The resolution of a lengthy challenge by a former University of Ottawa medical resident shows Canadian courts continue to uphold the freedom of universities to make their own academic decisions and will not allow students to challenge these decisions under the Canadian Charter of Rights and Freedoms.1
Waleed AlGhaithy was a senior medical resident in the neurosurgery program at the University of Ottawa's Faculty of Medicine. In 2009 he was dismissed from the program for failure to meet the Faculty's standard of conduct for medical residents. This failure consisted in part of AlGhaithy's e-mails to Faculty members and fellow residents strongly criticizing the program and its administration.
Dr. AlGhaithy appealed his dismissal to the University's Senate Appeals Committee. The Senate Appeals Committee upheld the dismissal, concluding that the former resident had engaged in "an escalating pattern of disrespectful and confrontational interactions" that "clearly amounted to unprofessional and disruptive conduct within the meaning of the relevant regulations, policies and standards in effect for the program."
The courts' decisions
Dr. AlGhaithy sought judicial review of the Senate Appeals Committee's decision. He contended among other things that his dismissal amounted to a violation of his right to freedom of expression under s. 2(b) of the Charter. He argued that the Charter applied to the decision to dismiss him because, in doing so, the University was acting as an agent of the government to ensure physicians practising in Ontario met the required standard of professionalism.
In April 2012, the Ontario Divisional Court dismissed the former resident's judicial review application. The presiding judges unanimously held that the Charter did not apply to disciplinary actions taken by the University of Ottawa. The Court observed that the legislation governing the University of Ottawa provides that, "The management, discipline and control of the University shall be free from restrictions and control of any outside body."2 The University of Ottawa was not implementing a specific government objective when it decided to dismiss Dr. AlGhaithy from the Faculty of Medicine, and the Charter therefore had no application to its decision.
Swinton J. distinguished Pridgen v University of Calgary, where an Alberta court held that the Charter applied to the decision to discipline students at the University of Calgary.3 She noted the University of Calgary was governed by legislation that "requires universities to carry out a specific government objective of facilitating access to post-secondary education," and there is no equivalent legislation in Ontario.
Dr. AlGhaithy applied for leave to appeal the Divisional Court's decision first to the Ontario Court of Appeal, then to the Supreme Court of Canada.4 Both applications were dismissed with costs without any reasons.
The ultimate result in the AlGhaithy case is consistent with a long line of caselaw affirming the independence of post-secondary institutions in making academic decisions.5 Although such decisions may be subject to judicial review, they will not be overturned unless they are clearly unreasonable or unfair.6 Moreover, students unhappy with their academic results will not be able to challenge them based on alleged violations of Charter rights unless they can distinguish their cases from the situation in AlGhaithy and other decisions by Ontario and B.C. courts consistent with it.7 This may prove difficult given the legislation in place in Canada to protect the independence of universities and colleges.
1 AlGhaithy v University of Ottawa, 2012 ONSC 142 (CanLII).
2 Ibid. at 76.
3 2010 ABQB 664; 2012 ABCA 139. This decision was later upheld by the Alberta Court of Appeal on administrative law principles but a majority of the panel declined to adopt the judge's decision on the Charter issue.
4 Endorsement of ONCA 01/10/12, Court file M41263; dismissal by SCC 07/03/13, Court file 35096.
5 McKinney v University of Guelph,  3 SCR 229 at para. 41; Dickason v University of Alberta,  2 SCR 1103 at 1129.
6 Wong v University of Toronto,  O.J. No. 979 (Div. Ct.), affd.  O.J. No. 3608 (C.A.); Zabo v University of Ottawa,  O.J. No. 1499 (S.C.J), affd.  O.J. No. 2664 (C.A.); Warraich v University of Manitoba,  M.J. No. 138 (C.A.); Re Polton and Governing Council of the University of Toronto (1976), 8 O.R. (2d) 749 (Div.Ct.); Dawson v University of Toronto,  O.J. No. 591 at para. 18 (Sup. Ct. J.), aff'd 2007 ONCA 875,  O.J. No. 4861 (C.A.); Mulligan v Laurentian University, 2008 ONCA 523 at para. 20; Gauthier c. Saint-Germain, 2010 ONCA 309 at para. 47
7 In addition to the AlGhaithy decision by the Ontario Divisional Court, see Freeman-Maloy v Marsden, 2006 CanLII 9693 at para 16 (ON CA) and Blaber v University of Victoria, 1995 CanLII 1220 at paras 31 and 32 (BC SC); Telfer v University of Western Ontario, 2012 ONSC 1287 at para 59; and Lobo v Carleton University, 2012 ONSC 254; aff'd 2012 ONCA 498 at para 14.
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