Report #387

DATE: November 30, 2016
PARTIES: Mr. M.M. v. the Faculty of Nursing


Hearing Date(s): November 30, 2016

Committee Members:
Professor Malcolm Thorburn (Chair)
Professor Nicholas Terpstra, Faculty Governor
Mr. Aidan Fishman, Student Governor

Secretary:
Mr. Chris Lang, Director, Appeals, Discipline and Faculty Grievances
Ms. Sheree Drummond, Chair, Office of the Governing Council, Observer

Appearances:
For the Student Appellant:
Ms. Rabiya Mansoor, Law Student, Downtown Legal Services
Ms. Jennifer Fehr, Review Counsel, Observer, Downtown Legal Services
Mr. Rylee Raeburn-Gibson, Observer, Downtown Legal Services
The Student


For the Faculty of Nursing:
Mr. Robert A. Centa, Counsel for the Faculty
Ms. Emily Home, Student-at-Law,
Professor Ann Tourangeau, Associate Dean, Academic, Faculty of Nursing
Dr. Francine Wynn, Director, Undergraduate Program, Faculty of Nursing
Professor Pamela Khan, Faculty of Nursing
Dr. Tanya Lewis, Director, Academic Success Centre & Accessibility Services

Faculty of Nursing – request to void FZ grades – duty to accommodate – appeal started after three years is too long of delay when six month limitation – grounds to extend appeal – addressing appeal on merits and timeliness not mutually exclusive – Faculty need not offer all potential accommodations to meet fairness obligations to student academic penalty is appropriate where students are informed in clearest possible terms of deadline and consequences of failure to meet deadlines – appeal dismissed

Appeal from two decisions of the Academic Appeals Committee (the “AAC”) of the Faculty of Nursing. The first decision denied the Student’s petition to void his FZ grades in two courses from Fall 2012. The second decision denied the Student’s petition to void his FZ grades in two courses from Winter 2014 and recommend that the Student’s registration in the BScN (nursing) program be cancelled. The Student requested reinstatement in the nursing program; voiding all FZ grades and allowing his final assignments in two of his courses to be graded and a number of alternative remedies.

The student suffered from persistent depressive disorder since the age of sixteen. In his second year of the nursing program, the Student’s request to register with Accessibility Services was denied. Near the end of the Fall term of that year, the Student notified the undergraduate program chair at the Faculty of Nursing both in person and by email that he would have difficulty completing his course requirements due to mental health issues. At an ensuing meeting with the undergraduate program chair, the Student alleges that the undergraduate program chair represented that the Student had the option of receiving an incomplete grade in his two courses with outstanding assignments, of late withdrawal (WDR status) or of submitting his assignments much later, at the end of a planned leave of absence. The Student submitted a request for a leave of absence for three terms, which he was granted. The Student did not submit the required assignments for his courses and received a failing grade (FZ). When the Faculty sent a letter to notify him of his failing grades, the Student was on a leave of absence and suffering from a number of illnesses. He did not read or even open the letter until after the deadline to appeal his grades had passed.

The Student returned to the Nursing program in the Fall of 2013. Once again, he applied for accommodations through Accessibility Services and was registered in the Winter term. He retook the courses he had failed and passed them. The Student suffered another acute depressive episode that continued on to the summer of 2014. As a result, he did not complete the coursework in two other courses and was assigned incomplete grades. In the summer of 2014, the Student was informed by the Faculty that he would have to submit the outstanding assignments in those courses by 15 August in order for grades to be submitted by the deadline of 30 August. In that same letter, the Faculty made clear that should he fail to submit his assignments by the deadline, he would receive a grade of FZ, and this would result in “the termination [of his enrolment] from the program.”

The Student submitted his assignments after the August 15, 2014 deadline. The Student alleged that he misread the letter because of his then-undiagnosed ADHD. As a result of his failure to submit those assignments the Student received a grade of FZ in those courses and his registration in the nursing program was terminated.

The student took over three years to start his appeal of the grades he received from the Fall of 2012. According to the Faculty of Nursing’s Undergraduate Calendar, students have six months from the time of the original decision to launch an appeal. The Committee found that the Student cannot use the fact that he chose not to read correspondence from the university as grounds for extending the deadline of his appeal. Nor was the delay justified by any potential misinformation given to him by the Faculty that his right of appeal had expired, because even if the Faculty had given him that advice, he did not begin working with counsel until a year and a half after he allegedly received that advice, and did not start his appeal more than six months after working with counsel – almost two years later. Finally, the Committee held that the Faculty had not waived any right to raise arguments of delay simply because it responded to the substance of the Student’s argument in this case. It was open to the Faculty to oppose the Student’s appeals on their merits as well as point out its lateness. The Faculty may insist on the administrative need to ensure timeliness while also providing the Student with substantive reasons for the dismissal of his claim in their reply.

The Committee was troubled by the fact that the Faculty of Nursing could have offered accommodations to the Student in the fall of 2012 such as assigning him grades of incomplete (INC) or granting him deferred standing (SDF) which they failed to do. The Committee also found that matters could have been dealt with more effectively had Accessibility Services granted the Student accommodations in the fall of 2012. The Committee was also troubled by the idea that the undergraduate chair may have given the Student the wrong information that he could avoid failing grades if he took a leave of absence. That said, the Committee did not find that the student was treated unfairly. Although the Student did not receive all the accommodations that might have been offered, his treatment by the Faculty of Nursing was in accordance with faculty policies and these policies were administered fairly.

For his appeals relating to course work in 2014, the Committee found that there was no suggestion that the Faculty misled him about how they would treat his case. He was informed in the clearest possible terms of the deadline for submission of his work and of the consequences of failure to do so. Given the long extension granted to the Student and the clarity of the Faculty’s expectations, the Committee found that there was no basis for the suggestion that the Student was unfairly treated in this case. Appeals dismissed. The Student was appropriately awarded failing grades in four courses in the BScN program. In keeping with the standards of that program, the CoS was correct in its decision to terminate the Student’s enrolment in that program.