Report #327

DATE: August 14, 2008
PARTIES: Mr. H. L. D. (the Student) v. the Faculty of Medicine


Hearing Date(s): June 11, 2008 and July 10, 2008

Committee Members:
Professor Emeritus Ralph Scane (Senior Chair)
Professor Clare Beghtol,
Dr. Gerald Halbert,
Professor Glen Jones,
Mr. Alex Kenjeev.

Secretaries:
Ms Nancy Smart, Judicial Affairs Officer.
Ms Mette Mai.

In Attendance:

For The Student Appellant:
Mr. Zak Muscovitch (Counsel).
Mr. H. L. D. (the Student)
Mr. D. Sawh

For the Faculty of Medicine:
Ms Sari L. Springer (Counsel)
Ms Fiona Cherryman,
Ms Gwen Llewellyn

Faculty of Medicine – re-instatement in program – dismissal from Medical Radiation Sciences Program – precedent cited – the Committee cannot interfere with an assessment that a certain action or collection of actions merits immediate suspension from a practicum on the grounds of patient safety, on the grounds that the judgment was wrong, if fairly arrived at – in matters which have grave consequences on a professional career, the Academic Appeals Committee must act on “clear, convincing and cogent evidence” – Faculty not acting under a false assumption as to a key and fundamental fact – minority opinion that evidence not sufficient to justify suspension – Appeal dismissed

Appeal from a recommendation by the Radiological Technology Program Review Committee that the Student be dismissed from the Medical Radiation Sciences Program. The Student’s substandard performance in his extended practicum, capped by an incident involving danger to a patient’s health, led to the Faculty’s conclusion that the Student could not be allowed to continue in the Program. The Committee found that the incident triggered the termination process, and had it not occurred, the Student would have been allowed to finish his extended term and have been evaluated on the entire practicum. The Faculty’s decision was based upon an evaluation by the University’s examiners. Citing the Academic Appeals Committee Report #323, the Committee stated that it cannot interfere with an assessment that a certain action or collection of actions merits immediate suspension from a practicum on the grounds of patient safety, on the grounds that the judgment was wrong, if it was fairly arrived at. The Committee found no evidence of bias against the Student on the part of members of the Program and the Faculty who made the decision to suspend and then terminate the Student. The majority of the Committee found that the decision was fairly arrived at. The Committee was divided upon the proper finding to be made upon the happening of the incident. The Committee was instructed by the Chair that, in matters which have grave consequences on a professional career, Ontario courts insist that courts and tribunals such as the Academic Appeals Committee act on “clear, convincing and cogent evidence”, and decide issues on the civil standard of proof. The majority of the Committee found that the Faculty was not acting under a false assumption as to a key and fundamental fact when the Student was suspended and then terminated, and there was therefore no basis to challenge the evaluations which led to the Student’s dismissal. A minority of the Committee found that the evidence regarding the incident was not sufficiently “clear, convincing and cogent” to justify suspending the Student from the normal completion of his practicum which thereby destroyed his right to be adjudged on his performance over its full term, as previously extended by the Program. The minority would have allowed the appeal and permitted the Student to complete the balance of his practicum, before being evaluated upon the entire practicum. Appeal dismissed.