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2 October 2018

Making The Grade: Court Review Of University Decision-Making

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Stewart McKelvey

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Universities have a variety of internal procedures that permit students to challenge a number of academic decisions.
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INTRODUCTION

Universities have a variety of internal procedures that permit students to challenge a number of academic decisions. For example, there are often procedures allowing students to appeal grades or to challenge other decisions such as being expelled.1

However, these decisions are not necessarily final. Students who exhaust the appeal procedures established by a university may generally apply to a superior court for judicial review. This article will summarize how courts assess these types of academic decisions and outline what courts expect from universities in order to uphold their decisions. In other words, this legal cheat sheet is intended to help universities make the grade in a courtroom.

DISTINCTION BETWEEN ACADEMIC ISSUES AND OTHER LEGAL ISSUES

At the outset, it is important to note that courts treat academic issues differently from other legal issues that may arise within universities. For example, students who have a pure academic dispute are generally required to exhaust the internal procedure before initiating a court proceeding. On the other hand, matters of a general legal nature – such as an allegation that a university was negligent and caused harm to a student – are permitted to proceed immediately to court.

While this distinction appears to be clear at face value, it is often more obscure in practice. For example, consider the circumstances of a student who alleges that their course failure was caused by negligent instruction by the university. Is this an academic issue or a legal one? Most recently, this question has been resolved by examining the remedy being sought by the student. If the student wishes to have a grade of "fail" changed to a "pass," then the decision is purely academic in nature and ought to go through the internal procedure at the university. However, if the student is seeking monetary compensation for lost opportunities, the issue is a legal one and the student may immediately start a legal proceeding in negligence.2 Courts will generally not entertain claims for monetary compensation when the claim is, in substance, an attempt to reverse a grading decision by the university.

DEFERENCE WILL GENERALLY BE EXTENDED TO THE UNIVERSITY'S DECISION

The distinction between academic disputes and other legal issues also has an impact on the role of the court in the proceeding. If the claim is a legal one, then the court will make its own factual findings and reach its own legal conclusions. However, if the dispute is purely academic in nature, the role of the court will be to "review" the decision made by the university. The court does not consider the matter afresh and make its own findings. Rather, the court extends a considerable amount of deference or respect to the internal decision-makers at the university.

This deference to university decision-making is appropriate because, when students enroll at a university, "it is understood that the student agrees to be subject to the institution's discretion in resolving academic matters, including the assessment of the quality of the student's work."3 And, in the academic context, that discretion has been recognized as being broad.4 After all, provincial legislatures generally grant responsibility over academic policies, including the authority to "render a final decision on academic appeals," to the governing bodies of universities – and not to the courts.5

Courts have also accepted that universities have particular expertise over academic matters. This expertise also engenders respect from the court.6 For example, in a decision concerning whether it was reasonable for a university to transfer a PhD student to another program because the faculty did not have the expertise to supervise the project in question, the court stated it was "simply not equipped" to determine the issue.7

When the relative expertise of universities in academic matters is considered together with the autonomy granted to universities by legislatures, courts are generally reluctant to interfere in academic affairs.8 In fact, there are a number of cases where courts have said that an academic decision can only be reviewed to ensure that the university followed a fair process.9 Deference will therefore generally be extended to universities in academic matters.

MAKING THE GRADE

Courts typically conduct only a procedural review of academic decisions. The objective of the review process is to ensure that the student has been treated fairly by the university. Judicial review will therefore generally focus on the requirements of procedural fairness. Understanding these obligations is therefore essential if a university expects to receive a passing grade from the court.

To start, the requirements of procedural fairness are context-specific. Some cases, such as disciplinary matters that lead to expulsion, attract a high level of fairness.10 Other administrative matters – such as a decision to re-admit a student into a program – attract a lower level of procedural fairness.11 However, no matter the nature of the academic decision at issue, the following basic elements of procedural fairness will ordinarily apply:

Bias: Just as a chemistry student is expected to justify her conclusions by using independent and objective methods, a university is similarly expected to justify its academic decisions in a manner that is free of bias. Internal decision-makers must be impartial in their dealings with a student. This requirement applies to all types of academic decision-making. For example, a professor should not – after a student has appealed their grade – change their reasoning for failing the student.12 This type of conduct suggests that the initial grading decision was arbitrary and not animated by relevant academic considerations.

Reasons: For students, answering the question "why?" is a common and legitimate pursuit at university. Nothing less is expected when a university makes an academic decision about a student. The provision of reasons allows the student – and the reviewing court – to understand the justification for a particular decision.13 In other words, the university, like the student, must show its work. In the absence of reasons, students may feel that a decision was motivated by arbitrariness. Courts too have had difficulty upholding decisions that were made by universities in the absence of reasons.14 However, the content of those reasons may vary in the circumstances. There is a direct relationship between the impact of a decision on the student and the quality of reasons expected from the university. For example, formal written reasons are often necessary in disciplinary matters (i.e. expulsion of a student from the university), but not expected in matters that are administrative in nature (i.e. denying a student re-admission to a program).15

Opportunity to be heard: Universities foster an academic environment that encourages participation by students. Courts require much the same from universities when they make decisions affecting the academic interests of students. They must provide students with an opportunity to participate in the decision-making process and, more specifically, they are required to ensure that students have an opportunity to explain why a particular decision ought to be changed. The form of that opportunity, however, varies depending on the circumstances. For example, an oral hearing is ordinarily required when a student faces expulsion or when credibility will weigh heavily in the final outcome.16 Where the consequences are less severe or credibility is not at issue, a hearing in writing may suffice. For example, if a student has requested re-admission to a program, courts have held that a university can discharge its duty by providing "an opportunity to be heard" in writing only.17

CONCLUSION

A review of the case law demonstrates that courts will generally defer to academic decisions by university decision-makers. Universities are considered to have expertise in such matters and enjoy broad discretion over the academic interests of students. However, the case law also determines that courts will scrutinize the appeal procedures adopted by universities as part of their academic policies. A reviewing court will examine an academic decision to ensure that it was free of bias, that the student had a meaningful opportunity to be heard, and that the university provided reasons to justify its decision. If the court is not satisfied that the procedure used by the university was fair in the circumstances, it may set aside the decision. Keeping these elements of procedural fairness in mind will be essential if universities expect to make the grade on judicial review.

Footnotes

1. For example, the University of Prince Edward Island has the following procedure for appealing a grade: (1) an informal appeal with an instructor; (2) a formal appeal with the departmental Chair; (3) a formal appeal with the faculty Dean; and (4) a formal appeal to the Senate Academic and Discipline Appeals Committee.

2. Jaffer v. York University, 2010 ONCA 654 at para. 26.

3. Ibid. at para. 27.

4. Ibid. at para. 28.

5. See e.g. University Act, R.S.P.E.I. 1988, c. U-4, s. 24.

6. See e.g. Lam v. University of Western Ontario, 2017 ONSC 6933 at paras. 39-47.

7. Ibid. at paras. 42, 44 and 50.

8. Ibid. at para. 31.

9. See Green v. University of Winnipeg, 2015 MBCA 109 at para. 31; Dawson v. University of Toronto, 2007 CanLII 4311 at para. 5 (ONSC); and Fufa v. University of Alberta, 2012 ABQB 594 at para. 24.

10. Khan v. Ottawa (University of), 1997 CanLII 941 (ONCA).

11. See e.g. Green v. University of Winnipeg, 2018 MBQB 4.

12. Al-Bakkal v. De Vries, 2003 MBQB 198 at paras. 36-37.

13. Mohamed v. University of Saskatchewan, 2006 SKQB 23 at para. 44.

14. Zeliony v. Red River College, 2007 MBQB 308 at para. 136 and following.

15. Supra note 11 at paras. 78-82.

16. Supra note 10.

17. Supra note 11 at paras. 51-54.

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.

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