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.

Facts

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.

Footnotes

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.

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