Judicial Review of Academic Discipline Decision Not Available where Right of Appeal Still Exists

In this blog post, we reflect on the 2017 decision from the Ontario Divisional Court, Bastien v. University of Toronto and provide an update from the 2021 follow up case, which affords a rare opportunity to consider the same matter after the applicant has exhausted all of their other avenues of appeal.

First Application for Judicial Review

The 2017 case involved a physician’s application for judicial review of a referral for professional remediation when he was a medical student. That decision reiterates a key principle that is relevant to anyone wishing to challenge the decision of an administrative body (such as a decision regarding academic discipline): in order to seek a remedy from the Divisional Court with respect to an administrative matter, a person must first exhaust all other avenues of appeal available in the administrative arena.

The Bastien case begins with an administrative decision from October 2015 where, as a student in the University of Toronto’s Faculty of Medicine, the physician was found to have demonstrated lapses in professional behaviour and was referred for remediation in professionalism by the Toronto’s Faculty of Medicine Board of Examiners (the “Board”). In the letter setting out its decision, the Board informed the physician of his right to appeal the decision to the Appeals Committee of the Faculty of Medicine (the “Appeals Committee”). The physician initiated an appeal on October 30, 2015, but after attending meetings with the Vice-Dean as part of the appeal process, he chose to do the remediation course and to discontinue his appeal.

After successfully completing the remediation and graduating from the Faculty of Medicine, the physician applied to the College of Physicians of Surgeons of Ontario (“CPSO”) for registration as a physician. In his application, the physician answered “No” in response to the following question: “Have you ever been put on probation or remediation by a medical school?”. Having received contrary information from the University of Toronto, the CPSO followed up and made inquiries into the matter. The physician was ultimately required to undergo a monitoring process by the CPSO.

In 2017, the physician made an application to the Divisional Court for judicial review of the Board’s decision in order “to clear his reputation amongst his medical colleagues”. Specifically, he sought to have the decision of the Board set aside, and asked that the Court substitute its own decision that there was no finding of lapses in professional behaviour.

The University argued that the application should be dismissed on the grounds of “prematurity” – meaning that the Court should not intervene on the basis that Dr. Bastien had a right of appeal to the Appeals Committee, and from that decision he had a further right of appeal to the Academic Appeals Committee of the Governing Council of the University (the “Governing Council”), neither of which he had exercised before making the application for judicial review. The Court agreed with the University’s position and dismissed the physician’s application in its entirety.

In its reasons, the Court reiterated the general principle of administrative law that judicial review is a discretionary remedy, which will not be exercised when an applicant has not yet pursued all of the remedies and appeal routes available to them within the administrative regime. The principle is rooted in public policy, respect for parliamentary intention as set out in legislation, and deference to administrative tribunals. A Court will only consider a judicial review application while administrative proceedings are still ongoing in exceptional circumstances (for example, where continuing with a proceeding until its conclusion and then participating in an internal appeal process would result in an unfair hearing or a breach of natural justice).

In the case at hand, the Divisional Court found that there was no evidence of exceptional circumstances that would permit it to exercise its discretion and hear the judicial review application. In addition to dismissing the application, the Court ordered that the physician pay $20,000 in costs to the University.

Second Application for Judicial Review

Following the dismissal of the first application, the physician appealed the Board’s decision to the Appeals Committee on several grounds, including procedural unfairness by the Board. When this appeal was dismissed, the physician appealed the Appeal Committee’s decision to the Governing Council, who affirmed the Appeal Committee’s decision.

Now having exhausted the available appeal processes at the University, the physician made a second application for judicial review. The Court found that the Appeals Committee had conducted a hearing de novo of the matters which were before the Board, reconsidered the evidence, and afforded the physician, who had legal representation, a fair process with every opportunity to present his case.

The Court adopted the finding of the Governing Council that if there had been a denial of procedural fairness by the Board, that the Appeals Committee proceeding had “cured” it (although the Court highlighted that this should not be taken as an invitation to be lax in observing procedural fairness). The Court further commented that when a decision is made by a specialized tribunal, designed for that purpose by the legislature and not the Court (in this case, the Governing Council), then this is “as it should be”. The second application for judicial review was accordingly dismissed, and the Court ordered that the physician pay $25,000 in costs to the University.

Takeaways

As we stated at the outset, the 2017 case serves as an important reminder that judicial review or appeal to a court from an administrative decision is generally only available where the applicant has already taken advantage of all internal administrative appeal processes available to them. Where a medical student wishes to challenge a decision to be put on probation, for example, they may only apply to the Divisional Court of Ontario for review of that decision after pursuing all other rights of appeal available to them within the university.

The 2021 follow up case provides a further reminder that having pursued all other rights of appeal available before bringing an application for judicial review is a precondition for success, but no guarantee of it.

There is another important takeaway from this case: professionals must never misstate information on an application for registration with a regulatory college! Had the physician in this case been forthright on his application to the CPSO, the fact that he had completed a remediation course during medical school would likely have had no further impact on his certificate of registration. However, the failure to disclose this information resulted in further difficulty for the physician (monitoring by the CPSO during his residency, which had been completed before the hearing of his application).

Advice for health professionals: If you are applying for registration with a regulatory College and are unsure about how to answer certain questions on the application, it would be wise to seek legal advice before submitting the application. 

Assistance with Academic Discipline Matters

The lawyers at Rosen Sunshine have experience advising and representing medical students and residents in academic discipline matters, including appeals of remediation, probation, suspension, and dismissal decisions related to academic performance or professional conduct. If you have concerns about your rights and responsibilities with respect to an academic matter, please contact us for more information.