Report #403

DATE: May 9, 2019
PARTIES: D.B. (the Student) v. Faculty of Medicine

Hearing Date(s): March 28, 2019

Committee Members:
Ms. Vanessa Laufer, Chair
Professor Mark Lautens, Faculty Governor
Ms. Maya Kashyap, Student Governor

Appearances:
For the Student Appellant:
D.B. (the Student)
Mr. Michael D. Wright, Cavaluzzo LLP, Counsel for the Student
Mr. Tyler Boggs, Cavaluzzo, LLP, Counsel for the Student

For the Faculty of Medicine:
Ms. Emily Lawrence, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
Mr. Robert A. Centa, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP

Faculty of Medicine – Student appeals from decision of FMAC upholding decision of BoE referring Student for remediation in professionalism due to lapses in professional behaviour – standard of review is reasonableness - Faculty regulations and procedures followed – relevant evidence taken into consideration – relaxed standard of procedural fairness appropriate when consequence of decision appealed from are remedial, educational and restorative, not punitive, and right to continue in academic program or career is not at stake - appeal dismissed

The Student was enrolled in the Faculty of Medicine Undergraduate Medical Program at the University of Toronto (MD Program) from 2012 to 2016. The Student graduated from the MD Program in May 2016. He is now a registered member of the College of Physicians and Surgeons of Ontario and a practising physician.

In the Fall of 2015, while still enrolled in the MD Program, the Student was referred by the Clerkship Director to the Undergraduate Medical Education Board of Examiners (BoE) due to lapses in professional behaviour over the course of the MD Program. The BoE referred the Student for remediation in professionalism. The Student appealed from the decision of the BoE to the Faculty of Medicine Appeals Committee (FMAC). The FMAC upheld the decision of the BoE referring the Student for remediation in professionalism.

The Student then appealed from the decision of the FMAC to the Academic Appeal Committee (AAC) on the basis that: (i) the Faculty of Medicine did not follow its own regulations and procedures when it referred him to the BoE; (ii) relevant evidence was not taken into consideration by the BoE when the decision was made; and (iii) the decision could not be supported by the evidence that was considered when it was made by the FMAC. The Student also argued that the Clerkship Director was biased against him, and that she had attacked his character without evidence during the BoE process. The Student argued further that he did not receive proper notice of the BoE hearing, and that he did not have adequate time to prepare a defence or know the full case against him. The Student argued that he was not allowed to attend in front of the BoE, or to have an advocate attend on his behalf. The Student argued that he was not afforded due process.

The AAC determined that the question before it was whether the FMAC decision was reasonable. It concluded that the FMAC’s determination that Faculty regulations and procedures were followed was reasonable and that the Clerkship Director may deviate from normal practice when referring a case to the BoE provided a rationale is given. The AAC considered that the FMAC reasonably concluded that the Clerkship Director had reasonable grounds to refer the matter to the BoE in light of the professionalism concerns of the Faculty. The AAC noted that the Clerkship Director received direct observations and assessments of the Student’s professional behaviour from Faculty colleagues who were well-suited to make informed, context-specific professionalism evaluations that should not be interfered with by the AAC. The AAC also concluded that the FMAC was reasonable in rejecting the Student’s claim that he had not received reasonable notice of the BoE meeting or sufficient time to prepare a defence, noting that the Student had been informed of the meeting and rationale for same more than a month in advance. The AAC went on to determine that the FMAC received and considered extensive evidence and that its decision was rationally connected to and based on that evidence, noting that the Student attended in person and was legally represented. The AAC concluded that the FMAC’s determination that the BoE’s decision was supportable and connected to the evidence was reasonable.

The AAC reviewed a number of legal cases concerning procedural fairness including the factors for procedural fairness outlined in the case of Baker v. Canada (Minister of Citizenship & Immigration [1999] SCC 699. Applying those factors to the specific context of this case where the BoE process was in camera and submissions were made primarily in writing, the AAC determined that a more relaxed standard of procedural fairness was appropriate, observing that the consequences at the BoE for the Student were remedial, educational and restorative, not punitive, and that it was not a situation where the Student’s right to continue in the program or his career were at stake. In considering the case of AlGhaithy v University of Ottawa 2012 ONSC 142, the AAC found that neither the proceedings of the BoE nor the FMAC were manifestly unfair or that the decisions were unreasonable, noting that the Faculty of Medicine is well-suited to determine what is best for its community and that the AAC should not interfere with its academic assessments. The AAC found no evidence of bias. The AAC furthermore determined that even if it was incorrect and there was any denial of procedural fairness at the BoE, any such defects were cured by the FMAC proceedings which amounted to a de novo hearing and met the requirements of procedural fairness. Finally, the AAC distinguished this case from the case of Khan v The University of Ottawa [1977] O.J. No. 2650 because the Student in this case was not facing a failed year or the loss of the right to continue in his profession and his credibility was not a central issue in the case. As such, the AAC concluded that procedural fairness did not require an oral hearing in this case.

The AAC found the decision of the FMAC to be reasonable and dismissed the appeal.