Balaji Rengarajan v. University of Ottawa, 2022 ONSC 219

CITATION: Rengarajan v. University of Ottawa, 2022 ONSC 219

DIVISIONAL COURT FILE NO.: 20-2612

DATE: 20220113

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, J.A. Ramsay and Favreau JJ.

BETWEEN:

Balaji Rengarajan

Applicant

– and –

University of Ottawa

Respondent

James Cameron and Geoff Dunlop, for the Applicant

Jamie Macdonald and Jean-Simon Schoenholz, for the Respondent

HEARD at Ottawa (by videoconference): November 15, 2021

Favreau J.

Overview

[1] The applicant, Balaji Rengarajan, seeks to judicially review a decision of the University of Ottawa’s Senate Appeals Committee (“SAC”) that dismissed him from the Pediatric Neurology Residency in Training Program at the University’s Faculty of Medicine (the “Program”).

[2] The applicant has been diagnosed with a narcissistic personality disorder. He says that this explains the issues he has had at various times during his residency. He has been receiving treatment for this condition and has obtained medical reports that outline the accommodations the University could make to reduce the risk that the behaviours associated with his condition will recur. In its decision, the SAC found that it would not be possible to accommodate the applicant because the program would be required to have someone supervise him one on one at all times.

[3] The applicant argues that the SAC’s decision is unreasonable because it failed to properly consider the legal test for the duty to accommodate and to assess the evidence showing that his disability could be accommodated without undue hardship.

[4] For the reasons that follow, the application for judicial review is dismissed. The SAC considered the University’s duty to accommodate and found that it would not be possible to do so given the applicant’s condition and history. The SAC’s reasoning is cogent and its conclusions are fully supported by the record.

Background

The applicant’s background

[5] The applicant is a medical doctor.

[6] The applicant joined the University of Ottawa’s Pediatric Neurology Residency Training Program in 2013. He joined the program as an International Medical Graduate, having received his Bachelor of Medicine and Bachelor of Surgery in India.

Policy on professionalism and academic disciplinary process

[7] The Program is governed by the Faculty’s Policy on Professionalism. The Policy sets out the list of attributes and behaviours expected of residents in training.

[8] The Professionalism Committee of Postgraduate Medical Education is responsible for adjudicating professionalism issues arising for residents at the Faculty of Medicine pursuant to the Professionalism Policy.

[9] Residents can appeal decisions of the Professionalism Committee to the Faculty Council Appeals Committee (the “FCAC”). In turn, residents can appeal a decision of the FCAC to the SAC.

[10] The applicant has been referred to the Professionalism Committee twice since 2014.

[11] The first referral occurred in 2014 and arose from two separate incidents. The first incident involved the care the applicant provided to a baby in intensive case. The second incident involved the applicant lying to the Director of the Program, Dr. Hugh McMillan. Following a hearing into these matters, the Professionalism Committee imposed a number of conditions on the applicant, which he completed in the fall of 2015.

[12] In December 2016, the applicant was again referred to the Professionalism Committee. The referral was based on several allegations of professional misconduct arising in 2015 and 2016. The concerns included the applicant’s general competence, his truthfulness about an absence, his unprofessional and rude demeanour with a resident and an emergency doctor, and his misdiagnosis of a patient.

[13] In February 2017, the applicant suffered a panic attack at work after which he was placed on a leave of absence. While he was on the leave of absence, the applicant was referred to the Ontario Medical Association Physician Health Program (“OMA PHP”). The program provides support to doctors struggling with mental health issues.

[14] During his leave of absence, the applicant met with Dr. McMillan in October 2017. During that meeting, the applicant told Dr. McMillan that he had committed several breaches of professionalism beyond those for which the applicant had been referred to the Professionalism Committee in 2016. Amongst other matters, the applicant told Dr. McMillan that he regularly lied to people he worked with and that he had given incorrect information about a patient that put that patient at risk.

[15] In the fall of 2018, the OMA PHP notified the program that the applicant was ready to return to work.

Decision of the Professionalism Committee

[16] Before allowing the applicant to return to work, the program required the applicant to meet with the Professionalism Committee to address the unprofessional conduct that led to his referral in 2016 and the matters he raised during his 2017 meeting with Dr. MacMillan. The Professionalism Committee described the purpose of the meeting as follows:

Because of the significant professionalism concerns that lead to your initial referral, as well as subsequent breaches of professionalism that you divulged to Dr. McMillan, the Committee would like to meet with you prior to your return to work. During the meeting, the Committee would like to hear from you your insight into these professionalism breaches in terms of the impact on your colleagues, your staff, and your patients. The Committee would also like assurance that no further unprofessional behaviour will occur.

[17] In advance of the meeting, the applicant was told that he could bring a support person.

[18] The meeting before the Professionalism Committee took place on March 18, 2019. The applicant appeared on his own.

[19] Following the meeting, by letter dated April 8, 2019, the Professionalism Committee wrote to the applicant to advise him that it had decided to dismiss him from the program.

[20] In its letter, the Professionalism Committee described the applicant’s behaviour during the meeting. The Professionalism Committee stated that the applicant contradicted himself several times, including with respect to whether the statements he made to Dr. McMillan during the October 2017 meeting were truthful or not.

[21] The Committee also considered a report from the OMA PHP, which stated that the applicant was “at risk of repeating negative behaviours such as lying and trying to show off, which often lead to rude behaviours, and this is more likely to occur during times of stress”.

[22] The Committee found that the applicant lacked insight into his conduct and that it was not confident that he would not repeat his behaviour despite all the support he had received from the OMA PHP.

[23] Ultimately, the Professionalism Committee concluded as follows:

Taking all of the above into consideration, the Committee felt that you have been referred twice for unprofessional behavior, and then despite the intensive support that you have received through PHP, psychotherapy, and coaching, you still demonstrated significantly concerning behaviours during your interview with the Committee. Your behaviour would be considered Level 3 in the Professionalism Policy of the Faculty of Medicine. You failed to reassure the Committee that everything that has happened in training was behind you. The Committee also had significant doubt of your ability to recognize the consequences of your actions, or your ability to reliably prevent ongoing repetition of your unprofessional actions. The Committee has concerns about risks to others, including faculty and patients, should you return to training. Given the intensive support you have received for the past 2 years, the Committee feels that there is no more support available that will remediate this behavior.

Decision of the FCAC

[24] The applicant appealed the Professionalism Committee’s decision to the FCAC.

[25] The applicant was represented by counsel at the FCAC. He argued that he was unprepared for the adversarial nature of the Professionalism Committee meeting. He also argued that the Professionalism Committee failed to consider the duty to accommodate him to the point of undue hardship.

[26] In a decision dated December 12, 2021, the FCAC dismissed the appeal. In doing so, the FCAC found that “considering his past history of professionalism concerns, and the potential for compromised patient care, the decision to dismiss Dr. Rengarajan is consistent with the policies of the University of Ottawa”. The FCAC also held that the Faculty had taken appropriate steps to address the applicant’s difficulties and that “the concerns relating to Dr. Rengarajan’s return to clinical training were valid, as were the difficulties anticipated in providing appropriate supervision”.

Decision of the SAC

[27] The applicant appealed the FCAC’s decision to the SAC.

[28] On appeal, the applicant argued that the FCAC failed to apply the test for the duty to accommodate and failed to consider the evidence that accommodations could be made that would allow him to return to work.

[29] In a decision dated June 6, 2020, the SAC dismissed the appeal.

[30] At the hearing, the SAC allowed the applicant to call evidence from a psychiatrist involved in the OMA PHP assessment. In its decision, the SAC stated that doing so was procedurally “highly unusual; the Senate Appeals Committee does not typically allow appellants to call witnesses during hearings and introduce new evidence. However, given the circumstances, the Chair decided to give some leeway to Dr. Rengarajan and his lawyer.”

[31] In its decision, after reviewing the applicant’s history in the program and the proceedings below, the SAC rejected the applicant’s argument that the FCAC had failed to consider the duty to accommodate. In doing so, the SAC held that the FCAC was entitled to draw a conclusion that the applicant could not be accommodated without undue hardship given the history and available medical evidence. The SAC reasoned as follows:

Before the Senate Appeals Committee, neither Dr. Rengarajan nor his counsel have argued that the Professionalism Committee erred in arriving at the conclusion that the allegations of misconduct involved in this case were valid, serious and amounted to Level-3 breaches of the Professionalism Policy of the Faculty of Medicine. Likewise, neither of them challenged the fact that, according to this policy, a resident found to have committed a Level-3 breach may face remediation, may be placed on probation, may be suspended from his or her training or may be dismissed. Instead, Mr. Cameron argued that because his client has been diagnosed with a Narcissistic Personality Disorder, the Program is now precluded from taking any of the measures outlined in the Professionalism Policy unless it has first accommodated Dr. Rengarajan to the point of undue hardship.

In response, the Program argued that returning Dr. Rengarajan to his residency training would amount to undue hardship for the Faculty of Medicine, because the resident would have to be shadowed at all times by a pediatric neurologist. According to the Program, if Dr. Rengarajan returned with anything short of full-time supervision, such an arrangement would create a significant risk for the health and safety of a vulnerable population. Full-time supervision would significantly restrict the ability of the supervisor to attend to his or her own patients. Especially since there are few pediatric neurologists, full-time supervision would unduly limit patient access to proper treatment.

In our view, the submissions made by the Program with respect to the issue of undue hardship are very convincing.

[32] The SAC went on to reject an argument that this case is similar to the circumstances in the decision of the Court of Appeal for Saskatchewan in Haghir v. University Appeal Board, 2019 SHKA 13. In distinguishing the case, the SAC held as follows:

However, in Haghir v. University Appeal Board, the underlying misconduct did not involve the provision of health care services. In fact, at paragraph 108 of its decision, the Court of Appeal said the following: “Dr. Haghir’s situation is comparable to employees who suffer from drug or alcohol dependency. It is unrealistic to expect such individuals will never suffer a relapse. Accommodation may require allowances for relapse. That is not to say that relapse may never justify termination. Context is important.” [Emphasis added (in SAC decision)] In the present case, we are dealing with a resident in the field of pediatric neurology with a long history of professionalism concerns involving interactions with patients and other health care providers. In addition, this case involves a professionalism committee that was seized with these concerns on two separate occasions, over the course of multiple years, and who ultimately made a professional assessment, based on its expertise and experience, with respect to whether any more support could be given to Dr. Rengarajan in order to remediate his conduct…

Standard of review

[33] The standard of review that applies to the SAC decision is reasonableness.

[34] In accordance with the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the guiding principles for deciding whether a decision is reasonable include the following:

a. Reasonableness is concerned with justification, transparency and intelligibility. A decision is unreasonable if it is internally incoherent or if it is untenable having regard to the relevant factual and legal constraints.

b. The party challenging the decision has the burden of showing that it is unreasonable. A court should not set aside a decision based on minor flaws or peripheral shortcomings. To justify a finding of unreasonableness, the flaws or shortcomings must be sufficiently central or significant to the merits of the decision.

c. The role of the court is to review the decision and not to decide the issue afresh. The focus of the reasonableness inquiry is therefore on the decision making process and the outcome.

d. It is not the role of a reviewing court to re-weigh the evidence and make factual findings. Absent exceptional circumstances, a reviewing court should not interfere with a tribunal’s factual findings

Analysis

[35] The applicant argues that the SAC’s decision is unreasonable because it failed to properly consider the respondent’s duty to accommodate him. In particular, he argues that the SAC failed to consider the test for the duty of accommodation to the point of undue hardship and failed to consider his evidence that he could be accommodated. The applicant also takes issue with the proceedings before the Professionalism Committee on the basis that the process followed by the Committee was confrontational and did not provide the accommodation he required for receiving negative feedback.

[36] Having regard to the SAC’s reasons for decision, the record before the SAC and the SAC’s own expertise, in my view the SAC’s decision was reasonable.

[37] While the applicant argues that the SAC failed to apply the test for accommodation to the point of undue hardship, it is evident that the SAC did apply the proper test. The SAC may not have fully articulated the test, but concerns over whether the applicant’s condition could be accommodated within the program are at the core of the SAC’s reasoning and conclusion. As reviewed above, in its analysis, the SAC identified the issue raised by the applicant as whether the Program was “now precluded from taking any of the measures outlined in the Professionalism Policy unless it had first accommodated Dr. Rengarajan to the point of undue hardship”. The SAC then went on to review the respondent’s position, which it described as a concern that if the applicant returned to work, he would pose a risk to “the health and safety of a vulnerable population” unless he had full-time supervision. The respondent’s position was that, because “there are few pediatric neurologists, full-time supervision would unduly limit patient access to proper treatment”. The SAC went on to accept the respondent’s position. Therefore, the SAC understood that the test it was to apply was accommodation to the point of undue hardship. In addition, it accepted the respondent’s argument that, in the circumstances of this case, accommodating the applicant would lead to undue hardship because it would pose a risk to the health and safety of vulnerable patients by either leaving them in the care of the applicant without supervision or by depriving them of the care of a pediatric neurologist tasked with devoting significant time to supervising the applicant. There is therefore no basis for the applicant’s argument that the SAC did not appreciate or apply the proper legal test.

[38] The applicant’s central complaint is that the SAC did not consider and accept his evidence that he could be accommodated without undue hardship. In this respect, he points to reports and evidence before the SAC that showed that, with proper measures in place, he could perform his work. In making this argument, his focus is on evidence that suggests that measures could be put in place regarding the manner in which he is supervised and the way in which feedback and criticism are provided. He argues that the SAC and the lower level decision makers failed to address the issue of whether these accommodations could be put in place without causing undue hardship.

[39] However, as pointed out by the respondent, the medical evidence also states clearly that there is a significant risk that the applicant’s unprofessional behaviour will recur and there is no suggestion that the proposed accommodations would reasonably avoid this risk. For example, in a report dated July 4, 2018, Dr. Joy Albuquerque states that she “believe[s] that Dr. Rengarajan continues to be at risk for repeating negative behaviours such as lying and trying to show off… Regardless of the significant progress he appears to have made, long-standing dysfunctional personality traits tend to manifest/recur in significant times of stress or criticism. It will be an ongoing struggle for Dr. Rengarajan to not regress to previous patters in times of upset or when coping resources are significantly limited…” Similarly, in a report dated September 3, 2019, Dr. Jean-René Trudel stated “there is a difficult to quantify risk that Dr. Rengarajan will return to his behaviour of misrepresenting the truth if he was placed under tremendous stress. I say this because people tend to revert back to past behaviors when they face very difficult situations.”

[40] In my view, based on the complete record of medical evidence, the SAC’s conclusion that the Program could not accommodate the applicant without undue hardship was reasonable. The SAC’s conclusion that the applicant would pose a risk to patients without significant ongoing supervision was supported by the evidence. Members of the Professionalism Committee and the FCAC have the expertise and knowledge to understand what is needed to mitigate against the risks posed by the applicant’s potential behaviours. The SAC members have academic expertise and it was reasonable for them to accept the views of the Faculty of Medicine decision-makers regarding what would need to be done to accommodate the applicant and whether this could be done without undue hardship.

[41] The applicant also argues that the SAC should have followed the decision of the Court of Appeal for Saskatchewan in Haghir. However, as reviewed above, the SAC did consider the decision and found that the circumstances of that case were different. I agree. In Haghir, the applicant was a neurology student who failed to disclose a prior criminal record for theft. There was medical evidence that the applicant’s criminal conduct was linked to a psychiatric condition. In that case, the Court of Appeal for Saskatchewan found that the disciplinary body’s decision terminating the applicant was unreasonable because the University had not considered whether the applicant could be accommodated without undue hardship. As held by the SAC, one of the key distinguishing points between Haghir and this case is that, in Haghir, the applicant’s behaviour did not pose a risk to the safety of patients. A propensity to shoplift or steal bears no relationship to the delivery of patient care. In this case, the SAC found that the applicant’s behaviour did pose such a risk, and on that basis decided that his medical condition could not be accommodated without undue hardship. The SAC’s conclusion that Haghir is distinguishable is reasonable and well supported by the circumstances of this case.

[42] Finally, as referred to above, the applicant argues that the SAC failed to consider that he had not been properly accommodated at the meeting before the Professionalism Committee and therefore findings based on his behaviour before the Professionalism Committee could not reasonably form the basis for his dismissal. However, the dismissal was not only based on the applicant’s behaviour during the meeting of the Professionalism Committee. It is evident that it is based on the applicant’s pattern of behaviour throughout his time as a resident. In addition, the applicant did not request any accommodation prior to the meeting of the Committee, and he even declined the opportunity to bring a support person. Finally, the hearings before the FCAC and the SAC were hearings de novo. The applicant was represented by counsel at both hearings and he was allowed to call additional evidence, including about his experience before the Professionalism Committee. In my view, for all these reasons, the manner in which the Professionalism Committee conducted its meeting does not render the SAC’s decision unreasonable.

[43] The applicant had a long history of problematic behaviour in the Program, including concerns that affected the health and safety of patients. The applicant provided a medical explanation for this behaviour and some suggestions for how his behaviours could be attenuated through accommodations, including in the way in which he received feedback. However, none of the medical evidence suggested that these accommodations would eliminate or even significantly reduce the risk that these behaviours would recur. In the circumstances, it was reasonable for the SAC to conclude that ongoing supervision was required to protect patients and that such an accommodation would cause undue hardship. In my view, the reasoning is logical and intelligible, and the outcome of the decision is reasonable having regard to the applicable law and factual record.

Conclusion

[44] For the reasons above, the application for judicial review is dismissed.

[45] As agreed between the parties, the respondent is entitled to $6,000 in costs all inclusive.

Favreau J.

I agree _______________________________

Swinton J.

I agree _______________________________

J.A. Ramsay J.

Released: January 13, 2022