Motion to Quash Appeal


FILE: Report #308
DATE: February 3, 2006
PARTIES: the Student Appellant v. Faculty of Medicine

Hearing Date(s): January 24, 2006

Committee Members:
Professor Emeritus Ralph Scane, Senior Chair
Professor Glen Jones
Professor Michael Marrus
Professor Ian McDonald
Mr. Mahadeo Sukhai

Secretary:
Mr. Anthony Gray, Judicial Affairs Officer

In Attendance:

For the Student Appellant:
Mr. Robert Wakulet (Counsel)

For the Faculty of Medicine:
Ms Sari Springer (Counsel)

Faculty of Medicine – motion to quash appeal – undue delay and want of prosecution – termination from residency programme in plastic surgery – belief that there was no urgency in filing the material referred to in the Notice of Appeal – depression and personality disorder – Acting Secretary’s response clearly indicated no hearing date would be fixed until complete submission were received – surrounding circumstances did not remove prima facie unreasonableness for delay – medical reports did not explain delay in proceeding – intention to proceed with appeal abandoned – Faculty and Governing Council under no duty to press matter – excessive delay prejudiced Faculty response – Faculty evidence vulnerable to challenge due to delay – Motion granted – Appeal quashed for excessive delay in prosecution – Divisional Appeals Committee decision stands as final decision of University

Motion brought by the Faculty of Medicine to quash, on the grounds of undue delay and want of prosecution, an appeal brought by the Student from a decision to terminate the Student from the residency programme in plastic surgery. The Student appealed the Faculty’s decision on medical grounds. The Student tendered medical reports, as evidence on the substantive appeal and in response to the motion brought by the Faculty, which indicated that the Student was suffering from depression and a personality disorder. The Student claimed that the wording of the form of notice of appeal lulled the Student into a belief that there was no urgency in filing the material referred to in his Notice of Appeal and that he could wait until a hearing date was fixed. The Committee found that the Acting Secretary’s response to the Student clearly indicated that she would await the complete submission of the Student before fixing a hearing date. The Committee considered the medical reports and the Student’s Statement of Appeal and found that the surrounding circumstances did not remove the prima facie unreasonableness for the delay between the original filing of the Notice of Appeal and the filing of documents referred to in that notice which were required to proceed with a hearing. The symptoms described in the medical reports did not explain or justify the delay in proceeding and the fact that the Student focused on preparing a successful application to Queen’s University during the relevant period indicated that had he abandoned his intention to proceed with his studies in plastic surgery, and the appeal. The Committee found that the Faculty was under no duty to the Student to press the matter, nor was the Governing Council Office. The Committee found that the Faculty was prejudiced in making any response to the substantive appeal by the excessive delay. The Faculty’s complaints against the Student which led to his termination stemmed from behavioural issues in a clinical setting, the evidence of which was particularly vulnerable to challenge due to the long delay. Motion granted. Appeal quashed for excessive delay in prosecution. The Committee ordered that the decision of the Divisional Appeals Committee stand as the final academic appeal decision of the University.