Court File and Parties

CITATION: Bastien v. University of Toronto, 2021 ONSC 1527

DIVISIONAL COURT FILE NO.: 311/19

DATE: 20210301

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: David Bastien, Responding Party / Applicant

AND: University of Toronto, Moving Party / Respondent

BEFORE: D.L. Corbett J.

COUNSEL: Robert A. Centa and Emily Lawrence, for the Moving Party / Respondent Michael D. Wright and Danielle Stampley, for the Responding Party / Applicant

HEARD in writing: November 27, 2020

Endorsement

[1] On December 1, 2020, I granted the respondent University’s motion to strike certain materials in the application record, with these reasons to follow.

Background

[2] On October 14, 2015, the University’s Board of Examiners (“BOE”) found that Dr Bastien had engaged in lapses of professionalism and directed him to undergo a remediation program. Dr Bastien filed an appeal with the University Faculty of Medicine’s Appeal Committee (“FMAC”).

[3] Dr Bastien completed the remediation program directed by the BOE and did not move forward with his appeal to the FMAC, and he then graduated in 2016.

[4] About one year later, Dr Bastien commenced an application for judicial review of the BOE decision, seeking to have that decision set aside.

[5] On November 27, 2017, this court dismissed the application as premature because Dr Bastien had not exhausted his appeal rights at the University (2017 ONSC 6937).

[6] Dr Bastien then sought to have his appeal from the BOE decision heard by the FMAC. The FMAC appeal process is generally only available to current students of the University. However, in late 2017 the Chair of the FMAC decided that the FMAC would hear Dr Bastien’s appeal, despite Dr Bastien’s graduation. The FMAC Chair directed that the FMAC “is only able to hear an appeal of the [BOE] decision and will not consider events that occurred subsequent to that decision.”

[7] In February 2018, Dr Bastien filed his appeal materials with FMAC. They included materials respecting events post-dating the BOE decision. The Faculty objected to these materials. This dispute was addressed during a teleconference between counsel for the parties and the Chair of the FMAC. As a result of this teleconference, the parties agreed to a consent order, which was made by the Chair of FMAC. It required the parties to remove all evidence of events that occurred after the BOE decision on October 14, 2015. Both parties complied with this consent order. The appeal before FMAC then proceeded, including an oral hearing on April 17, 2018. The FMAC dismissed Dr Bastien’s appeal for written reasons provided May 1, 2018.

[8] On July 30, 2018, Dr Bastien appealed the FMAC decision to the Academic Appeals Committee (“AAC”) of the University’s Governing Council. Dr Bastien filed a notice of appeal and an affidavit in support if his appeal to the AAC. These materials complied with the consent order made by the Chair of FMAC: they did not include materials on the merits that post-dated the BOE’s decision of October 14, 2015. Dr Bastien then sought to file additional material respecting events post-dating the BOE decision. Once again, the Faculty objected. The parties then agreed that the following facts would be put before the AAC on consent (the “Agreed Facts”):

(a) Dr Bastien is now registered with the College of Physicians and Surgeons of Ontario;

(b) Dr Bastien’s prospective employers are entitled and do ask about whether a job applicant has ever been required to attend for remediation in relation to professionalism;

(c) Unless and until Dr Bastien is successful in his appeal, he is required to answer “yes” to any such inquiries;

(d) By contrast, if he is successful in this appeal, Dr Bastien would no longer have to answer “yes” to such inquiries; and

(e) It is Dr Bastien’s view that advising of such remediation will have a negative impact on his ability to find work as a physician in Ontario.

The parties agreed that no evidence would be put before the AAC of events postdating the BOE Decision other than the Agreed Facts.

[9] The appeal was heard by the AAC on March 28, 2019. The Agreed facts were before the AAC. No other evidence was before the AAC post-dating the BOE decision.

[10] The AAC denied Dr Bastien’s appeal on May 9, 2019. On June 7, 2019, Dr Bastien commenced this application for judicial review of the decision of the AAC. In his materials in support of the application in this court, Dr Bastien has included an affidavit from himself, sworn September 5, 2019 (the “September 2019 Affidavit”).

This Motion

[11] The University accepts that two aspects of the September 2019 Affidavit are admissible on this application:

(a) Exhibit A (supported by paragraph 5 of the Affidavit), being a copy of the minutes of the BOE of its meeting of October 14, 2015; and

(b) Exhibit M (supported by paragraph 11 of the Affidavit), being a copy of the Agreed Facts, which were presented to the AAC at the appeal.

Since these documents were before the AAC, these documents should have been part of the Record of Proceeding before the AAC and are properly added to the record before this court.

[12] The University argues that the rest of the September 2019 Affidavit is either inadmissible or unnecessary. The portions of the Affidavit characterized as inadmissible by the University set out alleged facts post-dating the BOE decision. The portions of the Affidavit characterized as unnecessary by the University set out facts and documents that are included already in the Record of Proceedings before the court.

Legal Principles

[13] An application for judicial review is not a trial de novo or rehearing of the underlying dispute. It is a review of the decision below, in this case the decision of the AAC, based on the record that was before the AAC.[^1] Apart from uncontroversial background evidence, affidavit evidence to supplement the record below is admissible only in exceptional circumstances.[^2]

[14] Dr Bastien argues that the impugned materials should be permitted because they are necessary to complete the record below (they reflect materials excluded by the FMAC in a ruling Dr Bastien now seeks to challenge), and they fit within the exception to the Keeprite principle as evidence necessary to show a breach of procedural fairness that is not apparent on the face of the Record before the court. I do not accept these arguments. This application is a review of the decision of the AAC, not the decision of the FMAC or the decision of the BOE. The procedural fairness issue is said to arise in connection with the BOE decision and a consent order of the Chair of the FMAC. These issues had to be raised first with the FMAC and then with the AAC before they can be raised in this court. They were not. This is the third time that Dr Bastien has sought to litigate the underlying issue de novo. He tried to adduce evidence post-dating the BOE decision on appeal to the FMAC. The Faculty opposed admission of this evidence and this issue was resolved by the consent order of the Chair of FMAC. Dr Bastien did not challenge the consent order made by the Chair during the FMAC appeal. On first principles, this issue was resolved, on consent, and was not available to Dr Bastien on appeal to the AAC or on appeal from the AAC to this court.

[15] Nonetheless, Dr Bastien purported to file evidence post-dating the BOE decision on his appeal to the AAC. Once again, the Faculty objected. This time the parties agreed that the Admitted Facts could be placed before the AAC, but nothing else postdating the BOE decision could be put before the AAC. Dr Bastien did not challenge the consent order of the FMAC Chair before the AAC. Nor did he seek to resile with his agreement with the Faculty about the scope of the record before the AAC.

[16] Dr Bastien was required to raise every issue he wished to pursue on his appeal to FMAC, and place before the FMAC his full record in respect to his issues. Then, before the AAC, he was required to raise every issue he wished to pursue on his appeal from the FMAC’s decision, and place before the AAC his full record in respect to his issues. He may not now add the impugned evidence to the record that was before the FMAC and the AAC: his attempt to do so flies directly contrary to the principles in Keeprite and asks this court to act as a court of first instance in respect to issues he did not pursue below, contrary to the principle in Sierra Club.

[17] Finally, I note two points in closing. First, Dr Bastien did not move to adduce the impugned portions of his affidavit as fresh evidence. As is clear from my review of the history of the case, such a motion would be doomed to fail: the evidence existed at the time of the FMAC hearing and the time of the AAC hearing. Counsel argued that Dr Bastien did not have the benefit of his current counsel when he abandoned his efforts to elicit this evidence below: that is not a basis on which to admit fresh evidence at this stage. Further, as the record amply establishes, this is not a case of inadvertence or neglect by a self-represented litigant. This issue was raised directly twice below and resolved. Second, the University argued that Dr Bastien should not be permitted to raise issues and arguments before this court that he did not raise before the AAC. I am not ruling on that issue directly. The principle against new arguments on review is of general application and may be raised with the panel if it arises. This motion was brought to strike specific parts of Dr Bastien’s affidavit, and I decide only those issues raised in the University’s notice of motion.

[18] The University’s motion to strike is granted, in accordance with paragraphs 1 and 2 of the Notice of Motion, with costs, as agreed, payable by Dr Bastien to the University, fixed at $5,000.00, inclusive, payable in the cause of the application.

D.L. Corbett J.

Date: March 1, 2021

[^1]: Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (Div. Ct.), para. 13.

[^2]: Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 29 OR (2d) 513 (Ont. CA); Martin v. Ontario Civilian Police Commission, 2016 ONSC 1116 (Div. Ct.), para. 17.