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Procedural Fairness in Universities

7 minute read

It is rare that academic disputes find their way into the courts in Ontario. Universities have robust internal processes for handling matters such as disputed grades, academic misconduct, and expulsion, and they are generally entitled to deference when it comes to decisions made in scholastic settings.

In Ontario, when a student is unsatisfied with the result of an academic appeal, they can bring an application for judicial review to the Ontario Divisional Court. Judicial review allows a panel of three judges to take a second look at a decision made by an administrative body, such as an academic Senate Appeals Committee. The judges’ mandate is to determine whether the decision was fair, reasonable, and lawful.

A recent decision by Ontario's Divisional Court will be of interest to decision-makers in the academic world and to students who expect fair treatment in situations where their future plans may be at stake.

The Appellant

Shaune Ford was a Registered Nurse who enrolled in the University of Ottawa's Nurse Practitioner (“NP”) program with the aim of acquiring a more advanced nursing designation.

By the fall of 2020, Ford had just one course requirement to fulfill: a 419-hour clinical placement, or practicum. The practicum would be completed at a community clinic under the supervision of a Registered NP, or Preceptor. On the university side, the practicum would be overseen by a course tutor. The tutor would, among other things, determine Ford’s final grade in the practicum, with input from the Preceptor.

The Problem with the Preceptor

Just two days into his practicum, Ford raised concerns about some of his Preceptor's clinical decision-making. He expressed these concerns to his tutor in class. The tutor recorded Ford’s concerns in a log. She then asked Ford to update her at the end of the week. He did, seeking advice and re-iterating concerns about his Preceptor. The tutor acknowledged the email and indicated that she would be speaking with the course director the following Monday.

On Monday, Ford advised the Preceptor that he might have been exposed to COVID-19; she nonetheless advised him to attend the clinic in person. The tutor agreed with Ford that the Preceptor's advice was contrary to guidance from Ottawa Public Health.

On Tuesday, the Preceptor and tutor had a conversation, during which the tutor relayed Ford's concerns to the Preceptor, who in turn expressed concerns about Ford's performance to the tutor (query whether these were legitimate concerns or simply defensive maneuvers, as did the Divisional Court).

On Wednesday, the Tutor and Ford had a videoconference and phone call to discuss the situation. The tutor advised him that he could not switch to a new placement and encouraged him to try to make things work with the current Preceptor.

The following week – just 52 hours into his practicum – Ford was asked not to return to the clinic by the Preceptor. The tutor and the NP Program Coordinator then advised Ford that he would receive a failing grade in the practicum and would have to withdraw from the NP program. Ford was not given an opportunity to put forth his version of the events or to secure a new practicum placement.

The First Step: Grade Review

Ford's next step was to request a "grade review" by an independent party within the university. This was conducted in writing. Ford was not given a copy of the tutor’s submissions about his failing grade. The School of Nursing declined to overturn the grade, stating that there was no reason to do so.

In describing this process, the court noted, “the [independent reviewer] submitted a report on November 10, 2020, which summarized and uncritically accepted the Preceptor’s account.”[1]

The Next Step: The Senate Appeals Committee

Ford had another forum in which to dispute his grade and removal from the program: the Senate Appeals Committee (“the Committee”). At this level, Ford made submissions about procedural fairness. The Committee declined to change the decision after a 10-minute hearing, which was not attended by the Preceptor or the tutor. The Committee provided no reasons to Ford, though these were detailed in a Minutes document, which was eventually released as part of the judicial review process.

Application for Judicial Review

A number of issues were considered in the judicial review application: the fairness of the evaluation, grade review and appeal procedure, the reasonableness of the decisions at least level, and whether the appeal process cured any procedural defects found in the grade review process.

The court found that neither process had been fair and neither decision reasonable. The appeal to the Committee did not cure the procedural defects in the grade review process. They noted, “processes that determine issues affecting livelihood or ability to pursue a profession will generally attract a high level of procedural fairness.”[2] Furthermore, where credibility is at issue, “and the outcome is particularly significant to the person involved, procedural fairness will likely require an oral hearing.”[3] One of the court’s criticisms was that credibility was never properly addressed in the university’s procedures, and Ford was denied the right to participate fully in the process when he was given a forum in which to dispute the Preceptor’s claims about his performance during the brief practicum.

The court also concluded that:

  • The evaluation was unfair because it was not done in accordance with the process outlined in the Practicum syllabus.
  • The Committee's decision was unreasonable because it did not adequately explain why the appeal was dismissed.
  • The Minutes of the Meeting that detailed the reasons for the Committee’s decision should have been shared with Ford when the decision was made (though the Minutes were also deficient in detail).
  • The court also expressed concerns that the evaluation was unreasonable “the Preceptor’s criticisms of the Applicant appeared to increase after she learned that he had concerns about her standards of practice.”[4]

Conclusion and Takeaways

The court referred this matter back to the School of Nursing to consider how to proceed in light of its findings. Costs in the amount of $10,000.00 were awarded to Shaune Ford.

This strongly-worded decision confirms the obligation of academic institutions to ensure students are afforded procedural fairness. Decisions with respect to grade appeals and other disputes must be well-reasoned, clear, and comprehensive.

Academic institutions should be aware that judicial review is an avenue open to students even after a “final” decision is rendered by an internal decision-making body. Decisions that will impact a student’s future employability and earning capacity will be taken very seriously, as this panel decision demonstrates.

[1] Ford v. University of Ottawa, 2022 ONSC 6828 (CanLII) at para 41.

[2] Ibid at para 55.

[3] Ibid at para 56.

[4] Ibid at para 74.

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