CITATION: Filippova v. Whyte, 2024 ONSC 497
DIVISIONAL COURT FILE NO.: DC-22-143-JR
DATE: 2024/02/02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Lococo and Williams JJ.
BETWEEN:
Galina Filippova
Applicant
– and –
Dr. Robert Whyte and Senate Board for Student Appeals of McMaster University
Respondents
Self-represented
George Avraam, Ajanthana Anandarajah, Juliette Mestre, for the Respondent Dr. Whyte
HEARD in Hamilton: June 7, 2023, by video conference
REASONS FOR JUDGMENT
Williams J.
Overview
[1] The applicant, Galina Filippova, seeks judicial review of a decision of a three-member panel of the respondent, Senate Board for Student Appeals of McMaster University (the “Tribunal”).
[2] The Tribunal upheld a decision of the respondent Dr. Robert Whyte, the Vice-Dean, Education, of McMaster’s Faculty of Health Sciences. Dr. Whyte had rejected Ms. Filippova’s appeal of a failing grade in a clinical placement course and her consequent removal from a Bachelor of Science in Nursing program, in which she was enrolled as a fourth-year student.
[3] For the reasons that follow, I would dismiss Ms. Filippova’s application. I consider the Tribunal’s decision to have been reasonable and the procedure it followed fair.
Factual Background
[4] Ms. Filippova describes herself as a 50-year-old first-generation immigrant with mixed Russian-Ukrainian heritage. Ms. Filippova has been in Canada for 20 years and is a Canadian citizen.
[5] Ms. Filippova says that becoming a registered nurse was her dream.
[6] In 2016, Ms. Filippova enrolled in a collaborative nursing program at Conestoga College which enables students to graduate with a Bachelor of Science in Nursing (“B.Sc.N.”) from McMaster.
[7] Under articles of agreement between Conestoga and McMaster, McMaster retained oversight over academic matters for students enrolled in the program, including academic and other program requirements, while Conestoga was responsible for non-academic matters, including health and safety, clinical placement processes, and issues regarding discrimination and harassment.
[8] Ms. Filippova began the fourth year of the program in the fall of 2020. As part of her Level 4 Professional Practice Course, Nursing 4J07, she was assigned to a clinical placement at a long-term care facility.
[9] In October, the facility terminated Ms. Filippova’s placement. The facility cited concern about Ms. Filippova’s communications with others, including residents, other clinicians, and physicians. The facility referenced Ms. Filippova’s disruptive approaches to disagreements about patient care. The facility was also concerned about Ms. Filippova’s understanding of chronic, palliative, and end-of-life care procedures. The facility reported that despite constructive feedback, Ms. Filippova continued to question established practices, challenge nurses, and put residents in unnecessary distress.
[10] As a result of the termination of the placement, Ms. Filippova was assigned a failing grade in the course.
[11] The Academic Regulations of McMaster’s School of Nursing provide that the B.Sc.N. program reserves the right to remove a student from a professional practice course or laboratory setting at any point during the term if the student exhibits unsafe professional practice or behaviour that places the patient or others at risk or is deemed a serious breach of professional behaviour.
[12] The Regulations further provide that removal from such a course will result in a failing grade in the course and may result in dismissal from the program.
[13] The Regulations provide that students must pass their professional practice courses. If they receive a failing grade in a professional practice course, they are entitled to repeat the course. However, students are permitted to repeat only one professional practice course. This means that if a student fails more than one professional practice course, they are not entitled to repeat the course and they are not permitted to continue in the program.
[14] Ms. Filippova had failed a professional practice course in her second year of the B.Sc.N. program. As the failing grade in Nursing 4J07 was her second failing grade in a professional practice course, she was not entitled to repeat the course and she was removed from the program.
Ms. Filippova’s appeal to Dr. Whyte
[15] McMaster’s Student Appeal Procedures provide that a student may initiate an appeal if they question a grade, assessment, academic standing, or status in a program and allege “error or injustice” on grounds other than the academic assessment of their work.
[16] In her “Form B (Formal Inquiry)”, submitted January 18, 2021, Ms. Filippova advanced both academic and non-academic grounds for her appeal. The academic grounds for appeal alleged error or injustice in respect of her failing grade and her removal from the B.Sc.N. program. The non-academic grounds related to the conduct of the lead instructor of the course, Wendy Miller, and Ms. Filippova’s course tutor, Kathy Moreland.
[17] In a nine-page, 68-paragraph appeal submission, Ms. Filippova alleged that she had been unfairly treated in a number of respects, including the following:
(a) Although she had maintained an A average in her courses and had specifically asked not to be assigned to a long-term care facility for her fourth-year professional practice course, she was assigned to a long-term care facility.
(b) Her course tutor, Ms. Moreland, had pre-judged her based on information about a 2018 incident involving Ms. Filippova, which Ms. Moreland should not have had. Ms. Filippova alleged that Ms. Moreland had shared the information with the preceptors, which resulted in a skewed judgment of Ms. Filippova’s practice and communications at the facility.
(c) Ms. Moreland mocked Ms. Filippova’s Russian accent and denigrated Ms. Filippova in front of other students by discouraging her from answering questions.
(d) There were six incidents at the long-term care facility in which Ms. Filippova was either mistreated or her involvement was mischaracterized by Ms. Moreland and Ms. Miller:
(i) Ms. Filippova changed a patient’s soiled incontinence wear and provided blankets to the patient. Since the patient was labeled “violent”, Ms. Miller reprimanded Ms. Filippova for “grabbing and pulling clothes on a violent man.” Ms. Filippova says this was a deliberate mischaracterization of the situation on the part of Ms. Miller.
(ii) Ms. Filippova was reprimanded by a preceptor for disputing a visiting doctor’s diagnosis. Ms. Filippova says she was asked by the doctor whether she agreed with his diagnosis and she replied that they should consult with the charts and necessary tests before confirming. Ms. Filippova says she later checked the patient’s medical records and there were no indicia in support of the doctor’s diagnosis.
(iii) Ms. Moreland had documented that a visiting doctor had reported that Ms. Filippova had been “showing off” when she accompanied him on his rounds. Ms. Filippova said she was shocked and that she wrote to the doctor to follow up. She said the doctor confirmed what he had said and then also provided some additional remarks which Ms. Filippova said were unsolicited and untrue.
(iv) Ms. Filippova was reprimanded for questioning a course of action relating to the initiation of end-of-life regime for a patient and was described as “lacking understanding of palliative care practices.”
(v) Ms. Moreland reprimanded Ms. Filippova for questioning the practice of mixing yogurt and iron for a patient suffering from kidney failure and told her that mixing yogurt and iron was a common practice at the long-term care facility. Ms. Filippova says that she subsequently confirmed with three Conestoga/McMaster professors that nurses should intervene immediately if they witness the administration of an improper medication.
(vi) In assisting a resident who used a walker for assistance, Ms. Filippova was described as “pulling the walker subjecting the resident to falls”. Ms. Filippova says this was a deliberate untruth.
(e) The long-term care facility did not have proper personal protective equipment, and when Ms. Filippova raised these concerns with Ms. Moreland, Ms. Moreland was unconcerned and offered no suggestions to Ms. Filippova.
(f) When Ms. Filippova asked Ms. Moreland how best to ensure that Ms. Filippova received a 15-minute meal break in the morning, given that Ms. Miller had said that no breaks could be taken until 1 p.m., Ms. Moreland recommended that Ms. Filippova eat in the washroom and tell her colleagues that she has digestive problems to explain the duration of her washroom breaks.
(g) Although McMaster had told Ms. Filippova that she would be permitted to withdraw from the professional practice course, Ms. Filippova received a failing grade.
[18] In her Form B, Ms. Filippova asked that her failing grade be converted to a pass or that, in the alternative, she be permitted to withdraw from the course without a documented failing grade and permitted to continue in the program.
[19] Dr. Robert Whyte, the Vice-Dean, Education, of McMaster’s Faculty of Health Sciences received Ms. Filippova’s appeal on January 19, 2021.
[20] Dr. Whyte asked Dr. Sandra Carroll to investigate the appeal. Dr. Carroll was Vice-Dean of McMaster’s Faculty of Health Sciences and Executive Director of the School of Nursing. In his decision, Dr. Whyte explained that the investigation typically would have been forwarded to the assistant dean of the program in which Ms. Filippova was enrolled, but because the assistant dean was named in Ms. Filippova’s appeal, Dr. Whyte asked Dr. Carroll to investigate.
[21] Dr. Carroll reported back to Dr. Whyte in early February 2021. Dr. Carroll recommended that Ms. Filippova’s failing grade and removal from the B.Sc.N. program be upheld.
[22] Dr. Whyte requested further information and some clarifications from Dr. Carroll. In his email to Dr. Carroll requesting the additional information, Dr. Whyte said he would also be reaching out to Ms. Filippova’s lawyer to request further information from Ms. Filippova.
Dr. Whyte’s decision
[23] Dr. Whyte released his decision dismissing Ms. Filippova’s appeal on March 19, 2021.
[24] In his decision, Dr. Whyte said that he would not deal with any allegations of harassment or discrimination, as these allegations were not within the jurisdiction of the appeal process. Dr. Whyte noted that for Conestoga B.Sc.N. students, Conestoga’s practices and policies apply to harassment and discrimination complaints.
[25] Dr. Whyte then made the following findings:
(a) Ms. Filippova’s placement in a long-term care facility, despite her request not to be assigned to such a facility, did not deviate from the B.Sc.N. program’s regular practices and there was no violation of policy. There were multiple avenues of redress available to Ms. Filippova which she could have pursued but did not pursue.
(b) There was no evidence that information about the 2018 incident involving Ms. Filippova had been “forward fed” to the long-term care facility. The individuals who had the information denied having passed it on, and Ms. Moreland denied having received information relating to the incident from the program. Dr. Whyte was satisfied that fairness to Ms. Filippova had not been compromised by sharing of information about the 2018 incident.
(c) Ms. Filippova’s failing grade was a result of her termination by the long-term care facility and was consistent with the practices in the nursing program. Dr. Whyte found there was “overwhelming evidence that [Ms. Filippova] demonstrated pervasive professional behaviours, across a wide range of clinical activities, that were reasonably assessed to be below the standards expected of a senior nursing student.” Dr. Whyte found there was evidence of specific and formal feedback related to these issues and that similar issues arose following the feedback. Dr. Whyte found there was evidence of enhanced supervision and feedback compared to what would be expected of a student at Ms. Filippova’s level of training. He found there was also acknowledgment of Ms. Filippova’s areas of strength, including her knowledge and her ongoing performance in other aspects of the program.
(d) The process culminating in Ms. Filippova’s failing grade occurred prior to the process that resulted in her withdrawal from the course. As a result, the withdrawal process was moot.
Ms. Filippova’s appeal of Dr. Whyte’s decision to the Tribunal
[26] Ms. Filippova appealed Dr. Whyte’s decision to the Tribunal.
[27] In her “Form C (Appeal)”, Ms. Filippova asked for Dr. Whyte’s decision to be set aside. She asked to be assigned a passing grade in the professional practice course or, alternatively, to be permitted to withdraw from the course. She asked to be permitted to continue in the B.Sc.N. program. Ms. Filippova also asked that McMaster ensure that Ms. Moreland and Ms. Miller were not involved in her education for the remainder of the program.
[28] A hearing by videoconference before the Tribunal was held on September 27 and December 9, 2021. The Tribunal heard oral testimony and received documentary evidence. The parties filed written closing submissions. Ms. Filippova was represented by counsel.
The Tribunal’s decision
[29] The three-member Tribunal was comprised of an associate professor with McMaster’s Faculty of Engineering, an associate professor with McMaster’s Faculty of Social Sciences, and an undergraduate student in McMaster’s Faculty of Science.
[30] The Tribunal released its decision dismissing Ms. Filippova’s appeal on March 4, 2022.
[31] In its decision, the Tribunal noted that Ms. Filippova and Dr. Whyte were represented by counsel and that Dr. Whyte’s witnesses, Dr. Carroll and McMaster’s Assistant Dean, Dr. Joanna Pierazzo, attended to provide testimony.
[32] The Tribunal referred to s. 26 of McMaster’s Student Appeal Procedures, noting that it provides that, in any appeal, the appellant bears the onus of showing, on a balance of probabilities, that an injustice or error has occurred at the level of the decision being appealed. It noted that the same section provides that the function of the Senate Board for Student Appeals is to determine, on the basis of the evidence presented to it, whether the initial decision-maker acted or decided the matter in an unfair, unreasonable, or unjust way.
[33] The Tribunal referred to the Supreme Court of Canada's decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, and stated that the standard of review for the appeal was reasonableness.
[34] The Tribunal found that during her placement at the long-term care facility, Ms. Filippova had demonstrated unprofessional behaviour and unsafe professional practices which put patients at risk and, as a result, she had been properly assigned a failing grade and removed from the course.
[35] The Tribunal found that Ms. Filippova’s cumulative behaviour during the placement necessitated her removal from the course. It found that Ms. Filippova’s behaviour included disagreeing with a physician’s diagnosis in front of a resident, contacting a physician after hours to discuss their feedback, and attempting to impose her own beliefs about appropriate resident care on the long-term care facility’s staff.
[36] The Tribunal found that, because of Ms. Filippova’s conduct, the long-term care facility’s staff determined that her unsupervised continued presence at the facility would put patient safety at risk.
[37] The Tribunal accepted that Ms. Filippova had previously failed a clinical placement and was aware of the consequences of a second failure.
[38] The Tribunal determined that Ms. Filippova had failed to demonstrate that Dr. Whyte’s decision-making process or the conclusions he reached were unreasonable. The Tribunal found that Dr. Whyte fairly considered and weighed the evidence. The Tribunal found that although Dr. Whyte may not have investigated all available sources of information, he nonetheless followed a fair, just, and reasonable procedure.
[39] The Tribunal concluded that Dr. Whyte had correctly upheld Ms. Filippova’s failing grade and her removal from the B.Sc.N. program, noting that because the failing grade was Ms. Filippova’s second failing grade in a professional practice course, removal from the program was mandatory under McMaster’s Academic Regulations.
Jurisdiction
[40] The Divisional Court has jurisdiction to hear this application for judicial review under ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
[41] The standard of review in judicial review of discretionary decisions by academic institutions concerning academic matters is reasonableness: Ford v. University of Ottawa, 2022 ONSC 6828, at para. 52.
[42] For issues of procedural fairness, the standard is that of correctness: Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 79; Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 26-30. A tribunal is required to conduct its proceedings fairly. As outlined further below, the degree of procedural fairness required is determined by reference to all the circumstances of the case, including those set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 21-28.
[43] Courts are reluctant to interfere with the academic decisions of universities unless there has been “manifest unfairness” in the procedure adopted, or the decision is unreasonable: AlGhaithy v. University of Ottawa, 2012 ONSC 142, 289 O.A.C. 382 (Div. Ct), at para. 31, leave to appeal to C.A. and S.C.C. denied, [2012] S.C.C.A No. 504.
The Issues
[44] The issues to be decided are the following:
A. Should Ms. Filippova’s motion to adduce fresh evidence be granted?
B. Was the Tribunal’s decision unreasonable?
C. Was Ms. Filippova denied procedural fairness?
Discussion
Issue A: Should Ms. Filippova’s motion to adduce fresh evidence be granted?
[45] Ms. Filippova brought a motion to adduce fresh evidence. The parties were told the panel would reserve and release the decision on the motion with the decision on the application.
[46] The proposed fresh evidence consisted of: (1) an affidavit from a registered practical nurse, Svitlana Voroshylova, whom Ms. Filippova described as a direct witness to Ms. Filippova’s placement at the long-term care facility; and (2) 43 documents Ms. Filippova labelled Exhibits A-F, G1-G6, H-X, Y1-Y6, Z, and AA-HH.
[47] In her notice of motion, Ms. Filippova argued that the proposed fresh evidence was not before the Tribunal, “being rejected, or overlooked, or not having been available at the time”. Ms. Filippova argued the fresh evidence is necessary in the interests of justice. Ms. Filippova argued that although the fresh evidence was not before the Tribunal, it should nonetheless be considered by this court because (1) it sets out background that would assist the court; (2) it shows procedural defects, such as a reasonable apprehension of bias and a denial of procedural fairness not apparent from the record; and (3) it shows a complete lack of evidence to support a material finding of fact.
[48] Ms. Filippova argued that the fresh evidence satisfies the test in Palmer v. The Queen, [1980] 1 S.C.R. 759, in that it could not, by the exercise of due diligence, have been available before the Tribunal, it is relevant, it is credible, and it could have affected the result before the Tribunal.
[49] Generally, the record on judicial review is restricted to what was before the decision-maker because this court’s function is to review the decision below, not to hear the case de novo. There are, however, exceptions to the general rule. One exception is background information that would assist the court in understanding the history and nature of the case that was before the administrative decision-maker. A second exception is affidavit evidence disclosing the complete absence of evidence on a material point – that is, not what is contained in the record, but what cannot be found in the record. A further exception is for evidence relevant to natural justice, procedural fairness, improper purpose, or fraud that is not contained in the tribunal’s record, and that could not have been raised before the decision-maker: Scott v. Toronto (City), 2021 ONSC 858, 100 Admin. L.R. (6th) 312 (Div. Ct.), at paras. 18-20.
[50] In her affidavit, Ms. Voroshylova discussed some of her experiences while working at the long-term care facility where Ms. Filippova did her clinical placement. Ms. Voroshylova described the shortage of safety equipment at the facility during the COVID-19 pandemic. Ms. Voroshylova said she never witnessed any challenging or unprofessional behaviour on the part of Ms. Filippova.
[51] The 43 documents Ms. Filippova seeks to introduce include text messages with fellow students and emails with staff at McMaster and Conestoga, many of them dating back to 2017 and 2018. Ms. Filippova referred to many of these documents in her oral argument before this court, in most cases to challenge findings of fact made by Dr. Whyte or the Tribunal. The documents relate to the merits of the decisions made by Dr. Whyte and the Tribunal. They do not provide background information that would assist the court in understanding the history and nature of the case that was before the Tribunal; they do not include an affidavit disclosing absence of evidence on a material point; they are not evidence relevant to natural justice, procedural fairness, improper purpose, or fraud not contained in the record.
[52] The fresh evidence Ms. Filippova seeks to introduce does not qualify for admissibility under any of the recognized exceptions to the general rule that evidence on judicial review is limited to what was before the decision-maker.
[53] For these reasons, I would dismiss Ms. Filippova’s motion to admit fresh evidence.
Issue B: Was the Tribunal’s decision unreasonable?
Ms. Filippova’s position
[54] Most of Ms. Filippova’s amended factum consisted of argument intended to revisit the issues decided by Dr. Whyte and the Tribunal.
[55] The president of this court’s panel, Stewart J., explained to Ms. Filippova that it was not the panel’s function to re-hear the entire dispute but rather to review the decision. Justice Stewart urged Ms. Filippova to focus in her oral argument on whether the Tribunal’s decision was reasonable. Ms. Filippova said that, in that regard, she would rely on her written submissions. She said that in her oral submissions she wished to prove her credibility, the Tribunal having denied her the opportunity to do so.
[56] In her amended factum, Ms. Filippova argued that the Tribunal’s decision was not reasonable because it was illegal and irrational.
[57] Ms. Filippova submits that the decision was illegal for the following reasons:
(a) Conestoga violated the Canadian Charter of Rights and Freedoms and the Human Rights Code, R.S.O. 1990, c. H.19, by denying Ms. Filippova equality rights through sustained attempts to profile her, based on her “age, nationality, ethnicity, foreign origin, [status as a] first-generation immigrant, accent and related manner of speech”. Ms. Filippova argues that this Charter violation was reflected in feedback reports that contributed to her academic outcome. She argues that the Tribunal relied on Conestoga feedback reports and interview records that were the basis for human rights litigation to impugn Ms. Filippova’s mental health, contrary to the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976, accession by Canada 19 May 1976), and the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. Ms. Filippova asserts that these records were privileged. Ms. Filippova submits that because her equality rights were denied, she is entitled to a remedy under s. 24(2) of the Charter.
(b) The Tribunal misapplied McMaster’s Academic Regulations. Ms. Filippova argues that a student may only be removed from a course on the basis of “unsafe practice or behavior that places the patient or others at risk or is deemed a serious breach of professional behavior”. Ms. Filippova argues that each element of the criterion must be met because there are no commas separating the different elements. She asserts that the Tribunal has no examples where she engaged in unsafe practice and there was a serious breach of professional behaviour. Ms. Filippova also argues that a professional practice evaluation tool was improperly used to remove her from the professional practice course; she says the tool was not mentioned in the Academic Regulations or the course manual. Ms. Filippova further argues her failure on the professional practice evaluation tool was mischaracterized as “unsafe practice.” Ms. Filippova argues that she was not provided a sit-down meeting with her tutor and preceptor to discuss why she failed. Ms. Filippova submits that these misapplications of McMaster’s own statute amount to a miscarriage of justice.
(c) There were inconsistencies in administrative practices. Ms. Filippova argues that the investigator appointed to report on her initial appeal should not have been affiliated with the School of Nursing. Ms. Filippova argues the Tribunal failed to follow its own appeal procedures when it denied her an opportunity to present additional evidence. Ms. Filippova argues the Tribunal incorrectly applied the Code of Student Rights and Responsibilities when it should have applied the Professional Behaviour Code of Conduct for Undergraduate Learners. She also argues that the wording in the Academic Calendar regarding removal of a student after multiple failing grades is ambiguous.
[58] Ms. Filippova argues that the decision was irrational for the following reasons as stated in her factum:
No decision can be justified as reasonable and rational if it is based on the silenced civil wrongs and the breach of the following provincial Acts and the Respondent’s private statutes: the Ontario Code of Human Rights; Sections18.1 [1(b)], 21 (1), 21 [2 (e), (f), (g) & (i)], 21 [3 (d), (g), & (h)] of the Ontario Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31; the McMaster General Academic Regulations [Privacy and Personal Information], the McMaster BScN Program Academic Regulations [Removal from the Courses] & [Removal from the Program], as well as a serious breach of the institutional Policies, namely in Section 1 (d) of the McMaster Code of Conduct for Faculty and Procedures for Taking Disciplinary Action and the McMaster Statement of Ethics for Senior Executive Officers. The findings of fact, too, ought to be deemed unreasonable; although actions of the main actors do not have to be correct under reasonableness standard of review, they still need to be lawful, professional, and responsible, to be reasonable. The facts should not reflect any secrecy, such as obtaining student’s clinical information in breach of the Triad procedure, by-passing the Academic Advisor, impeding the AA’s record keeping or even forging a Health passport to support an improper motive. Critical factual omissions are addressed in the Applicant’s Amended Motion Record. [Emphasis in original.]
Analysis
[59] As the Supreme Court of Canada stated in Vavilov, reasonableness review finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision-makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision-makers from accountability. It remains a robust form of review: Vavilov, at para. 13.
[60] The focus of a reasonableness review must be on the decision actually made by the decision-maker, including the decision-maker’s reasoning process and the outcome. The role of the courts is to review, and they are, as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision-maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision-maker, conduct a de novo analysis, or seek to determine the “correct” solution to the problem: Vavilov, at para. 83.
[61] Where the administrative decision-maker has provided written reasons, those reasons are the means by which the decision-maker communicates the rationale for its decision. A principled approach to reasonableness review is one that puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision-maker to arrive at its conclusion: Vavilov, at para. 84.
[62] An administrative decision-maker may demonstrate through its reasons that a given decision was made by bringing institutional expertise and experience to bear. In conducting reasonableness review, judges should be attentive to the application by decision-makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision-maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail: Vavilov, at para. 93.
[63] A reviewing court must develop an understanding of the decision-maker’s reasoning process to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court must ask whether the decision bears the hallmarks of reasonableness – justification, transparency, and intelligibility – and whether the decision is justified in relation to the relevant factual and legal constraints that bear on the decision: Vavilov, at para. 99.
[64] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility, and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable: Vavilov, at para. 100.
[65] Two types of fundamental flaws may render a decision unreasonable:
(a) The first is a failure of rationality internal to the reasoning process: Vavilov, at para. 101. To be reasonable, a decision must be based on reasoning that is both rational and logical. Reasonableness review is not a “line-by-line treasure hunt for error.” However, the reviewing court must be able to trace the decision-maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that there is a line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived: Vavilov, at para. 102.
(b) The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it: Vavilov, at para. 101. Factors in this evaluation may include the following: the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision-maker and facts of which the decision-maker may take notice; the parties’ submissions; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies: Vavilov, at para. 106. The governing statutory scheme is likely to be the most salient aspect of the relevant legal context: Vavilov, at para. 108.
[66] I have already summarized the Tribunal’s decision in general terms. A more detailed review of the Tribunal’s reasons reveals the following process that culminated in its conclusion that Dr. Whyte’s decision should be upheld:
(a) The Tribunal considered the test to be met on the appeal. It referred to s. 26 of the Student Appeal Procedures, which provided the following: (1) the appellant, Ms. Filippova, had the onus of showing, on a balance of probabilities, that an injustice or error had occurred at the level of the decision being appealed (Dr. Whyte’s decision); and (2) the Tribunal’s function was to determine, on the basis of the evidence presented to it, whether the initial decision-maker, Dr. Whyte, had acted or decided the matter in an unfair, unreasonable, or unjust way.
(b) The Tribunal referred to Vavilov and said that the applicable standard of review on the appeal was reasonableness.
(c) The Tribunal summarized the parties’ positions.
(d) The Tribunal considered the evidence and the submissions of the parties.
(e) The Tribunal referred to the following provision in the School of Nursing’s Academic Calendar:
The B.Sc.N. Program reserves the right to remove a student from a professional practice course or laboratory setting at any point during the term if the student exhibits unsafe professional practice or behaviour that places the patient or others at risk or is deemed a serious breach of professional behaviour.
(f) The Tribunal found that while enrolled in the professional practice course, Ms. Filippova demonstrated unprofessional behaviour and unsafe professional practices which put patients at risk. The Tribunal found, specifically, that Ms. Filippova questioned and refused to follow the professional judgment of senior healthcare providers and refused to follow the directions of the long-term care facility staff. It found that Ms. Filippova’s defiance and unprofessional behaviour prevented patients from receiving the treatment they required, made patients uncomfortable, and caused patients to question their quality of care, leading to feelings of distress and uneasiness. The Tribunal listed specific examples of this conduct.
(g) The Tribunal found that Ms. Filippova’s conduct contributed to legitimate concerns about patient safety and a determination that patients would be put at risk if Ms. Filippova was not supervised.
(h) The Tribunal accepted that Ms. Filippova had previously failed a clinical placement while enrolled in the B.Sc.N. program and found that she was aware of the consequence of a second failure in such a course.
(i) The Tribunal found that Ms. Filippova had been given a fair procedure to plead her case in the first instance.
(j) The Tribunal found that Dr. Whyte had acted in a fair and reasonable manner in concluding that Ms. Filippova had been properly removed from the course. It found that Dr. Whyte fairly considered and weighed the evidence and clearly and succinctly provided the rationale for the conclusions he had drawn. The Tribunal also found that the decision was completed in a fair and timely manner.
(k) The Tribunal noted that Dr. Whyte may not have investigated all available sources of information but concluded that given the significant amount of information he was required to consider and the tight timeframe, Dr. Whyte followed a fair, just, and reasonable procedure.
(l) The Tribunal found that it was reasonable and fair for Dr. Whyte to have rejected Ms. Filippova’s explanations for certain incidents that occurred at the long-term care facility.
(m) The Tribunal found that Dr. Whyte provided logical, coherent, and rational justifications for his decision.
(n) The Tribunal rejected Ms. Filippova’s interpretation of the criteria for removing a student from a placement and concluded that there are not two separate and distinct criteria which must be satisfied.
(o) The Tribunal considered the provision in the School of Nursing’s Academic Regulations that provides that when a student is removed from a professional practice course due to unsafe professional practice or behaviour that places a patient or others at risk, such removal automatically results in a failing grade and may result in dismissal from the program.
(p) The Tribunal concluded that Dr. Whyte had correctly upheld Ms. Filippova’s failing grade in the professional practice course and her dismissal from the B.Sc.N. program, in accordance with the Academic Regulations. The Tribunal noted that because Ms. Filippova had previously repeated a professional practice course, removal from the B.Sc.N. program was mandatory, under the Academic Regulations.
(q) The Tribunal concluded that Ms. Filippova had failed to demonstrate that Dr. Whyte’s decision-making process was unreasonable, that Dr. Whyte had acted reasonably in the decision-making process, and that Dr. Whyte’s decision to uphold Ms. Filippova’s failing grade in the professional practice course and her dismissal from the B.Sc.N. program was fair, just, and reasonable.
[67] Ms. Filippova argues that the Tribunal’s decision was illegal because of violations of the Charter. This argument is without foundation. The Charter applies to universities only if they are implementing a specific government policy or program: Telfer v. The University of Western Ontario, 2012 ONSC 1287, 349 D.L.R. (4th) 235 (Div. Ct.), at paras. 53-61. The Charter has no application to this situation, which involves the core university function of control and regulation of the conduct, activities, and discipline of students, including student suspension or expulsion: McMaster University Act, 1976, S.O. 1976, c. 98, s. 13(f).
[68] Although Ms. Filippova complains of discrimination, neither Dr. Whyte nor the Tribunal was in a position to consider this complaint. Dr. Whyte’s mandate was limited to the issues set out in the Student Appeal Procedures, which expressly prohibited him from considering discrimination claims. Further, as I noted earlier in these reasons, the Articles of Agreement between McMaster and Conestoga provide that Conestoga’s policies apply to harassment and discrimination claims.
[69] Ms. Filippova did not raise her complaints in respect of violations of the Freedom of Information and Protection of Privacy Act before the Tribunal. I am not convinced that these complaints have any bearing on Ms. Filippova’s application, but if they do, they are not properly before this court.
[70] Having carefully reviewed the Tribunal’s reasons, I conclude that its decision, to quote Vavilov, bears the hallmarks of reasonableness: justification, transparency, and intelligibility. The decision was internally logical. I also find the decision to be tenable in relation to the factual and legal constraints that bear on it, including the Academic Regulations, the Calendar, the Student Appeal Procedures, the evidence before the Tribunal, the positions of the parties, and the very significant impact the decision would have on Ms. Filippova and her dream of becoming a registered nurse.
[71] For these reasons, I find that the Tribunal’s decision was reasonable and that there is no reason for this court to interfere with it.
Issue C: Was Ms. Filippova denied procedural fairness?
Ms. Filippova’s position
[72] Ms. Filippova argues that she was denied procedural fairness in several respects, including the following:
(a) She was given permission to withdraw from the professional practice course, which would have enabled her to avoid the second failing grade in a professional practice course and the associated dismissal from the B.Sc.N. program, but the permission was withdrawn the same day.
(b) In January 2021, after Ms. Filippova had been removed from the B.Sc.N. program, an academic advisor wrote to Dr. Cross to advise of an upcoming mid-year review for Ms. Filippova. Ms. Filippova says that this review would have “significantly helped with timely investigation and FOI files” [emphasis in original] but it did not take place.
(c) There was “Bad Faith delay of FOI evidence” and what Ms. Filippova describes as follows:
breach of the Student Appeal Procedures by the Respondent deferring appeal investigation reports until after the final appeal (Form C) by the Applicant (while pressuring the Applicant to meet Response deadlines) detoured the Applicant to argue secondary/ tertiary issues on Final Appeal. What transpired and formed new concepts for appeal had been obstructed at critical time … having blindsided me into acting to my detriment. [Emphasis in original.]
(d) She was prohibited from presenting new evidence at the hearing before the Tribunal.
(e) Although the parties’ counsel agreed that they would submit their written closing arguments on December 17, 2021, the respondents took three additional days and prepared a “reply” factum, while Ms. Filippova’s counsel did not have the same opportunity.
Analysis
[73] The test for evaluating procedural fairness is set out in Baker. In that decision, at paras. 21-28, the Supreme Court identified and described five non-exclusive factors to be considered: the nature of the decision being made, and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the agency.
[74] Processes that determine issues affecting livelihood or ability to pursue a profession will generally attract a high level of procedural fairness: Ford, at para. 55.
[75] Ms. Filippova argued before the Tribunal that she had been denied procedural fairness in her initial appeal to Dr. Whyte. The Tribunal rejected this argument and found that “[Ms. Filippova] was given a fair procedure to plead [her] case” to Dr. Whyte. However, even if there had been procedural unfairness in the appeal to Dr. Whyte, Ms. Filippova had a hearing de novo before the Tribunal. An appeal tribunal may cure procedural defects at first instance through a de novo hearing. The issue on this application becomes whether the Tribunal met the requirements of procedural fairness: AlGhaithy, at para. 40.
[76] Ms. Filippova argues that she was prejudiced by a late response to a Freedom of Information request she made. There was no evidence that any concerns about an outstanding Freedom of Information request were raised with the Tribunal or that an adjournment was requested while the request was processed.
[77] Ms. Filippova also argues that she was prevented from introducing evidence at the hearing before the Tribunal. The respondents submit that the Tribunal properly refused to accept new evidence from Ms. Filippova after both parties had presented their cases. The respondents point to art. 12 of the Procedural Rules for Formal Hearings (Appendix A to the Student Appeal Procedures), which prescribes the order of the hearing and states that after any reply evidence has been called, the Tribunal may ask questions of the witnesses and request copies of documents. It then states that “[a]fter this point in the hearing, no new arguments, evidence, or witnesses may be introduced” [emphasis in original]. Ms. Filippova was represented by counsel at the hearing. She has not satisfied me that the Tribunal denied her the right to introduce evidence before the parties closed their cases.
[78] I am also satisfied that if there was any unfairness associated with the timing of filing of the parties’ closing submissions, Ms. Filippova’s counsel would have been in a position to address the issue with the Tribunal and did not consider it necessary to do so.
[79] As I indicated previously in these reasons, I am mindful of the importance of the Tribunal’s decision to Ms. Filippova and of its effect on her ability to pursue a career as a registered nurse. Having carefully considered the impact of the decision, I am nonetheless satisfied that there were no procedural defects in the process adopted by the Tribunal. In particular, I note the following:
(a) Ms. Filippova was represented by counsel throughout the course of the appeal to the Tribunal.
(b) Ms. Filippova received notice of all stages of the appeal procedure.
(c) The parties exchanged disclosure briefs.
(d) Ms. Filippova presented evidence and her counsel cross-examined witnesses.
(e) The parties had the right to decide which witnesses they wished to call.
(f) “Will say” statements were prepared and disclosed in advance of the hearing.
(g) Ms. Filippova’s counsel had ample opportunity to make both oral and written submissions, including written closing submissions.
(h) The Tribunal adhered to the detailed procedure outlined in the Student Appeal Procedures.
[80] For these reasons, I find that Ms. Filippova was not denied procedural fairness.
Disposition
[81] For these reasons, I would dismiss Ms. Filippova’s application for judicial review.
Costs
[82] The respondents advised the court that, if successful on the application, they would not seek costs. Accordingly, there shall be no costs of the application.
Williams J.
I agree _______________________________
Stewart J.
I agree _______________________________
Lococo J.
Released: February 2, 2024
CITATION: Filippova v. Whyte, 2024 ONSC 497
DIVISIONAL COURT FILE NO.: DC-22/143-JR
DATE: 2024/02/02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Lococo & Williams JJ.
BETWEEN:
Galina Filippova
Applicant
– and –
Dr. Robert Whyte and Senate Board for Student Appeals of McMaster University
Respondents
REASONS FOR judgment
Williams J.
Released: February 2, 2024