The Court quashed a decision of the Appeals Committee of the respondent College refusing to readmit the applicant. The Committee’s reasons were inadequate and amounted to a breach of procedural fairness, and were so sparse as to render the decision unreasonable on the merits.

Administrative law – Universities and colleges – Students – Admissions – Student discipline – Hearings – Procedural requirements and fairness – Failure to provide reasons – Judicial review – Standard of review – Reasonableness simpliciter

Zeliony v. Red River College, [2007] M.J. No. 470, Manitoba Court of Queen’s Bench, December 11, 2007, G.D. Joyal J.

The Applicant had been a student at the respondent College. The president of the College had advised the Applicant, by letter, that, based on new information, the Applicant’s earlier readmission to the Medical Radiological Program at the College was rescinded due to her conduct toward College staff. The Applicant filed a Student Discipline Appeal in respect of that decision, in which the Applicant denied the alleged behaviour which, in any event, preceded anger management counselling and other corrective programs undertaken by the Applicant that were the basis for her readmission to the College.

An Appeal Committee hearing was held, the decision from which was sent to the Applicant by letter. In a decision containing two sentences of explanation, the Appeals Committee informed the Applicant that she was not to be readmitted until 2010, and only then if she complied with certain conditions. The Applicant applied to the Court for judicial review of the decision, on the basis of a breach of procedural fairness, and also on the merits.

On the issue of procedural fairness, the College acknowledged that a duty of procedural fairness arose in the circumstance of the hearing, but disagreed with the Applicant with respect to the level of procedural fairness to which the Applicant was entitled. In that regard, the Court considered the five factors identified by the Supreme Court of Canada in Baker v. Canada (Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme and the terms on which the decision maker operates; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the party challenging the decision; and (5) the choices of procedure made by the decision maker. In considering and balancing those factors, the Court concluded that the level of procedural fairness owed to the Applicant was greater than the “minimal” procedures and protections required in the context of some administrative tribunals. Given the disciplinary nature of the question to be decided, its potential impact on the Applicant and her legitimate expectation that the policies and procedures which govern such a hearing be respected, she had every right to expect a full and fair consideration of the issues she raised in her Student Discipline Appeal application document, as well as a meaningful opportunity to present and respond to the various types of evidence relevant to the issues to be determined.

The Applicant raised several procedural fairness arguments, most of which were rejected by the Court. The Court held that the College’s failure to record proceedings was not a breach of procedural fairness, as this was a decision within the Appeals Committee’s power to make. The Applicant’s failure to accept an offer of adjournment meant that she waived any complaint about inadequate notice and disclosure. The lack of an opportunity to question the maker of a written statement was not in and of itself a denial of procedural fairness, and any such argument was again waived through silence at the hearing.

However, the Appeals Committee’s brief written reasons constituted a violation of procedural fairness. The particular circumstances of this case constituted a situation where more fully developed reasons are required. The reasons did not explain to the Applicant the nature of the “new information” upon which the rescinding of her readmission took place. They were also silent on how, if at all, the Appeals Committee attempted to understand and assess the Applicant’s testimony concerning the statements to which she took issue and about which she did not have a direct opportunity to respond after their presentation to the Appeals Committee.

The Court moved on to review the substance of the Appeals Committee’s decision. The Court applied the pragmatic and functional approach and concluded that the applicable standard of review was resonableness simpliciter. The Committee’s reasons were so sparse that the Court was unable to identify a line of reasoning that could reasonably be seen to lead the Appeals Committee from the evidence to its conclusion. In the circumstances, the decision could not be considered reasonable.

As to remedy, the Court could not require the college to readmit the Applicant, as there was no statutory provision imposing such a duty. The proper remedy was an order of certiorari quashing the decision.

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