Administrative law – Decisions of administrative tribunals – University Committees – Universities – Evaluation of professors – Judicial review – Bias – Mootness – Procedural requirements and fairness – Natural justice
Said v. University of Ottawa,  O.J. No. 6043, 2011 ONSC 6179, Ontario Superior Court of Justice, Divisional Court, December 30, 2011, J.D. Cunningham A.C.J.S.C.J., G.T.S. Valin and H.A. Rady JJ.
The applicant, a foreign-trained anesthesiologist, applied for judicial review of a decision of the Joint Committee of the Senate and the Board of Governors of the University of Ottawa (the “Joint Committee”) which refused to promote the applicant to the position of Associate Professor at the University of Ottawa (the “University”). The applicant was required to become an Associate Professor by 2010 or he would lose his license to practice in Ontario. The applicant met the teaching and research requirements necessary for promotion but was denied the position because the Joint Committee concluded he failed to meet the professional standards expected; it having been earlier determined that he sexually harassed a colleague.
In 2009, a colleague of the applicant made a sexual harassment complaint against the applicant. The essence of the complaint was that the applicant asked the complainant to have dinner with him on two or three occasions. The last time he did so, the complainant declined and raised a concern about the power imbalance between them. The applicant admitted he asked the complainant to have dinner with him but denied he had any sexual intentions. The University appointed an investigator who prepared a fact finding report with respect to the complaint. The report was provided to the Dean of the Faculty of Medicine who conducted his own investigation, in accordance with the University’s policy. The Dean recommended to the Administrative Committee that the applicant be dismissed as Assistant Professor, which essentially also meant that the applicant could not practice medicine in Ontario. The Administrative Committee rejected the Dean’s recommendation and instead, ordered remedial measures for the applicant to undertake. The applicant complied with the remedial orders and, in the meantime, his application for promotion to Associate Professor was on its way toward consideration.
The Departmental Faculty Promotions Committee (“DFPC”) unanimously supported the applicant’s application to Associate Professor. This recommendation was forwarded to the Dean and the faculty’s Clinical Teaching Personnel Committee (“CTPC”) in accordance with the University’s procedure for promotion. The Dean advised the CTPC members about the sexual harassment complaint and findings and ultimately the CTPC unanimously rejected the applicant’s application on the basis of the complaint, notwithstanding the applicant’s “excellence in clinical care”.
The applicant appealed the CTPC decision. The Dean refused the applicant’s request that he recuse himself from the appeal process. The CTPC upheld its decision. The Dean then made his negative recommendation to the Joint Committee. The Joint Committee declined to grant the applicant the promotion to Associate Professor on the basis that the applicant did not meet professional standards. The applicant applied for judicial review of this decision on the basis, inter alia, that the Dean was biased. The respondent argued the issue was moot since the applicant emigrated out of Canada and the sexual harassment findings were not subject to judicial review. The Court allowed the application. Regarding the moot issue, the Court held that although the applicant emigrated out of Canada, this factor could not be used to shelter the decision from review. The Court held that the respondent owed the applicant a duty of fairness and that that duty was breached because of the Dean’s continued involvement at every level of the proceedings, after he recommended the applicant’s dismissal. This involvement created a reasonable apprehension of bias; a reasonably informed person would conclude the applicant would not be treated fairly. The Court accordingly quashed the decision of the Joint Committee.
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