QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 49 Date: 2011 01 28 Docket: Q.B.G. No.1698 of 2010 Judicial Centre: Saskatoon IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH BETWEEN: VARINDER SAHI and THE UNIVERSITY OF SASKATCHEWAN, DR. WILLIAM ALBRITTON in his capacity as Dean of the COLLEGE OF MEDICINE of the UNIVERSITY OF SASKATCHEWAN and DR. GORDON ZELLO in his capacity as Chair of, THE BYLAWS COMMITTEE OF THE COUNCIL OF THE UNIVERSITY OF SASKATCHEWAN representing all members of the said Committee RESPONDENTS Counsel: Andrew M. Mason for the applicant Varinder Sahi Catherine A. Sloan for the respondent University of Saskatchewan JUDGMENT MILLS J. January 28, 2011 INTRODUCTION [1] The applicant was an undergraduate medical student at the University of Saskatchewan (“University”), who was required to discontinue his studies for failure to meet academic standards for promotion. The applicant followed the appeal procedures found in the College of Medicine and University, but was unsuccessful throughout. He brings this certiorari application to quash a decision of the Academic Appeals Committee of the College of Medicine, and of the University Bylaws Committee of Council. On the assumption that his applications will be successful, he seeks an order reinstating him as a student at the College of Medicine pending resolution of his appeal. BACKGROUND FACTS [2] The respondent University provides useful and accurate summary of the relevant facts which have paraphrased as follows: a. Undergraduate medical education at the University is four-year course leading to an MD designation. license to practise medicine follows after post-graduate medical training is completed. b. For the academic year 2009-10, the applicant was in Phase of the course. Due to previous academic difficulties, Mr. Sahi had been required to repeat both Phase and Phase C, and consequently entered Phase on probation. c. In his second attempt at Phase C, Mr. Sahi again failed to meet the minimum academic standards for promotion to Phase D. d. Pursuant to College of Medicine processes, the Phase Committee then met and considered recommendations respecting promotion to the next phase. On January 7, 2010, the Phase Committee recommended that Mr. Sahi be required to discontinue studies. Dr. Linassi served as chair of the Phase Committee. e. Pursuant to College of Medicine processes, the Undergraduate Education Committee (“UEC”) then met and considered the Phase Committee recommendation. Mr. Sahi was invited to attend the UEC meeting and made representations both oral and written. On January 15, 2010, the UEC upheld the recommendation that Mr. Sahi be required to discontinue his studies. Dr. Linassi acted as chair of the UEC. f. Mr. Sahi then appealed his expulsion to the College of Medicine Academic Appeals Committee. The Dean of the College of Medicine convened three-person committee to investigate. The appeals procedure requires the chair of the UEC to provide written record of the reasons for discontinuance and requires the appellant student to provide written summary of his/her position. g. The appeal procedure to the College of Medicine Academic Appeals Committee is found in the University’s procedure for Student Appeals in Academic Matters handbook which reads as follows: V. FACTORS OTHER THAN SUBSTANTIVE ACADEMIC JUDGMENT This section deals with matters not directly involving substantive academic judgment which, however, may affect student’s academic standing or status. (a) student who alleges that assessment of her or his academic work or performance has been negatively affected by factor not involving academic judgment of the substance of the work or performance shall deliver to the dean, not later than 30 days from the date the student is informed of the assessment, written statement of the allegation and request for review of the matter. The department head or dean may extend the period of time to submit the written statement. (b) The dean shall instruct the department head to arrange for an informal investigation of the allegation. In non-departmentalized college the dean shall arrange for such an investigation. The investigation shall be carried out as expeditiously as possible. (c) The dean shall inform the student in writing as to the outcome of the investigation. If the student is not satisfied with the outcome, he or she may initiate an appeal as provided in VI below. h. The College of Medicine Academic Appeals Committee held two preliminary meetings to review the material and acquire more information as it related to the issues at hand. The Committee then conducted hearing of the appeal and as required had representative of the UEC, representative of the Phase Committee and the applicant present. This Committee received submissions and responded to questions from the Committee. The Committee reported to the Dean of the College of Medicine that the applicant’s requirement to discontinue studies be upheld. i. The applicant was dissatisfied with the decision of the College of Medicine Academic Appeals Committee and relying on Part VI of the University’s policy, launched further appeal. Part VI reads as follows: VI. APPEALS DEALING WITH MATTERS OTHER THAN SUBSTANTIVE ACADEMIC JUDGMENT 1. Grounds for an Appeal (a) student may appeal as hereinafter provided decision affecting her or his academic standing on the following grounds only: (i) alleged failure to follow procedural regulations of the relevant college or the University dealing with assessment of students’ academic work or performance or administrative decisions or alleged misapplication of regulations governing program or degree requirements; ... (iii) alleged violation of the University Discrimination and Harassment Prevention Policy where the alleged violation affected assessment of the student’s academic work or performance; (b) student has no right of appeal under these rules with respect to an academic judgment of the written or non-written work, performance or activities or with respect to decision relating to the provision of deferred or special examinations or other extraordinary methods of assessment unless that judgment or decision is alleged to involve or be affected by factor mentioned in clause 1(a). (c) student has no right of appeal as hereinafter provided until all applicable steps set out in preceding rules have been taken and final decision in relation to the matter has been made as provided in those rules. (d) The determination as to whether or not an appeal falls within paragraph (a) shall be made by the Bylaw Committee of Council. For the purpose of that determination only, the Vice-President (Academic Affairs) of the University of Saskatchewan Students’ Union or in the case of graduate student, the Vice President (Student Affairs) of the Graduate Students’ Association, shall be invited to participate (with vote) in the deliberations of the Committee. The Committee shall make its determination on the basis of: (i) information set out on Form and any supplementary written information provided by the student initiating the appeal; and (ii) written information provided to the Committee by the dean and the faculty member responsible for the course to which the allegation relates; and (iii) any additional information presented to the Committee as provided in the following paragraphs. 3. Appointment of an Appeal Board (a) Upon receipt of notice of appeal, the University Secretary shall send copy of it to Chairperson of the Bylaws Committee. If the Bylaws Committee concludes that the appeal involves permissible ground for appeal as set out herein, the Bylaws Committee shall constitute an appeal board to be composed of three members of Council, one of whom is student. One faculty member of the appeal board shall be named chairperson. The members of the board shall be chosen from roster nominated by the Nomination Committee. j. The applicant’s grounds of appeal under Part VI are restricted to the following: 1) Failure to follow procedural regulations of the relevant college or University dealing with assessment of students’ academic work or performance or administrative decisions and the application of regulations governing program or degree requirements. 2) Discriminatory treatment compared to other students in the course where the alleged discrimination affected assessment of the student’s academic work or performance. 3) Violation of the University Discrimination and Harassment Prevention Policy where the alleged violation affected assessment of the student’s academic work or performance. [3] As required by the appeal procedure in Part VI, para. 1(d), the appeal was referred to the Bylaws Committee of Council for the purpose of determining whether or not this appeal falls within para.1(a) of the policy. The applicant appeared before the Bylaws Committee and made representations. The factual allegations were that: a. The College of Medicine failed to follow procedures by denying him an opportunity to meet with faculty member in order to raise his mark; b. He was discriminated against as he was not given an opportunity for remediation; and c. He alleged that Dr. Linassi, who was chair of the Phase Committee and UEC, was biased towards him and discriminated against him affecting the College of Medicine process. [4] The Bylaws Committee’s decision rejecting the application for an appeal to the University Council reads in part as follows: ... As required by the regulations, the committee met to determine whether or not your appeal of the decision of the College of Medicine with respect to your academic standing falls within paragraph (a) of Section VI.1. The committee carefully considered the material submitted by you and by the College, as well as the verbal presentation you made to the committee. Having reviewed the information before them, members of the committee have determined that hearing will not go forward. In making this decision, the committee did not make an attempt to judge the merits of your case except insofar as they relate to procedural matters and issues of fairness, including alleged discriminatory treatment and violation of the university’s Discrimination and Harassment Prevention Policy. It is the finding of the committee that you have already been given an opportunity to present your case, including your allegations of procedural unfairness and discriminatory treatment, to properly constituted academic appeals committee with the authority to hear and remedy such allegations; these issues were clearly raised in the material you placed before the appeal body in the College of Medicine. The bylaws committee determined that there was no evidence of procedural irregularity, unfairness or discrimination in the constitution or proceedings of the Academic Appeal Committee of the College of Medicine, or on the part of the Dean in accepting their finding and upholding the original ruling. [5] Under the University policy, that then ended the applicant’s appeal process within the University and this application was brought. LEGAL PRINCIPLES TO BE APPLIED [6] The parties agree as to the legal approach to be adopted by the court in analysing this application. Both parties rely on the decision of Barclay J. in Houston v. University of Saskatchewan (1994), 1994 CanLII 4898 (SK QB), 117 Sask. R. 291, [1994] W.W.R. 387 (Q.B.), where at para. 17 he states: [17] An excellent review of the law with respect to matters involving grievances between students and university is contained in the case of Polten v. University of Toronto (1975), 1975 CanLII 709 (ON SC), 59 D.L.R. (3d) 197 (Div. Ct.). The dispute here arose as result of doctoral student’s refusal to change his thesis and the university’s eventual rejection of his formal paper. The judgment of Weatherston, J., is regularly cited as authority for the non-interventionalist approach of the courts towards such disputes. The court held that the standards for University degree and the assessment of student’s work are so clearly vested in the university that the courts have no power to intervene merely because it is thought that the standards are too high, or that the student’s work was inaccurately assessed. However, the prerogative writs of certiorari and mandamus are available to student who has been denied natural justice in respect of his examinations. The university has been entrusted with the higher education of large number of the citizens of the province. This is public responsibility that should be subject to some measure of judicial control. [7] The measure of judicial control referenced by Barclay J. in Houston was followed by Rothery J. in Mikkelsen v. University of Saskatchewan (Joint Senate-Council Board of Student Appeals), 2000 SKQB 45 (CanLII), 191 Sask. R. 53, where she stated at para. [33] In ordinary circumstances, upon finding breach of natural justice on the basis of denial to be heard, the court would quash the decision of the tribunal and order that the matter be heard according to law. [8] The University submits that the court is not able to interfere in the applicant’s academic assessment and that the applicant can only obtain relief from the court if the proper procedures were not followed. The University submits they were. ANALYSIS A) College of Medicine Academic Appeals Committee [9] The applicant argues that the Academic Appeals Committee did not investigate the allegations made by the applicant and file report on the allegations as required by the appeals process. am not prepared to accept this argument of the applicant. The return of the record by the chair of the College of Medicine Academic Appeals Committee shows the Committee obtained all relevant information as it related to the nature of the appeal by the applicant. It held hearing on March 31, 2010 at which the applicant, among others, gave evidence regarding previous decisions made. report was then prepared and provided to the Dean of the College of Medicine. It should be noted that in the process contained in Part V(b), it was to be an informal investigation of the allegations. From the return of the Academic Appeals Committee, it is obvious that thorough investigation and analysis of the complaints were made and dismissed. The applicant’s allegation that this did not factually occur is simply wrong. B) Bylaws Committee [10] The applicant submits that the jurisdiction of the Bylaws Committee is to examine the appeal to ensure that it comes within the scope of Part VI appeal and if so, to remit the matter further to an appeal board for consideration under para. of Part VI. The applicant concedes that it is not sufficient that the wording used in the appeal matches an enumerated ground of appeal, but that the Bylaws Committee is entitled to examine the record to ensure the substance of the appeal matches one of the appropriate grounds. The applicant does not suggest, that he is entitled to an appeal as long as he checks off the right boxes. The respondent submits that the Bylaws Committee is empowered to determine whether further appeal is to be granted, and that there are no limits on the Bylaws Committee’s jurisdiction to determine the question. do not accept the respondent’s submission. The jurisdiction of the Bylaws Committee as contained in Part VI, para. 1(d) is to determine whether or not an appeal falls within para. 1(a). review of the record by the Bylaws Committee to determine if the substance of the appeal meets the criteria of Part VI.1(a) is within its mandate. That is the extent of the authority granted to the Bylaws Committee. [11] The Bylaws Committee in this situation stated that it was not attempting to judge the merits of the case “except as it related to procedural matters and issues of fairness, including alleged discriminatory treatment and violation of the University’s Discrimination and Harassment Prevention Policy.” On the basis of this comment alone, concern is raised that the Bylaws Committee has exceeded its jurisdiction, by reviewing the merits of the appeal as it relates to those underlying matters. [12] The stated findings of the Committee advanced the issue of concern to one of intervention. The Committee states: ... you have already been given an opportunity to present your case, including your allegations for procedural unfairness and discriminatory treatment, to properly constituted academic appeals committee with the authority to hear and remedy such allegations; these issues were clearly raised in the material you placed before the appeal body in the College of Medicine. In simple terms, the Bylaws Committee has stated you do not get full appeal because the issues raised have been already decided against you. The Bylaws Committee seems to misunderstand the purpose of the appeal is to review the previous decisions that were made insofar as they come within the parameters set out in para. 1(a). This last statement by the Bylaws Committee clearly suggests that they have taken it upon themselves to review the previous decisions made and draw the conclusion that they were made fairly and properly. That may be so, but that is not the issue that the Bylaws Committee is to examine. This last statement clearly leads to the conclusion that the Bylaws Committee has determined the merits of the applicant’s appeal and therefore a full appeal board was not necessary. [13] There is nothing in the policy to suggest the Bylaws Committee has such power. In fact, if the power existed in the Bylaws Committee to determine the appeals on the merits, there would be no need for it to operate as vetting step, and of course no need for the establishment of an appeal board. There is limit on the Bylaws Committee’s jurisdiction to determine whether an appeal will be heard, and that limit is prescribed in para. 1(a). [14] The Bylaws Committee has exceeded its jurisdiction in this regard and its decision is therefore quashed. [15] It is not appropriate however for me to usurp the function of the Bylaws Committee and review the material to determine if in my opinion, the matter should be remitted to the appeal board under Part V, para. 3. The matter is returned to the Bylaws Committee for a decision according to law that is whether the applicant’s appeal falls within para. 1(a) of Part VI, the policy on student appeals and academic matters. [16] The last relief sought is for interim relief that the applicant be reinstated to his studies. [17] Although there is precedent for that occurring (see Mikkelsen, supra, and Wong v. University of Saskatchewan, 2006 SKQB 405 (CanLII), 287 Sask. R. 4), am not satisfied this is appropriate in these circumstances. In both those cases, the learned chamber judges referred to special or exceptional circumstances. Those do not exist in this case. The applicant has marginal academic record. take judicial notice of the fact that the University has limited number of placements within its College of Medicine, and that the training of physician is lengthy and expensive process vis-à-vis the University. The respondent argues that the status quo as it relates to the applicant is of an individual forced to discontinue his studies for poor performance. To reinstate him and potentially displace another student or require the College of Medicine to train on a potentially temporary basis a marginal student is not appropriate. Although clearly have the jurisdiction to order such reinstatement, find no compelling reason why should. The applicant has established there has not been proper disposition of his right to appeal. He has not attempted to nor is it the proper forum for me to determine that if his appeal should go forward, whether it would be successful. The respondent is correct in asserting that the applicant is seeking an order of mandamus in effect promoting him to the phase of instruction that he has not been promoted to by the College of Medicine. The respondent’s argument that should take note of the comments of Barclay J. in Houston, supra, are well made. This part of the application is dismissed. [18] The applicant has been successful quashing the decision of the Bylaws Committee and is entitled to some costs. The amount of the costs awarded is tempered by the fact that there was significant effort and material filed in relation to those portions of the application which were dismissed. As such, fix the costs payable by the respondent to the applicant at $500 payable within 30 days.
The applicant was a student at the University of Saskatchewan in the College of Medicine. He was required to discontinue his studies for failure to meet academic standards for promotion. The applicant appealed his dismissal and was unsuccessful throughout. He applied to the Court for an order of certiorari to quash the decision of the Academic Appeals Committee and the University Bylaws Committee Council and an order reinstating him as a student at the College of Medicine pending resolution of his appeal. HELD: The Court found that the Bylaws Committee Council exceeded its jurisdiction by reviewing the previous decisions made and drawing the conclusion that they were made fairly and properly. The Bylaw Committee determined the merits of the applicant's appeal and determined that it was not necessary to convene a full appeal board. There is nothing in the University policy to suggest that the Bylaws Committee has that power. The Bylaws Committee has exceeded its jurisdiction in this regard and its decision is quashed. The matter is returned to the Bylaws Committee to determine whether the applicant's appeal falls within the policy on student appeals and academic matters. The portion of the application requesting reinstatement of the applicant as a student pending the resolution of his appeal is dismissed. The applicant has a marginal academic record and there are a limited number of placements in the College of Medicine. It does not make sense to displace another student or require the College of Medicine to train a marginal student on a potentially temporary basis.