CITATION: Alghaithy v. Ottawa University, 2011 ONSC 5879

DIVISIONAL COURT FILE NO.: 292/11

DATE: 20111005

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N :

DR. WALEED ALGHAITHY

Applicant/Moving Party

– and –

THE UNIVERSITY OF OTTAWA

Respondent/Responding Party

Douglas Christie and Barbara Kulaszka for the Applicant

Jamie MacDonald for the Respondent

HEARD: September 15, 2011

DAMBROT J.:

[1] The applicant, who is a Saudi Arabian national, was a senior medical resident in neurosurgery at the respondent University until he was dismissed in December, 2009 upon the recommendation of the Resident Program Committee. He appealed unsuccessfully through various levels of the internal appeal structure until his dismissal was upheld by the Senate Appeals Committee, the final tribunal in that structure, on January 28, 2011. He then brought an application for judicial review to this Court, alleging that the Senate Appeals Committee’s decision was unreasonable, and contrary to the rules of natural justice. He also alleges that the dismissal violated his rights under s. 2(b) of the Canadian Charter of Rights and Freedoms.

[2] In support of his application for judicial review, the applicant filed an affidavit providing a narrative account of his residency and additional evidence that was not before the Senate Appeals Committee. The respondent brought a motion to strike out certain paragraphs and exhibits from this affidavit on the basis that the Court, on judicial review, reviews a tribunal’s decision on the record, and admits affidavit evidence exceptionally, and only to the extent that it shows jurisdictional error. In response, the applicant brought a motion for: an order granting him leave to amend his Notice of Application and advance a claim for a Charter remedy; and an order to admit the affidavit evidence on the basis that it is necessary to provide a full factual background for his constitutional issue, and to support his allegation of bad faith and reasonable apprehension of bias on the part of the respondent. The applicant’s motion overlaps and overtakes the respondent’s motion. As a result, I will consider only the applicant’s motion.

BACKGROUND

[3] As I have indicated, the applicant was dismissed in December, 2009 upon the recommendation of the Resident Program Committee. The respondent says that the decision to make this recommendation was reached at a meeting on December 2, 2009. Dr. Richard Moulton, Chair of the Division of Neurosurgery, and Dr. Eve Tsai, a professor, were present at the meeting and participated in the vote to recommend dismissal of the applicant. At the time, Dr. Moulton and Dr. Tsai were the subjects of ongoing unprofessional conduct complaints brought by the applicant. In the case of Dr. Tsai, the applicant, together with other medical students, had made a complaint to Dr. Paul Bragg, the Associate Dean of Postgraduate Medical Education. The complaint related to allegations of racial discrimination against medical students of Arabic origin.

[4] On January 28, 2011, the Senate Appeals Committee dismissed the applicant’s appeal of his dismissal. It was unanimously of the view that the applicant had engaged in a pattern of conduct that was both unprofessional and disruptive. His unprofessional and disruptive behaviour manifested itself in e-mails critical of the neurosurgery program and its administrators; absenteeism; and disregard for program rules and “an apparent preference for confrontation or insubordination over collaborative and cooperative approaches to resolving differences of opinion.”

[5] Shortly after the Senate Appeals Committee decision, an anonymous person calling himself or herself “Neuro Leaks” disclosed e-mails that had passed among Dr. Moulton, Dr. Bragg and Dr. Tsai which dealt with the applicant, and their anger that he had made a complaint of discrimination against Dr. Tsai. The e-mails indicated that after the applicant made this complaint, Dr. Bragg, Dr. Moulton, Dr. Worthington, Dr. Poulin, the Chief of Surgery and Dr. Bradwejn, the Dean of the Faculty of Medicine, decided that the applicant “must be removed” and “fixed,” although it was difficult to do this because he was one of the best residents in the Neurosurgery Program.

[6] In one leaked e-mail sent on June 24, 2009, Dr. Bragg provided advice to Dr. Moulton on what evidence would be needed to dismiss or suspend the applicant and what portions of the evaluation policies could be used. Dr. Bragg was one of the persons who played a role in the chain of internal appeals that the applicant pursued after his dismissal.

[7] In the spring of 2011, after the decision of the Senate Appeals Committee, the applicant also obtained a number of documents through a Freedom of Information request to the University. These documents are troubling. By letter dated December 11, 2009, the applicant was told that on December 2, 2009, the Resident Program Committee had failed him on his Neuropathology rotation, and recommended his dismissal from the Program. He was immediately suspended by Dr. Sinclair. During the appeal process, the Program disclosed minutes of the “December 1, 2009” Committee meeting. The minutes only reflect that it was “agreed” to dismiss the applicant from the Program, without any details of the vote. Dr. Moulton and Dr. Tsai participated in the deliberations and decision.

[8] During the appeal process, the Program took the position that the date of the meeting was a typographical error, and should have read “December 2, 2009”. Recently, however, a member of the Committee leaked the minutes of the December 2, 2009 meeting to the applicant. These minutes do not disclose that any decision was taken on December 2, 2009 concerning the applicant.

[9] One of the documents obtained by the applicant through his Freedom of Information request is a copy of an e-mail from Dr. Moulton to Dr. Bragg and Dr. Sinclair sent in the early morning of December 2, 2009, in which Dr. Moulton indicated that the Resident Program Committee met the previous evening and decided to fail the applicant on the Neuropathology Rotation. The e-mail did not mention any discussion about or decision to dismiss the applicant from the Program. A reference was made, however, to a draft of a letter dismissing the applicant.

[10] The foregoing raises the concern that no recommendation for dismissal was ever made by the Committee. The evidence given by Dr. Moulton and Dr. Sinclair during the appeal process does not ameliorate the concern. Dr. Moulton said that the Committee understood that if they failed the applicant, he was automatically dismissed, while Dr. Sinclair said that there were two votes, one for failure of the rotation, and the other for dismissal. It is noteworthy, having regard to Dr. Moulton’s evidence in particular, that on September 20, 2010, the Faculty Council considered the applicant’s appeal of the decisions to fail him on the Neuropathology Rotation and to dismiss him from the Program. By a vote of 23 to 2, with 1 abstention, the decision to fail the applicant was not upheld. The Council did uphold the dismissal of the applicant.

The Applicant’s Affidavit

[11] The affidavit filed by the applicant is 77 paragraphs long, with 54 exhibits. I will describe its content briefly.

[12] Paragraphs 1 to 3 (including exhibit 1) simply identify the applicant.

[13] Paragraphs 4 to 8 (including exhibits 2 to 9) are descriptive of the Neurosurgery Program and its policies.

[14] Paragraphs 9 to 55 (including exhibits 10 to 37) outline the applicant’s problems with the Program prior to his dismissal. In particular: paragraph 12 describes Dr. Tsai’s arrival to the Program in 2007, the applicant’s view of the treatment she afforded Arabic residents and an informal complaint made by the applicant against Dr. Tsai by the end of 2008; paragraph 25 outlines some of the biased treatment he says was afforded Arabic residents by Dr. Tsai, and a complaint he made about it in March, 2009; paragraph 28 makes reference to a complaint the applicant and other residents made against Dr. Tsai in March, 2009; and paragraph 54 outlines a complaint the applicant made against Dr. Moulton in November, 2009. I note that the fact and nature of the complaints referred to in paragraphs 25, 28 and 54, and supporting exhibits, were before the Senate Appeals Committee and may be found in the Record of Proceedings. The informal complaint mentioned in paragraph 12 was not relied on before the Senate Appeals Committee and is not found in the Record of Proceedings.

[15] Paragraphs 56 to 64 (including exhibits 38 to 44) outline the information gleaned by the applicant from the documents received through his Freedom of Information request as well as from the leaked minutes of the Committee meeting of December 2, 2009 about the “decisions” to fail him on his Neuropathology rotation and dismiss him from the Program, and place that information into context.

[16] Paragraphs 65 to 66 (including exhibits 45 to 46) outline the results of a Royal College review of the Program’s accreditation status.

[17] Paragraphs 67 to 70 (including exhibits 47 to 50) outline the details of the e-mails leaked by “Neuro Leaks” and the University’s response to them.

[18] Paragraph 71 (including exhibit 51) outlines the applicant’s current training status.

[19] Paragraph 72 identifies the copy of the decision of the Postgraduate Education Committee dated April 28, 2010, shown at exhibit 51, and the copy of a list of documents which were never disclosed to the applicant in the appeal process, included at exhibit 52.

[20] Paragraph 73 to 74 (including exhibit 54) outlines what was disclosed about the responsibilities of the University’s legal counsel in the Freedom of Information request.

[21] Paragraphs 75 to 77 outline the applicant’s opinion about the propriety of some of the University’s actions.

[22] In his original Notice of Application, as part of the grounds for his application, the applicant asserted that his criticism of the Program was protected by the right to freedom of expression in s. 2(b) of the Charter, and his dismissal constituted a violation of those rights which could not be justified by s. 1 of the Charter. In his motion to amend his Notice of Application, the applicant simply asks to be permitted to add a request for a declaration that his rights under s. 2(b) of the Charter were violated in the manner I have just outlined “[i]f necessary.”

ANALYSIS

[23] I will begin with the motion to amend the Notice of Application, and then consider the admissibility of the affidavit.

The Proposed Amendment to the Notice of Application

[24] The allegation that the decision to dismiss the applicant from the program violated his right to freedom of expression in s. 2(b) of the Charter, and could not be justified by s. 1 of the Charter, was raised in the applicant’s original notice of motion, and will be before the panel hearing the application in any event. The amendment he seeks does nothing more than ask that a request for a declaration to this effect be added to his prayer for relief.

[25] In its factum, the respondent opposes this amendment, suggesting that the applicant is raising a Charter claim that is independent from the Senate Appeals Committee’s decision and will require the admission of extrinsic evidence that the Court would not normally hear, and that will require it to “go far beyond its limited jurisdiction and procedural competence” under the Judicial Review Procedure Act (“JPRA”). I do not agree with this submission.

[26] Section s. 2(1) of the JPRA provides that on an application for judicial review, declaratory relief is available. The declaration sought here is nothing more than a declaration that the very decision properly under review in this application violated the Charter. It is not a Charter claim independent from the Senate Appeals Committee’s decision. If its success depends on extrinsic evidence that this Court finds to be inadmissible, the Charter claim will fail. I will consider what additional evidence is admissible on this application momentarily. But I can see no basis to refuse the amendment.

The Admissibility of the Affidavit

[27] I begin by repeating what was said by Swinton J. about the nature of judicial review in 142445 Ontario Limited v. The International Brotherhood of Electrical Workers, Local 636 (2009), 251 O.A.C. 62 (Div. Ct.) at paras. 10 to 12:

10 An application for judicial review is not an appeal, a trial de novo or a rehearing. On judicial review, courts must avoid undue interference with the discharge of duties delegated to administrative bodies by legislatures (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 at para. 27).

11 In Ontario, the record for the court on judicial review is prescribed by s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) for tribunals governed by the SPPA and by the common law for tribunals not covered by the SPPA. The SPPA does not apply to proceedings before an arbitrator to whom the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A applies (see s. 3(2)(d)).

12 Pursuant to s. 20 of the SPPA, the record includes the document commencing the proceeding, the notice of any hearing, any interlocutory orders made by the tribunal, documentary evidence, the transcript (if any) of the oral evidence, and the decision and reasons therefor, when reasons have been given.

[28] Nevertheless, Swinton J. recognized, at para. 14, that in certain circumstances, affidavit evidence is admissible to supplement the record. Those circumstances were succinctly described by the court in Sierra Club v. Ontario, 2011 ONSC 4086, [2011] O.J. No. 3071 (Div. Ct.) at paras. 13 to 14:

13 The general rule is that, on an application for judicial review, affidavits containing material that was not before the decision-maker at first instance will not be allowed. The record that goes before the reviewing court should essentially be the material that was before the decision-maker at the time the decision was being made. See e.g.: Mianowski v. Ontario (Human Rights Commission), 2003 CarswellOnt 3671 (Div. Ct.); Lincoln (County) Board of Education v. Ontario (Information & Privacy Commissioner) (1994), 76 O.A.C. 235 (Div. Ct.); Ontario Hydro v. Ontario (Assistant Information & Privacy Commissioner) (1996), 97 O.A.C. 324 (Div. Ct.).

14 Affidavit evidence is permissible to supplement the record in exceptional circumstances to demonstrate an absence of evidence on an essential point in the decision (which is to say, to demonstrate a jurisdictional error) or to show a breach of natural justice that cannot be proved by mere reference to the record: Keeprite Workers' Independent Union v. Keeprite Products Ltd. (1980), 114 D.L.R. (3d) 162 (Ont. C.A.), at 170.

[29] I would add that as with an allegation of a breach of natural justice, affidavit evidence must also be permissible to supplement the record to demonstrate a validly raised allegation of constitutional error (see Rafieyan v. Minister of Citizenship and Immigration, 2007 FC 727, [2007] F.C.J. No. 974 at para. 20). I emphasize that the constitutional issue must be validly raised. The mere labelling an issue as a constitutional one will not of itself open the door to the admission of otherwise inadmissible evidence.

[30] The respondent argues that such affidavit evidence must also satisfy the test for fresh evidence in R. v. Palmer, [1980] 1 S.C.R. 759, and finds support for this position in Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources) (2002), 211 D.L.R. (4th) 741 (Ont. C.A.).

[31] The test for the admission of fresh evidence in Palmer is:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result (see Ontario Federation of Anglers & Hunters at para. 61).

[32] Logically, this test will not always apply to affidavit evidence proffered on judicial review. Where, as here, the issue of natural justice was first raised before the Tribunal whose decision is under review, additional evidence to support that claim will have to meet this test. But where the additional evidence is led in an effort to demonstrate an absence of evidence on an essential point in the decision, or to show a breach of natural justice at the actual hearing before the Tribunal that cannot be proved by mere reference to the record, the fresh evidence test would not apply. At the least, there would be no obligation to demonstrate due diligence.

[33] Finally, I note that this court has recently endorsed the practice of resolving issues about the admissibility of affidavit evidence before a motions judge prior to the hearing before a Divisional Court panel. In Sierra Club v. Ontario, the Court stated, at paras. 7 to 8:

7 We are of the view that this motion should have been brought prior to the hearing by the panel, in order to clarify the contents of the record prior to factums being filed. Proceeding in such a manner would have enabled the parties to define the issues for the hearing based upon properly admissible evidence. I note that this was the procedure followed in the decision of Hanna v. Ontario (Attorney General), 2010 ONSC 4058 (Div. Ct.). If the motion judge is unsure about the relevance of certain material, those issues may be left to be determined by the panel hearing the judicial review.

8 To fail to define the appropriate record for the Court before the hearing encourages the proliferation of collateral issues, as occurred in this application. Filing material by one party inevitably precipitates a response from the opposite party. The consequence of failing to define the record is a proceeding before this court that becomes unnecessarily complicated, expensive and lengthy. For the parties and for the court, the ground is continually shifting, and the core issues may be eclipsed by the procedural issues.

[34] In this case, some paragraphs of the affidavit falls short of the tests, but some do not. I will discuss those paragraphs in groups.

Paragraphs 1 to 3

[35] These paragraphs do not really meet the test for admissibility, but they form a natural introduction to the affidavit and they are harmless. I admit them into evidence, except that I would exclude the last sentence of paragraph 3 together with exhibit 1, because that exhibit is irrelevant and goes beyond the purpose of an introduction.

Paragraphs 4 to 8

[36] To the extent that a description of the Neurosurgery Program is necessary for the resolution of this application, it is largely already in the Record of Proceedings. As a result, I do not admit paragraphs 4 to 5, or exhibits 2 to 4. I will admit paragraph 6 and exhibit 5, which are uncontroversial, and provide some background for both the natural justice and constitutional arguments. I will also admit paragraphs 7 to 8 and exhibits 6 to 9 because the respondent takes no objection to their admission.

Paragraphs 9 to 55

[37] These paragraphs are intended to support the claims of a breach of natural justice and a breach of the Charter. But for the most part, these paragraphs rehash evidence that was before the Senate Appeals Committee. To the extent that they add detail to this information, they fall afoul of the rule that extrinsic evidence is only admissible to show a breach of natural justice, or, I would add, a Charter breach, that cannot be proved by mere reference to the record.

[38] Moreover, since they relate to a factual issue that was raised before the Committee, these paragraphs must satisfy the Palmer test. They clearly do not. I note that paragraphs 12, 25, 28 and 54 make reference to complaints made by the applicant against Dr. Tsai and Dr. Moulton, and are arguably relevant to his natural justice argument, and perhaps even to his Charter argument. But, as I have already stated, the fact and nature of the complaints in paragraphs 25, 28 and 54 were before the Senate Appeals Committee, and the applicant is not entitled to rehash or repackage them in an affidavit. The complaint mentioned in paragraph 12 was not before the Senate Appeals Committee, but was known to the applicant and could have been placed before the Senate Appeals Committee had the applicant chosen to do so. He cannot now add this complaint to the record.

[39] As a result, I do not admit paragraphs 9 to 55 or exhibits 10 to 37.

Paragraphs 56 to 64

[40] These paragraphs are also intended to support the claims of a breach of natural justice and a breach of the Charter. But unlike the previously discussed paragraphs, they outline information that the applicant became aware of only after the Senate Appeals Committee decision, through his Freedom of Information request and from the leaked minutes of the Committee meeting of December 2, 2009. In my view, the information in these paragraphs, and the related exhibits, are relevant, and meet the test for the admission of fresh evidence. While the demonstration that the fourth prong of Palmer has been met might be a little frail on the record before me, it must be borne in mind that all of these records were in the possession of the respondent, and kept from the applicant. In these circumstances, some relief from the strict application of the Palmer principles should be afforded to the applicant if necessary. Paragraphs 56 to 64 and exhibits 38 to 44 will be admitted.

Paragraphs 65 to 66

[41] These paragraphs, and exhibits 45 to 46 are irrelevant, and will not be admitted.

Paragraphs 67 to 70

[42] These paragraphs are also intended to support the claims of a breach of natural justice and a breach of the Charter. They outline information that the applicant became aware of after the Senate Appeals Committee decision as a result of the disclosure by “Neuro Leaks.” The analysis of paragraphs 56 to 64 applies equally to these paragraphs. Paragraphs 67 to 70 and exhibits 47 to 50 are admissible.

Paragraph 71

[43] Paragraph 71 and exhibit 51 are irrelevant and will not be admitted.

Paragraph 72

[44] This paragraph and exhibits 52 to 53 include the decision of the Postgraduate Education Committee dated April 28, 2010, and a list of documents which were never disclosed to the applicant in the appeal process. I am not certain if the decision of the Postgraduate Education Committee dated April 28, 2010 was before the Senate Appeals Committee. If it was, then it ought to be in the Record of Proceedings. If it is in the Record of Proceedings, then exhibit 52 and that part of paragraph 72 referring to it should not be admitted. If the decision is not in the Record of Proceedings, then exhibit 52 and that part of paragraph 72 referring to it should be admitted. The decision is an integral part of the review process, and should be available for consideration by the Court. If it is not part of the Record, it should be.

[45] Exhibit 53, and the part of paragraph 72 that refers to it, are relevant to the claim of a breach of natural justice and possibly to the Charter claim, and are admissible.

[46] Paragraph 72, and exhibits 52 to 53, are therefore admissible, subject to the comment I made about the possibility that exhibit 52 is in the Record of Proceedings.

Paragraphs 73 to 74

[47] These paragraphs are also intended to support the claims of a breach of natural justice and of the Charter, and are admissible because they may do so.

Paragraphs 75 to 77

[48] These paragraphs outline the applicant’s legal opinions and are not admissible.

DISPOSITION

[49] The applicant’s motion to amend its Notice of Application is granted, and his motion to admit his own affidavit is granted in part. As a result of the disposition of the applicant’s motion, the respondent’s motion is moot, and will be marked abandoned. Costs will be reserved to the panel hearing the application.

M. DAMBROT J.

RELEASED:

CITATION: Alghaithy v. Ottawa University, 2011 ONSC 5879

DIVISIONAL COURT FILE NO.: 292/11

DATE: 20111005

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N :

DR. WALEED ALGHAITHY

Applicant/Moving Party

– and –

THE UNIVERSITY OF OTTAWA

Respondent/ Responding Party

REASONS FOR JUDGMENT

DAMBROT J.

RELEASED: October 5, 2011