Citation: 2005 SKQB 372 IN THE MATTER OF THE UNIVERSITY OF SASKATCHEWAN ACT, 1995, S.S. 1995, c. U‑6.1 AND IN THE MATTER OF THE APPLICATION TO THE VISITOR OF THE UNIVERSITY OF SASKATCHEWAN BETWEEN: DR. CHARLES PEARLMAN, and THE COLLEGE OF MEDICINE OF THE UNIVERSITY OF SASKATCHEWAN and THE UNIVERSITY OF SASKATCHEWAN, Respondents Counsel: Brian J. Scherman, Q.C. for the applicant Catherine A. Sloan and Collin K. Hirschfeld for the respondents [1] Dr. Charles Pearlman was enrolled in the orthopedic surgery residency training program at the University of Saskatchewan (“University”) as of September 1997. He has been suspended from the program since approximately March 2000. Since then, there have been number of legal proceedings between Dr. Pearlman and the University, both internally and externally. In decision dated September 16, 2004, an appeal committee of the University recommended that Dr. Pearlman be allowed to resume his orthopedic residency training program on probationary terms. This decision has not yet been implemented. [2] At issue in this matter is a College of Medicine policy governing students who are funded by third party organizations or governments. Dr. Pearlman was such a student, and for reasons which will be outlined hereafter, his third party funding was depleted during the period of time he was suspended. The College of Medicine insists he must find a third party sponsor prior to being allowed to resume his program. [3] In letter dated May 2, 2005, Dr. Pearlman requested the Honourable Dr. Lynda Haverstock, Lieutenant Governor of Saskatchewan, to intervene in the matter between him and the University in her ex officio role as visitor of the University set out in s. of The University of Saskatchewan Act, 1995, S.S. 1995, c. U‑6.1, which states: “The Lieutenant Governor is the visitor of the university and may exercise the rights and shall perform the duties of the visitor.” Section 9(5) of The Queen’s Bench Act, 1998, S.S. 1998, c. Q‑1.01, states: “On the direction of the Lieutenant Governor in particular case, the court may exercise the jurisdiction and powers of the Lieutenant Governor as visitor.” The Honourable Dr. Lynda Haverstock has requested that a judge of the Court of Queen’s Bench perform her role as visitor in this matter. [4] hearing was held on July 21, 2005, at which the parties made submissions. There is no dispute on the facts. Both parties relied on the record developed in earlier proceedings. Background Facts [5] The College of Medicine each year offers certain number of postgraduate positions to students who are referred to as supernumerary residents. These are residents funded by third party organization or government, other than the Provincial Department of Health, which is the primary source of financing medical student training positions at the University. The College of Medicine has policies and procedures related to such supernumerary residents directed at ensuring that wealthy students simply not be permitted to “buy” their way into one of the training programs. The policy states as follows: (i) All trainees must be funded by sources approved by the Postgraduate Medical Education Committee. Funding for supernumerary positions will be acceptable from: (a) Federal and Provincial Government Agencies (b) Foreign Government Agencies (i.e. Libya, Saudi Arabia) (c) Boards of corporations, hospitals or foundations. Note: Religious and ethnic organizations will NOT be considered and funding for supernumerary positions must be received at arms’ length in relationship to the trainee. The terms and conditions of employment for residents in supernumerary positions are set out as follows: (iii) The terms and conditions of employment for residents in supernumerary positions shall be in compliance with the collective agreement between the University of Saskatchewan and the Professional Association of Internes and Residents. With respect to Article 7.1 (Scales or Remuneration), it shall be used only as guideline when the funding source is government agency who pays the trainee directly. All other externally funded trainees will be set up on the University of Saskatchewan payroll system and will be remunerated at the same level as Clinical Services Fund (Provincial Department of Health) positions. It will be observed from the foregoing that all supernumerary residents must, according to the collective agreement in place between the University and the Professional Association of Internes and Residents of Saskatchewan (“PAIRS”), be funded at the level contemplated by the University‑PAIRS collective agreement unless the funding source is government agency who pays the trainee directly. The evidence of the College of Medicine is that supernumerary trainee has never been permitted to continue training without third party funding, and resident’s training is terminated immediately if the external funding agency withdraws financial support. [6] Dr. Pearlman was supernumerary resident funded by the Crohn’s and Colitis Foundation of America. In August 1997, the foundation forwarded to the College of Medicine the sum of $250,671.46 to cover the costs of Dr. Pearlman’s four‑year orthopedic residency program. This amount covered the anticipated salary and fringe benefits that would be payable to Dr. Pearlman pursuant to the collective agreement with PAIRS, as well as tuition fees, administration fees, and insurance fees. [7] Dr. Pearlman successfully completed his initial two‑year core surgery rotation. In October 1999, he was graded as failing his July to September rotation in adult spine and joint reconstruction. On October 15, 1999, he was placed on probation for six‑month period. In late 1999, an investigation committee was convened to examine the appropriateness of the decision to place him on probation. Prior to this committee rendering decision on the matter, the training committee determined on March 3, 2000, he had not successfully completed his probationary period and dismissed him. This dismissal was grieved by PAIRS on the ground, among others, that Dr. Pearlman had been denied due process, as the investigation committee had not concluded its investigation at the time of his dismissal, and he had not been provided an opportunity to respond to his suspension. In letter dated April 19, 2000, the Associate Vice‑President (Human Resources) of the University agreed with PAIRS that Dr. Pearlman should not have been dismissed prior to an investigation into the matters that led to him being placed on probation to begin with and concluded, “Therefore am recommending to the College that Dr. Pearlman’s status be changed to suspension with pay, pending the completion of the Investigative Committee reviews.” [8] From the time Dr. Pearlman was suspended with pay, the University continued to pay him his salary as called for by the collective agreement and continued to deduct all other fees, including tuition fees, administration fees and insurance fees, with the result that by July 30, 2002, his third party funding had been depleted. The fees deducted from March 2000 through to the depletion of the fund related to these fees approximate $19,000 in tuition fees, $4,200 in administration fees and $1,500 in insurance fees. [9] From approximately April 2000 to December 2000, Dr. Pearlman and the College of Medicine engaged in discussions, and attempts were made to transfer his training program to another medical school without success. The investigation committee which had been struck to investigate Dr. Pearlman’s initial placement on probation convened on March 22, 2001. At this meeting, Dr. Pearlman’s counsel raised the issue of apprehension of bias with respect to several of the committee members. The committee adjourned to consider these representations. On August 22, 2001, the committee advised it intended to proceed with its original membership. Dr. Pearlman then sought judicial review in the Court of Queen’s Bench in which he requested that his suspension be rescinded on various grounds or, in the alternative, the removal of at least two of the members of the committee. In decision dated January 7, 2002, the Court dismissed the application to quash the suspension proceedings, but agreed that one member of the committee should be removed on the basis of apprehension of bias. Dr. Pearlman appealed the refusal to quash proceedings to the Court of Appeal who upheld the trial judge in judgment dated June 5, 2002. [10] In the month of August 2002, counsel for Dr. Pearlman began pressing for date for the investigation committee hearing. As result of scheduling problems, the committee did not meet until February 5, 2003. The hearing lasted three days. On September 16, 2003, the investigation committee prepared report and presented it to the Associate Dean of Postgraduate Medical Education for review. On January 20, 2004, the acting Assistant Dean concluded with respect to the investigation committee report: ... In light of the fact that the Investigative Committee was not unanimous, but split between the two avenues of immediate termination and probation on strict conditions, in accordance with the Regulations, will adopt the least severe recommendation. Therefore, in accordance with this finding, you should have been placed on strict probation at the end of September 1999 and, given that you were actually on probation at that time, another Investigative Committee will be struck to deal with complaints which arose against you during this probationary period. ... The Regulations prescribe that you are entitled to appeal the above finding to an Appeal Committee, and to do so, you must submit written notice of appeal to me within fifteen (15) calendar days.... [11] In February 2004, Dr. Pearlman appealed the acting Dean’s decision to the University’s appeal committee, and also brought an application in the Court of Queen’s Bench seeking to quash his probation, and prohibiting further proceedings against him on the basis of delay. On May 5, 2004, judge of the Court of Queen’s Bench dismissed the delay application but allowed Dr. Pearlman to renew the application if academic appeals were not completed by October 1, 2004. [12] The appeal committee completed its deliberations and rendered decision dated September 16, 2004. The appeal committee upheld the decision to place Dr. Pearlman on strict probation and lifted his suspension. The orthopedic residency training committee did not agree with the decision of the appeal committee and asked for review by the Vice Dean of the College of Medicine. On September 27, 2004, the Vice Dean confirmed the appeal committee’s decision. In doing so, he stated: have been asked to review the report of the Dr. Charles Pearlman, Appeal Committee (September 2004). This has been done in my role as the Vice Dean, College of Medicine. The recommendations of the Appeal Committee were discussed by the Orthopedic Resident Program Committee on September 24, 2004 and in letter dated September 24, 2004 to Dr. Sheila Rutledge Harding, Dr. Dust, Program Director, indicated that the Committee did not support the recommendations of the Appeal Committee. In addition, it was the contention of the Residency Training Committee that Dr. Pearlman had already served the probationary period and had failed that. Since the Residency Training Committee’s response did not agree with the Appeals Committee recommendation this matter has been referred to the Dean of Medicine as per the College of Medicine’s rules and regulations for appeal. As Dr. Albritton is also the Acting Department Chair for Surgery, this decision was referred to me as the Vice Dean. ... As the Vice Dean of Medicine, and on behalf of the College of Medicine, this report has been reviewed, in view of the letter received from the Residency Training Program in Orthopedic Surgery. am in agreement with the conclusions of the Appeal Committee report. Considering that the Investigative Committee Report was not received until September 16, 2003, am not in agreement with the opinion of the Orthopedic Surgery Residency Training Committee that probation had already occurred. recommend that the decision of the Appeal Committee be forwarded to Dr. Pearlman and that Dr. Pearlman be notified of his options for further appeal to the University of Saskatchewan. Mechanisms of implementation of the Appeal Committee’s recommendation would be determined by the Associate Dean, Medical Education. This would require direction from the Assistant Dean, Postgraduate Medical Education and the Chair, Department of Surgery in collaboration with the Division of Orthopedic Surgery. Finally, would recommend that this probationary period be expected to begin within one year from the receipt of this report (October 1, 2005).... [13] The Crohn’s and Colitis Foundation has advised the University that it will not fund Dr. Pearlman any further. Dr. Pearlman is not able to obtain other third party funding. Position of the Parties [14] The University takes the position that in order for Dr. Pearlman to return to the orthopedic residency program, he must acquire third party funding for the two years remaining in the program. Its submissions include the following: 1. To allow Dr. Pearlman to continue without first obtaining external funding is clear violation of the University’s funding policy regarding supernumerary residents. 2. The University would be committing violations under The Labour Standards Act, R.S.S. 1978, c. L‑1, and breaching provisions of the collective bargaining agreement between it and PAIRS if it allowed Dr. Pearlman to work without receiving salary, and furthermore, PAIRS is not in position to waive the provisions of the collective bargaining agreement because it cannot unilaterally change the terms of the agreement. 3. Immigration Canada requires the University to certify that foreign worker has employment in order that he not become burden on the Canadian social welfare system. If it does not pay Dr. Pearlman and he has no other source of funding, the University cannot so certify. 4. Dr. Pearlman should not have accepted the continuation of his salary during the period of his suspension. [15] Dr. Pearlman’s position is that allowing him to resume his training program does not threaten the University’s policy of insisting on third party funding before doctor is allowed to enroll in resident training program, and that his return will not cost the University any money. His position includes: 1. He is not self‑funding but has simply prepaid his tuition and been prepaid his salary. If there is any top up in tuition fees required to what has already been paid, he will pay these personally. 2. The supernumerary resident policy is not threatened because he was only admitted to the program after complying with it. 3. That the collective bargaining agreement required him to be paid while on suspension pending further investigative review by the College of Medicine is unique systemic factor, which is not of his making, and he should not be required to bear the consequences of it. 4. The University must respect its internal appeal procedures and find way to implement the decision of its appeal committee. [16] PAIRS was granted status to appear at the hearing and did so. PAIRS supports the position of Dr. Pearlman. In letter dated July 5, 2005, PAIRS states in part: ... [W]e have considered and fully support Dr. Pearlman’s request that we assist in his expeditious return to the program, by waiving the requirement that he be paid salary under the terms of the Collective Agreement. We would be prepared to enter into an agreement with the College of Medicine, University of Saskatchewan, that in this particular unique circumstance we will waive the requirement that he be paid salary under the terms of the collective agreement. It would be made clear that this waiver applies only to Dr. Pearlman and will in no way impact upon the University’s obligation to pay salary to all other residents under the terms of the Collective Agreement now and in the future. Jurisdiction [17] The College of Medicine raised as an issue that Dr. Pearlman had not yet exhausted his appeals within the internal laws of the University, and specifically to the Council of Student Appeals and Academic Matters, and suggested the applicant was premature in applying to the visitor with respect to this matter. Counsel for Dr. Pearlman points out that Dr. Pearlman was satisfied with the appeal committee decision and had no reason to appeal further. do not intend to comment on this jurisdictional argument in my role as visitor, as am of the opinion that such an issue is properly matter for the courts. am also of the view that if visitatorial jurisdiction is going to be challenged by party, it should be done before the visitor convenes the hearing for review of the matter on the merits. [18] The parties are largely agreed the visitor has exclusive jurisdiction to determine disputes which are governed by the internal law, policies, and procedures of the University. Neither party disagrees with the statement by the Honourable Sylvia Fedoruk in her role as visitor in an earlier decision where she succinctly summed up visitor’s jurisdiction as follows: believe that my responsibility as visitor is to interpret and apply the internal and domestic rules or laws of the university and to ascertain that these rules or laws have been properly and fairly applied. What is not agreed upon is the scope of the jurisdiction to assess if the internal laws have been “properly and fairly applied.” In particular, does it involve pro forma procedural review only, or does the jurisdiction include the right to review the discretion exercised by administration in applying the policies and procedures? [19] Dr. J.W. Bridge, in an article entitled “Keeping Peace in the Universities: The Role of the Visitor” (1970) 86 Law Q. Rev. 531, after reviewing the history of the role of visitor, concludes at page 550: It is, of course, essential that the exercise of this domestic jurisdiction should appear just and reasonable to those who are subject to it and it must also satisfy those standards which are regarded as fundamental in the administration of justice in every sphere. It is important for the safeguarding of justice and reasonableness of that jurisdiction and the maintenance of those standards that appeals machinery should be available. That machinery, it is submitted, should be provided by the visitatorial jurisdiction rather than by the courts.... [Emphasis added.] At page 551: It is not of course suggested that visitatorial jurisdiction is the cure for all the internal ills of the universities. But it is suggested that the visitor can still be accepted in his traditional role as both safeguard against the indiscriminate use of authority and as guardian of the liberal and humane values professed and practised by universities. [Emphasis added.] [20] The House of Lords, in Thomas v. University of Bradford, [1987] All E.R. 834, considered the scope of general visitor’s jurisdiction and confirmed the exclusivity of the jurisdiction. In doing so, Lord Griffiths noted at page 839: My Lords in my opinion the exclusivity of the jurisdiction of the visitor is in English law beyond doubt and established by an unbroken line of authority spanning the last three centuries.... This aspect of the jurisdiction has been examined and expounded with clarity and learning in articles by Dr Bridge ‘Keeping Peace in the Universities: The Role of Visitor’ ... and Dr Peter Smith ‘The Exclusive Jurisdiction of the University Visitor’ (1981) 97 LQR 610, ‘Visitation of the Universities: Ghost from the Past’ (1986) 136 NLJ 484, 519, 567, and with their assistance, for which am indebted, select judicial statements which have over the years reiterated the principle that the courts of law will not trespass upon matters that lie within the jurisdiction of the visitor. With respect to the scope of the jurisdiction, Lord Griffiths noted at page 846: .. This will include not only the interpretation and enforcement of the laws themselves but those internal powers and discretions that derive from the internal laws such as the discretion necessarily bestowed on those in authority in the exercise of their disciplinary functions over members of the foundation.... [Emphasis added.] From the foregoing quotations of Lord Griffiths, it will be observed that he implicitly endorsed Dr. Bridge’s observation that the exercise of domestic jurisdiction should appear just and reasonable to those who are subject to it, and explicitly stated that visitatorial jurisdiction included the right to review the exercise of “those internal powers and discretions that derive from the internal laws.” [21] number of cases have discussed the scope of visitatorial jurisdiction in the context of whether it is supervisory one only, is an appellate one, or is sui generis, meaning it does not fall neatly into other established legal categories of review jurisdiction. From the tenor of Lord Griffiths’ remarks, conclude that he was specifically endorsing the sui generis nature of visitatorial jurisdiction. Lord Griffiths confirmed that visitatorial jurisdiction includes the right to determine if the internal laws of the university were fairly administered. Jurisdiction to determine fairness of administration goes beyond traditional legal supervisory or appellate jurisdiction. The fact that visitatorial jurisdiction is itself subject to supervisory, as opposed to appellate, review by the courts (Lord Griffiths at page 849) suggests that the jurisdiction is more original than traditional supervisory or appellate jurisdiction. [22] The House of Lords, in Thomas v. University of Bradford, supra, also concluded that inherent in the exclusive jurisdiction afforded the visitor is the right to fashion an appropriate remedy. At page 849, Lord Griffiths stated: .. can see no reason why the visitor as judge of the laws of the foundation should not have the power to right wrong done to member or office holder in the foundation by the misapplication of those laws. The visitor would be poor sort of judge if he did not possess such powers. Suppose, first, case in which on appeal the visitor concluded that there had been no ‘good cause’ for the dismissal of member of the academic staff and ordered the reinstatement of the member; cannot entertain doubt that the visitor would have power to order payment of arrears of salary between the date of dismissal and reinstatement.... In the same case, Lord Ackner stated at page 852: As regards the visitor’s jurisdiction to award ‘damages’ see no practical problem. The visitor in the course of his supervisory jurisdiction must be entitled, in order to ensure that the domestic law is properly applied, to redress any grievance that has resulted from the misapplication of that domestic law. Such redress may involve ordering the payment of arrears of salary ... or compensation.... [23] In the end result, conclude, as suggested by Dr. Bridge in his article, supra, that general visitatorial jurisdiction extends not only to judging that the university satisfy standards which are fundamental to the administration of justice in every sphere, but also to assessing the objective reasonableness of the exercise of discretion by those persons charged with administering the internal laws and policies of the university on the facts of any matter. If decision is objectively reasonable, it can be said that the test of fair administration will also be met. [24] The merit of Dr. Pearlman’s application falls to be determined on whether it is reasonable for the College of Medicine to insist on his obtaining new third party funding before he will be permitted to resume his residency program. The College considers this condition necessary to maintain the integrity of its supernumerary resident policy, and to avoid what it perceives to be potential problems with other government agencies, and potential financial implications for itself, if it should make an exception. In determining whether the College’s position is reasonable, it is necessary to consider both the context in which the question arises, and the object and purpose of the policy. (i) Context [25] The context in which the question of reasonableness arises is lengthy (now five years) internal review and appeal process set in motion when Dr. Pearlman was first placed on probation, then terminated, then suspended with pay, that ended with an appeal committee decision confirmed by the Vice Dean of the College of Medicine that he be allowed to return to the residency program on strict probationary terms. Compliance with the supernumerary resident policy was not part of the terms of the probation, and from what can be discerned from the materials, was not in the minds of anyone involved in the process over the five years. Dr. Pearlman is one of very few medical residents admitted to the College of Medicine each year to whom the policy applies. With respect to most of the residents, who are provincially funded, the appeal committee decision would already be implemented. The context thus includes considerations for the integrity of the appeal process adopted by the College of Medicine, and the rule of law which would normally mandate the College of Medicine abide by the results of its own appeal process. [26] The context also includes the fact that Dr. Pearlman did not request that he be paid during his suspension. PAIRS grieved his termination, and the College of Medicine volunteered to suspend him with pay (which turned out to be tuition fees, administration fees and insurance fees on the interpretation of the College of Medicine) to which PAIRS agreed. To the extent the College now advances the argument that Dr. Pearlman should have refused to be paid his salary during this period is somewhat anomalous, bearing in mind it was the College’s suggestion that this should occur. This position also ignores the fact that PAIRS had right to grieve on Dr. Pearlman’s behalf, and it was not time one would expect Dr. Pearlman to openly defy his union. The fact is that systemic forces were at work beyond the control of Dr. Pearlman. [27] The fact that Dr. Pearlman’s funding had been prepaid allowed for the suspension with pay which occurred. Funding on an annual basis would have obviated the problem which has arisen in this matter. It is not clear whether the funding agency had any say in the College of Medicine’s decision to suspend Dr. Pearlman with pay. [28] The College of Medicine inferentially is critical of the fact that Dr. Pearlman chose to have resort to the courts on two occasions. However, Dr. Pearlman had some success each time. In the one case, member of the investigation committee was removed. In the second case, time limit was set for conclusion of the appeal proceedings. The College of Medicine was also going through learning process in its handling of Dr. Pearlman’s case. (ii) Policy [29] The College of Medicine states the object and purpose of its supernumerary resident policy is to ensure that wealthy qualified candidates cannot buy their way into the College of Medicine and thereby displace candidates who are equally qualified. This object and purpose was met by Dr. Pearlman at the time he was accepted as resident and continued up to the time of his suspension and, but for his suspension with pay, would have funded his education through to its conclusion. As result, it is difficult to accept the College of Medicine’s concern that creating an exception in this case would somehow affect the integrity of the policy. The College of Medicine remains at liberty to apply the policy as it has in the past. If an exception is made to the policy based on the unique facts in this matter, this would not have precedential value that could affect the integrity of the policy in the future. The facts are unlikely to be repeated again in anything like the near future. am of the view the College of Medicine’s position that any exception to the policy would affect the integrity of the policy in the future does not result from an objectively reasonable analysis of the implications of such an exception. [30] The College of Medicine’s secondary concerns for not considering an exception to the policy on the facts in this matter are identified as concerns for possible breaches of provincial labour standard laws, or the PAIRS agreement, or Immigration Canada requirements. Raising these issues as an impediment to implementation of the appeal committee decision reflects an extreme level of self‑interest on the part of the College of Medicine, without any recognition for the interests of Dr. Pearlman who had no control over the College’s decision, which was agreed to by PAIRS, to suspend him with pay, or for the integrity of its own appeal processes, the result of which the rule of law would suggest should be implemented. Unfortunately, these concerns leave the appearance of being advanced as rearguard action to avoid implementation of the appeal committee decision, when one would expect the College of Medicine, as part of university that espouses liberal and humane values, would be looking for ways to implement the appeal committee decision rather than looking for reasons not to do so. The foregoing is stated because the concerns raised are extremely theoretical based on the fact solution has been offered by Dr. Pearlman and PAIRS. [31] Dr. Pearlman was paid for period in excess of two years while he performed no services whatsoever. Dr. Pearlman is prepared to sign an agreement that he has been prepaid for the services he will perform for the College of Medicine for the balance of his residency program. The Labour Standards Act, supra, does not prohibit the prepayment of wages. No evidence was offered on why such an agreement would offend the legislation. Such an agreement would not be device to circumvent labour standards legislation, but would be offered solely to provide comfort to the College of Medicine that Dr. Pearlman would not become financial burden to it. [32] With respect to the PAIRS agreement, PAIRS, as the certified bargaining agent for medical residents, has the right to waive particular provisions of the collective agreement as they apply to Dr. Pearlman in the interests of resolving grievance initiated by it pursuant to the collective agreement. PAIRS has the concurrence of Dr. Pearlman for this waiver, and it is offering the same in an attempt to arrive at solution to the unique set of facts that were generated in this matter. PAIRS, through the letter filed in these proceedings and through the representations of its counsel, is prepared to enter into an agreement waiving, with respect to Dr. Pearlman, the financial provisions of the collective agreement to which he might otherwise claim entitlement. [33] With respect to the Immigration Canada concern, normally medical residents, because they are being paid, apply for work visa as opposed to student visa. Dr. Pearlman will require visa to re‑enter Canada to continue his medical residency program. The College of Medicine’s position is that it will not confirm Dr. Pearlman has job to Immigration Canada if he should apply for work visa because it does not believe he has job if it is not paying him, and he could become burden on the social welfare system of the country. The short answer is that this concern is not the College of Medicine’s problem at all. As Dr. Pearlman’s counsel has pointed out, Dr. Pearlman will apply for form of visa, whether work visa or student visa, and explain the facts to Immigration Canada. Immigration Canada will make its normal inquiries and arrive at decision. If Immigration Canada requires proof of financial independence on the part of Dr. Pearlman prior to issuing visa, it is within its right to do so. The only obligation on the College of Medicine is to cooperate in confirming, if requested, those facts it knows to be true. [34] The fears expressed by the College of Medicine about incurring potential liability to pay Dr. Pearlman if it should allow him to resume his residency program without third party funding, which it states persist despite the foregoing the agreement offered by Dr. Pearlman and PAIRS, are not rationale fears based on any objective assessment. The fears are not based on likelihood, or even on reasonable probability, but on remote possibility. As such, they do not offer an objectively reasonable basis for insisting that Dr. Pearlman obtain third party funding as condition precedent to resuming his residency program. Conclusion [35] I find that the College of Medicine has not been objectively reasonable in the exercise of its discretion to insist that the appeal committee decision will not be implemented until such time as Dr. Pearlman obtains third party funding. It follows that I also find it did not properly or fairly apply the third party funding policy on the facts in this matter. The result is that Dr. Pearlman is entitled to relief. [36] The relief consider appropriate in order to give effect to the appeal committee decision and which takes into account the respective concerns expressed in the foregoing is as follows: 1. That the appeal committee decision be implemented by the College of Medicine if the following conditions are satisfied:(a) That Dr. Pearlman enter into a written agreement with the College of Medicine in which he agrees:(i) That the money he was paid while on suspension is prepayment for all of the services he will perform for the College of Medicine in the remainder of his residency program;(ii) That he will not claim any salary or monetary benefits available to other medical residents pursuant to the PAIRS agreement; and(iii) That he will indemnify the College of Medicine if, for any reason, it is required to make payments to him pursuant to the PAIRS agreement, or otherwise, during the remainder of his residency program. (b) That PAIRS enters into a written agreement with the College of Medicine waiving the financial terms of the PAIRS agreement with respect of Dr. Pearlman for the duration of his residency program. 2. That Dr. Pearlman will be responsible personally for paying tuition fees, administration fees, insurance fees, and any other college fees payable by other medical residents, but he will be granted a credit for those fees that were deducted by the College of Medicine during the time he was suspended with pay. This credit shall be applied to the fees before Dr. Pearlman is required to pay any additional money. 3. That in order to allow Dr. Pearlman the opportunity to apply for visa, and to otherwise prepare himself for return to the residency program, the time for his return is extended from October 15, 2005, as recommended by the Vice Dean of the College of Medicine to March 15, 2006. [37] will retain jurisdiction to address any matters that arise with respect to implementation of this award. DATED at the City of Saskatoon, in the Province of Saskatchewan, this 8th day of September, 2005. J. R.D. Laing, J.
The applicant is a doctor enrolled in the orthopaedic surgery residency training program at the University of Saskatchewan (University). He was suspended from the program since approximately March 2000. There have been a number of legal proceedings between the applicant and the University since then. An appeal committee of the University held that the applicant be allowed to resume his residency training on probationary terms. This decision has not been implemented. At issue is a College of Medicine policy governing students who are funded by third party organizations or governments. The applicant is such a student. His third party funding was depleted during the time he was suspended. The College of Medicine insists he must find a third party sponsor prior to being allowed to resume his program. The Lieutenant Governor requested that a judge of the Court of Queen's Bench perform her role as visitor in this matter. HELD: 1) The court found the College of Medicine has not been objectively reasonable in the exercise of its discretion to insist that the appeal committee decision will not be implemented until such time as the applicant obtains third party funding. The court found it did not properly or fairly apply the third party funding policy on the facts. 2) The applicant is entitled to relief. The appeal committee decision will be implemented by the College of Medicine if the following conditions are met. The applicant must enter into a written agreement with the College of Medicine whereby he agrees that the money he was paid while on suspension is prepayment for all of the services he will perform for the College of Medicine in the remainder of his residency, that he will not claim any salary or monetary benefits available to other medical residents pursuant to the PAIRS agreement, and he will indemnify the College of Medicine if it is required to make payments to him pursuant to the PAIRS agreement during the remainder of his residency program. Further, PAIRS will enter into an agreement with the College of Medicine waiving the financial terms of the PAIRS agreement with respect to the applicant for the duration of his residency. 3) The applicant will be responsible for paying tuition fees, administration fees, insurance fees and any other college fees payable by other medical residents but he will be granted a credit for the fees deducted by the College of Medicine during the time he was suspended.