CITATION: Mulligan v. Laurentian University, 2008 ONCA 523
DATE: 20080630
DOCKET: C48238
COURT OF APPEAL FOR ONTARIO
BLAIR, JURIANSZ and EPSTEIN JJ.A.
BETWEEN:
BRYCE MULLIGAN, MATHEW HUNTER and HSIA-PAI PATRICK WU
Appellants
and
LAURENTIAN UNIVERSITY
Respondent
Peter Rosenthal and Michael Leitold, for the appellants
Thomas N.T. Sutton and Jeffrey E. Feiner, for the respondent
Heard: June 22, 2008
On appeal from the Orders of the Divisional Court (Carnwath, Kiteley and C. Campbell JJ.), dated August 17, 2007 and October 29, 2007.
BY THE COURT:
Overview
[1] The appellants applied for admission to the Masters of Science in Biology Program at Laurentian University under the supervision of Professor Michael Persinger. Their applications were denied by the Oversight Committee of the Department of Biology and its Dean. They were denied on the basis that the appellants – who were otherwise academically acceptable – were not able to comply with the Department’s policy with respect to the availability of funding from faculty research grants.
[2] The appellants sought judicial review of the decision of the University to deny them admission, but were unsuccessful before the Divisional Court. By leave, they now appeal to this Court.
[3] We agree with the disposition of the Divisional Court. In our view, the appeals – both on the merits and with respect to the Divisional Court’s award of costs – must be dismissed. We come to this conclusion for the following reasons.
Facts
[4] The appellants had completed undergraduate biology degrees at Laurentian University and, in April 2006, applied to the University’s two-year Masters of Science in Biology Program. Their proposed supervisor was Dr. Persinger, who was prepared to assume that role.
[5] In accordance with the Department of Biology’s application review process, an Internal Committee comprised of Dr. Persinger and other faculty members evaluated the appellants’ applications. The Internal Committee concluded the appellants met the requisite academic criteria and recommended admission to the Dean. The applications were then reviewed by the M.Sc. Oversight Committee. The Oversight Committee declined to recommend the appellants for acceptance, based on the Department’s recently enacted funding policy respecting graduate students.
[6] In a letter dated September 18, 2006, the Oversight Committee notified Dr. Persinger to that effect, explaining the policy and their decision in this fashion:
The Oversight Committee noted that the requirements of the Departmental policy on funding M.Sc. students were not met. The regulations of the Department of Biology stipulate that each student without a scholarship is to receive a Teaching Assistantship, a summer supplement in the first year, and contributions from research grants held by the supervisor in the amount of $6000.00 in the first year and $8000.00 in the second year. This regulation came into effect January 1, 2006 and is designed to have each of our students treated equally and fairly and to comply with an expectation of the Ontario Council of Graduate Studies. It is also a policy consistent with that of other universities in Canada.
Since the departmental regulations were not met, the three students cannot be recommended for acceptance in to the Biology M.Sc. program. The students are encouraged to apply again for admission in January, 2007, should the required funding become available.
You may be interested in knowing that of the 14 students without scholarships[^1] accepted into the Department of Biology M.Sc. program since January 1, 2006, all received a guaranteed minimum of $15,000.00 per year with $14000.00 over the two years being supplied by research grants held by their supervisors.
[7] The funding policy referred to in the foregoing letter was put into effect by the Department on January 1, 2006. It was adopted as a result of concerns expressed by the Ontario Council on Graduate Studies (“OCGS”), the official provincial standards and accreditation body that reviews and evaluates graduate academic programs at universities across Ontario. The particular concerns of the OCGS related to “the very high proportion of faculty in the Department without … external research funding” and “the amount of graduate supervision performed by faculty with no research funding.” The OCGS wanted to see, amongst other things, an increased level of support for graduate students from faculty research grants.
[8] In response to these concerns, the University’s Biology Department passed the following resolution:
That an annual minimum stipend of $15,000 be provided to M.Sc. students from various sources including GTA, Summer Fellowships, scholarships, bursary and faculty research grants for a maximum of two years as of January 1, 2006.
[9] It is apparent from the record that the appellants were aware as early as May, 2006 that the Department interpreted the funding policy to require part of the external funding to come from the research grants of the proposed supervising professor. Indeed, they wrote to the Dean of Biology and others in August advising that “the availability of research grants” was not a factor in their applications, as they had other sources of funding available from family support or possible scholarships. Family support was not acceptable to the University, however; the Department’s policy called for the external funding to be arms-length in order to avoid the perception and potential reality of students “buying their way into the program.” Nor was Dr. Persinger’s suggestion that the policy would be met by “equivalent funding from the laboratory” and “laboratory support” acceptable in the absence of assurances that this meant personal funding for the student. Such assurances were not forthcoming.
[10] In the result, the appellants were unsuccessful in their application for admission.
The Divisional Court
[11] The Divisional Court dismissed the appellants’ application for judicial review. It held that the decision to admit or not to admit an applicant to graduate studies was a discretionary decision going to the core function of a university including the provision of education, the conduct of research and the evaluation of students. Courts should only interfere with the exercise of such a function “where the applicants demonstrate that there has been a flagrant violation of the rules of natural justice”: Baxter v. Memorial University of Newfoundland (1998), 1998 CanLII 18654 (NL SC), 166 Nfld. & P.E.I.R. 183. The Divisional Court found no such procedural or other unfairness.
[12] In a separate endorsement dated October 29, 2007, the majority of the Divisional Court (Carnwath J., Campbell J. concurring) awarded the University its costs of the proceeding, comprising fees of $15,000 plus disbursements of $8,665.31 plus applicable GST, payable by the appellants severally in the amount of one-third each. Kiteley J., dissenting, would have awarded a total of $7500, payable severally in the amount of $2500 each.
Analysis
The Merits
[13] On behalf of the appellants Mr. Rosenthal raised two primary arguments, each based upon the premise that the Department’s funding policy was an “admission standard”. First, he submitted that the University’s interpretation of the policy motion as requiring the research funds to come from the supervising professor was unreasonable and, indeed, patently unreasonable. Secondly, he argued that as an admission requirement the Department’s motion had to be approved by the University Senate. In the absence of the Senate’s imprimatur, the Department had no jurisdiction to act on the policy or at least acted unreasonably in doing so.
[14] We would not give effect to these submissions.
[15] To begin with, we do not accept the characterization of the Department’s motion establishing the funding policy as an admission standard. Admission standards for graduate school at Laurentian University are set out in the Academic Regulations passed by the University Senate pursuant to the Laurentian University of Sudbury Act, S.O. Chap 151 as amended, s. 11. They include such requirements as (a) holding an appropriate bachelor’s degree at the Honours Level, or its equivalent and (b) having maintained at least second class standing in their bachelor’s degree (a 70% average in all bachelor’s degree courses). The Academic Regulations make it clear that successful completion of undergraduate courses does not ensure automatic admission, “nor does meeting minimum requirements”. In addition to the general admission requirements for graduate school, applicants to the Biology M.Sc. program at Laurentian must file certain required documentation and find a supervisor.
[16] Not every criterion that affects the University’s decision to refuse admission to an applicant is an admission standard. The school has considerable discretion in choosing who among the pool of persons who meet the admission standards will be admitted. In exercising that discretion the school may take into account matters that it believes will best enable it to provide the highest quality program in the interests of the students and to enhance the caliber and reputation of the school itself.
[17] The funding policy falls into that category. It was an internal departmental commitment to ensure that students in its program were adequately funded and were supervised by professors who were able to attract research funding. The department declined to offer the appellants admission, not because they failed to meet an admission standard, but because it was unable to offer them the academic experience it was committed to offering.
[18] The funding policy is a supplement to the minimum admission requirements. As Dean Colilli states in his affidavit, it is “an administrative policy meant to augment and improve upon the minimum requirements that were set by the Laurentian University Senate.” The issue, he noted, “is one of fairness in resource allocation. With a finite amount of resources available, [the] policy fairly restricts the number of students to the amount of funding that is available for students.”
[19] Second, even if the funding policy were considered to be an admission standard, it remains an individual department supplement to the minimum requirements set down by the University Senate. The Academic Regulations clearly contemplate that individual departments may engraft additional requirements onto those minimums. Accordingly, we do not accept the argument that the motion establishing the funding policy required Senate approval and was therefore ineffective and an irrelevant factor that the Oversight Committee was not allowed to consider. Moreover, even if the motion were invalid because not approved by the Senate, it was still open to the Department to take the substance of the policy into account when determining whether or not to admit the appellants given the concerns about the M.Sc. Biology program expressed by OCGS.
[20] Third – however the funding policy is characterized,- the standard of review to be applied is whether the University acted reasonably in making the discretionary admission decision that it did: Dunsmuir v. New Brunswick, 2008 SCC 9. In this regard, it has long been accepted that courts should be reluctant to interfere in the core academic functions of universities: see Baxter v. Memorial University of Newfoundland, 1998 St. J. No. 2430 (unreported); O’Reilly v. Memorial University of Newfoundland [1998] N.J. No. 235; Dawson v. The University of Ottawa, [1994] O.J. NO. 1148 (Div. Ct.).
[21] Here, the decision whether to admit the appellants to the Department of Biology M.Sc. Program was a decision going to the core of a university’s functions. As the Divisional Court observed: “The decision to admit or not is discretionary; one made daily in an academic environment.” We are satisfied that the decision was made reasonably – particularly given the need for the Department to respond to the concerns registered by OCGS regarding its graduate program – and that the Divisional Court did not err in affording that decision considerable deference, as do we.
[22] Finally, we see no lack of procedural fairness or denial of natural justice in the way in which the University dealt with the appellants’ applications for admission. The normal steps for admission to graduate studies in the Department of Biology were followed. There was a free flow of communications between Dr. Persinger, on behalf of the appellants, and the Committee during the application process and the appellants were made aware of the funding policy. They communicated directly with the Committee in effect seeking a waiver of the policy; the University indicated that neither parental funding nor laboratory funding that did not include personal funding from Dr. Persinger was acceptable. The appellants were afforded an opportunity to provide further clarification. Following the letter of rejection, Dean Collili offered to meet with the appellants, but only one of them took advantage of that offer. The Divisional Court was correct in concluding that there had been no denial of natural justice, “flagrant” or otherwise.
Costs
[23] We see no basis for interfering with the decision of the majority of the Divisional Court with respect to costs.
[24] An award of costs is discretionary. It is apparent from the costs endorsement that the majority took into account all the relevant considerations respecting an award of costs, and applied the appropriate principles.
[25] We do not find the amount of $15,000 plus disbursements unreasonable in the circumstances. Indeed, Mr. Rosenthal candidly acknowledged that, if successful, he would have been seeking an award of something in excess of $31,000 in fees plus disbursements.
[26] The fact that the appellants are students does not insulate them from the cost consequences of their decision to litigate. The majority found that they were not impecunious, but did mitigate the personal impact by making each applicant responsible for only one-third of the award.
Disposition
[27] For the foregoing reasons we dismiss the appeal from both the dismissal of the application for judicial review and the award of the Divisional Court respecting costs.
[28] The University is entitled to its costs of this appeal, fixed in the amount of $15,000 all inclusive. Each appellant is responsible for payment of one-third of that amount.
RELEASED:
“JUN 30 3008” “R.A. Blair J.A.”
“RAB” “R.G. Juriansz J.A.”
“G. Epstein J.A.”
[^1]: The appellants did not have scholarships or bursaries.