Court File and Parties

Court File No.: CV-14-203-00 Date: 2019-02-06 Superior Court of Justice - Ontario

Re: Wajahat Khan, Plaintiff And: Queen's University, Defendant

Before: Mr. Justice Graeme Mew

Counsel: Sean Murtha for the Defendant (Moving Party) John Ryder-Burbidge and Laura Hohensee for the Plaintiff (Responding Party)

Heard: 18 January 2019, at Kingston

Endorsement

[1] It is now well established that if a party seeks to challenge in court an internal academic decision rendered by a university, the appropriate procedure is to apply for judicial review: Gauthier v. Saint-Germain, 2010 ONCA 654, at paras. 46-47. A party cannot avoid having to take the judicial review route by dressing up as a contract or tort claim what is, in pith and substance, a dispute concerning an academic decision: Aba-Alkhail v. University of Ottawa, 2013 ONSC 2127, at para. 43.

[2] Queen's University seeks to strike out the plaintiff's statement of claim on the basis that the plaintiff's route to relief should be pursued through an application for judicial review, rather than a civil action.

[3] The genesis of the claim made by the plaintiff in this action is an internal proceeding at the Queen's University School of Medicine concerning the plaintiff's academic status. At all material times, the plaintiff was a medical student. The proceeding arises not from concerns about the plaintiff's academic performance but, rather, from two alleged lapses of professionalism on the plaintiff's part. The first such lapse involved an email sent by the plaintiff to his classmates containing allegedly inappropriate language. The second incident arose from an allegation that the plaintiff failed to respond to a page from a senior resident who required the plaintiff to assist with a patient in the operating room.

[4] As pointed out in the amended statement of claim, the School of Medicine has a Student Professionalism Advisory Committee ("PAC"), with terms of reference which include reviewing and classifying incidents related to student professional behaviour as outlined in the Undergraduate Medical Education Student Professionalism Policy, and the determination of disciplinary consequences arising from such professional behavioural lapses. A reasonable inference to draw from the pleading is that professionalism, or lack thereof, is a factor which has the potential to influence whether a student successfully completes the requirements for graduation with a Medical Doctor degree.

[5] According to the amended statement of claim, the plaintiff, who is already a fully qualified dentist, has completed all of the academic requirements of the medical degree course and has also successfully completed his medical clerkship and passed the Medical Council of Canada Qualifying Examination Part 1, which assesses competency for entry of medical graduates into supervised clinical practice in postgraduate training programmes. He has not, however, as a result of the disciplinary proceedings taken against him, graduated from the School of Medicine or been able to take up his medical residency training, despite having been accepted for residency at the University of Toronto Family Medicine programme in 2013.

[6] On 11 August 2011, the plaintiff was informed that the PAC had determined that he had exhibited the above-noted "major" lapses of professional behaviour and that the information about these lapses would be forwarded to the Progress and Promotions Committee ("PPC"), which is responsible for reviewing and making recommendations and decisions concerning all matters relating to the progress, promotion and remediation of undergraduate students in the Medical Doctor programme.

[7] On 21 November 2011, the PPC informed the plaintiff that on the basis of the two lapses of professionalism as determined by the PAC, together with earlier violations of professionalism, the PPC had determined that the plaintiff was required to immediately withdraw from the Medical Doctor programme.

[8] The plaintiff appealed the PPC's decision. According to the amended statement of claim, following a meeting of the PPC on 6 February 2012, the PPC amended its decision requiring the plaintiff to withdraw from the Medical Doctor programme. Because the PPC found that the plaintiff had failed to demonstrate competency in professionalism, he was instead required to participate in a one year professionalism remediation programme, which would involve a combination of community service and coursework, prior to graduating. The plaintiff pleads that he was told that if he successfully completed all of the requirements of the remediation programme, he would be eligible to receive his medical degree.

[9] After the PPC amended its original decision, the plaintiff asserts that he agreed to not continue with his appeal.

[10] On 29 May 2011, the PPC informed the plaintiff that it felt a programme external to the School of Medicine would be in the plaintiff's best interests. The plaintiff was asked to participate in a "Physician Workplace Support Program" ("PWSP") of the Ontario Medical Association ("OMA") and to consent to a PWSP preliminary assessment. The plaintiff agreed to these requests.

[11] The PWSP preliminary assessment report concluded that the plaintiff presented an extensive and chronic history of disruptive behaviour in multiple settings and workplaces. It recommended that the plaintiff complete a comprehensive assessment which would include, among other things, a psychiatric and neuropsychological evaluation and a psychosocial evaluation including an interview with the plaintiff's spouse. The PWSP report expressly stated that the PWSP was not in a position to design or offer a formal academic remediation programme in professionalism.

[12] The PPC apparently accepted the PWSP preliminary report and endorsed the requirement that the plaintiff complete the PWSP comprehensive assessment. The PPC informed the plaintiff that he would also be required to complete courses in crucial conversations and confrontations, that third-party evaluators would complete many of the evaluations that had been identified, and that the costs of such evaluations would be the responsibility of the plaintiff.

[13] By seeking to impose a comprehensive assessment programme on the plaintiff, rather than the one year professionalism remediation programme contemplated in the amended decision of the PPC in which the plaintiff had agreed to participate, the plaintiff alleges that the PPC exceeded its jurisdiction and breached its contract with him.

[14] The plaintiff did then unsuccessfully appeal from the amended decision of the PPC through two levels of internal appeals at Queen's University. By 23 June 2015, the plaintiff had exhausted the internal remedies available to him.

[15] From the plaintiff's perspective, things then got worse because the OMA discontinued the PSWP programme and replaced it with a new Physician Health Program ("PHP"). The PHP is described as serving "the needs of physicians and veterinarians at risk of or suffering from substance use disorders and psychiatric disorders through prompt intervention, referral to treatment, monitoring, and advocacy". The mandate of the PHP is "to educate and promote the biological, psychological, social and spiritual health of physicians and veterinarians generally and especially for those who are at risk of substance use disorders or psychiatric disorders".

[16] On 9 November 2015, the plaintiff alleges that he was directed by the chair of the PPC to participate in a comprehensive assessment overseen by the new PHP and to complete two courses in professionalism by 30 April 2017. No argument was advanced by counsel that this should be regarded as a further decision, reviewable by another round of appeals.

[17] The plaintiff pleads in his amended statement of claim that the University is well aware that the PHP programme is not a professional remediation programme. He alleges that the University has never explained why it now insists that he undertake, at his own expense, a comprehensive psychiatric and psychological assessment notwithstanding that the University has never formally asserted that the plaintiff's alleged lapses of professionalism arise from psychological or psychiatric failings, disorders, or related issues.

[18] The core issue on this motion is whether, to adopt the words of Dunphy J. in Tran v. University of Western Ontario, 2016 ONSC 1781, at para. 81, "the pith and substance of the complaint is academic decision", in which case, as already noted, the claim cannot proceed in the civil court system.

[19] The rationale for protecting the exercise of academic discretion from civil suit is explained by Dunphy J. at para. 80 of his decision in Tran:

Universities fulfill a number of functions. Two prime functions of a university include providing a community to foster and advance academic research and the instruction of students. These two functions create numerous opportunities for conflict to emerge. Academic freedom to pursue research does not always co-habit happily with the demands for instruction and evaluation of students. Some students seek no more than to pursue knowledge for its own sake, others to put in place the building blocks of a career. While universities are not as such immune from civil suit, it is also true that the civil court system is singularly ill-suited to act as an all-purpose appellate tribunal of its actions.

[20] Just as a decision which arises from the exercise of academic discretion within a university cannot be made actionable by the unwarranted pleading of tort or contract claims, labelling a decision "academic discretion" will not operate as (to once again quote Dunphy J.) "a simplistic guillotine to chop off any cause of action, whether in tort or in contract, that might seem somehow related to the world of academe": Tran, para. 82. There is, as Dunphy J. explains, a continuum on which "academic" decisions are placed:

Some [decisions], such as what students to admit or what grade to give a particular paper, for example, will clearly fall outside of the realm of actionable decisions. Others may be closer to the line and must be examined.

[21] The defendant places great stock in the relief sought by the plaintiff in his amended statement of claim, which, it argues, seeks relief substantially in the nature of judicial review including what, in prerogative remedies terms, would be described as writs of certiorari, prohibition and mandamus. The prayer for relief includes the following:

a) an Order quashing the decision of the Progress and Promotions Committee of the Queen's University School of Medicine requiring the Plaintiff Wajahat Khan to complete a comprehensive assessment administered by the Physician Workplace Support Program of the Ontario Medical Association;

b) an Order quashing the decision of the Progress and Promotions Committee of the Queen's University School of Medicine requiring the Plaintiff Wajahat Khan to withdraw from the defendant's Medical Doctor program;

c) an Order directing the Defendant to grant the Plaintiff his Medical Doctor degree; and

d) damages in the amount of $20 million for the Plaintiff's loss of potential income, damage to the Plaintiff's reputation, and mental and emotional distress.

[22] The plaintiff argues that the essence of the relief sought by him includes findings that the defendant breached the agreement which was made following the amended decision of the PPC in February 2012 and that the requirement that he participate in the PWSP (and now the PHP) exceeds the defendant's jurisdiction. He characterises the request for an order directing the defendant to grant him his medical degree as a claim for specific performance. Furthermore, a claim for damages is not a remedy that lies in the gift of the Divisional Court on an application for judicial review: Seaway Trust Co. v. Ontario (1983), 1983 CanLII 1749 (ON CA), 41 O.R. (2d) 532, 146 D.L.R. (3d) 620, 37 C.P.C. 8 (C.A.).

[23] The defendant counters that even if the court was to accept the plaintiff's arguments about the nature of the relief sought by him, the amended statement of claim does not adequately plead the elements of breach of contract or negligent infliction of economic and emotional harm. Indeed, the defendant challenges whether, even giving the amended statement of claim a liberal and generous reading, the constituent elements of these causes of action can be distilled from the plaintiff's lengthy and evidence-filled pleading. Pleading damages will not transform what should otherwise be a dispute to be resolved by judicial review into a viable action. As Beaudoin J. noted in Said v. University of Ottawa, 2013 ONSC 7186, at para. 31:

… the Court of Appeal has affirmed that a civil claim can be barred if it is an attempt to re-litigate issues that were decided or could have been decided in the regulatory process, even if the plaintiff could not have obtained a damages award through these other proceedings.

[24] On a motion by a defendant to under rule 21.01(1)(b) for an order striking out all or part of a statement of claim, the court is required to determine whether, assuming the plaintiff can prove the allegations pleaded by him, he has established a cause or causes of action entitling him to relief from the court. No evidence is adduced on the motion. Rather, the test for determining whether the pleading should be struck is whether it is plain and obvious, on the basis of the pleaded facts, that no reasonable cause of action is disclosed. It follows that the pleading should not be struck if there is a chance that the plaintiff may succeed: see generally, Hunt v. Carey Canada Inc., [1990] S.C.R. 959.

[25] Nor should motions attacking pleadings be approached in an overly technical manner. The claim must be read as generously as possible.

[26] Appreciating that current counsel for the plaintiff was not the lawyer who drafted the original statement of claim, I feel bound to observe that the pleading is far from being a document which clearly defines the questions in dispute between the parties or which gives fair notice of the case which the defendant is required to meet and the precise remedies sought by the plaintiff.

[27] Nevertheless, the infelicities of the pleading notwithstanding, it is not plain and obvious to me that the dispute between the parties or the relief sought by the plaintiff is confined to matters that are academic in nature. Rather, this is a case that falls near the line.

[28] In Al-Bakkal v. de Vries, 2016 MBQB 45, the court observed, at para. 94, that:

… in some increasingly rare cases, the question as to whether the dispute is essentially an academic matter may be much more subtle than in others. In those rare cases, courts will continue to grapple with blurred and ambiguous lines. In most cases, however, the academic nature and character of a dispute will be more obvious. In those more obvious cases, given the increasing force and clarity of the governing jurisprudence, courts – in the spirit of proportionality – should be quick to reaffirm, in the clearest of ways, the parameters that identify and separate that which is academic and which properly belongs (and should remain) within the university's internal appeal processes. Failure to do so will not only perpetuate a needless uncertainty and confusion, but as well, may indulge and potentially encourage civil actions that are about matters which are manifestly "academic" in nature and perhaps even frivolous in character. In an era when the concept of "proportionality" looms large in our search to maximize an overall access to justice, an already overloaded civil legal system will not be well served by the resulting and unnecessary costs, delays and complexities that attach to claims that ought not even to have been brought in a civil court.

[29] Clearly, the dispute has its genesis in an academic decision. Although the PPC's finding of a lack of professionalism on the part of the plaintiff necessarily encompass matters that might also be characterised as disciplinary, the pith and substance of the original controversy is whether the plaintiff, as a consequence of his conduct, possesses the necessary qualities of professionalism required of any student wishing to graduate from the Medical Doctor programme.

[30] If the plaintiff's action could be characterised as solely or even primarily a challenge to the amended decision of the PPC, which required the plaintiff to participate in a one year professionalism remediation programme involving a combination of community service and coursework prior to graduating, it would clearly relate to an academic decision and the only remedy would be judicial review.

[31] Similarly, if the plaintiff sought, through this action, to challenge the subsequent decisions made by the internal appeal panels of the University, his route would be judicial review.

[32] But that is not what his claim purports to do, when read as a whole.

[33] What the plaintiff pleads in his amended statement of claim is that following the amended decision of the PPC, he dropped the appeal that he had commenced against the PPC's original decision and then acceded to a request by the PPC to undergo a preliminary assessment as part of the PWSP programme delivered by the OMA. He argues that he did not have to do that and that, fairly viewed, it can be seen from the facts pleaded that he entered into a form of settlement agreement with the School of Medicine to give effect to its requirement that he undertake a one year professionalism remediation programme.

[34] A settlement agreement is, of course, a binding contract. Having undergone the PWSP preliminary assessment, the plaintiff pleads that the subsequent demand of the defendant - seeking to have him undergo a comprehensive assessment of indefinite duration - went well beyond what he had agreed to and, indeed, was far in excess of the one year professionalism remediation programme that the PPC had decided he needed to complete before being eligible to graduate. In other words, the plaintiff says that the defendant "moved the goalposts" and, thus, breached its agreement.

[35] When the plaintiff declined to agree to undergo the further comprehensive assessment, he revived his internal appeal. The statement of claim does not disclose if the "implementation" issues formed part of the plaintiff's internal appeals. Although ultimately unsuccessful, meaning that the amended decision of the PPC requiring him to complete a one year professionalism remediation programme stands, he pleads that subsequent to the exhaustion of his internal remedies, the defendant has continued to act in bad faith by requiring him to instead participate in a comprehensive assessment overseen by the new PHP – which is administered by an external body, the OMA, for the purpose, as already noted, of serving "the needs of physicians and veterinarians at risk of or suffering from substance use disorders and psychiatric disorders through prompt intervention, referral to treatment, monitoring and advocacy" – and to complete two courses in professionalism. As the plaintiff pleads, the defendant knows that the PHP programme is not a professional remediation programme.

[36] Furthermore, if, as alleged, the plaintiff was directed to undergo the PHP programme after he had exhausted his internal appeals, then an obvious question is what other remedy does he have?

[37] In my view, it would be open to the court to view much of what is pleaded in the statement of claim as a dispute arising not so much from the defendant's academic decision itself as from the manner in which the defendant has sought to comply with or enforce that decision, including conduct that the plaintiff says breaches an agreement he and the defendant had entered into. Without predetermining what a court might ultimately do, I cannot at this stage rule out the possibility that, based on the facts as pleaded, it might find that following the amended decision of the PPC, and having regard to the subsequent conduct of the parties, a line was crossed between, on the one hand, implementing the academic decision by the defendant and, on the other hand, making and then breaching an agreement between the parties subsequent to that decision about how to give effect to it.

[38] Such a finding, if made, could take the dispute between the parties beyond the realm of purely academic and into the territory of private law obligations and remedies.

[39] For these reasons, I decline to strike out the plaintiff's statement of claim.

[40] I would add the following observations. First, there is merit to the defendant's protest that the amended statement of claim does not clearly articulate the causes of action asserted by him against the defendant, the alleged breaches of those obligations, and the remedies sought as a result. While I am satisfied that buried away in the surplusage of the plaintiff's pleading, sufficient elements of a viable pleaded claim can be found to survive the defendant's motion to strike, the parties should consider whether, as this action moves forward, it would be appropriate to clean the pleading up and present a more focused and better articulated claim.

[41] Second, the plaintiff should reflect on the effect of my finding. It means that his action may proceed. It does not mean that the court will ultimately find that the evidence supports the allegations he has pleaded. It would still be open to the court on a full record to conclude that judicial review is the appropriate remedy.

[42] This is, accordingly, a case that cries out for a negotiated outcome. Too much time has already gone by since this dispute arose.

[43] If counsel are unable to agree on costs of the motion, I direct as follows:

a) the plaintiff should serve a costs summary on the defendant, accompanied by written submissions on the quantum and scale of costs within 14 days of the release of these reasons;

b) the defendant should serve its response on the plaintiff within 7 days thereafter;

c) the plaintiff should serve his reply, if any, within 7 days thereafter;

d) in all cases, the written submissions should be limited to 3 pages, plus costs summaries; and

e) the defendant is invited to submit the bill of costs it would have presented to the court had it been successful on the motion.

[44] I would ask counsel for the plaintiff to collect copies of all of the parties' costs submissions and arrange to have the package delivered to me care of the Trial Co-ordinator in Kingston as soon as the final exchange of materials has been completed. For the avoidance of doubt, no further materials should be filed individually; rather, counsel for the plaintiff should assemble a single package for delivery as described above.

Graeme Mew J.

Date: 6 February 2019