Canada: Former Professor Cannot Sue University That Refused To Promote Him

On November 20, 2013, the Ontario Superior Court struck a $50-million lawsuit by a former professor against the University of Ottawa and four individual defendants.1 The court held that the lawsuit was an abuse of process. It also held that the former professor's statement of claim did not set out facts required in support of his legal claims.


Dr. Ibrahim Said was a paediatric anaesthetist and assistant professor at the University of Ottawa. He applied for a promotion to associate professor in 2009. Dr. Said needed to obtain the promotion to retain his licence to practice medicine in Ontario.2

Dr. Said's application for promotion was considered by the Faculty of Medicine's Clinical Teaching Personnel Committee (the CTPC) and the Dean of the faculty. Both recommended against the promotion because Dr. Said was, at the time, on probation for sexually harassing a medical resident in 2008. Dr. Said's application for promotion then went before the Joint Committee of the Board of Governors and the Senate (the Joint Committee), which denied it.

Dr. Said asked the Ontario Divisional Court for judicial review of the Joint Committee's decision. The Divisional Court concluded that the Dean's involvement in both the investigation of the sexual harassment complaint and the CTPC hearing (which he attended as a non-voting member) gave rise to a reasonable apprehension of bias.3 As a result the court set aside the Joint Committee's decision.

Following the Divisional Court's decision, Dr. Said re-applied for promotion to associate professor. While his application was under consideration, he started a lawsuit against the university, the Dean of the Faculty of Medicine, the former medical resident who had submitted the sexual harassment complaint, and two other individuals at the university.

He sought $50 million in damages, alleging the individual defendants had conspired to prevent him from obtaining a promotion, with the result that he lost his right to practice medicine in Canada. Dr. Said claimed the defendants had defamed him, breached his equality rights under the Canadian Charter of Rights and Freedoms, attempted to intimidate him and violated the university's policies in finding he had committed sexual harassment. In addition to damages, Dr. Said asked the court to declare he had not sexually harassed the former medical resident and that he should be promoted to associate professor.

The defendants brought a motion to strike Dr. Said's lawsuit. By the time the motion was heard, the Joint Committee had considered Dr. Said's second application for promotion and denied it, on the grounds his scholarly output was inadequate.

The court's decision

The Ontario Superior Court struck Dr. Said's lawsuit as an abuse of process. In his decision, Justice Beaudoin confirmed the university has the right to make its own decisions on academic promotions and sexual harassment. He held that Dr. Said is not entitled to use the courts to re-litigate the same facts and allegations raised in the university`s internal decision-making process and the judicial review of that process. He found Dr. Said's lawsuit was a disguised attempt to challenge the university's decisions on the sexual harassment complaint and promotion:

I conclude that the various claims that Dr. Said has put forward in the statement of claim are just "window dressing"... Dr. Said's explicit goal in this action is to secure an appointment as Associate Professor, in part and parcel by clearing his record for any past findings of sexual harassment.

Justice Beaudoin also ruled the individual defendants could not be liable for the damages claimed by Dr. Said, because they were acting within the scope of their duties for the university when they interacted with him. In addition Dr. Said could not sue the former resident who submitted the sexual harassment complaint because such complaints are subject to absolute privilege. Finally, he concluded Dr. Said had failed to allege material facts required to support his claims, and that his civil action was time-barred. The judge accordingly would have also struck the claim as disclosing no reasonable cause of action.

Implications of the decision

The Ontario Superior Court has once again rejected an attempt by a former member of the academic community to seek damages from the university because he is unhappy with a decision falling within the university's discretion. As noted by Justice Beaudoin:

Abuse of process concerns have frequently emerged in civil actions concerning universities' internal academic decisions, whether having to do with the imposition of discipline of a student or the denial of promotion of a faculty member. Case law demonstrates that courts in Ontario and across Canada have been reluctant to interfere with universities' internal academic decisions. They have held that such disputes are generally a matter to be resolved by the universities themselves, subject to judicial review.4

Justice Beaudoin's ruling confirms that courts should dismiss as an abuse of process claims that are indirect challenges to universities' decisions about promotion or sexual harassment violations. This judgment should discourage disappointed faculty members from attempting to challenge such decisions through a lawsuit for damages instead of seeking judicial review.

Norton Rose Fulbright Canada acted for the University of Ottawa and the individual defendants in this matter.


1 Said v University of Ottawa and others, 2013 ONSC 7186 ( "Justice Beaudoin's decision").

2 Dr. Said was in Canada under a temporary resident permit, the extension of which was contingent on him obtaining a promotion within a set time.

3 Said v University of Ottawa, 2011 ONSC 6179.

4 Justice Beaudoin's decision, para. 25. A recent example of this caselaw is the Ontario Court of Appeal decision in AlGhaithy et al. v University of Ottawa et al., 2013 ONCA 633, aff'g the decision of Justice Minnema at 2013 ONSC 2127.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions