Hayat v. University of Toronto

Hayat v. University of Toronto Collection Decisions of the Court of Appeal Date 1999-11-10 Docket numbers C31881 Judges Doherty, David H.; Charron, Louise Vivianne; Borins, Stephen Subject Civil Decision Content DATE: 19991110 DOCKET: C31881 COURT OF APPEAL FOR ONTARIO DOHERTY, CHARRON and BORINS JJ.A. BETWEEN: ) ) Timothy Pinos and DR. ARIF HAYAT ) Barbara Kornovski ) for the appellant Applicant/ ) Respondent ) ) - and - ) Richard A. Levin ) for the respondent UNIVERSITY OF TORONTO ) ) Respondent/ ) Appellant ) ) Heard: October 19, 1999 ) On appeal from the judgment of the Ontario Court of Justice (Divisional Court) (Rosenberg, Haley and Forestell JJ.) dated December 14, 1998. DOHERTY J.A.: [1] This appeal comes to the court with leave from the judgment of the Divisional Court on an application for judicial review of a decision of the Academic Appeals Committee of the Governing Council of the University of Toronto (the Committee). There are three issues: Did the Divisional Court err in rejecting the Committee’s interpretation of the University Grading Practices Policy? Did the Divisional Court err in holding that the treatment of the respondent was “manifestly unfair”? If the Divisional Court was correct in setting aside the decision of the Committee, did it err in issuing a writ of mandamus compelling the University to confer a diploma in orthodontics on the respondent? II [2] In June 1994, the respondent, Dr. Arif Hayat (Dr. Hayat), gained entrance to the diploma program in orthodontics, a two- year post graduate program offered by the Faculty of Dentistry at the University of Toronto. Only four people were admitted to the program. Unfortunately, Dr. Hayat’s progress through the program was far from uneventful. Most of the extensive history of the dealings between the Faculty and Dr. Hayat is not, however, germane to this appeal. [3] The background necessary for the determination of this appeal begins in April 1997 when Dr. Hayat failed a written examination in orthodontics. Dr. Hayat had taken the examination under protest as it was his position that a written examination could not be part of the evaluative process for this course. He claimed that he and the other students in the course had been told that it would be evaluated through an oral exam and clinical evaluation, and that under the University policies governing methods of evaluation, the Faculty of Dentistry could not add the further requirement of a written examination. [4] Students had to achieve a B- mark in orthodontics to successfully complete the course and obtain their diploma. Dr. Hayat had received a B in his clinical work and a C on his oral examination. When his failing mark on the written examination was factored into his assessment, his mark fell below B-. A student who did not achieve a B- in orthodontics had to repeat the entire year. [5] The Faculty of Dentistry notified Dr. Hayat that he had failed to achieve the required mark in the orthodontics course and would be required to repeat second year. Dr. Hayat appealed that decision to the Faculty’s Academics Appeals Committee contending that the results of the written exam could not properly be taken into consideration in determining his mark, and that he had achieved a satisfactory grade when only his oral exam and clinical work were taken into consideration. The Faculty Academics Appeals Committee disagreed with Dr. Hayat, but did order that he be allowed to take a new written exam in orthodontics. The result of that exam, considered along with his other evaluations, would be used to determine whether he achieved the necessary B- grade. [6] Dr. Hayat did not re-write the exam but instead appealed the decision of the Faculty Academic Appeals Committee to the Governing Council of the University. That appeal was considered by the Committee. It made several findings, none of which were challenged in the Divisional Court or here. The Committee found: The University Grading Practices Policy (the Policy) applied to the graduate program in which Dr. Hayat was enrolled; Under paragraph II.2(a) of that Policy, the instructor of a course was required to make available to students at the beginning of the course the methods by which the student’s performance would be evaluated; The students in the orthodontics course were advised at the beginning of the course that they would be evaluated by their clinical work and the results of an oral exam; Paragraph II.2(b) of the Policy provided: After the methods of evaluation have been made known, the instructor may not change them or their relative weight without the consent of at least a simple majority of the students enrolled in the course. No consent to change the method of evaluation was asked for by the instructor or given by a majority of the students in Dr. Hayat’s class; Those administering the course had intended all along that a written exam would be a part of the evaluation, but through inadvertence had not communicated that intention in a timely fashion to the students.1 [7] Having concluded that the Policy applied and that the Faculty of Dentistry had failed to comply with the Policy, the Committee turned to the question of the effect of that non- compliance. As this is the crux of the appeal, I will set out the Committee’s reasoning in full: The next question is, what follows? The Policy does not set out consequences of non-compliance with the requirement in question. A breach of this provision of the Policy, even inadvertently, as the Committee thinks was the case here, is serious, and cannot be disregarded. In the opinion of the Committee, non-compliance with this portion of the Policy does not necessarily mean that a student is exempted from fulfilling an evaluation requirement of which due notice, or consent in lieu thereof, has not been given according to the Policy. The Committee holds that, to determine the appropriate consequence of a breach in a particular situation, the purpose behind the Policy’s provision should be considered. The Committee considers that there are two specific purposes underlying the obvious more general purpose of fairness to students. The first is to give students who, for various reasons, prefer one means of evaluation to another, an opportunity to select courses accordingly while they still have freedom to move from one course to another without penalty. The second is to give students ample warning of what they must prepare for. In this case, the first element has no application, and can be given no weight. A candidate who wishes to receive the diploma must take the clinical components, particularly Orthodontics III, however they may be evaluated. There is no alternative course to take if a student does not like the evaluation methods established by the Faculty. It was never suggested that the Appellant, (or any other student) would have refused a rare place in the diploma programme if the student had been aware at the beginning that a written examination was a component of the total evaluation of Orthodontics III. This leaves the question of prejudice due to lack of timely notice. The Committee cannot rule out some prejudice in this case, and indeed, to make the Policy effective in practice, prejudice must really be assumed here. However, the Committee believes that the relief ordered by the Faculty Academic Appeals Committee adequately protected this purpose of the Policy in the circumstances of this case. [Emphasis in original.] [8] The Committee made further orders that are not germane to this appeal and directed that the test should be administered within six months from the release of the decision. [9] Dr. Hayat sought judicial review of the Committee’s decision in the Divisional Court. That court unanimously allowed the application. Its reasons are set out in full below: The Governing Council did not follow the clear wording of the University grading practices policy when they required the applicant who had satisfactorily completed all of the published requirements of the diploma course to take a further written exam. This was compounded when they adjusted the weight and significance of marks already reviewed and determined the weight to be given to the results of the written exam. While it is rare that the courts will interfere with the decision of the committee of the governing council in a case such as this the result of the decision in this case is so manifestly unfair to the applicant who has complied with all the requirements of which he had notice when he enrolled that it requires the court’s intervention. The results of the test of April 14, 1997 are expunged. We find the applicant has fulfilled all of the requirements for graduation from the Orthodontic Diploma Program at the U of T. Costs of applicant fixed at $7,500.00. [10] In its formal judgment, the Divisional Court quashed the decision of the Committee, declared that the results of the written test should be expunged from Dr. Hayat’s academic record and declared that he had fulfilled all of the requirements for graduation from the post graduate diploma course in orthodontics. The court directed that the University of Toronto should confer a diploma in orthodontics upon Dr. Hayat. III Did the Divisional Court err in rejecting the Committee’s interpretation of the Policy? [11] The Divisional Court did not set out the standard of review it employed in assessing the Committee’s interpretation of the Policy. Its finding that the Committee did not follow the “clear wording” of the Policy does not indicate what standard the court applied in reviewing the decision. The identification of the appropriate standard of review is an essential first step in deciding whether Dr. Hayat was entitled to relief by way of judicial review. [12] In recent years, the courts have recognized that the level of judicial scrutiny of decisions made by tribunals moves along a continuum. That continuum ranges from patent unreasonableness at one end (maximum deference) to correctness at the other end (no deference). The level of scrutiny to be applied to any specific decision is determined by a “functional and pragmatic” approach which aims at determining the extent to which the Legislature intended that the courts should review the decision in issue: Pezim v. British Columbia (Superintendent of Brokers) (1994), 114 D.L.R. (4th) 385 at 404 (S.C.C.); Ross v. New Brunswick School District No. 15 (1996), 133 D.L.R. (4th) 1 at 12-13 (S.C.C.); Canada (Director of Investigation and Research) v. Southam Inc. (1997), 144 D.L.R. (4th) 1 at 11-12 (S.C.C.); Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 160 D.L.R. (4th) at 193 at 209 (S.C.C.); Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 at 224 (S.C.C.). [13] The cases identify a number of factors which must be considered in determining the appropriate level of review. These include: the existence of a right of appeal and the scope of that right; the presence of a privative clause and the language of that clause; the nature of the decision being challenged; and, the role or function performed by the tribunal when making the decisions being challenged. [14] When I apply those factors to the decision of the Committee, I conclude that maximum judicial deference should be accorded the Committee’s interpretation of the Policy. I think the court should interfere only if the Committee’s interpretation is patently unreasonable. Where as here, the decision under consideration involves the academic standards of a University, the courts have always been reluctant to interfere: King v. University of Saskatchewan, [1969] S.C.R. 678 at 686. A standard of review which accords maximum deference to the tribunal’s decision is consistent with the authorities. [15] The decisions of the Committee are not protected by a privative clause. The other relevant considerations, however, strongly favour maximum deference. There is no right of appeal from the decision of the Committee. The decision under attack concerns the Committee’s interpretation of its own Policy. There can be no doubt about the Committee’s jurisdiction to interpret the Policy. Its task cannot be equated with the interpretation of a statute of general application. Finally, and most importantly, in interpreting the Policy, the Committee performs a function which goes to the core of the internal governance of the University. [16] The Governing Council is charged with the responsibility and authority to “determine and regulate the standards for the admission of students to the University, the contents and curricula of all programs and course of study and the requirements for graduation” (University of Toronto Act, 1971, S.O. 1971, c. 56, s. 2(n) as amended S.O. 1978, c.88, s. 2(5)). Under that authority, it has created the Policy and an internal appeals structure for determining disputes, including disputes arising out of the application or non-application of the Policy. In interpreting the Policy, the Committee must maintain both the integrity and the fairness of the evaluative process by which the university determines entitlement to its various degrees. In resolving disputes over the Policy, the Committee is charged with the responsibility of maintaining the appropriate academic standards within the university and ensuring that students who are subject to those standards are treated fairly. The Committee is much better positioned to interpret the Policy in a manner which achieves an appropriate balance than are the courts. [17] The Committee’s analysis of the effect of non-compliance with the Policy is set out above in paragraph 7. I have no hesitation in holding that the Committee’s interpretation of the Policy clears the “patently unreasonable” bar. The Committee was faced with a policy that prohibited non-consensual changes in the method of evaluation after a certain point in time. The Policy, however, was silent as to the effect of non-compliance with the rules governing changes in methods of evaluation. In looking to the effect of non-compliance with paragraph II.2(b) of the Policy, the Committee examined the purposes underlying that part of the Policy and concluded that where those purposes could be served, an evaluative method employed in contravention of the Policy could still be used to determine whether a student met the necessary competence standard. I see nothing patently unreasonable either in the purposes ascribed to the Policy by the Committee, or in its determination that those purposes could be fully satisfied by permitting Dr. Hayat to redo the written exam within six months. [18] Counsel for Dr. Hayat submits that the Committee’s interpretation of the Policy flies in the face of the purposes enumerated at the outset of the Policy. The Policy describes its purposes, in so far as they are relevant to this proceeding, as follows: The purpose of the University Grading Practices Policy is to ensure: (a) that grading practices throughout the university reflect appropriate academic standards; (b) that the evaluation of student performance is made in a fair and objective manner against these academic standards; [19] The Committee’s analysis of the purposes underlying the part of the Policy which addresses changes in methods of evaluation is entirely consistent with the stated purposes of the policy. The Committee was anxious to maintain appropriate academic standards through appropriate methods of evaluation and yet provide for evaluation which was “fair and objective.” [20] Tested against the applicable standard of review, the Committee’s interpretation of the Policy cannot be successfully challenged on judicial review. Was the decision of the Committee “manifestly unfair”? [21] Fairness concerns raised on applications for judicial review are usually directed at questions of procedural fairness. A failure to meet applicable procedural standards is clearly subject to correction by way of judicial review: Paine v. University of Toronto et al. (1981), 34 O.R. (2d) 770 (C.A.); Re Polten and Governing Council of the University of Toronto et al. (1975), 8 O.R. (2d) 749 at 764 (Ont. Div. Ct.). I see no merit to any claim that Dr. Hayat did not receive procedural due process from the Committee. [22] It is, however, urged that the result arrived at by the Committee works a substantive unfairness on Dr. Hayat. This argument is in reality a reformulation of the argument that under a proper interpretation of paragraph II.2(b) of the Policy a student can never be required to submit to a method of evaluation that does not comply with the Policy. My conclusion that the Committee’s interpretation of the effect of non-compliance with the Policy was not patently unreasonable goes a long way to deciding this issue against the respondent. Assuming that there may be fact situations in which an interpretation of the Policy that was not patently unreasonable could work a manifest unfairness, this is not that situation. As the Committee pointed out, the orthodontics course was mandatory. Dr. Hayat could not get his diploma without taking that course. It is inconceivable that he would have refused to take one of the valued positions in the orthodontics graduate program had he known beforehand that he would be subject to a written exam. It cannot, therefore, be said that Dr. Hayat was treated unfairly in the sense that he embarked on a course of conduct which he would not have undertaken had he been told about the written exam. This leaves only the question of whether he received fair and adequate notice that he would be required to take a written exam. Any problem associated with the notice provided to Dr. Hayat disappeared when the Committee ordered that he could take a new test and could have up to six months to prepare himself for it. [23] It cannot be suggested that the Faculty of Dentistry acted in bad faith in requiring Dr. Hayat to take a written examination. It regarded that examination as a necessary part of the evaluation of the students’ performance in the course. The evaluative process, including the written exam, was aimed at ensuring a minimum level of competence. The Faculty’s failure to comply with the Policy by communicating that decision to the students in a timely fashion is regrettable but, as observed by the Committee, was inadvertent. All that is left to support Dr. Hayat’s claim that he was treated with manifest unfairness is his assertion that he had a vested right to be tested only by the means that complied with the Policy. The Committee interpreted the Policy differently and in doing so did not give the Policy a patently unreasonable interpretation. The respondent was not treated in a manifestly unfair way. If the Divisional Court correctly set aside the decision of the Committee, did it err in issuing mandamus compelling the university to give the respondent a diploma in orthodontics? [24] I need not address the propriety of the remedy ordered by the Divisional Court given my conclusion that the Divisional Court erred in setting aside the decision of the Committee. IV [25] I would allow the appeal, set aside the judgment of the Divisional Court and restore the decision of the Committee. The time frame set by the Committee for the administration of the exam should run from the release of these reasons. The appellant is entitled to its costs on the application for leave to this court, on this appeal, and in the Divisional Court. The costs in the Divisional Court will be in the amount fixed by that court ($7,500). Released: November 10, 1999 “Doherty J.A.” “I agree Louise Charron J.A.” “I agree S. Borins J.A.” _______________________________ 1 Although the Committee made no express finding on this point, it would appear that Dr. Hayat was aware of the requirement of a written examination no later than about a month before it was administered.