Zeliony v. Red River College, 2007 MBQB 308

• Judge: Joyal, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: December 11, 2007
• Jurisdiction: Manitoba
• Citations: 2007 MBQB 308;(2007), 222 Man.R.(2d) 156 (QB)

Zeliony v. Red River College (2007), 222 Man.R.(2d) 156 (QB)

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. JA.001

Tatiana Zeliony (applicant) v. Red River College (respondent)

(CI 07-01-53666; 2007 MBQB 308)

Indexed As: Zeliony v. Red River College

Manitoba Court of Queen's Bench

Winnipeg Centre

Joyal, J.

December 11, 2007.

Summary:

A college student who engaged in inappropriate behaviour was advised that she would only be considered for re-admission if she completed certain conditions. Based on its satisfaction that the conditions were met, the college later advised the student that she was re-admitted to the college program. However, she was subsequently advised that based on unspecified "new information" respecting her behaviour, her re-admission was rescinded. The student appealed to the college's Disciplinary Appeals Committee. The Committee, in a short decision containing only two lines respecting reasons, dismissed the appeal and suspended the student from the college until the fall term of 2010, when she could apply for re-admission on conditions. The hearing has not been recorded. The student sought judicial review.

The Manitoba Court of Queen's Bench allowed the application. The Committee's two sentence reasons were so inadequate as to constitute a breach of procedural fairness. As to the reasonableness of the Committee's decision, the reasons were so inadequate as to preclude the court from discerning any line of analysis that could have reasonably led the Committee to its conclusion (i.e., unable to conduct meaningful judicial review). The appropriate remedy was to quash the Committee's decision.

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions (incl. sufficiency of reasons) - A college student who engaged in inappropriate behaviour was advised that she would only be considered for re-admission if she completed certain conditions - Based on its satisfaction that the conditions were met, the college later advised the student that she was re-admitted to the college program - However, she was subsequently advised that based on unspecified "new information" respecting her behaviour, her re-admission was rescinded - The student appealed - The college's Disciplinary Appeals Committee, in a short decision containing only two sentences construed as reasons for its decision, dismissed the appeal and suspended the student from the college until the fall term of 2010, when she could apply for re-admission on conditions - The hearing had not been recorded - The Manitoba Court of Queen's Bench allowed the student's judicial review application and quashed the decision - The Committee's two sentence reasons were so inadequate as to constitute a breach of procedural fairness - Any breaches of procedural fairness respecting notice, disclosure and the right to cross-examine the authors of witness statements, were waived by the student - As to a review of the Committee's decision on a reasonableness simpliciter standard, the reasons were so inadequate as to preclude the court from discerning any line of analysis that could have reasonably led the Committee to its conclusion (i.e., unable to conduct meaningful judicial review) - See paragraphs 136 to 183.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Administrative Law - Topic 2155 ].

Administrative Law - Topic 2277

Natural justice - The duty of fairness - Waiver - [See Administrative Law - Topic 2155 ].

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - The Manitoba Court of Queen's Bench stated that "a court on judicial review is, as a general rule, required to conduct its review on the record emanating from the tribunal in question. To do otherwise risks a review of a different case than the one before the tribunal" - At issue was when the court was permitted or required to admit and consider extrinsic evidence (affidavits) - An applicant alleged jurisdictional error and a lack of procedural fairness by the tribunal - The court stated that where the inadequacy of the record of material before the tribunal, including its reasons, precluded the court from determining the issues of jurisdictional error or procedural fairness, extrinsic evidence (affidavits) was admissible to the extent that it was necessary to allow the applicant to prove procedural unfairness or jurisdictional error - See paragraphs 20 to 31.

Administrative Law - Topic 5455

Judicial review - Certiorari - Evidence and proof - Where jurisdiction challenged - [See Administrative Law - Topic 3345 ].

Administrative Law - Topic 5457

Judicial review - Certiorari - Evidence and proof - Affidavits - [See Administrative Law - Topic 3345 ].

Education - Topic 4623

Universities - Judicial review of exercise of powers of universities - When available - The Manitoba Court of Queen's Bench accepted that "courts have traditionally been reticent to interfere with grievances involving students and a university, particularly where those grievances are 'purely domestic questions' as opposed to matters involving an educational institution's 'public duties'. Generally, matters within the exclusive jurisdiction of an educational institution should only be reviewed by a court of competent jurisdiction if such matters were not determined in accordance with the principles of natural justice, and only matters touching upon the educational institution's public duties and not domestic matters are reviewable by the courts." - See paragraphs 92 to 93.

Education - Topic 4905

Technical institutes and colleges - Appeal tribunals - Judicial review - A suspended college student was first suspended, then advised she had been re-admitted and then told her re-admission had been rescinded - The student applied for judicial review of the decision of the college's Disciplinary Appeals Committee dismissing her appeal - The Manitoba Court of Queen's Bench held that the standard of review was reasonableness simpliciter - The court also discussed the level of procedural fairness required - See paragraphs 85 to 112, 145 to 157.

Practice - Topic 3679

Evidence - Affidavits - Use of - Affidavits - Evidence - Admissibility - [See Administrative Law - Topic 3345 ].

Cases Noticed:

Wilson v. United Steelworkers of America, Local 5442 et al. (2003), 178 Man.R.(2d) 282; 2003 MBQB 224, refd to. [para. 20].

Board of Education of Winnipeg School Division No. 1 v. Winnipeg Teachers' Association of the Manitoba Teachers' Society (2007), 211 Man.R.(2d) 138; 2007 MBQB 23, refd to. [para. 20].

AOV Adults Only Video Ltd. v. Labour Board (Man.) et al. (2003), 177 Man.R.(2d) 56; 304 W.A.C. 56; 2003 MBCA 81, refd to. [para. 22].

TNL Industrial Contractors Ltd. et al. v. International Brotherhood of Electrical Workers, Local 424 et al. (1998), 225 A.R. 245; 1998 ABQB 241, refd to. [para. 24].

McNaught Pontiac Buick Cadillac Ltd. v. Canada Customs and Revenue Agency (2006), 302 F.T.R. 117; 2006 FC 1296, refd to. [para. 26].

Port Arthur Shipbuilding Co. v. Arthurs et al., [1969] S.C.R. 85, refd to. [para. 41].

Vanek v. University of Alberta (1975), 57 D.L.R.(3d) 595 (Alta. C.A.), refd to. [para. 42].

Coopers and Lybrand Ltd. v. Minister of National Revenue, [1979] 1 S.C.R. 495; 24 N.R. 163, refd to. [para. 83].

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119, refd to. [para. 83].

Canadian Pacific Railway Co. v. Vancouver (City), [2006] 1 S.C.R. 227; 345 N.R. 140; 221 B.C.A.C. 1; 364 W.A.C. 1; 2006 SCC 5, refd to. [para. 83].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 83].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 83].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 88].

Carson v. University of Saskatchewan (Joint Senate-Council Board of Student Appeals) (2000), 196 Sask.R. 37; 2000 SKQB 322, refd to. [para. 92].

Mondesir v. Manitoba Association of Optometrists (2001), 160 Man.R.(2d) 143; 262 W.A.C. 143; 2001 MBCA 183, refd to. [para. 99].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 107].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 107].

Ontario (Minister of Community, Family and Children's Services) v. Crown Employees Grievance Settlement Board et al. (2006), 213 O.A.C. 169; 81 O.R.(3d) 419 (C.A.), refd to. [para. 109].

Dhillon v. Faculties Council Academic Appeals Committee of the University of Alberta et al. (2000), 259 A.R. 63; 2000 ABQB 77, refd to. [para. 112].

Uni-Jet Industrial Pipe Ltd. et al. v. Canada (Attorney General) et al. (2001), 156 Man.R.(2d) 14; 246 W.A.C. 14; 2001 MBCA 40, refd to. [para. 116].

Cardinal and Cowpar v. Canada (Minister of Forestry, Lands and Wildlife) et al. (1988), 93 A.R. 38 (Q.B.), refd to. [para. 117].

Zündel v. Canadian Human Rights Commission et al. (2000), 264 N.R. 174; 195 D.L.R.(4th) 399 (F.C.A.), refd to. [para. 124].

Duncanson et al. v. Fineberg et al. (1999), 124 O.A.C. 170; 175 D.L.R.(4th) 340 (Div. Ct.), refd to. [para. 124].

Craton v. Winnipeg School Division No. 1 and Winnipeg Teachers' Association No. 1 of the Manitoba Teachers' Society, [1985] 2 S.C.R. 150; 61 N.R. 241; 38 Man.R.(2d) 1, refd to. [para. 125].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [para. 126].

Rochon v. Board of Education of Spirit River School Division No. 47 (1994), 149 A.R. 106; 63 W.A.C. 106 (C.A.), refd to. [para. 126].

Armstrong v. Royal Canadian Mounted Police (Commissioner) et al. (1998), 222 N.R. 375; 156 D.L.R.(4th) 670 (F.C.A.), refd to. [para. 132].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 145].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 145].

Barrie Public Utilities et al. v. Canadian Cable Television Association et al., [2003] 1 S.C.R. 476; 304 N.R. 1; 2003 SCC 28, refd to. [para. 145].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 156].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 161].

Canadian Association of Broadcasters v. Society of Composers, Authors and Music Publishers of Canada et al. (2006), 354 N.R. 310; 2006 FCA 337, refd to. [para. 163].

McDonald v. North Norfolk (Rural Municipality) (1991), 77 Man.R.(2d) 211 (Q.B.), refd to. [para. 180].

Ghaniabadi v. University of Regina et al. (1997), 161 Sask.R. 129 (Q.B.), refd to. [para. 182].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2007 Looseleaf Update), vol. 1, c. 1, pp. 1:3220, 1:3230 [para. 181]; 1:7100 [para. 177].

MacAulay, Robert W., and Sprague, James L.H., Practice and Procedure Before Administrative Tribunals (2004 Looseleaf), vol. 2, c. 12, p. 12.22 [para. 124].

Counsel:

Paul R. Hesse, for the applicant;

Alan J. Ladyka, for the respondent.

This application was heard before Joyal, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on December 11, 2007.