ONCA Again Emphasizes Deference to Academic Discipline

The Ontario Court of Appeal released a decision this month involving a dispute between physician residents and the University of Ottawa which again emphasizes the level of deference the courts are willing to offer educational institutions.

The plaintiffs in Aba-Alkhail v. University of Ottawa were physicians from Saudi Arabia who were completing their postgraduate medical residency at the University of Ottawa. All received some form of discipline or complaints which they attributed to discrimination based on their national origin. The university Senate dismissed the residents’ appeal of their dismissal from the medical program.

Complaints were brought before the human rights tribunal before they were dropped in order to be included in the civil claim. The statement of claim in the action is 419 paragraphs long and is available here, and includes claims for defamation, conspiracy to injure, misfeasance in public office, breach of fiduciary duty, negligence, breach of contract, and violation of s. 15(1) of the Canadian Charter of Rights and Freedoms. One of the interesting twists in the case involved the leak of emails between University of Ottawa physicians who appear to have discussed how they could remove one of the plaintiffs from the program.

The current decision is an appeal of a motion heard on December 4 and 5, 2012 by the defendants to dismiss the action for being an abuse of process under Rule 21.01(3). Justice Timothy Minnema granted the motion and found that the facts relied in the statement of claim were the same as the facts relied upon by the plaintiffs as they pursued their academic appeal and there was no new evidence or events to support their case.

The Ontario Court of Appeal upheld this decision, pointing to the motion judge’s excerpt from Jaffer v. York University, 

[28] Thus, although the court has jurisdiction to hear such claims, Rouleau J.A. noted at para. 50 that the court may strike a claim under r. 21.01(1), or in exceptional circumstances r. 25.11, when it appears that the cause of action is untenable or unlikely to succeed. This will occur if, for example, an action is simply an indirect attempt to appeal an academic decision and the appropriate remedy would be judicial review, or if the pleadings do not disclose details necessary to establish that the university’s actions go beyond the broad discretion that it enjoys. [Emphasis in the original]

The appellants attempted to rely on the recent Supreme Court of Canada decision in Penner v. Niagara involving police discipline, which was not available at the time of the motion, to use issue estoppel where the use of administrative hearings to preclude subsequent hearings would be unfair.

The court rejected this argument, pointing to Behn v. Moulton Contracting Ltd. and emphasizing the difference between issue estoppel and abuse of process. The court also rejected the use of Penner because the process and proceedings in an academic appeal directly affect the parties involved in the subsequent litigation, unlike the parties in Penner, and there would be no unfairness to use discipline proceedings in preventing a civil suit from proceeding on the same issues.

The appellants also advanced a policy argument that without the ability to follow discipline proceedings with a civil suit students would not have the incentive to participate in these proceedings. The court indicated that the incentive to students is to obtain academic standing and carry on their work in the educational setting, and seeking damages should only be a a secondary goal as an alternative to this primary incentive.

This decision builds on the trend we’ve seen in Ontario over recently years expressing a strong deference to internal academic processes. Academic decisions will not be easily referred to the courts, especially where there is nothing new or additional in the treatment of a student through the academic discipline.