Lana v. University of Alberta et al.,

• Judge: Martin,Read,Rowbotham
• Neutral Citation: 2013 ABCA 327
• Subject Matter: EDUCATION,ADMINISTRATIVE LAW,EVIDENCE
• Citation: 2013 ABCA 327,(2013), 561 A.R. 70,561 AR 70,(2013), 561 AR 70,561 A.R. 70
• Date: 30 April 2013
• Court: Court of Appeal (Alberta)

Lana v. Univ. of Alta. (2013), 561 A.R. 70; 594 W.A.C. 70 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.003

Stephen Dalla Lana (appellant/applicant) v. Governors of the University of Alberta and University Appeal Board (respondent/respondent)

(1203-0118-AC; 2013 ABCA 327)

Indexed As: Lana v. University of Alberta et al.

Alberta Court of Appeal

Martin and Rowbotham, JJ.A., and Read, J.(ad hoc)

September 30, 2013.

Summary:

Lana was a student at the University of Alberta. A discipline officer found that Lana had breached s. 30.3.4(6)(a) of the Code of Student Behaviour, specifically, that "No student shall have sexual or physical contact with another person without that person's consent". The officer recommended that Lana be expelled. Lana appealed the decision to the University Appeal Board (UAB). The UAB confirmed the decision, but varied the penalty and imposed a three year suspension along with other sanctions. Lana applied for judicial review.

The Alberta Court of Queen's Bench, in a decision reported at (2012), 531 A.R. 218, dismissed the application. Lana was owed a high level of procedural fairness which he received. The UAB's decision on sanctions was owed considerable deference, and Lana had not established any basis for interfering with the penalty. Lana appealed, alleging breaches of procedural fairness, and an error in the failure to admit expert evidence.

The Alberta Court of Appeal, Martin, J.A., dissenting, dismissed the appeal.

Administrative Law - Topic 629

The hearing and decision - Evidence and proof - Expert evidence - [See third Education - Topic 4511 ].

Administrative Law - Topic 2494

Natural justice - Procedure - At hearing - Opportunity to present evidence - [See third Education - Topic 4511 ].

Education - Topic 4511

Universities - Students - Code of conduct - The Alberta Court of Appeal considered the statutory framework found in Alberta's Post-Secondary Learning Act and the Code of Student Behaviour - "The prehearing and hearing procedures set out in the legislation demonstrate a process that is close to a judicial one. It is structured and adversarial. The parties are entitled to legal representation and to call evidence. There is no appeal from a UAB [University Appeal Board] decision. The Board is given broad discretionary powers with respect to the evidence it will receive." - See paragraphs 9 to 14.

Education - Topic 4511

Universities - Students - Code of conduct - The applicant sought judicial review of a decision by the University Appeal Board which found that he violated a provision of the Code of Student Behaviour for the University of Alberta, specifically, that "No student shall have sexual or physical contact with another person without that person's consent." - The reviewing judge concluded that the case warranted a high degree of procedural fairness which the applicant received - The applicant appealed, alleging breaches of procedural fairness - The Alberta Court of Appeal stated that "[t]he Baker factors also require a consideration of the decision and its importance to the student. The appellant faced a charge of violating a very serious provision of the Code. Indeed, it is the administrative law equivalent of the criminal charge of sexual assault which is one of the most serious offences in the criminal law. The Board's decision has a significant effect on the student's academic success, potential career and reputation and a student would accordingly have a legitimate expectation of a high level of procedural fairness. A consideration of these factors supports a high degree of procedural fairness. This is the standard which the reviewing judge correctly articulated" - See paragraphs 15 and 16.

Education - Topic 4511

Universities - Students - Code of conduct - The applicant sought judicial review of a decision by the University Appeal Board which found that he violated a provision of the Code of Student Behaviour, specifically, that "No student shall have sexual or physical contact with another person without that person's consent." - The reviewing judge dismissed the application - The applicant appealed, alleging that the Board erred in failing to admit expert evidence that the case had the hallmarks of a false complaint - The expert, a medical doctor and an expert in sexual assault and post-traumatic stress disorder (PTSD), had not examined or interviewed the complainant - The applicant submitted that the expert evidence could have assisted the Board in its assessment of the complainant's credibility - The Alberta Court of Appeal, on the standard of review of reasonableness, agreed with the reviewing judge's conclusion that there was no procedural unfairness in refusing to admit the expert evidence - The applicant was free to argue, and did argue, that the complaint was false - The determination of what evidence would be persuasive or material on the ultimate issue of the complainant's credibility was within the mandate of the Board - Martin, J.A., dissenting, concluded that the expert evidence was necessary in that it explained features of the complainant's evidence which went beyond the ordinary experience of the trier of fact and offered reason to question that evidence - The Board's error was amplified when it allowed a witness for the university (the physician who treated the complainant) to opine that the complainant suffered from PTSD, and to express her opinion on the complainant's credibility - As such, the Board denied the applicant a fair hearing - See paragraphs 35 to 72.

Education - Topic 4624

Universities - Judicial review of exercise of powers of universities - Standard of review - The applicant sought judicial review of a decision by the University Appeal Board which found that he violated a provision of the Code of Student Behaviour - The reviewing judge concluded that the case warranted a high degree of procedural fairness, which the applicant received - The applicant appealed, alleging breaches of procedural fairness, and an error in the failure to admit expert evidence - The Alberta Court of Appeal stated that "[t]here are two standards of review engaged in this appeal. First, the reviewing judge's selection and application of the standard of review is reviewed by this court for correctness ... . The second standard of review is that which applies to a review of the Board's decision. Although the standard of review applicable to the Board's decision would normally be evaluated according to the factors in Dunsmuir v New Brunswick, ... here the first three grounds raise issues of procedural fairness. Whether the overall conduct of a hearing met an acceptable standard of fairness is reviewed for correctness" - See paragraphs 5, 6 and 8.

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - [See third Education - Topic 4511 ].

Evidence - Topic 7157

Opinion evidence - Prohibited opinions - Re credibility of witnesses - [See third Education - Topic 4511 ].

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 5].

Boissoin et al. v. Lund et al. (2012), 536 A.R. 272; 559 W.A.C. 272; 365 D.L.R.(4th) 459; 2012 ABCA 300, refd to. [para. 5].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 6].

Tartaglia v. Workers' Compensation Board Appeals Commission (Alta.) (2012), 533 A.R. 138; 557 W.A.C. 138; 2012 ABCA 186, refd to. [para. 6].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 7].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 7].

Wright v. College and Association of Registered Nurses (Alta.) (2012), 536 A.R. 349; 559 W.A.C. 349; 2012 ABCA 267, refd to. [para. 17].

Université du Québec à Trois-Riviéres v. Syndicat des employés professionnels de l'Université du Québec à Trois-Riviéres, [1993] 1 S.C.R. 471; 148 N.R. 209; 53 Q.A.C. 171; 101 D.L.R.(4th) 494, refd to. [para. 38].

Lavallee v. Alberta Securities Commission (2010), 474 A.R. 295; 479 W.A.C. 295; 2010 ABCA 48, refd to. [para. 38].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419, refd to. [para. 53].

R. v. Juneja (V.B.) (2010), 490 A.R. 127; 497 W.A.C. 127; 2010 ABCA 262, refd to. [para. 53].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 108 D.L.R.(4th) 47, refd to. [para. 56].

Counsel:

S.M. Renouf Q.C., and A.L. Badari, for the appellant;

G.A. Harding, Q.C., for the respondent.

This appeal was heard on April 30, 2013, before Martin and Rowbotham, JJ.A., and Read, J.(ad hoc), of the Alberta Court of Appeal, who delivered the following memorandum of judgment, with reasons, filed at Edmonton, Alberta, on September 30, 2013:

Rowbotham, J.A., and Read, J.(ad hoc) - see paragraphs 1 to 45;

Martin, J.A., dissenting - see paragraphs 46 to 73.