CITATION: Bastien v. University of Toronto, 2021 ONSC 4854
DIVISIONAL COURT FILE NO.: 311/19
DATE: 20210804
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lederer and Kristjanson JJ.
BETWEEN:
DAVID BASTIEN
Applicant
– and –
UNIVERSITY OF TORONTO, GOVERNING COUNCIL (ACADEMIC APPEALS COMMITTEE)
Respondent
Michael D. Wright and Danielle Stampley, for the Applicant
Robert A. Centa and Emily Lawrence, for the Respondent
HEARD: May 27, 2021
Lederer J.
Introduction
[1] This case is about procedural fairness. In the many administrative decisions assigned to, or passed on to, administrative tribunals and other decision makers there is no more fundamental requirement than that they be procedurally fair.
[2] The Applicant, David Bastien is a medical doctor. He is a graduate of the University of Toronto, Faculty of Medicine. The Court was advised that, at present, he is a resident at a hospital in the City of Windsor. The events that give rise to this application for judicial review arose while David Bastien was a medical student.
[3] As part of its program, the Faculty of Medicine seeks to evaluate the “professionalism” of its students. As described within the record and the submissions of counsel, this part of the education provided is not founded on a course, lectures and seminars or evaluated through an examination:
Satisfactory professional behaviour is a requirement to achieve credit in every course, and assessment of professionalism is included in every course.[^1]
Professional behaviour and ethical practice are requirements of the MD Program…
[repeats the quote immediately above]
Accordingly, the MD Program has formal mechanisms such as Professionalism Evaluation Forms wherein course directors and supervising teachers can note professionalism lapses, and informal mechanisms for assessing and monitoring students’ professionalism including communicating issues directly to students or to the Pre-Clerkship and Clerkship Directors….[^2]
[4] The evaluation of this aspect of medical education is through observations of the actions and conduct of the student made by members of the faculty.
In order to achieve a credit in a course, a rotation or an integrated OSCE, a student must demonstrate satisfactory performance in two separate, though related, domains: they must achieve a satisfactory minimum grade in the course, rotation or integrated OSCE as a whole, and must also demonstrate appropriate professional behaviors and ethical values in relation to patient care and institutions within which they are receiving instruction.[^3]
[5] The standards for professionalism are set out in the Guidelines for Assessment of Undergraduate Medical Trainees in Academic Difficulty-Clerkship.^4 Clerkship is the second of two components of the four-year course of study undertaken by undergraduate medical students:
The MD Program included two years of pre-clerkship in a classroom setting followed by two years of clerkship rotation in a hospital setting, in various areas of medical practice.[^5]
Background
[6] During 2015, the last year of David Bastien’s clerkship, his Clerkship Director raised concerns referred to in the record as “professionalism lapses”. On September 15, 2015 the Clerkship Director, Dr. Stacey Bernstein, by email, advised David Bastien that:
Given the series of Professionalism lapses I will be bringing you to the [Faculty of Medicine’s] Board of Examiners in October to recommend a professional assessment...Many of the themes have been recurrent over this past year, including the Portfolio course problem and the Medicine issue over which we initially met. Happy to meet to discuss the course of action.[^6]
[7] David Bastien responded on the same day. He asked which lapses the Clerkship Director was referring to and if he could meet with her the following week:
If you have time, can you let me know which series of lapses you are referring to, so that I can discuss this with Dr. Abner tomorrow? I am off next week. If there is a good time to meet, please let me know.^7
[8] Still on September 15, 2015, the Clerkship Director delivered a further email to David Bastien providing some general indication of the issues giving rise to the issues of concern:
There was one in pre clerkship from Dr. Bryden and two in Family medicine (for a total of three) as well as the other two issues, albeit not documented as professionalism lapses, but further evidence of challenges for you in this domain.^8
[9] What is evident from this exchange is that while David Bastien was advised that issues with his “professionalism” were being raised and were to be placed before the Board of Examiners the specific concerns had not been fully identified, the date at which these concerns were to be considered by the Board of Examiners had not been provided and any procedural rights of David Bastien were not explained.
[10] In the days that followed a further exchange took place in furtherance of arranging for David Bastien and the Clerkship Director to meet. On September 16, 2015 the Clerkship Director’s assistant wrote to David Bastien asking for his availability to meet with the Clerkship Director to discuss the proceeding to be conducted by the Board of Examiners.[^9] On September 24, 2015 David Bastien wrote that he was available the next day to meet, at any time.^10 They were unable to find a mutually agreeable time. David Bastien was unavailable during the following two weeks. He was in London, Ontario for an emergency elective rotation and preparing for his internal medicine exam.[^11] On October 9, 2015, the assistant wrote asking David Bastien for his availability on October 13, 2015.[^12] Later on the same day, the Clerkship Director, by email, wrote to David Bastien:
I will be making the recommendation for formal Professional remediation/ assessment by Dr. Abner, at the board on Wednesday [October 14, 2015] as you know. You may, if you wish, submit a letter to the Board of Examiners that they must receive by noon on Tuesday, October 13th to the attention of Todd Coombe [whose email address was provided]. I wanted you to know this, given the likely event that we will not meet before the BOE meeting.
Hope all is well on electives and have a great weekend.^13
[11] Despite the words “as you know” in the first sentence, this was the first indication provided to David Bastien as to when these matters would be dealt with by the Board of Examiners. It was only five days before the meeting. There had been no further explanation of the specific issues and, only with the delivery of this email, the advice that David Bastien was entitled to provide a letter to the Board of Examiners
[12] David Bastien replied by asking what impact this process and outcome could have on his Canadian resident matching service application. Residency would be the next stage in his medical career and education:
Thank you for the notification. My electives are going very well. On Tuesday, I will be in Windsor starting a three day family medicine elective, so it will be difficult to get back to Toronto.
Would it be possible to give me an indication of how the Board of Examiners meeting will affect my CaRMS application? I’m a bit unclear on the process. Thank-you.^14
[13] Through an exchange of emails, the Clerkship Director advised David Bastien that the process and its outcome would not affect the timing of his CaRMs application. Any required remediation “needs to be completed before convocation.”[^15] This left David Bastien, now on October 12, 2015, two days before the meeting of the Board of Examiners, asking for information about the issues of concern and to a further email exchange, over the course of that evening, beginning at 5:20 p.m.:
Dear Dr. Bernstein,
Hope your Thanksgiving Weekend went well. The Board of Directors [sic] meeting is only a short time away. I appreciate the effort of informing me, on October 9th, regarding the date of the Board of Directors [sic] meeting (Wednesday, October 14th), and the document I could submit on my behalf. In addition, I appreciate the email correspondence you have provided on October 10, regarding the timing of the Board of Directors meeting and the CaRMS application process.
However, at this point, I do not have the necessary information to comprehensively complete such a document on my behalf, given that deadline to provide the document is Tuesday, October 13th, by noon. In order to complete a document on my behalf, I would greatly appreciate getting a better understanding of the process/outcomes.
First, can you kindly give me an indication if the process/outcomes of the Board of Directors meeting is an internal governance issue, or if the information will be open to an external body, namely the CaRMS Residence Matching Service? Second, through our previous emails, the reasons given in the decision to bring the issue to the Board of Directors [sic] are the following:
First year minor lapses (Dr. Bryden): Missing an ethics seminar.
Third year minor lapses (Dr. Ilk): Missing a family medicine seminar, Relating to faculty.
Two issues not documented as professionalism lapses.
In order to gain a complete understanding of the issues, and more comprehensively construct a document on my behalf, I am asking for your assistance to get all the information. This would work to inform my understanding and development in any remediation I would have to partake in. In order to most appreciate the situation and remediation, would it be possible for you to provide me with the information/documents you will be bringing to the Board of Directors [sic], concerning my particular case?
Thank-you for your assistance in this process.
[14] The Clerkship Director answered in a fashion which exhibits a measure of frustration and suggests that responsibility to see that the student is fully informed of the substance of the concerns and the process undertaken by the Board of Examiners lies with the student:
Hi David
I was away for the long weekend with my family. Mariana [her assistant] had emailed you to set up a meeting a while ago with the goal of discussing all these issues. I find it frustrating that the barrage of emails is coming at the 11th hour. Had the meeting transpired you would have known about the board of examiners and the process surrounding it long before. I am available between two and four pm tomorrow if you would like to discuss this. If you decide you want to submit a letter I will ask permission from the board of examiners for a late submission.
[15] David Bastien continued to seek information fundamental to an understanding of the substance of the concerns being raised and the process being undertaken:
Dear Dr. Bernstein,
I again apologize for the emails and not being able to meet earlier. I am trying to construct the letter but I don’t know fully what is bring brought [sic] forth to the Board of Directors [sic] I know I had one minor lapse in first year, and two more recent ones brought by Dr. Ilk. The other part are reasons of “not documented” professional issues, which you informed I had in a previous email. I don’t know fully what those “not-documented” issues are. Can you give me the information/documents that will be brought to the Board of Directors [sic] concerning this?
The other main concern I have is if the Board of Directors [sic] process/decision will be submitted to CaRMS as part of what the Faculty of Medicine submits on my behalf to CaRMS.
If you could respond to these queries in an email it would help me in understanding the complexities of this process and constructing a document in a more timely manner. I can call you tomorrow as well, if I can step away for 15 minutes, but I would rather avoid a rushed phone conversation when an email may be more clear.
[16] In her reply, the Clerkship Director continued to see the lack of understanding as emanating from the failings of David Bastien and associated his difficulties with concerns for the lack of professionalism that was the root of the issues to be placed before the Board of Examiners:
I am in the middle of a family dinner and to me what is going on here is very much aligned with some of the issues bringing you to the board in the first place. All your professionalism issues to date will be reviewed. This will include the challenges you had in the portfolio course. They don’t have professionalism forms that they use in that course so none was filled out. Generally in these circumstances the board (an internal process) recommends professionalism remediation which you have already begun.
I can meet with you starting 2 pm tomorrow for as long as you wish tomorrow up until 4 pm. I will ask the board to accept a late letter and you can work on it tomorrow night if you wish.[^16]
[17] It bears repeating that this expressed concern for the failure of David Bastien to meet and understand the issues and the process occurred in circumstances where he had been told of the hearing date only three days earlier (October 9, 2015, a Friday).
[18] The next day, October 13, 2015, the day before the Board of Examiners meeting, David Bastien and the Clerkship Director discussed, by telephone, the issues the latter indicated she planned to bring to the Board of Examiners. They spoke for about 45 minutes.[^17] Based on this conversation David Bastien understood that four issues would be reported to the Board of Examiners:
(a) in December 2013 missing a pre-clerkship ethics seminar without giving proper notice,
(b) in October 2014 switching shifts on his internal medicine rotation on the Thanksgiving weekend without following proper procedures,
(c) in May 2015 an issue related to interactions in his portfolio group, and
(d) in August 2015, two minor lapses related to missing a seminar and rearranging his schedule to work with preferred supervisors.
[19] David Bastien prepared a written response that was delivered to the Board of Examiners and was considered by it.[^18] The letter written by David Bastien lists, refers to and comments on the four issues.
The proceeding before the Board of Examiners
[20] The proceeding undertaken by the Board of Examiners took place on October 14, 2015. These sessions are held in private. That is to say, the student is not permitted to be in attendance, is not represented by counsel or anyone else and is not permitted to take part in any way other than to provide a written submission. On this occasion the Clerkship Director presented a “Summary of difficulty” to the Board of Examiners. It referred to a list of the alleged lapses raising concerns for the professionalism of David Bastien.[^19] This document had not been provided to David Bastien. The problem is that it does not only refer to the four concerns discussed with David Bastien during the telephone call, the day before. It raised two additional complaints. It added as a lapse in professionalism the email exchange to which I have referred as demonstrating the efforts of David Bastien to understand the possible repercussions and process. It describes these emails as:
Rude and persistent emails sent to me over the weekend with questions around the BOE meeting and CarMs implications as he was unable to find time to meet with me in the last month because “our schedules conflicted”.
[21] The “Summary of difficulty” adds as a further concern under the heading “Professionalism”:
TTC-request to miss class due to a pre-booked concert in Detroit. Reminded of the Absence Policy.
[22] In the absence of being advised of these additional concerns, David Bastien had no opportunity and did not refer to them in the written submission that he made. For myself, I am hard-pressed to understand how the emails can be referred to as “rude”. Those quoted above are apologetic and pass on best wishes for the Thanksgiving holiday.
[23] There is further confusion as to the significance and import of two items on the list of four. The second item is referred to in the “Summary of difficulty” as follows:
Issue on Medicine rotation where he switched his call from Saturday to a Thursday so that he could get a four day weekend and only checked with the resident and not the site lead. Subsequently needed to miss his Mid rotation feedback session with his preceptor. Information regarding call request changes was provided in advance of the rotation. He was given an additional day of weekend call. Didn’t respond to meeting request to meet with me.
[24] The third item is referred to in the “Summary of difficulty” as follows:
May 2015 issues in Portfolio course – Had issues in portfolio. He was being disruptive and disrespectful to peers and faculty during the sessions. Didn’t respond to request to meet from Portfolio teachers over a 6 week period. When they did meet he had an “Offensively defensive tone”. No professionalism lapse assigned. Referred to David and Erika. Had a meeting with the Portfolio Course director and was moved to another Portfolio group.
[Emphasis added]
[25] The written response provided by David Bastien demonstrates his understanding that neither of these elements had been noted as “professionalism lapses”. In the “Summary of difficulty” only the second is noted as being treated in this way. There are no reasons. Minutes of the meeting of the Board of Examiners indicate only that the Clerkship Director indicated that David Bastien “had a number of lapses in professional behaviour, that the Board reviewed the submission he had made, that there was an in camera discussion and that a motion was passed that David Bastien be referred for remediation.[^20] This being so it is unclear how these two elements were considered in the meeting of the Board of Examiners. Moreover, the first of the two appears to add to the concern by referencing the missing of a “feedback session with his preceptor” and his failure to respond to the meeting requests that had been made (through her assistant) by the Clerkship Director. Neither of these apparent additions is referred to in the written submission delivered by David Bastien.
[26] The decision of the Board of Examiners was communicated to David Bastien by a letter dated October 14, 2015, which is to say the day after the Board of Examiners met and considered the concerns that had been raised. The letter notes that the Board of Examiners considered the substance of the concerns and not just the number of them:
The general nature and events surrounding [a number of recorded lapses in the professional behavior of David Bastien] were presented as a body of information and not simply as a tally. The decision to bring this matter to the BOE is seen as an educational rather than an actuarial exercise.[^21]
[27] The letter indicates the appreciation of the Board of Examiners for the written submission that had been delivered by David Bastien, which it reports had been carefully considered, and for the actions taken by him to further examine the concerns through discussion with the “Faculty Lead, Ethics and Professionalism”. The letter quoted the motion passed by the Board of Examiners:
Having demonstrated lapses in professional behavior that David Bastien be referred for remediation in professionalism.^22
[28] The letter advised that David Bastien had the right to appeal the decision of the Board of Examiners to the Faculty of Medicine Appeals Committee.
The first judicial review
[29] Instead of appealing to the Faculty of Medicine Appeals Committee, David Bastien sought judicial review of the decision of the Board of Examiners. He asked that the decision be set aside and an order made by this Court substituting its own decision that there had been no lapse in professionalism exhibited by David Bastien. The application was dismissed. It was premature. David Bastien should have exercised his right to appeal.[^23] This speaks to the understanding that this Court will not, generally, exercise its discretion to grant judicial review where there is an existing alternative remedy or where the rights of the parties are not finally determined.[^24] It was only after this ruling that David Bastien undertook an appeal. It was considered by the Faculty of Medicine Appeals Committee on April 17, 2018.
The appeal before the Faculty of Medicine Appeals Committee
[30] The Guidelines for Procedure- Faculty of Medicine Appeals Committee provide for and outline the steps and process to be carried out in furtherance of such an appeal.[^25] These Guidelines provide for the exchange of documents and the positions to be taken, the scheduling and notice of the hearing and make clear that the student has the right to be represented by counsel, call evidence, examine witnesses and present arguments.[^26] The appeal taken by David Bastien was described by counsel for the Respondent on this judicial review as a “full hearing”. The decision of the Faculty of Medicine Appeals Committee refers to counsel being present (“…the Appeals Committee heard arguments from your legal counsel based around the six points presented to the Board of Examiners…”[^27]). There was no submission made that David Bastien was unaware of the issues that would be raised, did not receive or was without the documents referred to or relied on by the faculty, was refused the right to take part or call witnesses or for full argument to be made either by him or on his behalf. The decision made begins with a review of the submissions that were made both in writing and by counsel (“David Bastien Submissions on Appeal”^28). The objection taken with respect to this proceeding is that it was not truly a new, separate or fresh hearing, one that represented hearing the matter “over again” or “starting anew” (de novo). It was submitted that the decision of the Faculty of Medicine Appeals Committee relied on the findings and determination made by the Board of Examiners and, thus, incorporated the procedural errors it was said to have made.
[31] It is true that the decision of the Faculty of Medicine Appeals Committee considered the procedure undertaken by the Board of Examiners. This is not surprising or in any sense wrong or inappropriate. It does not lead to or contribute to a conclusion that the hearing was anything other than de novo. The allegation that the process utilized by the Board of Examiners had been procedurally unfair was a ground of appeal:
Your Statement of Appeal to the Appeals Committee outlined your appeal would be based on all three grounds for appeal as allowed for by Faculty guidelines. You contended that faculty regulations and procedures were not followed, that all relevant evidence was not taken into consideration when the decision was made, and that the decision could not be supported by the evidence which was considered when it was made. ^29
[Emphasis added]
[32] The decision outlined the specific concerns regarding the allegation that the process before the Board of Examiners had been procedurally unfair:
You allege that [before the Board of Examiners] you were not given proper notice of the hearing; were not provided sufficient time to prepare a defence to the allegations or to know all of the allegations to be presented; were not permitted to attend and present a defence before the BOE; were afforded no right to call witnesses; had a reasonable concern of bias; and were not granted the due process for professionalism lapses as outlined in the Guidelines for the Assessment of Undergraduate Medical Trainees in Academic Difficulty.^30
The decision went on to consider each of the three grounds on which the appeal was founded. It began with the allegation that the procedure undertaken by the Board of Examiners had been procedurally unfair. By its nature this was a de novo inquiry. It was a consideration of what the Board of Inquiry had done, not an acceptance of the decision it had made. The Faculty of Medicine Appeals Committee determined that:
• there was flexibility in the options available to the Clerkship Director (“…the Clerkship Director may deviate from normal practice when making a recommendation to the BOE…”^31),
• the Clerkship Director had reasonable grounds to raise the professionalism concerns outlined by the faculty and to bring them to the Board of Examiners,
• David Bastien had been given sufficient notice (“You were informed by Dr. Bernstein over a month in advance that you would be presented to the BOE and were given an outline of the rationale at that time. You had over a month to inquire further about these issues and then prepare your written submission.”^32),
• the Board of Examiners had followed its procedures in that David Bastien had been provided with the opportunity to, and had provided a written submission,^33 and that
• he had not been provided with the opportunity to attend the meeting of the Board of Examiners or call witnesses because this was not its established procedure.^34
[33] The Faculty of Medicine Appeals Committee found that the applicable “regulations and procedures were followed”.^35
[34] This was not the simple acceptance of the decision made by the Board of Examiners. It was the initial examination of the procedure that the Board had applied, by a tribunal authorized to review it.
[35] The Faculty of Medicine Appeals Committee went on to consider the second and third grounds of appeal: “that all relevant evidence was not taken into consideration when the decision was made” and that “the decision could not be supported by the evidence which was considered when it was made”.[^36] They are interrelated. They both deal with the evidence and whether the decision is supportable based on what was, and was alleged not to have been, considered. Under the first of the two headings the Faculty of Medicine Appeals Committee noted:
You argued to the Appeals Committee that information was purposely withheld when the BOE decision was made; that Dr. Bernstein and Dr. Leslie Nickell, invited guests in attendance at the BOE meeting, may have compromised your right to a decision free from bias; and that you were not able to, due to time constraints and BOE procedure, mount a thorough defence against the professionalism concerns that brought your case to the BOE.[^37]
[36] I point out that these concerns also touch on the fairness of the procedure undertaken by the Board of Examiners. As with those procedural concerns, the examination and weighing by the Faculty of Medicine Appeals Committee of the evidence, some said to have been considered and some not, is not a blind acceptance of the decision of the Board of Examiners. Assuming that there was evidence that was not considered by the Board of Examiners, the Faculty of Medicine Appeals Committee proceeding was the first time it was accounted for. The suggestion that the evidence that was considered does not support the decision asks for the subsequent tribunal, in this case the Faculty of Medicine Appeals Committee, to examine that evidence and weigh it for itself which the decision of the Faculty of Medicine Committee notes it did:
The Appeals Committee considered all the evidence presented in your Statement of Appeal, the Faculty Response, and the appeal hearing to determine the appropriateness of the BOE decision.^38
[Emphasis added]
[37] It is in this context that the Faculty of Medicine Appeals Committee went on to consider each of the six complaints that had been presented to the Board of Examiners:
• The first two were not, in any substantive sense, in question.
The first: “Pre-clerkship lapses in professionalism” because it was not disputed and,
the second: “Transition to Clerkship (TTC)” because the decision of the Board of Examiners was not based on this as a lapse in professionalism. Rather, this was simply evidence to make it plain to the Board of Examiners that David Bastien had been informed that missing sessions for personal events would not be permitted during clerkship.
• The third: “Medicine switched rotation” reviewed the applicable evidence (the information provided with respect to the initial requests for time off, that there was no suggestion that the change was proposed by the member of faculty who approved it, that the faculty member was unaware, but David Bastien should have recognized, that the faculty member was not authorized to approve the change and that the rationale given for the change (a long and therefore dangerous drive) was questionable (David Bastien later indicated he would be travelling by train).
• The fourth: “Issues in Portfolio” referred to whether behaviour of David Bastien at a meeting on March 26, 2015 was inappropriate such that it demonstrated a valid rationale for the “Portfolio scholars” having failed David Bastien in regard to that session. The Faculty of Medicine Appeals Committee considered the applicable evidence. It determined that the “Portfolio scholars” were present and in a position to assess the contribution of David Bastien on that occasion. The Committee accepted their observations. It did not accept David Bastien’s assertion that two of the doctors who were present “resented” his attempt to “change the group dynamics” within the session causing them to “fabricate” the reason for failing him. As the Committee saw it, this suggestion continued David Bastien’s “lack of insight into [his] role as a learner vs. the role of an instructor.” Moreover, “adequate or appropriate behavior in all other Portfolio sessions” did nothing to counter the inappropriate behaviour on the day on question. The fact that, as David Bastien apparently argued, he responded to the expressed concerns within a week was accepted but “the time frame was still concerning to the Appeals Committee given educators were attempting to meet with [him] about a failed assessment.” Finally, the Committee acknowledged that David Bastien had arranged to meet to discuss the concerns concerning his behaviour “in Portfolio”.^39
• The fifth concerns “[t]wo professionalism lapses in Family Medicine”. For both the Faculty of Medicine Appeals Committee considered what was put by David Bastien and the competing perspective of the faculty.
The first concerned whether and if David Bastien should have understood that the “Family Medicine seminar” was mandatory. The Course Supervisor indicated that she had informed David Bastien that it was; he claimed she had not. The Faculty of Medicine Appeals Committee did not just accept what the faculty member said in preference to the statement made by David Bastien. It reviewed a statement made by David Bastien in his Statement of Appeal which he attributed to the Course Supervisor (“Dr. Ilk ‘stated that it was an expectation that (you) attend.’”). The Committee judged that this statement from the Course Supervisor should have made it clear to David Bastien that attendance was required. In taking the position that failing to attend the seminar should not have been cited as a lapse in professionalism, David Bastien relied on a statement in the Clerkship in Family and Community Medicine Student Handbook. The Course Supervisor understood the statement to be pointed at a different concern. As she saw it, the statement was not intended as a guideline to inform which seminars were mandatory. Again, the Faculty of Medicine Appeals Committee did not simply accept what was said by the faculty member (the Course Supervisor) in preference to the statement made by David Bastien. In this instance the Committee acknowledged that taking up the meaning ascribed to it by the Course Supervisor was “awkward”. The Faculty of Medicine Appeals Committee referred to a “superseding document”, the Regulations for Student Attendance and Guidelines for Absences from Mandatory Activities (MD Program). This document had been sent to David Bastien and was clearer (“all local (site-specific) didactic teaching sessions are mandatory except when otherwise specified by the course director”). This understanding and the Course Supervisor’s expectation are what led the Committee to reject the position taken by David Bastien.^40
The second concerned attempts said to have been made by David Bastien to change his work schedule in order that he could work with doctors he preferred. David Bastien said he only made one such request, which was granted. He said on one other occasion his schedule was changed as a result of a request made by a member of the faculty. There was evidence to the contrary. The Faculty of Medicine Appeals Committee relied on an email sent by David Bastien. It “contradicts [his] claim that [he] made only one schedule change.” There was evidence pointing to two shift changes made so that David Bastien could work with a particular doctor, with two additional requests that were denied by that doctor. The concern, as expressed by the faculty was the clear pattern of behaviour rather than a single incident. The concern was raised with David Bastien at his mid-term review. He was cited for “professionalism” when the behaviour persisted thereafter. The problem was exacerbated by the response of David Bastien when another member of faculty met with him to discuss the issue. In this conversation David Bastien provided a different response. He indicated that he did not know switching shifts was inappropriate until the end of the rotation. The faculty member felt that David Bastien was misleading her. Why? Because she was aware this had been an issue at his mid-rotation review.
In the review of these issues there was no reference to the treatment of them by the Board of Examiners.^41
• The sixth referred to the emails sent by David Bastien to the Clerkship Director in advance of the meeting of the Board of Examiners which are quoted earlier in these reasons.[^42] The Faculty of Medicine Appeals Committee understood and acknowledged that David Bastien had not been told that these emails would be presented to the Board of Examiners. It concluded that they were relevant only to a limited extent. As the Committee saw it, “they demonstrated a continued pattern of lack of timely responsiveness to evaluators and an awareness of [David Bastien’s] procedural rights before the BOE, which [David Bastien] accessed via [the] written document submitted to the BOE”. In the end the Committee treated these emails as having little if any additional probative value (“[T]he BOE’s decision was supportable on the evidence with or without the reference to these emails.”)[^43]
[38] In its consideration of the third ground of appeal (the second of the two headings referred to above) being “The decision could not be supported by the evidence which was considered when the decision was made” the Faculty of Medicine Appeals Committee considered the allegation of bias made by David Bastien (see para. 32 above) which it rejected on the basis that there was no evidence to support it. The Committee “recognized” that there was information presented to the Board of Examiners that had not been provided to David Bastien. It went on to observe that the process of the Board of Examiners was such that the Faculty of Medicine Appeals Committee could not know (“is not privy to”) the details of what had been presented to it. All of which confirms that the decision of the Committee is not simply an acceptance of the Board of Examiner’s determination. It is the result of the Committee’s own careful, comprehensive, separate and independent analysis. It was undertaken following upon and accounting for David Bastien’s “…Statement of Appeal, the Faculty Response, and the appeal hearing”. It was directed at determining the “appropriateness of the BOE decision”.^44 The Committee took account of that decision but reviewed and considered the evidence for itself.^45
[39] On this foundation, and having regard for the decision it made, and the consideration it undertook, I find that the hearing of the Faculty of Medicine Appeals Committee was a hearing de novo.
The Appeal before the Academic Appeals Committee
[40] As the process allows, David Bastien brought a further appeal, this one from the Faculty of Medicine, to the Academic Appeals Committee of the University of Toronto, Governing Council. As noted by the Academic Appeals Committee in its decision, this appeal continued to focus on the allegation that David Bastien had been denied procedural fairness:
The student appeals on the grounds of procedural fairness and that the decision was unreasonable.[^46]
[41] The appeal was founded on the same allegations made at the hearing conducted by the Faculty of Medicine Appeals Committee in respect of the decision made by the Board of Examiners:
(i) Faculty of Medicine regulations and procedures were not followed;
(ii) Relevant evidence was not taken into consideration when the decision was made; and
(iii) The decision could not be supported by the evidence that was considered when it was made by the FMAC.^47
[42] The same six issues raised in the “Summary of difficulty” initially presented to the Board of Examiners^48 and, considered by the Faculty of Medicine Appeals Committee, were raised before and are reviewed in the decision of the Academic Appeals Committee.[^49] Like the Faculty of Medicine Appeals Committee, the Academic Appeals Committee held an oral hearing. It received all of what had been before the Faculty of Medicine Appeals Committee, a new affidavit from David Bastien and certain stipulated facts. Counsel for both parties filed written submissions and made oral submissions.[^50] The Academic Appeals Committee considered the evidence it found to be pertinent and came to independent conclusions determining each of the findings of the Faculty of Medicine Appeals Committee to be “reasonable”.[^51] It dismissed the appeal. ^52
Analysis
[43] In the typical course of a judicial review, it is at this point, with the facts laid out and the decision at issue reviewed, that the Court would turn to the question of the applicable standard of review. As the Notice of Application makes plain, the core of the complaint is the alleged deficiency in the process adopted by the Board of Examiners.[^53] The complaint is extended to the determinations of both the Faculty of Medicine Appeals Committee and the Academic Appeals Committee, that they were not de novo and remain imbued with the procedural errors alleged to have been made by the Board of Examiners.[^54] What is procedurally fair depends on the context. Meaningful participation can occur in different ways depending on the circumstances.[^55] As to the substantive outcome, the parties agree that the standard of review is reasonableness. This is explained in Canada (Minister of Immigration) v. Vavilov.[^56] A reasonable decision is one that is both based on internally coherent reasoning and justified in light of the legal and factual constraints that bear on the decision.[^57] The issues that surround both the question of whether the proceedings, particularly the process adopted by the Board of Examiners, was fair and whether the decision was reasonable can be complicated. The duty of procedural fairness is flexible, variable, and depends on an appreciation of the context of the particular statute and rights affected.[^58] The requirements of procedural fairness depend on the circumstances of the case, the nature of the inquiry, the rules under which the decision-maker is acting, and the subject matter.[^59] In considering whether a decision should be set aside as unreasonable, the Court must be satisfied that there are flaws that are sufficiently central or significant such that they result in an absence of the transparency, intelligibility or justification required to render a decision reasonable.[^60]
[44] I repeat what was said at the outset of these reasons; this case is about procedural fairness. Where procedural fairness is in issue it is generally understood that there is no standard of review. The proceeding is either fair or it is not.
[45] As it is, it is not necessary to undertake a reasonableness analysis. David Bastien does not assert that the decisions of the Faculty of Medicine Appeals Committee and the Academic Appeals Committee were unreasonable on the merits. Nor does he assert unfairness in the procedure of the Academic Appeals Committee. David Bastien’s concern is with the appropriate content of procedural fairness at the Board of Examiners. The substance of David Bastien’s position is that the process undertaken at the Board of Examiners was unfair and that because the decisions taken by the Faculty of Medicine Appeals Committee and the Academic Appeals Committee were not de novo, they are imbued with the procedural errors made by the Board of Examiners. David Bastien did not argue that even if de novo, the subsequent decisions were unfair or in substance not reasonable.
[46] At the hearing conducted by the Faculty of Medicine Appeals Committee, David Bastien was represented by counsel, was aware of and provided with an opportunity to produce evidence and respond to each of the six matters raised in the “Summary of difficulty” provided by the Clerkship Director to the Board of Examiners. The review of the reasons and rationale provided by the decision delivered by the Faculty of Medicine Appeals Committee demonstrates, as included in its consideration, the evidence sought to be relied on by David Bastien. The proceeding conducted by the Faculty of Medicine Appeals Committee was a hearing de novo. I repeat and adopt the finding made by the Academic Appeals Committee:
However, if your Committee is incorrect and there was any denial of procedural fairness at the BOE, this Committee accepts the submission of counsel for the Faculty that such defects were cured by the FMAC proceeding, which amounted to a hearing de novo and met the requirements of procedural fairness. Indeed, the FMAC considered the appropriateness of the BOE decision based on extensive evidence and so stood in the BOE’s shoes. The Student had every opportunity to fully present his case there, and did so with legal representation.[^61]
[47] Having concluded that the hearing of the Faculty of Medicine Appeals Committee was a hearing de novo which was procedurally fair, the application for judicial review cannot succeed.
[48] In short it is better if a remedy is found within the system set to regulate, monitor and oversee the issues of concern:
Any possible failure of natural justice before the special appeal committee, the executive committee, or the full faculty council, is quite unimportant when the senate, the appeal body under the provisions of The University Act [R.S.S. 1953, c. 167], and also the body in control of the granting of degrees, has exercised its function with no failure to accord natural justice. If there were any absence of natural justice in the inferior tribunals, it was cured by the presence of such natural justice before the senate appeal committee.[^62]
[49] In such circumstances the decision is made by the specialized tribunal designated for the purpose and not by the Court. This is as it should be:
…the legislature, in its wisdom, has decided that the lay body of the senate committee should occupy a position superior to that of the academic or expert body of the council committee. I fail to see how appellant could complain that his case be decided by the body whom the legislature has placed in the superior position.[^63]
[50] For this reason, the application for judicial review is dismissed. Nonetheless there is more to be said.
The Board of Examiners and procedural fairness considered
[51] From this decision it could be that the process in place, beginning with Board of Examiners and proceeding on to the Faculty of Medicine Appeals Committee and then to the Academic Appeals Committee of the Governing Council is understood as continuum, a single whole. If the process followed is appropriate in the end, what happened at earlier stages does not matter. This would not be the correct way to understand the import of this decision. These lengthy proceedings could have been avoided had the requirements of procedural fairness been met by the Board of Examiners in the first place and as they should be in any future proceedings
[52] In this case the procedure adopted by the Faculty of Medicine Appeals Committee corrected mistakes that had been made by the Board of Examiners. Even so, the errors made retain their character as mistakes. It may be as the factum filed on behalf of the University suggests that, at the first stage, these procedures are designed to be “relatively informal”.[^64] However, some procedural protections are fundamental and cannot be ignored or set aside through reliance on a regulatory provision empowering the decisionmaker to set its own rules or procedure. This is so regardless of the “nature of the legal rights at issue” or the “severity of the consequences involved”.[^65] Once a protection is provided for, it should be properly undertaken and complete. Counsel for the University was at some pains to demonstrate, consistent with the findings made both by the Faculty of Medicine Appeals Committee and the Academic Appeals Committee, that the notice provided by the Board of Examiners was sufficient and proper.[^66] It was neither. The University argued that having been advised that at some point in time the allegation that he had not lived up to the expectation of professionalism would be taken before the Board of Examiners, the responsibility to follow up and learn of the timing of the meeting, the substance of the allegations and the procedural rights available rested with the student (David Bastien).[^67] It did not.
[53] David Bastien was first advised that he was to be brought forward to the Board of Examiners on September 15, 2015. He was not advised of the date this was to occur (Wednesday, October 14, 2015) until the preceding Friday being October 9, 2015. It was only on that day that he was told that he was permitted to deliver a written response to the allegations being made. He still was not told of the specific issues to be raised with the Board of Examiners. It was not until the telephone discussion of October 13, 2015, the day before the meeting of the Board of Examiners, that four of the specific complaints were put to David Bastien. As it turned out the list was incomplete. There were two more that were reviewed with the Board and considered by it. It is arguable that five days’ notice to provide a written response to the allegations of the sort being made was not enough time but it is clearly insufficient to expect a proper response to be prepared based on information provided the day before and wrong to add allegations for which no notice was provided and no ability to respond provided.
[54] It would be an unusual proceeding that could take place without notice. Once it is accepted that notice is to be given, it should be provided in a fashion and with the substance necessary to allow the person involved to understand the allegations being made, the potential sanction being sought and the time to properly take part in whatever manner the accepted procedure permits. In these circumstances five days’ notice of the date of the proceeding, particularly when the specific complaints were not described until the day before and, at that point, an incomplete list provided, is insufficient. In the absence of the decision of the Faculty of Medicine Appeals Committee which “cured” the error and satisfied the requirements of procedural fairness, this deficiency would have been enough to set aside the findings of the Board of Examiners.
[55] It is the responsibility of the decision maker to ensure that proper notice is given. It controls the process. In the circumstances it would have been a simple matter to prepare the “Summary of difficulty” presented to the Board of Examiners and to deliver it to David Bastien some reasonable period of time before its meeting with information as to his right to respond. If for whatever reason notice is delayed or insufficient it would, generally, not be difficult to adjourn the process and delay any consideration by the Board of Examiners until sufficient time had passed and the necessary information provided.
Decision
[56] For the reasons reviewed, the application is dismissed.
Costs
[57] Pursuant to an agreement of the parties, costs shall be paid by David Bastien to the University of Toronto in the amount of $25,000.
Lederer, J.
I agree _______________________________
Backhouse, J.
I agree _______________________________
Kristjanson, J.
Released: August 4, 2021
CITATION: Bastien v. University of Toronto, 2021 ONSC 4854
DIVISIONAL COURT FILE NO.: 311/19
DATE: 20210804
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lederer and Kristjanson JJ.
BETWEEN:
DAVID BASTIEN
Applicant
– and –
UNIVERSITY OF TORONTO, GOVERNING COUNCIL (ACADEMIC APPEALS COMMITTEE)
Respondent
REASONS FOR JUDGMENT
Released: August 4, 2021
[^1]: Standards of grading and promotion of undergraduate medical students, s. 5 (Affidavit of David Bastien, sworn July 30, 2018 at Exhibit 4 (Caselines B97)
[^2]: University of Toronto Governing Council, Report #403 of the Academic Appeals Committee, May 9, 2019 (the Decision of the Appeals Committee) at p. 2 (Caselines B10)
[^3]: Guidelines for Assessment of Undergraduate Medical Trainees in Academic Difficulty-Clerkship (Affidavit of David Bastien, sworn July 30, 2018 at Exhibit 3 (Caselines B83))
[^5]: Record of Proceedings, July 8, 2019 at Tab 1 (Decision of the University of Toronto, Governing Council Academic Appeals Committee, dated May 9, 2019) (Caselines B10)
[^6]: Affidavit of Dr. Stacey Bernstein, sworn March 6, 2018 at Exhibit I (Caselines B291)
[^9]: Ibid at Exhibit J (Caselines B298)
[^11]: Ibid at Exhibit K (Caselines B301)
[^12]: Ibid at Exhibit K (Caselines B305)
[^15]: Ibid at Exhibit K (Caselines B304)
[^16]: This exchange of emails is found in its entirety at Affidavit of Dr. Stacey Bernstein, sworn March 6, 2018 at Exhibit K (Caselines B301-303)
[^17]: Affidavit of Dr. Stacey Bernstein, sworn March 6, 2018 at Exhibit L (Caselines B312)
[^18]: Affidavit of David Bastien sworn July 30, 2018 at Exhibit 2 (Caselines B79 -81)
[^19]: Affidavit of Stacey Bernstein sworn March 6, 2018 at Exhibit O (Caselines B322)
[^20]: Affidavit of David Bastien sworn March 12, 2021 at Exhibit A (Caselines A1194)
[^21]: Record of Proceedings, July 8, 2019 at Tab 3 (Caselines B30)
[^23]: Bastien v. University of Toronto, 2017 ONSC 6937 at paras. 9, 10 and 11 quoting from Ackerman v. Ontario Provincial Police, 2010 ONSC 910 at pars. 11, 18 and 19.
[^24]: Harelkin v. University of Regina 1979 18 (SCC), [1979] 2 S.C.R. 561 at paras. 70-71
Harelkin, like this case arose in the context of the evaluation of the performance of a student at a university. In that case the student, was required by university authorities to discontinue his studies. The University Act provided an appeal to a committee of the university council. The committee heard only from the university. The student was not present and did not know the allegations made against him. He was given no opportunity to respond. The Committee ruled against the student. The student had a further right to appeal, this time to a committee of the senate of the university. Rather than appeal the student commenced an application for certiorari and mandamus (judicial review). The trial judge quashed the order made by the committee of council. The Court of Appeal reversed that ruling. It held that, where there is a right of appeal, certiorari should not be granted except under special circumstances. No such circumstances were established.
The Supreme Court of Canada dismissed the further appeal made to it finding, in part, that the right of appeal was an adequate alternative remedy.
[^25]: Record of Proceedings, July 8, 2019 at Tab 12 (Caselines B466)
[^26]: Ibid (Guidelines for Procedure- Faculty of Medicine Appeals Committee) at paras. 5(d), (e), (f) and (g) (Caselines B468)
[^27]: Record of Proceedings, July 8, 2019 at Tab 2 (Decision of the University of Toronto Faculty of Medicine Appeal Committee, dated April 30, 2018) (Caselines B20)
[^36]: Supra (fn. 29) quoted at para. 31 herein
[^37]: Record of Proceedings, July 8, 2019 at Tab 2 (Decision of the University of Toronto Faculty of Medicine Appeal Committee, dated April 30, 2018) (Caselines B24)
[^42]: See fns. 14 and 16
[^43]: Record of Proceedings, July 8, 2019 at Tab 2 (Decision of the University of Toronto Faculty of Medicine Appeal Committee, dated April 30, 2018) (Caselines B27)
[^46]: Record of Proceedings, July 8, 2019 at Tab 1 (Decision of the University of Toronto, Governing Council Academic Appeals Committee, dated May 9, 2019) (Caselines B9)
[^49]: Record of Proceedings, July 8, 2019 at Tab 1 (Decision of the University of Toronto, Governing Council Academic Appeals Committee, dated May 9, 2019) (Caselines B10-13 (Overview of Facts) and B14-B18 (Decision))
[^50]: Factum of the Respondent at para. 39
[^51]: Record of Proceedings, July 8, 2019 at Tab 1 (Decision of the University of Toronto, Governing Council Academic Appeals Committee, dated May 9, 2019) (Caselines B14-17)
[^53]: Application Record, February 26, 2021 at Tab 1 (Notice of Application to Divisional Court for Judicial Review at paras. 1(b), 2(c), 2(e), 2(f), 2(g), 2(h), 2(i), 2(j), 2(k), 2(l), 2(m), 2(n), 2(o), 2(p), 2(q), 2(r), 2(s), 2 (t), 2(u), 2(v), 2(w), 2(y) (Caselines A1113-1120)
[^54]: Ibid at paras. 2(aa), 2(bb), 2(dd), 2(ff), 2(hh)(i), 2(hh)(ii), 2(hh)(iii) (Caselines A1120-1123)
[^55]: Canada (Minister of Immigration v. Vavilov 2019 SCC 65, 2019 S.C.C. 65 at para. 77 and Baker v. Canada (Minister of Citizenship and Immigration) 1999 699 (SCC), [1999] 2 S.C.R. 817 at para. 22
[^56]: Referred to at fns. 55 and 56
[^57]: Ibid at heading E (para. 99 et seq)
[^58]: Factum of the Respondent at para. 49 (Caselines B530) citing Canada (Minister of Immigration v. Vavilov, supra (fns. 55 and 56) at para. 77 and Baker v. Canada (Minister of Citizenship and Immigration), supra (fn. 55) at para. 22
[^59]: Ibid at para. 52 (Caselines B530-531) citing Syndicat des employés de production du Québec et de l’Acadie v. Canada (Canadian Human Rights Commission) 1989 44 (SCC), 1989 2 S.C.R. 879 at pp. 895-896
[^60]: Ibid at para. 45 (Caselines B528) citing Canada (Minister of Immigration v. Vavilov, supra (fns. 55 and 56) at para. 100 and Puittinen v. Northern Lakes College, supra (fn. 56) at para. 55
[^61]: Record of Proceedings, July 8, 2019 at Tab 1 (Decision of the University of Toronto, Governing Council Academic Appeals Committee, dated May 9, 2019) (Caselines B17)
[^62]: Harelkin v. University of Regina, supra (fn. 24) at para. 41 quoting from King v. of Saskatchewan, 1969 89 (SCC), [1969] S.C.R. 678, 68 W.W.R. 745, 6 D.L.R. (3d) 120 at pp. 755-56
[^63]: Ibid at para. 69
[^64]: Factum of the Respondent at para. 51.
[^65]: Ibid at para.52
[^66]: Ibid at paras. 62-63
[^67]: Ibid at para. 62 and Record of Proceedings, July 8, 2019 at Tab 2 (Decision of the University of Toronto Faculty of Medicine Appeal Committee, dated April 30, 2018) (Caselines B24)