Despite the usual deference given to academic decision-making, the Ontario Divisional Court's recent decision in Ford v University of Ottawa, 2022 ONSC 6828, confirms that courts are prepared to intervene where an academic institution's process is manifestly unfair to students.
The decision reiterates that:
- Universities and colleges are bound by the principles of procedural fairness;
- Stringent procedural safeguards are required if an individual's ability to pursue a profession is at stake;
- Where an academic institution's process does not conform to the requirements of procedural fairness, the decision will attract judicial scrutiny.
Shaune Ford sought a judicial review of a decision rendered by the University of Ottawa's Senate Appeals Committee (the "Committee"). The Committee upheld two prior decisions made by the School of Nursing to fail Ford on his clinical placement, or "Practicum".
Ford was a registered nurse. He received positive feedback about work in prior clinical settings. In 2015, he entered the University of Ottawa's Nurse Practitioner program (the "Program"). The Program was aimed at training licensed nurses for an advanced practice role as a nurse practitioner.
Students in the Program were required to complete 419 clinical hours in a Practicum, as well as a series of academic modules and seminars. By Fall 2020, Ford only had to complete the Practicum to graduate. The course tutor (the "Tutor") determined the final grade in the Practicum.
Ford was placed at a clinic in Eastern Ontario (the "Clinic"). A nurse practitioner at the Clinic was assigned as his supervising clinician (the "Preceptor").
Within a few days of his placement, Ford told the Tutor of concerns with patient care he observed at the Clinic, the Preceptor's standards of practice and the adequacy of her clinical decisions. The Tutor advised him that he was not permitted to change his placement and was expected to continue working his assigned Preceptor.
The Tutor promptly relayed Ford's concerns to the Preceptor. The Preceptor revealed her own concerns about Ford's performance.
Only a few days later, the Tutor informed Ford that the Preceptor asked that he not return to the Clinic. Ford had only completed 52 of the required 419 clinical hours.
The Preceptor marked Ford as having failed to meet any of the requirements of the Practicum. Through a mandatory self-assessment, Ford assessed himself as having met the requirements of the Practicum.
During his meeting with the Tutor and Program Coordinator, Ford learned he would receive a failing grade in the course and — for the first time — was unable to graduate. The Program Coordinator refused to hear his version of events and denied his request to find a new clinical placement.
The Grade Review
Ford requested a Grade Review. An independent reviewer (the "Reviewer") was assigned to the matter.
Based on Ford's letter of appeal, the evaluation, the course syllabus, and the report prepared by the Reviewer, the School of Nursing determined that there was "no reason to overturn the unsatisfactory grade."
Ford was not given an opportunity to respond to opposing submissions, including particularly the Preceptor's poor characterization of his conduct.
The Appeal to the Committee
Ford appealed to the Committee, asserting the processes below lacked the necessary procedural protections.
In a brief letter, the Committee found "no justification for rescinding the decision" of the School of Nursing. It provided no reasons for its decision. The Committee's meeting minutes, which contained a more thorough explanation of its decision, were not released until the judicial review process began.
At the Committee hearing, Ford was asked only two questions, and neither the Tutor nor the Preceptor attended. The hearing lasted approximately 10 minutes.
The Divisional Court Decision
The Divisional Court granted the application for judicial review. It found the University's decision-making process denied Ford procedural fairness, and that the decision to fail Ford was an unreasonable outcome. The Court referred the matter back to the School of Nursing for reconsideration.
There were a number of deficiencies in the process:
(1) The School of Nursing failed to follow its own syllabus, contrary to Ford's legitimate expectations, without explanation by accepting an evaluation after only 52 of 419 hours were completed, despite the syllabus prescribing a "mid-term" evaluation.
(2) Credibility was "never properly addressed". The evaluation process violated Ford's right to participate as he was prohibited from disputing the assertions advanced by the Preceptor.
(3) The Committee failed to conduct a hearing de novo or undertake a "full reconsideration", and therefore did not cure any prior procedural failures.
(4) The Committee's reasons were also inadequate, failing to explain why it dismissed the appeal.
This decision is a helpful reminder that academic institutions are bound by the principles of procedural fairness. The extent and the nature of the duty of fairness will vary depending on the context. However, as confirmed in this case, a high degree of procedural fairness is required where an individual's ability to pursue a profession is at stake.
In the context of an academic dispute, procedures should afford the individual affected with a meaningful opportunity to present their case and should ensure that decisions affecting their interests are made using an open, fair and impartial process.
The Court's decision suggests that:
- The Right to Participate: Students must be afforded an unrestrained opportunity to plead their case and respond to concerns raised by the university or college faculty.
- The Right to be Informed: Students must have access to the materials and information submitted pursuant to an academic dispute. Decision-makers must provide thorough reasons for the decision they render and must describe how they arrived at the decision.
- A hearing de novo may cure procedural defects: A proceeding before an appeal committee may cure the defects arising from the processes below where the decision-making authority considers the issues anew. The appeal proceeding must not rely on any legal conclusions or assumptions made by previous decision-makers.
Any administrative decision-maker must be careful to ensure the procedures afforded correspond to the duty it owes. If ever in any doubt, it would be prudent for the decision-maker to seek legal advice about how it might be able to best discharge its duty.
Court File Number: DC-22-2735
Date of Decision: December 7, 2022
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