University Held to Task on Procedural Fairness

Administrative law – Decisions reviewed – College of Nurses – Judicial review – Procedural requirements and fairness – Nurses – Penalties

Ford v. University of Ottawa, [2022] O.J. No. 5381, 2022 ONSC 6828, Ontario Superior Court of Justice, December 7, 2022, K.E. Swinton, J.A. Ramsay and J. Leiper JJ.

Mr. Ford, a University of Ottawa nursing student brought a judicial review of a decision of the Senate Appeals Committee (the “SAC”) upholding two decisions of the School of Nursing of the Faculty of Health Sciences to fail him in his final clinical placement practicum (the “Practicum”) after he had completed seven clinical days.

Mr. Ford was a registered nurse in Ontario. He entered the School of Nursing in 2015 and as of Fall 2020 he had completed all but one course. To graduate, he needed to complete the Practicum requiring 419 hours of work in a clinical setting. He had otherwise received positive feedback about his work in clinical settings. The preceptorship during the Practicum required regular involvement with a student’s Preceptor, who was required to inter alia, provide the student with constructive feedback weekly and discuss learning needs and concerns. A Tutor was also assigned to each student to be jointly responsible with the Preceptor for facilitating and evaluating the student’s learning in the Practicum.

The Applicant had difficulties with his Preceptor during the Practicum and reported concerns about some of the Preceptor’s teaching methods and practices to the Tutor. The Tutor appeared to address the concerns with the Preceptor but received feedback in return that the Preceptor was concerned about some of Mr. Ford’s performance and conduct during the Practicum. That conduct included showing up late to clinic and declining a telephone conference with the Preceptor.

The Tutor and Preceptor ultimately decided to fail the Applicant after his “midterm evaluation” even though he had only completed 52 hours out of the required 419 hours. They indicated in their decision that he had been issued a failing grade, had no opportunity to repeat the course and had been asked not to return. He had also therefore failed the Nurse Practitioner program as a whole.

The Applicant requested a Grade review, setting out concerns about standards at the clinic. The Tutor provided her log notes and commented to the reviewer that Mr. Ford “had not met any learning objective according to his preceptor”. The Applicant was not provided with the Tutor’s submission nor an opportunity to respond. An independent reviewer was assigned who submitted a report summarizing and uncritically accepting the Preceptor’s account. The failing grade was upheld.

The Applicant then commenced an appeal to the SAC. He was permitted to provide a written statement, present his case and answer questions from committee members. The SAC meeting lasted ten minutes. The Applicant was asked two questions and neither Tutor nor Preceptor attended the meeting. The appeal was dismissed. The only reason provided was that the SAC found that the faculty made no errors during their grade review.

The Court reviewed the requirements of procedural fairness, noting that processes that determine issues affecting livelihood or ability to pursue a profession will generally attract a high level of procedural fairness. The Court found that the University had denied Mr. Ford procedural fairness and that the decision to fail Mr. Ford was an unreasonable outcome. The Court further found that the reasons for the decisions were inadequate to justify the outcome. The SAC’s decision provided no rationale at all for its decision. Even though more detailed minutes were produced after the judicial review application was brought, fairness demanded those reasons be shared at the time of decision. In any event, the reasons demonstrated no “chain of reasoning” and failed to explain why the Committee rejected his submissions or how they arrived at the decisions.

The Court further found the Grade Review and the evaluation of the Applicant were procedurally unfair and unreasonable for numerous reasons, including that the School of Nursing had failed to follow its own syllabus, contrary to the Applicant’s reasonable expectations.

The Court quashed the decision to fail the Applicant in the clinical Practicum, the Grade Review decision, and the decision of the SAC, referring the matter back to the School of Nursing to fairly evaluate the Applicant from the outset.

This case was digested by Roshni Veerapen, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Roshni Veerapen at [email protected].

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