Health for guidance about the COVID-19 exposure. She advised the Applicant that, contrary to the Preceptor’s advice, he should remain at home until the child’s test result was obtained.

26On Wednesday September 30, 2020, the Tutor and the Preceptor reviewed the Applicant’s learning plan. The Tutor’s log recorded she spent 30 minutes with the Applicant discussing his various concerns and ways to take an adequate history over videoconference. That same evening, the Applicant spoke with his Tutor by telephone, who told him that he was not permitted to change his placement. The Tutor told him that he should work with his assigned Preceptor. The Tutor also told the Applicant that she had spoken with the Preceptor, but not the content of their discussion.

27On Thursday October 1, 2020, the Preceptor told the Tutor of her concerns over a Facebook post by the Applicant where he raised concerns with a “colleague” about the Preceptor’s competence. The Tutor offered to discuss the post with the Applicant, but the Preceptor asked her not to, because “it was already awkward” and the Preceptor did not want to involve the colleague. During the call, the Preceptor expressed concerns with the Applicant being late, and said that he was not engaging with the Preceptor or seeking her direction. The Tutor relayed some of the Applicant’s concerns with his placement and her advice to him. The Tutor noted that the Preceptor said she would need “more time to decide,” and that she would “see how Friday went.”

28The Applicant attended at the Clinic on Friday October 2, 2020, and Monday October 5, 2020.

October 6, 2020: The Tutor and Preceptor End the Practicum

29On Tuesday October 6, 2020, the Preceptor asked the Applicant to sit in an empty office during his clinical time. That evening, the Tutor called him and told him the Preceptor had decided he should not return to the Clinic. He believed that he would be able to change his Practicum placement.

30The Tutor’s log of October 6, 2020, notes that the Preceptor called the Tutor and relayed her concerns that the Applicant was not engaging with her, and he was looking at his phone in the Clinic. She said that she felt disrespected by the Applicant because he asked questions of others in the Clinic but did not ask for her views. The Preceptor also said there was discomfort between staff and the Applicant. She told the Tutor that she was feeling stressed. She said that she did not feel she could continue to supervise the Applicant. The Tutor advised that the Practicum should end, and the evaluation should be used for the Preceptor to set out her concerns about the Applicant’s professionalism.

31The Tutor’s next log entry describes a call to the Applicant in which she told him that the clinical placement would not be continuing, but that they would discuss “other options.” The Applicant told the Tutor that the day was “odd” because he was told not to go into the reception area. The Tutor advised that once the evaluation was completed, they would discuss next steps.

32On October 7, 2020, the Preceptor completed the Evaluation and found that the Applicant had not met any of the criteria for completing the Practicum and described her concerns about his work at the Clinic.

33On October 8, 2020, the Instructor sent an email to the Applicant requesting that he complete the evaluation. That email read, “Please complete the evaluation on CRDB for the placement you had in smith falls and also send me your clock so log and completed hours there”.

34The Tutor’s log of October 8, 2020, noted the decision to discontinue the Applicant as a student in the Program, as follows:

Given the information to date related to not integrating feedback, taking direction and other concerns listed on evaluation and through discussion with preceptor combined with the fact student needed to be removed from the clinical placement due to preceptor and staff feeling uncomfortable and unable to continue, it was decided a meeting with student would be set up to discuss not being successful in this course. Meeting date would be determined in consultation with [Program Site Coordinator]

35The Tutor’s note suggests a decision was made that the Applicant had not been “successful in this course” before he had completed his portion of the evaluation. The Applicant did not know that the decision had been taken at this stage.

36The evaluation document is shown as a “Midterm” evaluation; however, it was for only 52 clinical hours out of a required 419 clinical hours. The Applicant filled in his portion of the Evaluation on October 10, 2020. He assessed himself as having met the requirements of the Practicum. The Preceptor marked him as having failed to meet any of the requirements of the Practicum on the evaluation.

37On October 14, 2020, the Applicant met with the Tutor and the Coordinator at their request. They told him that he had failed the clinical portion of the course, and he would have to withdraw from the Nurse Practitioner program. He was not able to “plead his case” at this meeting, as the Coordinator told him she did not want to hear his version of events. He proposed finding a new clinical placement to complete the course, but this request was refused.

38The Applicant was advised of the decision in writing by email from the Program Coordinator as follows:

Hello Shaune,

Thank you for meeting with your tutor and myself today.

In follow up to our discussion, I wanted to summarize that you are receiving a failing grade for NSG 5401 and that since this is a 12 credit course you are being withdrawn from the PHCNP-MScN combined program with no chance to repeat this course. As discussed, you will no longer attend class and clinical. Please note that the clinical environment has asked that you not return.

As discussed, for next steps you can request a grade revision or make an appeal to the Senate.

https://www.uottawa.ca/administration-and-governance/103-revision-grades-and-appeal

I also wanted to offer you the link for SASS and counselling services, please know that this service is available to support you at this time.

https://sass.uottawa.ca/en

Kind Regards,

[Program Site Coordinator]

The Grade Review

39The Applicant requested a Grade Review. His letter set out his concerns about standards at the clinic, his request to change placements and the advice he had received along the way from the Tutor.

40The Grade Review was conducted in writing by an independent reviewer. The Tutor provided her log notes, information about the academic component and commented to the reviewer that the Applicant “had not met any learning objective according to his preceptor and his self-evaluation was not an honest reflection of his learning instead it is essentially a response to discredit the preceptor's comments. This section is supposed to be reflective and a student's honest opinion of their strengths and weakness… It is also not possible to meet all objectives with 52.5 hours of clinical time, yet the student claims to have done that” (Emphasis added).

41The Applicant was not provided with a copy of the Tutor’s submission nor was he provided an opportunity to respond to these comments. An independent reviewer (the “Reviewer”) was assigned to conduct the Grade Review. The Reviewer submitted a report on November 10, 2020, which summarized and uncritically accepted the Preceptor’s account. The Reviewer flagged the Preceptor’s account of the Applicant’s issues with professionalism, collaboration, expertise, communication, collaboration, management, health promotion and erudition.

42In his affidavit filed on this judicial review, the Applicant states that he wanted to challenge the Preceptor’s findings and her characterization of his conduct; however, he was not able to present his side of the story. He would have challenged the accuracy of the number of times he was late, the preparation of the referral letter, the characterization of lifting a sweater during a physical examination in progress as a “habit” rather than a single incident, and the Preceptor’s generalization of not seeking her out for feedback in the context of how this clinic was organized, including her direction that he complete his charts in a different room from the Preceptor and her other administrative duties which meant she was often not available to answer questions.

43The Grade Review decision of November 11, 2020, by the Director and Associate Dean of the School of Nursing, reads as follows:

I have received the evaluation of your grade by a professor who possesses the necessary expertise. Attached to the email that included this letter, you will find their review. You will also find the evaluation from your tutor, who is the responsible uOttawa course professor in charge of giving the clinical course grade for Nsg 5401 Integrative Practicum.

I have reviewed the letter of appeal that you submitted, your self-evaluation, the course syllabus, the report provided by your tutor justifying the grade, and the report by the reviewing professor.

Based on the materials submitted I have determined that there is no reason to overturn the unsatisfactory grade.

Should you want to appeal the decision issued by the School of Nursing, you can submit an appeal to the University Appeals Committee within ten (10) working days from the date of this decision, as described at:

https://www.uottawa.ca/administration-andgovernance/senate/committees/senate-appeals-committee/procedure-for-anappeal-to-the-senate-appeals-committee.

The Appeal to the SAC

44On November 25, 2020, the Applicant appealed the failing grade to the SAC. The SAC process permitted him to submit a written statement and to attend a meeting to respond to questions from the Committee. The guidelines stated that “The Student will be invited to present their case and answer questions from the Committee members.”

45In his written submission to the SAC, the Applicant took issue with several of the assertions made by the Preceptor in the evaluation, and with the decision to evaluate him after such a short period of attendance at the Practicum. He also complained about the inability to “plead his case” at his meeting with the Tutor and the Site Coordinator.

46The Vice-Dean of the Faculty of Health Sciences commented on the Applicant’s appeal. That letter submitted that “the student’s problematic performance at the clinic caused concern, stress and discomfort for the preceptor…leading to the unsatisfactory grade.” The Program comments also noted (unfavourably) the Applicant’s request to complete the Practicum outside the Ottawa region before the Smiths Falls placement was found. The written submission stated that the Program would have difficulty finding another location. The submission made no reference to prior good reviews of the Applicant at other clinical placements earlier in his course of study.

47The Applicant filed a reply in which he repeated his position that the processes below had been unfair. He also submitted that his prior request to complete the Practicum outside of Ottawa was not relevant to the question before SAC.

48At the videoconference meeting of the SAC, the Head of the Committee introduced the members, told the Applicant that the SAC had all the facts and there was no need to provide any details. The Head of the Committee asked him if he had anything to add beyond his written submissions. The SAC asked him two questions. Neither the Tutor nor the Preceptor attended the appeal. His appearance before the SAC lasted approximately 10 minutes.

49He received the following reasons for decision from the SAC five days later which read:

Good day,

After having considered your case at its meeting of February 12^th, 2021, the Senate Appeals Committee decided to dismiss your appeal having found no justification for rescinding the decision of the Faculty of Health Sciences. The Faculty conducted a grade review in accordance with the procedures outlined in Academic Regulation 10.3 and made no errors in this respect. In reaching this decision, the Committee took into account your written and oral submissions, your supporting documentation, and the written representations made by the Faculty.

Please note that the decisions of the Senate Appeals Committee are final and binding.

Best regards,

After the application for judicial review was launched, the SAC disclosed its minutes (the “Minutes”) of the meeting of February 12, 2021, which gave a more detailed description of its decision. The Applicant submits that the Minutes mischaracterized him as not “necessarily disput[ing] the facts”. The Minutes referred to the Applicant’s argument that he could not be fairly evaluated after only 52.5 hours of clinical time but did not explain why this submission was rejected.

The Issues on this Application

50The issues on the Application are:

• Was the SAC decision reasonable?

• Was the Evaluation Procedurally Fair?

• Was the Evaluation Reasonable?

• Was the Grade Review Procedurally Fair?

• Was the Grade Review Reasonable?

• Did the SAC process cure the procedural defects below?

51I first describe the standard of review, the components of procedural fairness and related principles followed by the issues analysis.

Standard of Review

52The standard of review in a judicial review of discretionary decisions by academic institutions concerning academic matters is reasonableness: Kahsay v. Humber College Institute of Technology, 2012 ONSC 138 (Div. Ct.) at para. 4; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653, at paras. 23-32.

53Where questions of procedural fairness are concerned, the process will either be fair or not. Standards of “reasonableness” or “correctness” do not apply to questions of procedural fairness: Bastien v. University of Toronto, 2021 ONSC 4854 at para. 44; AlGhaithy v. University of Ottawa, 2012 ONSC 142 (Div. Ct.) at para. 30, Vavilov at paras. 79-81, Mattar v. The National Dental Examining Board, 2020 ONSC 403 (Div. Ct.) at para. 47.

Procedural Fairness

54The degree of procedural fairness required for an administrative decision varies depending on the context. The reviewing court should consider factors such as the importance of the decision to the person affected, the statutory scheme, how similar the procedures are to those of a judicial decision-maker, and the legitimate expectations of the person involved: see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras. 23-37; Khan v. University of Ottawa, 1997 CarswellOnt 2613 (Ont. C.A.), [1997] O.J. No. 2650, 101 O.A.C. 241 at para. 13; Vavilov at para. 77.

55Processes that determine issues affecting livelihood or ability to pursue a profession will generally attract a high level of procedural fairness: see Kahsay at para. 2; AlGhaithy at para. 41; Baker at para. 25; Kane v. University of British Columbia, [1980] 1 S.C.R. 1105; Khan v. University of Ottawa, at para. 14.

56Further, where serious issues of credibility are engaged in the process, and the outcome is particularly significant to the person involved, procedural fairness will likely require an oral hearing: see Khan at para. 22.

The Role of Reasons in Assessing the Reasonableness of a Decision

57Where an administrative decision-maker issues written reasons, it is not to be held to a standard of perfection. Rather, “administrative justice” requires that the reasons be “justified, intelligible and transparent, not in the abstract, but to the individuals subject to it”: see Vavilov at para. 95.

58On review, the court should generally not disregard flawed reasons for a decision and substitute its own justification for the outcome where the rationale cannot be inferred from the record: see Vavilov at paras. 93-98.

Analysis of the Issues

Was the SAC Decision Reasonable?

59Starting first with the SAC appeal and decision, I conclude that the SAC decision was unreasonable because it did not adequately explain why it dismissed the Applicant’s appeal.

60The first set of SAC reasons advised the Applicant that his appeal had failed but provided no rationale at all for its decision. Those reasons were deficient.

61A more detailed set of reasons, the Minutes, were produced after the Applicant applied for judicial review. Fairness demanded that those reasons be shared at the time of the decision.

62Further, the Minutes, although they set out the positions of the parties in greater detail, failed to provide any “chain of reasoning” as to how the SAC arrived at its decision or resolved the issues that the Applicant described in his written submission to the SAC. These issues included:

a. The Applicant’s denial of the Preceptor’s claim that he had inappropriately inserted his father’s death by MAID into his care of a patient;

b. The Applicant’s denial of the Preceptor’s claim that he had failed to complete a referral form;

c. The premature, “surprise” nature of his evaluation in the course, contrary to the expectations he had based on the evaluation process found in the syllabus, and without warning him that he was at risk of failing the course;

d. The Applicant’s position that contrary to the Preceptor’s claims that he did not collaborate with her adequately, he found the Preceptor to be distant, disinterested in collaboration, and that she had asked him to spend time in a separate office from hers;

e. That he had not been given any opportunity to plead his case at the October 14, 2020 meeting at which the Tutor and Program Coordinator told him that he had failed the course and must leave the Program;

f. that he had not been told about certain issues detailed in the Preceptor’s evaluation until he was told to withdraw from the Practicum.

63While the Minutes were an improvement over the first SAC communication to the Applicant, they failed to explain why the Committee rejected his submissions or how they arrived at the decisions. The Minutes also erroneously characterized the Applicant’s position as “not necessarily disput[ing] the facts”, thus ignoring the portions of his written submissions which contradicted the Preceptor. They appeared to conclude (as happened below) that the Preceptor’s version of events constituted “the facts” of the matter before them.

64Moreover, the SAC never considered the issue of the fairness of the processes in the School of Nursing that led to the initial failing grade and the decision of the School to uphold it, despite the submissions raised by the Applicant. As I shall discuss in the following section, at both prior stages the Applicant was denied procedural fairness.

65Finally, the SAC Minutes suggest that the committee considered irrelevant considerations, such as the Applicant’s request to attend his Practicum outside of Ontario (made well before the Practicum in Smiths Falls was assigned).

66For all these reasons, I find that the SAC Minutes failed to act as the necessary “cornerstone” of reasonableness and procedural fairness: Vavilov at para. 86.

The Evaluation

Was the Evaluation Procedurally Fair?

67As described above, the School of Nursing chose to evaluate the Applicant’s performance after 52 out of 419 hours of clinical time, in the context of his raising initial concerns about the standards of care in the clinic to which he had been assigned. This was not in accordance with the syllabus description of how Practicum evaluations would be conducted.

68The University submits that there was no procedural unfairness to the Applicant because he was aware of his responsibilities as a student in the Program, which included showing mutual respect, active listening, and accepting the differences of opinion between professionals. Knowing that evaluations of his participation in the Practicum would be ongoing, the Respondent submits that the Applicant cannot say he was surprised with the timing or nature of the evaluation, and thus he was not treated unfairly.

69I disagree. The evaluation was not procedurally fair to the Applicant. First, the Applicant had a legitimate expectation that the School of Nursing would follow the procedures set out in the syllabus. However, the School of Nursing did not follow their own syllabus as to the method of evaluation, to be conducted mid-term and at the end of the Practicum. The decision to be made was significant, in that it engaged the Applicant’s ability to complete the program in his final year, a decision taken very early on in the Practicum.

70Second, there were serious issues of credibility that were never properly addressed. The Applicant disagreed with the factual assertions by the Preceptor, and he had raised concerns with his Tutor prior to the Evaluation. These were not addressed at the time of the evaluation.

71When it came time to plan an end to the clinical placement and evaluate the Applicant, the Tutor’s note of October 8, 2020 reveals that this decision had effectively been made before the Applicant completed the student portion of the Evaluation form. At the time of his meeting of October 14, 2020 with the Tutor and the Site Coordinator, he was not permitted to challenge the Preceptor’s version or to plead his case. His suggestion of finding a new clinical placement was not considered. Instead, he was given a failing grade on the “mid-term” evaluation without an opportunity to complete the Practicum elsewhere.

72As the Supreme Court of Canada recognized in Baker, the purpose of the right to participate found in 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.”

73The evaluation was not fair. It was not open. It was made without the Applicant having a true opportunity to put forward his views and evidence fully to the decision-maker. He was not aware that his ability to complete the Nurse Practitioner program was on the line when he completed his portion of the evaluation, or that effectively by that stage, the Tutor had decided he would not be able to complete the program.

74Of concern is the fact that the Preceptor’s criticisms of the Applicant appeared to increase after she learned that he had concerns about her standards of practice. On September 29, 2020, the Tutor’s log notes four concerns: two specific instances of the Applicant expressing concern about telephone contacts with patients, one instance of being late, and the exposure to COVID-19 and whether the Applicant should come to clinic. On the latter issue, the Tutor checked with Public Health, and accepted the Applicant’s view that he should not come to clinic. This was contrary to the Preceptor’s view.

75By October 6, 2020, and after the Preceptor learned of the Applicant’s concerns about her, and after only a handful of additional days in the clinic, the criticisms of the Applicant included disrespect, failure to communicate and making other staff in the Clinic feel uncomfortable. On October 9, 2020, the Preceptor filled in the Evaluation and failed the Applicant on every measure. This was based on only seven clinic days including one day of orientation.

76The process of evaluation of the Applicant was not reasonable. The syllabus contemplated a “mid-term” evaluation and a final evaluation with ongoing weekly meetings and feedback during the clinical placement. Under no definition of “mid-term,” could 52 hours out of 419 be considered to a logical “mid-term” point. The Tutor recognized this in commenting that it would be impossible for the Applicant to have completed the Practicum after such a short time and was critical of his self-assessment. That logic would have to apply equally to the Preceptor’s feedback. The Program did not follow its own syllabus, and it never explained to the Applicant why it did not do so.

77I conclude that the evaluation was procedurally unfair to the Applicant.

Was the Evaluation Reasonable?

78On October 14, 2020, the School of Nursing confirmed in writing that the Applicant had failed the Practicum and that he was “being withdrawn” from the Program. He was advised of his review and appeal rights and given a link to counselling services. The letter gave no rationale for the decision, nor did it address the differences between his account and the Preceptor’s of several aspects of his performance in the Practicum.

79Given that the Applicant’s course of study was at stake, and he raised concerns with the Tutor, which he tried to communicate at the evaluation stage, he was entitled to a written explanation as to why his version of events were rejected in favour of the views of the Preceptor. He did not receive any reasons other than the implied rationale: that where he disagreed with the Preceptor’s version of events, her version and description of his conduct during the Practicum were preferred over his, and the Program did not want to hear his “side of the story.”

80The Respondent submits that the record supports the School of Nursing’s exercise of discretion: it is replete with examples of the Applicant’s lack of respect, poor communication, and lack of professionalism at the Practicum. This submission invites the court to find a justification for the decision to fail the Applicant by the content of the record.

81I disagree. This submission does not consider that from the beginning of the decision-making processes, the Applicant did not accept the facts on which the decisions that affected his academic future were being made. It assumes that the Preceptor’s version is an unchallenged version of events when that is not the case.

82Again, the Preceptor’s criticisms of the Applicant also appeared to increase after she learned that he had concerns about her standards of practice, as I have set out at paragraphs 74 and 75.

83The evaluation of the Applicant was not reasonable. The syllabus contemplated a “mid-term” evaluation and a final evaluation with ongoing weekly meetings and feedback during the clinical placement. Under no definition of “mid-term,” could 52 hours out of 419 be considered to a logical “mid-term” point. The Tutor recognized this in commenting that it would be impossible for the Applicant to have completed the Practicum after such a short time and was critical of his self-assessment. That logic would have to apply equally to the Preceptor’s feedback. The Program did not follow its own syllabus and it did not explain to the Applicant why it did not do so. Its reasons were not adequate.

Was the Grade Review Procedurally Fair?

84The Grade Review was conducted in writing. The Reviewer considered materials from the Tutor, including the logs and comments from the Tutor characterizing the Applicant’s position as an attempt to “discredit” the Preceptor. These materials were not shared with the Applicant at the time of the Grade Review. The credibility of the two versions of events – the Applicant’s and the Preceptor’s - was in issue, but these differences were not addressed by the Reviewer in the report to the School of Nursing. I observe that the evaluation in a Practicum is not like an evaluation of an essay or a written exam, because the evaluation is based on conduct in a clinical setting over an extended period.

85The School of Nursing concluded that based on the Grade Review, there was “no reasons to overturn the unsatisfactory grade” in a letter from the Director and Associate Dean of the School of Nursing. The Applicant was given no opportunity to reply to the Tutor’s or Reviewer’s comments before this decision. Neither the Reviewer’s report nor the Associate Dean’s brief letter addressed the Applicant’s submissions that: a) he had been subjected to a premature, surprise final evaluation; and b) he had not been given any warning of any performance issues endangering his ability to complete the course, contrary to the procedures set out in the syllabus. Finally, neither the Reviewer nor the Associate Dean spoke with the Applicant or with the Preceptor as part of the grade review process. This process was procedurally unfair to the Applicant.

86The Respondent has submitted throughout that the processes of evaluation and review of the Applicant’s performance should attract a broad standard of deference to academic decision-making. In Khan, the majority of the Court of Appeal acknowledged the application of deference and the “reluctance” to interfere by way of judicial review unless there had been “manifest unfairness” in the processes adopted. The majority however concluded that there is “no room for deference and no basis for a more stringent standard of judicial review when all internal university tribunals deny a student procedural fairness. If, as here, the procedures of the university committees do not conform to the requirements of fairness they should be reviewable”: See Khan at para. 59.

87This observation applies to this case. The procedures at both levels of evaluation and grade review did not conform to the requirement of procedural fairness.

Was the Grade Review Reasonable?

88The Director and Associate Dean of the School of Nursing did not explain the reason for rejecting the Applicant’s Grade Review. The letter advising the Applicant of the decision relied on the flawed evaluation. It did not consider or explain why it was appropriate for the Program to ignore the syllabus grading system here, or his dispute of the Preceptor’s conclusions.

89The Grade Review decision was not reasonable.

Did the SAC Process Cure the Procedural Defects in the Decisions Below?

90The Respondent argues that any procedural deficiencies arising from the processes below the SAC were cured by the Applicant’s appearance before the SAC and his ability to make oral submissions there. Where a hearing before an appellate or reviewing body amounts to a hearing de novo, this may indeed cure the defects in the matter arising from earlier decisions: see McNamara v. Ontario (Racing Commission), [1998] O.J No. 3238 (C.A.) at para. 26); Khan at para. 41.

91Whether or not the defects have been cured will depend on several factors, including the seriousness of the initial error, the procedure followed by the SAC, its powers, how it exercised those powers and the weight it gave to the initial decision: see Khan at para. 41. In applying those factors to the findings above, the errors below were serious in that they deprived the Applicant of procedural fairness. The SAC procedure was not a full reconsideration: it was a perfunctory appearance, at which the SAC asked the Applicant two questions. The SAC Minutes reveal that it apparently accepted as “fact” the findings below, despite the Applicant’s attempts to challenge them.

92I conclude that the SAC proceeding did not and could not have cured any procedural defects below because it was not a hearing de novo.

93The Applicant’s participation here contrasts to the level of participation of the students in two other recent cases involving medical residents at the University (see AlGaithy above and Rengarajan v. University of Ottawa, 2022 ONSC 219 (Div. Ct.)). In those cases, both students had counsel and gave evidence before the Senate Committee. In both AlGaithy, (at para. 42) and Rengarajan (at para. 45) the Divisional Court found that the students had the benefit of a hearing de novo.

94The Minutes reveal that the approach taken by SAC here was akin to an appeal. I find that the SAC did not conduct a trial de novo, nor did it inquire into the steps taken by the decision-makers at the School of Nursing. It was not capable of curing the procedural defects in the Evaluation or the Grade Review processes below.

Conclusion and Remedy

95The application for judicial review is granted and the decision of the SAC is set aside. The Applicant asks that we quash the decisions below and order the Program to reinstate him and permit him to complete his Practicum.

96The Respondent submits that if we quash the SAC decision, the matter should be remitted to SAC for a new hearing using a more robust process and to make the necessary academic decision.

97Given my findings of procedural unfairness, rooted in a failure by the University School of Nursing to fairly evaluate the Applicant from the outset, I would quash the decision to fail the Applicant in his Practicum, the Grade Review decision, and the decision of the SAC. I would refer the matter back to the School of Nursing to determine how next to proceed with the Applicant’s evaluation in the clinical Practicum, given their obligations of procedural fairness and in accordance with the reasonable expectations applying to evaluations from the program syllabus.

Costs

98The parties agreed that the costs of the application would be fixed in the sum of $10,000.00 payable to the successful party. I would award costs to the Applicant, Shaune Ford in that amount.

Leiper J.

I agree. Swinton J.

I agree. Ramsay J.

Released: December 7, 2022

CITATION: Ford v. University of Ottawa, 2022 ONSC 6828