Khan v. University of Ottawa, (1997) 101 O.A.C. 241 (CA)

• Judge: Brooke, Finlayson and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 27, 1997
• Jurisdiction: Ontario
• Citations: (1997), 101 O.A.C. 241 (CA)

Khan v. Ottawa Univ. (1997), 101 O.A.C. 241 (CA)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. JL.005

Nalini Khan (applicant/appellant) v. The University of Ottawa, its Senate Committee and its Faculty of Law Examinations Committee (respondents/respondents in appeal)

(C27104)

Indexed As: Khan v. University of Ottawa

Ontario Court of Appeal

Brooke, Finlayson and Laskin, JJ.A.

June 27, 1997.

Summary:

A law student failed an examination. The instructor graded her on three examination booklets. The student claimed she passed in four. The student unsuccessfully appealed her failing grade to an Examinations Com­mittee and then the Sen­ate Committee. Neither Committee gave her an oral hearing and both concluded that she failed to prove the fourth booklet existed. The student applied for judicial review, claiming a denial of natural justice.

The Ontario Divisional Court, in a judg­ment reported [1997] O.A.C. Uned. 98, dismissed the application. The court rejected the student's allegation that her credibility was of pivotal concern and held that if natural justice was denied before the first Committee, it was cured in the proceedings before the Senate Committee. The student appealed.

The Ontario Court of Appeal, Finlayson, J.A., dissenting, allowed the appeal. The student was denied procedural fairness before the Examinations Committee, where, inter alia, she was not afforded an opportu­nity to make oral representations where her credibility was pivotal to her claim. The Senate Committee not only did not cure that procedural unfairness, its proceedings were also procedurally flawed. The court remitted the matter to the Examinations Committee for an oral hearing.

Administrative Law - Topic 223

The hearing and decision - Right to be heard - Who is entitled to be heard - A law student failed an examination - She was marked on three examination booklets, but claimed she passed in four - Because of other low marks, the failing grade lowered her grade point average suffi­ciently to require her to repeat a semester - An appeal to the university Examina­tions Committee was dismissed without oral representations and affirmed by the Senate Committee - The Ontario Court of Appeal held that the student was denied procedural fairness by both Committees - The student's credibility was critical; ac­cordingly, she was entitled to an oral hearing - The Examinations Committee also failed to adequately inquire into whether proper invigilation procedures were followed and made its decision on three factors without giving the student an opportunity to correct or contradict these factors - The Senate Committee appeal was not a hearing de novo - She also should have been permitted to appear before it and give oral representations - The Senate Committee also failed to con­sider proper invigilation procedures and considered irrelevant evidence - The court remitted the matter to the Examinations Committee for an oral hearing - See para­graphs 9 to 62.

Administrative Law - Topic 224

The hearing and decision - Right to be heard - What constitutes being heard - At issue was whether a university student appealing a failing examination grade to the Examinations Committee and then to the Senate Committee had a right to appear before the Committees and make oral representations - The Ontario Court of Appeal stated that "in many academic appeals, procedural fairness will not de­mand an oral hearing. An opportunity to make written submissions may suffice." - The court stated that where a student's appeal "turned on her credibility" and there were "serious consequences to her of an adverse finding" fairness required an oral hearing - See paragraphs 21 to 23.

Administrative Law - Topic 625

The hearing and decision - Evidence and proof - Credibility - [See Administrative Law - Topic 223 ].

Administrative Law - Topic 9106

Board and tribunals - Judicial review - Remedies available - A law student ap­pealed a failing examination grade to the Examinations Committee and then the Senate Committee - Both were unsuccess­ful - The student claimed she passed in four examination booklets, instead of the three received by the marking professor - The university was not satisfied that a fourth booklet existed - The Ontario Court of Appeal held that the student was denied procedural fairness at both appeal levels, because, inter alia, she was not afforded an opportunity to make oral representations at the hearings - At issue was the appropriate remedy, being remittal to the Examinations Committee for an oral hearing or the relief that would have been granted if the stu­dent's claim of a fourth booklet was ac­cepted (i.e., opportunity to rewrite the examination) - The court stated that it was satisfied that the Examinations Committee would give the student a fair hearing - Accordingly, the appropriate remedy was a new oral hearing before that Committee - See paragraphs 60 to 62.

Administrative Law - Topic 9118

Boards and tribunals - Judicial review - Curial deference to decisions of tribunals -The Ontario Court of Appeal stated that "I recognize that courts have at times shown great deference to the academic and disci­plinary decision-making functions of universities. This deference is reflected in a reluctance to interfere by judicial review and in the application of a standard of 'manifest unfairness' for reviewing pro­cedural challenges. ... But I see no room for deference and no basis for a more stringent standard of judicial review when all internal university tribunals deny a student procedural fairness. If, as here, the procedures of the university committees do not conform to the requirements of fairness they should be reviewable." - See para­graph 59.

Education - Topic 4508

Universities - Students - Academic evalu­ation - Judicial review - [See Adminis­trative Law - Topic 223 and Ad­ministrative Law - Topic 9106 ].

Cases Noticed:

Kane v. University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214; [1980] 3 W.W.R. 125, refd to. [para. 13].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422, refd to. [para. 22].

Masciangelo v. Spensieri (1990), 1 C.P.C.(3d) 124 (Ont. H.C.), refd to. [para. 22].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364; 96 D.L.R.(3d) 14, refd to. [para. 32].

King v. University of Saskatchewan, [1969] S.C.R. 678, refd to. [para. 39].

Polten v. University of Toronto (1975), 8 O.R.(2d) 749 (Div. Ct.), refd to. [para. 41].

Paine v. University of Toronto et al. (1981), 34 O.R.(2d) 770 (C.A.), refd to. [para. 59].

Healey v. Memorial University of Newfoundland (1992), 106 Nfld. & P.E.I.R. 304; 334 A.P.R. 304; 14 Admin. L.R.(2d) 259 (Nfld. T.D.), refd to. [para. 61].

Komo Construction Inc. v. Commission des Relations de Travail du Québec, [1968] S.C.R. 172, refd to. [para. 79].

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Ontario (Attorney General), [1979] 1 S.C.R. 311; 23 N.R. 410, refd to. [para. 79].

R. v. Race Relations Board; Ex parte Selvarajan, [1976] 1 All E.R. 12, refd to. [para. 80].

Barron v. Minister of National Revenue (1997), 209 N.R. 392; 97 D.T.C. 5121 (F.C.A.), refd to. [para. 81].

Hoffmann-La Roche v. Delmar Chemicals Ltd., [1965] S.C.R. 575, refd to. [para. 83].

Hundal v. Superintendent of Motor Vehicles (B.C.) (1985), 20 D.L.R.(4th) 592 (B.C.C.A.), refd to. [para. 86].

Nuosci v. Canada (Attorney General) (1994), 167 N.R. 153 (F.C.A.), refd to. [para. 88].

Everett v. Canada (Minister of Fisheries and Oceans) (1994), 169 N.R. 100; 80 F.T.R. 160; 25 Admin. L.R. 112 (F.C.A.), refd to. [para. 89].

Hajee v. York University (1985), 11 O.A.C. 72 (Div. Ct.), refd to. [para. 90].

Masters v. Ontario et al. (1994), 72 O.A.C. 1; 18 O.R.(3d) 551 (Div. Ct.), refd to. [para. 92].

Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241; 62 D.L.R.(4th) 385, refd to. [para. 92].

Restrictive Trade Practices Commission et al. v. Irvine et al., [1987] 1 S.C.R. 181; 74 N.R. 33; 41 D.L.R.(4th) 429, refd to. [para. 92].

Russell v. Norfolk (Duke), [1949] 1 All E.R. 109 (C.A.), refd to. [para. 93].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R.(3d) 1, refd to. [para. 93].

Authors and Works Noticed:

Chewter, C.L., Justice in the University: Legal Avenues for Students (1994), 3 Dalhousie J. Leg. Studies 105, p. 113 [para. 14].

Evans, Administrative Law, Cases, Text and Materials (4th Ed. 1995), p. 69 [para. 83].

Mullan, Administrative Law (3rd Ed. 1996), para. 108 [para. 21].

Counsel:

Mark Hart, for the appellant;

Darryl A. Grandbois, for the respondents.

This appeal was heard on May 20, 1997, before Brooke, Finlayson and Laskin, JJ.A., of the Ontario Court of Appeal.

On June 27, 1997, the judgment of the Ontario Court of Appeal was released and the following opinions were filed:

Laskin, J.A. (Brooke, J.A., concurring) - see paragraphs 1 to 63;

Finlayson, J.A., dissenting - see para­graphs 64 to 97.