Karri v University of Calgary, 2021 ABQB 117

Court of Queen’s Bench of Alberta Citation: Karri v University of Calgary, 2021 ABQB 117 Date: 20210216 Docket: 1901 12820 Registry: Calgary Between: Srinivsarao Karri Applicant - and - University of Calgary, General Faculties Council Student Academic Appeal Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I. Introduction [ 1 ] This judicial review concerns a series of decisions that resulted in the involuntary withdrawal of a promising student from his Ph.D. program.

In essence, the question is who bears responsibility for that unfortunate result. [ 2 ] Three decisions by University of Calgary authorities preceded this judicial review.

First, the Faculty of Graduate Studies (“FGS”) required the Applicant, Srinivsarao Karri (“Karri”), to withdraw from his Ph.D. program at the University of Calgary (“FGS Decision”). [ 3 ] Next, the FGS Decision was appealed to the FGS Appeals Committee (“FAC”), which upheld it (“FAC Decision”). [ 4 ] Finally, the FAC Decision was appealed to the General Faculties Council Student Academic Appeals Committee (“GFC SAAC”) which is vested with authority to hear and determine appeals from the decisions of various faculty councils: Post-Secondary Learning Act , SA 2003, c P-19.5 , s 26(1)(h) (“ PSLA ”).

The GFC SAAC dismissed Karri’s appeal (“GFC SAAC Decision”), the consequence being that Karri was required to withdraw from his program without obtaining his Ph.D. [ 5 ] This is a judicial review of the GFC SAAC Decision. For the reasons set forth below, I dismiss Karri’s request to set aside the GFC SAAC Decision and decline to order that he be reinstated. [ 6 ] For convenience, I refer to the University of Calgary and the GFC SAAC throughout these Reasons collectively as the Respondent. II. Facts and History

[ 7 ] Karri alleges, inter alia , flawed procedures and bias on the part of various decision makers involved in his case. He claims he was denied natural justice. [ 8 ] For that reason, it is necessary to begin with a fairly lengthy recitation of the events leading up to Karri’s involuntary withdrawal. A. The Beginning [ 9 ] Karri is originally from India; English is not his first language.

He was an outstanding student and his education appears to have been funded primarily through scholarships awarded to him on the basis of academic accomplishment. [ 10 ] Karri joined the University of Calgary’s Veterinary Medical Sciences graduate program in 2014. He was invited to join the program by Dr. Sabine Gilch (“Gilch”), who had obtained a research grant. [ 11 ] Karri conducted research in a bio-safety hazard laboratory managed and funded by Gilch (“Gilch Lab”).

A special laboratory facility, the only one of its kind at the University of Calgary, was needed because of the biohazardous nature of the material being investigated. As the Principal Investigator under her research grant, Gilch was responsible for ensuring, inter alia , that lab bio-safety standards were met, research was conducted responsibly and lab productivity was maintained. [ 12 ] Karri was an engaged and productive member of the Gilch Lab and appears to have been making progress in his research. In August 2016, he passed his Ph.D. candidacy examination, in English, under Gilch’s supervision.

At first, Karri and Gilch appear to have worked together successfully. [ 13 ] That was about to change. B. The Relationship Deteriorates [ 14 ] The evidence establishes that Gilch and Karri began to have issues in their supervisor/student relationship. These issues appear to have been precipitated by a dispute over intellectual property. [ 15 ] On February 14, 2017, Karri advised Gilch that he had received a copy of an email addressed to her and sent to a number of people by the Patent Manager at Innovate Calgary.

Innovate Calgary is a University-owned entity, the purpose of which is to facilitate commercialization of research and innovation development at the University of Calgary. [ 16 ] The Innovate Calgary email discussed the patenting and marketing potential of an invention disclosure Gilch had submitted, which it referred to as “your disclosure” and “your invention”.

The Invention Disclosure Form Gilch filed with Innovate Calgary referred to her as the “Main Creator” and to Karri as the “Second Creator” and indicated that Gilch’s and Karri’s contributions to the invention were 75% and 25%, respectively. [ 17 ] In his email, Karri noted that Gilch had advised him the year before that it was too early to file anything to protect intellectual property rights arising from his work. [ 18 ] Gilch responded by email that day, stating that she had forgotten to inform Karri of the disclosure, that she would give him details the next day and that it had no implications at that time.

She noted that she had included him as a co-inventor. [ 19 ] It appears that Gilch subsequently made efforts with Innovate Calgary to amend the disclosure document to reflect a 50-50 contribution. The Associate Dean of FGS, Dr. Suzanne Curtin (“Curtin”) also made inquiries of Innovate Calgary in an attempt to correct the record.

Nevertheless, the relationship between Gilch and Karri took a major turn for the worse as a result of this episode. [ 20 ] In her testimony before the GFC SAAC, Gilch indicated that Karri’s academic progress was fine until May or June 2017 but that “the intellectual property issue somehow impacted his progress”. [ 21 ] On August 30, 2017, Karri indicated in an email that he believed he should be recognized as the primary inventor on the initial disclosure and as first author on the provisional patent application. [ 22 ] A series of disagreements over issues relating to the Gilch Lab escalated tensions between Karri and Gilch.

Those tensions were exacerbated by Gilch’s husband, Dr. Hermann Schaetzl (“Schaetzl”), the head of the Calgary Prion Research Unit and the Prion- Virology Animal Facility at the University of Calgary. Karri’s research was being conducted in this unit and Schaetzl was part of Karri’s supervisory committee. [ 23 ] Schaetzl issued a communiqué to his lab members, who were Karri’s colleagues, clearly attributing disruptive actions to Karri, though without naming him. The allegations were inflammatory and would have served to further isolate Karri from the environment in which he needed to complete his research.

Karri also claims that Schaetzl confronted him in a public area and berated him. [ 24 ] Though Schaetzl’s actions likely destroyed any chance for Karri and Gilch to mend their damaged relationship, it is not clear that they had much practical effect on Karri’s academic progress given that Schaetzl was then replaced on Karri’s supervisory committee. [ 25 ] On September 27, 2017, Gilch requested a meeting with Karri and the Director of the Graduate Program in Veterinary Medicine, Dr. Thundahill, to discuss the supervisor/student relationship.

The Respondent claims that Karri refused to attend that meeting. [ 26 ] In October 2017, Karri approached FGS asking for assistance in resolving the intellectual property dispute and seeking the

appointment of a co-supervisor. [ 27 ] FGS, in particular Curtin, made attempts to resolve the situation, including proposing Dr. John Matyas (“Matyas”) as co- supervisor. Karri initially agreed to these changes, but subsequently contacted Dr. Lisa Young, then Dean of FGS, advising her that he wanted Matyas removed as co-supervisor and Curtin discharged as the FGS person handling his case, both due to alleged conflicts of interest. C.

The Young November 27, 2017 Letter [ 28 ] In response, Karri received a lengthy and detailed letter dated November 27, 2017 from Young (“Young November 27, 2017 Letter”) dealing with both the intellectual property dispute and Karri’s continuation in his program. [ 29 ] Young stated that FGS had done all it could to assist Karri with the intellectual property dispute and referred him to the University’s Senior Legal Counsel, Research Services. [ 30 ] Young then turned to Karri’s continued participation in his program, stating: Our focus is, and will remain, on your status as a student, and providing support to help you successfully complete your Ph.D. [ 31 ] Young noted that a member of Karri’s supervisory committee, almost certainly Schaetzl, had stepped down after an “unfortunate incident” and identified an individual who had agreed to fill the vacancy. [ 32 ] Young also noted that Matyas had agreed to serve as Karri’s co-supervisor, but acknowledged receiving an email on November 20, 2017 in which Karri stated: I would like to inform you that I will not agree with Dr.

Yates (UCVM who had a collaboration with Dr. Shaetzl, who was in conflict of interest earlier) suggested person [Matyas] (UCVM) as co-supervisor based on conflicts of interest.

I will continue with altered committee members without co-supervision in rest of the program. [ 33 ] Young then went on to outline certain decisions she made in her capacity as the Dean of FGS. [ 34 ] She rejected Karri’s request that Curtin no longer participate in the oversight of his case, believing that Curtin had made efforts to assist in resolving his issues. [ 35 ] Young also rejected Karri’s assertion that Matyas should not be appointed co-supervisor because of a conflict of interest.

She expressed the view that, in light of the conflicts that had arisen, it was essential that Karri have a co-supervisor and that Matyas was highly qualified to perform this function. She made it clear that Matyas would have to serve as co-supervisor if Karri wished to continue with Gilch as his supervisor.

She acknowledged that the Graduate Calendar indicated that a student and supervisor should agree on the composition of the student’s supervisory committee, but stated that, in her view, Karri’s position that persons associated with the Faculty of Veterinary Medicine should not be appointed was not a reasonable basis for exclusion.

She referred Karri to clause J.3.3. of the Graduate Calendar, which provides: In cases where graduate students are unwilling to accept the supervision provided or have chosen to pursue research topics other than those indicated at the time of admission, the graduate program and the Faculty of Graduate Studies have no responsibility to agree to alternate supervisory arrangements if they cannot be reasonably accommodated. [ 36 ] Young then offered Karri five options “with respect to continued registration in your graduate program”.

First, he could take a leave of absence to focus on his well-being. [ 37 ] Second, he could seek a new supervisor. Young pointed out, however, that he might encounter difficulties in finding a supervisor and obtaining funding, that a change in supervision might require him to repeat his candidacy and that, under a new supervisor, he would not be working in the Gilch Lab. [ 38 ] Third, Karri could attempt an early thesis defence based on his research to date with Matyas acting as intermediary between him and Gilch.

He was warned, however, that this option might permit only a Master’s thesis, depending the amount of research completed. [ 39 ] Fourth, Karri could continue to work in the Gilch Lab but only during set hours (9:00 – 4:30). He would be required to adhere to biosafety protocols and to conduct his interactions with his supervisors, other students and colleagues in a professional manner. He would be required to participate in lab meetings and activities and to meet regularly with Gilch and Matyas to discuss his progress.

Further, he would have to meet with his supervisory committee every six months, acknowledge committee meeting minutes within 48 hours and demonstrate progress by meeting agreed-upon milestones and program requirements. [ 40 ] This fourth option also required him to provide Gilch with immediate and ongoing unrestricted access to his lab book, raw data and other records and to comply with her scientific direction in all matters relating to his research in her laboratory.

Young noted that Gilch had certain responsibilities as the Primary Investigator in her lab that she must be permitted to fulfill, especially given the hazardous nature of the substances being researched in that lab. [ 41 ] Young suggested Karri take some vacation time. She made it clear that if he wanted to continue to work in the Gilch Lab, he would have to comply with the fourth option conditions.

If he failed to do so, his lab privileges would be suspended immediately. [ 42 ] As a fifth and final option, Young advised Karri that he could voluntarily withdraw if none of the other four options was acceptable to him.

[ 43 ] Young advised Karri that he had a right to appeal her decisions regarding who would act as his co-supervisor and which Associate Dean handled his case within 15 working days from receipt of the Young November 27, 2017 Letter. She told him where to find the appeals procedure and suggested he consult with the Calgary Student Ombudsperson if he chose to appeal.

She requested that he advise her of his decision no later than January 5, 2018. [ 44 ] On December 19, 2017, in response to the Young November 27, 2017 Letter, Karri sent an email to Young listing several reasons why he believed that Matyas should not act as his co-supervisor. He indicated that he had not had a chance to explain his reasons for believing Matyas had a conflict of interest and that he believed his concerns had not been communicated directly or understood by FGS.

He advised Young that he had already experienced some conflicts with Matyas and cited clause J.2.2 of the Graduate Calendar in support of his assertion that he had the right not to accept the recommended co-supervisor. [ 45 ] He advised Young that he had wanted a meeting in response to his November 20, 2017 email and was not expecting a letter containing her decision on various points.

He stated he was not appealing her decisions but was requesting a personal meeting with her. [ 46 ] Young advised Karri by email on December 20, 2017 that she would be off campus until January 4, 2018 and would not be available to meet with him. She reminded him that she expected his reply to the Young November 27, 2017 Letter by January 5, 2018. [ 47 ] On December 21, 2017, Karri emailed Young asking if she could meet with him on or after January 4, 2018. Young did not respond to this email. D. Subsequent Events [ 48 ] On December 18, 2017, Gilch sought to

schedule a supervisory meeting for early to mid-January. Karri was concerned that this meeting was to be scheduled less than 50 calendar days from the previous supervisory meeting, but offers no indication that this timing was impermissible under the applicable rules.

On December 18, 2017, Karri sent an email to Gilch and three others, complaining about negative aspersions on him, poor treatment of him and the short meeting timeframe. [ 49 ] Despite Karri’s concerns, the supervisory meeting was scheduled for January 18, 2018, but Gilch cancelled it on January 15, 2018. [ 50 ] On January 15, 2018, Karri sent an email to Curtin, Gilch, other members of his supervisory committee, Young and Matyas, quoting

section J.2.2. of the Graduate Calendar and taking the position that Matyas could not be added as a co-supervisor without his consent. He offered to meet with Young and another person to expand on his reasons for rejecting Matyas. E. The January 2018 Meeting [ 51 ] Shortly after the supervisory committee meeting was scheduled, Curtin proposed a meeting among Young, Curtin, Gilch, Matyas and Karri on January 17, 2018.

Karri alleges that this put him in a difficult position because he was trying to collect data for a supervisory meeting on January 18, 2018. [ 52 ] In response to a January 15, 2018 email from FGS requesting confirmation that he would attend, Karri advised that he wanted to bring along a “university person” and a student, that he would check on the availability of these persons and that he would get back to FGS. He had been advised previously that he could bring a support person to the meeting.

He expressed uncertainty about whether he really needed to attend the meeting, given that he previously had stated his opinion about Matyas’ appointment. [ 53 ] On January 16, 2018 Karri again questioned the need for a meeting and asked FGS to check with Curtin about cancelling it, saying it was too soon. FGS advised Karri that they had the information they needed to proceed with the meeting and asked him to attend. Later that day, Karri again emailed FGS, asking if his explanation for not wanting Matyas as a co-supervisor was sufficient.

FGS emailed Karri advising that the meeting had been requested by Young for the purpose of discussing the options outlined in the Young November 27, 2017 Letter and telling Karri that he was expected to attend. [ 54 ] On the evening of January 16, Karri emailed Curtin stating: In this reg. I have already responded earlier. Still you want me to meet. So in that case I have to get one faculty member and student to represent me in negotiation. Tomorrow, student is not available to represent me. So, I will check availability of student, (even one faculty, if possible) and get back to you.

Tomorrow, we cannot attend unfortunately. [ 55 ] At 7:25 that evening, Young replied to Karri: Mr. Srinivasarao Dr. Curtin and I will hold the meeting tomorrow with your Graduate Program Director, Supervisor and co-supervisor. You remain welcome to attend. [ 56 ] Karri responded to Young by email within five minutes: Person is not available to represent me tomorrow. That’s why, I am unable to join to negotiate. But thanks for email. F.

Post-Meeting Events [ 57 ] Shortly after the January 17, 2018 meeting, Curtin reported to Karri, noting that he had failed to respond by January 5, 2018 to the Young November 27, 2017 Letter and that the meeting attendees had serious concerns.

[ 58 ] Curtin proposed another meeting on January 22 or 23, 2018 and requested that Karri respond to this proposal by 5 p.m. the next day. She advised that Karri was welcome to bring a support person. [ 59 ] Karri claims that he could not respond to Curtin as requested because he had to euthanize his lab animals. G. The Young January 29, 2018 Letter [ 60 ] On January 29, 2018, Young wrote to Karri (“Young January 29, 2018 Letter”).

He claims he did not receive it until January 31, 2018, but the Respondent suggests that he refused to accept it when Curtin tried to hand deliver it to him. [ 61 ] Referring to the Young November 27, 2017 Letter, Young noted in the Young January 29, 2018 Letter that Karri had appealed neither her decision to retain Curtin as the person managing his graduate student registration nor her decision to appoint Matyas as a co-supervisor.

She acknowledged that he had written her challenging her decisions and requesting a meeting with her. [ 62 ] Young referred to the expectations outlined in the Young November 27, 2017 Letter if Karri were to be allowed to continue to work in the Gilch Lab and outlined his failure to meet those expectations. Young advised that Gilch had indicated at the January 17, 2018 meeting that she was no longer willing to serve as Karri’s supervisor.

Young suggested that Karri had, for a period of six months, resisted Gilch’s authority as the Principal Investigator and advised that he no longer had access to the Gilch Lab. [ 63 ] Young pointed out that Karri had not responded to Curtin’s offer of two alternative meeting dates. She referred to his behaviour as insubordinate and argumentative, not only as it related to Gilch but also in relation to his interactions with FGS. [ 64 ] Young nevertheless offered Karri the opportunity to write and defend a thesis, be it for a Ph.D. or MSc. He would receive a stipend of $2,083 per month for six months.

He would receive supervision and support during this time, but would have to meet specific milestones. He would not be completing unfinished research work in the Gilch Lab. [ 65 ] The Young January 29, 2018 Letter stated: You are entitled to appeal the decision that you be required to withdraw. If you choose to appeal this decision you may remain registered, but your exclusion from the lab will remain in place. [ 66 ] Karri argues that the reference to him being required to withdraw was a mistake and that it should have referred to Gilch’s withdrawal as his supervisor. H.

The FGS Decision [ 67 ] Curtin sent Karri an email on February 21, 2018, stating that they had expected to hear from him within fifteen business days in response to Young’s offer of support for his efforts to complete a thesis. Curtin advised that Karri needed to respond to her no later than 4:00 p.m. on February 26, 2018 and that, if he did not, she would move forward with his involuntary withdrawal from his program. [ 68 ] Karri appears to have responded to Curtin at 7:16 p.m. on February 26, 2018, some three hours late.

He complained about his treatment by Gilch and FGS and once again raised the intellectual property issue. He did not respond to Young’s offer to let him write up and defend a thesis, but stated, “I have not mentioned that I will withdraw from the program or so.” [ 69 ] On March 21, 2018, Curtin advised Karri in writing of the FGS Decision that he had been withdrawn from his program for failure to maintain academic progress. She advised him where to look for information regarding an appeal. I.

Subsequent Negotiations [ 70 ] Karri initiated an appeal of the FGS Decision. [ 71 ] On June 25, 2018, Young sent Karri a detailed proposal that would have allowed him to finish his Ph.D. (“FGS Proposal”).

It addressed supervision and supervisory committee, data, thesis process, funding, publications, access to the Gilch Lab and dispute resolution. [ 72 ] On June 29, 2018, Karri sent a detailed response to the FGS Proposal, listing his concerns with it and suggesting solutions to which he would agree. [ 73 ] On July 5, 2018, he responded further to the FGS Proposal, raising the need to perform additional experiments to complete his Ph.D.

He pointed to the failed relationship with Gilch and expressed concern about any influence Gilch might have over the completion of his Ph.D. or his future employment or publishing efforts. He requested another meeting with Young to get further clarification. [ 74 ] Young responded by email on July 6, 2018, stating that two conditions would have to be observed if there were to be further discussions. First, Karri would not have access to the Gilch Lab. Second, Karri would be required to acknowledge that the research contained in his thesis was the product of Gilch’s research program.

He could neither publish his research independently nor compel Gilch to publish it. Gilch’s permission, as Principal Investigator, would be required before he could submit any work in his thesis for publication. Dr. Robin Yates (or a successor Associate Dean of FGS) would serve as intermediary and adjudicator for any issues relating to publication. Gilch had agreed that she would include Karri as co-author in any submission to which he contributed. [ 75 ] Karri responded to Young on July 7, 2018.

He set forth his understanding that either all of his current data was sufficient for his Ph.D. thesis or, if not, he would get additional access to a lab other than the Gilch Lab. He also stated his understanding that his

thesis would contain research drawn both from his work done in the Gilch Lab and from other collaborative undertakings he had participated in. [ 76 ] On July 11, 2018, Young emailed him thanking him for his detailed response and enclosing a blacklined version of the FGS Proposal (“Revised FGS Proposal”).

One of the key points of this was that, if his supervisory committee decided he needed more lab work to meet minimum standards for a doctoral thesis, FGS and the graduate program in Veterinary Medicine would facilitate access to a lab other than the Gilch Lab. [ 77 ] Young noted, however, that certain elements of the FGS Proposal were retained in the Revised FGS Proposal. Specifically, Gilch would retain the title of “supervisor” because the work that would comprise Karri’s thesis was conducted in the Gilch Lab as part of her research program.

Young pointed out that there is no a formal designation of “joint supervisor”, as Karri had requested, but a “co- supervisor” designation was an available option. [ 78 ] Young advised that Karri would be required to complete his Ph.D. as part of his arrangement with the Faculty of Veterinary Medicine and would not be permitted to change programs. Further, results from experiments initiated by a Dr.

Braun, in which Karri had some involvement, would not be permitted to form part of Karri’s thesis, but he would get credit for co-authorship if those results were ever published. [ 79 ] Furthermore, Young advised that Gilch would not commit to Karri’s request for specific wording if she were approached as a reference for him. [ 80 ] Young gave Karri the option of accepting the Revised FGS Proposal or proceeding with an appeal to the FAC. [ 81 ] Instead, on July 13, 2018, Karri sent an email to Young in which he stated that he had been making compromises to move the matter towards resolution, would consider having Gilch identified as a co-supervisor and requested an in-person meeting with Young regarding “other possible concerns”.

Karri stated that in a November 2017 supervisory meeting, it was mentioned that his collaborative work with Braun and his second author publication work would be included in his thesis as an appendix. He noted that the Braun experiments were not successful, so it was unlikely they would be published. He noted: Since this puts the reward of publication in doubt, I would want this work to be included in my thesis (as mentioned in the Nov 2017 supervisory committee meeting). [ 82 ] Young responded on July 16, 2018, by email: Mr. Karri I have read your message and understand it to mean that you reject this offer.

I will see you at the scheduled appeal hearing. [ 83 ] Thus ended the possibility of a negotiated resolution. J. The FAC Appeal [ 84 ] Karri proceeded with his appeal to the FAC, alleging unfair practices or flawed procedures, substantial new evidence and bias. [ 85 ] With respect to unfair practices or flawed procedures, Karri alleged that information passed on to him was not accurately recorded and thus limited his options going forward. He claimed that meeting times were set without regard to his other commitments and that he was penalized for not attending those meetings.

Lastly, he complained that limitations were imposed on his ability to conduct lab work and he was then criticized for not doing enough lab work. [ 86 ] With respect to new evidence, Karri complained that accounts of his interactions with various people were incomplete, leading to an incorrect conclusion that he was a difficult student. He claimed that meeting minutes recorded only his supervisor’s version of events and not his. [ 87 ] With respect to bias, he claimed that was excluded from the graduate student list in the faculty composite and was not invited to official meetings.

He asserted that his lab mates were instructed to stop communicating with him, that basic requirements for experiments were not provided and that materials he requisitioned were not provided in their entirety. He accused Gilch of denying him access to the Gilch Lab without telling him and of providing incorrect contact information for him on the patent application. He claimed that when he raised these concerns, she retaliated. He asserted that Gilch did not want him to complete his Ph.D.

He complained that he was portrayed in an unfair and inaccurate manner and that people were not listening to his version of events. [ 88 ] He requested reinstatement in the Ph.D. program and a suitable supervisor. [ 89 ] In his written materials, he said: I have been looking for people to aid me by explaining and helping me to understand the process and possibilities since I received letter from Dean of FGS in November 2017. [ 90 ] In the FAC Decision dated August 23, 2018, the FAC rejected Karri’s appeal.

The FAC noted that it had decided to hear Karri’s appeal based on their finding that he might have had some new evidence that was not available at the time of the FGS Decision. The FAC noted that the appeal hearing was postponed to allow Young to attempt to negotiate a solution with Karri and that eleven witnesses spoke at the hearing. [ 91 ] The FAC stated that, the day after the hearing, Karri submitted a “negotiation proposal” rather than the requested point form

summary of his statement at the hearing. The FAC found that this was of no value in their attempts to ensure that they fully understood his position. [ 92 ] The FAC then went on to address Karri’s grounds of appeal. In response to his allegation that meetings were convened at inconvenient times, the FAC noted: Your discussion of this issue was very general and, in view of the Respondent’s specific references to the contrary, was also incorrect.

There were specific examples of the Respondent’s efforts to invite you to critical meetings in January 2018 and of your refusal to attend and lack of responsiveness to emails. On the whole, the evidence showed that the Respondent made extraordinary efforts to reach out to you, explore options for moving forward, and give you reasonable time periods to consider and respond to her expectations. Your allegations of limitations imposed on your work were general and unsubstantiated by specific examples or witnesses. [ 93 ] The FAC went on to consider the allegation of bias.

It referred to the testimony of witnesses who refuted Karri’s assertions that he was singled out for rude or abusive behavior. The FAC seems to have found that everyone was equally exposed to this treatment. The FAC Decision states: A number of other incidents that you raised had no witness testimony and used vague information on which

interpretations were based. As such, we cannot find any credible evidence of bias against you in the course of your studies and lab work. More importantly, no allegations of bias were identified in relation to the Respondent’s decision to require you to withdraw.

Indeed, the evidence presented showed that the Dean’s office made concerted, genuine, efforts to assist you in completing your degree: this includes efforts by the Associate Dean of FGS in Fall of 2017 relating to IP and other matters; a number of proposed meetings in January 2018 to discuss next steps; an offer to complete your thesis with ongoing funding; and further discussion negotiations in early summer to explore options. [ 94 ] The FAC commented that what Karri advanced as substantial new evidence was nothing more than a review and reinterpretation of existing evidence.

Witness testimony did not address the critical issue of Karri’s inability to make progress in completing his thesis work. The FAC Decision noted: Indeed, much of the correspondence and oral testimony supported the Respondent’s position that every effort had been made to work with you and your former supervisor to find a resolution that would allow you to complete your degree, yet you had consistently refused or rejected the proposals. [ 95 ] The FAC noted that Karri could appeal the FAC Decision to the GFC SAAC. K. The GFC SAAC Appeal [ 96 ] Karri submitted his appeal to the GFC SAAC on September 27, 2018.

He continued to allege flawed procedure and unfair practice in meetings leading to the FGS Decision. [ 97 ] The GFC SAAC convened over two days, January 16, 2019 and February 11, 2019 and entertained the following written submissions: (

i) Appeal Submissions from Karri; (ii) Response Submissions from the Respondent; (iii) Further Appeal Submissions from Karri; and (iv) Further Response Submissions from the Respondent. [ 98 ] Karri had sought a postponement of the January 16, 2019 date, citing witness and support person availability and a request for a different interpreter. Nevertheless, the hearing proceeded on that date and the GFC SAAC Decision notes that Karri was satisfied with the statements and witnesses and did not seek to call any additional witnesses.

Karri confirmed that he had no concerns with any of the individuals sitting on the GFC SAAC panel. [ 99 ] On March 14, 2019, the GFC SAAC issued the GFC SAAC Decision denying Karri’s appeal. It is lengthy and detailed, totaling some thirty pages, plus appendices. [ 100 ] The GFC SAAC Decision sets forth the broad parameters that govern the jurisdiction of the GFC SAAC and appeals brought before it. The GFC SAAC has jurisdiction to determine if the FAC followed fair procedures and granted all parties a fair hearing. It also has authority to examine thoroughly submissions relating to bias in the FAC.

It also may examine any new evidence that could not have been presented to the FAC and any other matters it considers relevant to the appeal. The GFC SAAC noted that it has an overarching duty to ensure that applicable decisions are fair and reasonable and that the rules of natural justice have been observed in the specific context of the matter before it. [ 101 ] The GFC SAAC Decision outlined the way in which the GFC SAAC reviews a decision of the FAC. It noted that on the issues of procedural fairness and bias, the GFC SAAC applies a correctness standard and does not defer to the FAC.

With regard to the merits of a decision of the FAC, the GFC SAAC applies a reasonableness standard to determine whether the decision is defensible and falls within a range of reasonable outcomes. [ 102 ] The GFC SAAC Decision begins by providing background and recognizing that issues arose between Karri and Gilch. The GFC SAAC then enumerated Karri’s grounds for appealing the FAC Decision. These fell into two categories.

The first, unfair practices and flawed procedures, included failure to accommodate Karri’s language barrier, flawed procedure in the appeal process, flawed procedure and unfair practice in meetings leading up to the FGS Decision and unfair practice or flawed procedure in the challenge to the appeal panel composition. The second category, bias, included allegations of patently incorrect findings of fact by the FAC and privileging the contextual

interpretations of others over Karri’s. [ 103 ] The GFC SAAC Decision addressed Karri’s complaint that the FAC did not invest a reasonable amount of good faith and effort to understand his submissions. He asserted that the FAC’s inability to understand his submission was evidenced by apparent

misunderstandings that caused incorrect findings. He argued that the FAC misunderstood his closing argument, leading them to believe that his oral submissions were not the same as his post-hearing written submissions. The GFC SAAC Decision notes that Karri’s Appeal Submission concludes that “this matter could possibly have resolved much earlier had Mr. Karri been afforded his right to an interpreter”. [ 104 ] The Respondent challenged Karri’s right to an interpreter, noting that the language of instruction is English and that Karri had taken graduate courses and passed an oral candidacy examination in English.

The Respondent also noted that Karri brought a support person to the FAC hearing, who assisted him by translating oral statements. [ 105 ] Further, the Respondent noted that Karri questioned his witnesses and cross-examined the Respondent’s witnesses in English and made his closing statement to the FAC in English.

Difficulties in understanding him, the Respondent argued, devolved not from language issues but from his emotional state. [ 106 ] The GFC SAAC noted that at the FAC hearing, Karri’s support person was not permitted to speak to the FAC to clarify points Karri was struggling to find the right words for, but pointed out that this is not the role of an interpreter. The FAC’s approach was consistent with the FAC appeal procedures, which require appellants to present their cases themselves.

The GFC SAAC noted that Karri did not make an official request for an interpreter at either the FAC hearing or the GFC SAAC hearing. [ 107 ] The GFC SAAC Decision went on to consider if there was evidence of a language barrier such that the FAC did not understand Karri’s oral submissions at the hearing. The GFC SAAC reviewed Karri’s post-hearing written submissions and agreed with the FAC that those submissions were a negotiation proposal that was different from his oral closing submissions.

They found there was no evidence that, due to a language barrier, the FAC did not understand Karri’s oral submissions. [ 108 ] The GFC SAAC rejected Karri’s assertion that the FAC did not understand and did not take reasonable steps to ensure they understood his oral submissions. Therefore, they rejected his argument that there was unfairness in the FAC procedures or hearing as a result of failure by the FAC to accommodate his language barrier. [ 109 ] The GFC SAAC considered Karri’s expressed concern about the inclusion of Dr. P. Mains on the FAC panel because of his professional affiliation with Gilch.

The FAC responded by noting that Mains was the only member of the FAC with experience in lab- based settings. Karri argued to the GFC SAAC that if Mains could not be removed for a conflict of interest, the FAC procedure is flawed and that failure to consider and respond to his concerns means the FAC’s practice was unfair. [ 110 ] The Respondent submitted to the GFC SAAC that it would not reasonable to exclude appeal panel members, such as Mains, merely because he was associated with the Cumming School of Medicine.

Gilch’s affiliation with that faculty, without more, does not meet the requisite test for bias. [ 111 ] The GFC SAAC Decision referred to FAC procedures describing the composition and function of the FAC and the appeal panel. The GFC SAAC noted that a party must have cause to challenge the qualification of a committee member to sit on a panel. It found that Karri’s objection to Mains was non-specific and that there was no basis for asserting a conflict of interest or other factor likely to prejudice the hearing.

It accepted Gilch’s evidence that she did not know Mains and concluded: The GFC SAAC finds that you have not proven that the FAC Procedures respecting the challenge to a panel is unfair, nor have you proven that the manner in which the FAC responded to your challenge to the inclusion of Dr. Mains on the panel was a breach of procedural fairness. [ 112 ] Karri’s Appeal Submission referred to meetings or requested meetings between September 2017 and January 2018. The GFC SAAC found that this was not a proper ground of appeal from the FAC Decision as it did not relate to unfairness in the FAC procedures or hearing.

Therefore, those submissions were not within the GFC SAAC’s jurisdiction and they did not comment further on them. [ 113 ] Karri’s arguments respecting flawed procedure at the FAC pertained to two complaints: timing and the admission of post facto information. [ 114 ] Karri asserted that the Respondent did not provide its response submission to the FAC within the required time and that he had only five business days prior to the FAC hearing to review the Respondent’s submission and develop his own responses to it.

This, he claims, was inequitable and unfair, especially in light of his language difficulties. [ 115 ] The Respondent argued that Karri had a full week to review its submissions to the FAC and that most of the material consisted of email correspondence to which Karri was a party, implying he was familiar with it.

Karri did not dispute this assertion in his Further Appeal Submission to the FAC or in oral submissions before the GFC SAAC. [ 116 ] The Respondent also argued that, while it had a longer opportunity to review Karri’s submissions to the FAC than he had to review the Respondent’s, this was because the FAC hearing was postponed to facilitate resolution. If Karri felt he needed more time to consider the Respondent’s submissions, his remedy was to request adjournment of the FAC hearing.

He did not. [ 117 ] The GFC SAAC found that Karri had not proven that the amount of time he had to review the Respondent’s response submissions to the FAC resulted in any actual prejudice to him or otherwise constituted a breach of procedural fairness. Citing flexibility in FAC procedures, the GFC SAAC Decision notes in conclusion that: The GFC SAAC finds that the efforts to attempt a negotiated resolution was done by and on behalf of both parties in a good faith manner and that the FAC hearing proceeded only when it became clear that a resolution at the Faculty of Graduate Studies was not possible.

The GFC SAAC finds that the decision to delay the FAC hearing for the purpose of attempting a resolution was not prejudicial to you. [ 118 ] Karri also complained to the GFC SAAC that information included in the Respondent’s submissions to the FAC regarding resolution negotiations was post facto evidence that improperly coloured the FAC Decision.

[ 119 ] The Respondent’s submissions to the FAC referred to the FGS Proposal and the Revised FGS Proposal.

The Respondent noted that Karri rejected the Revised FGS Proposal on July 13, 2018 and argued that “…in the end the requirement that Dr Gilch be recognized as supervisor on the final document was the key to the appellant’s rejection of the offer.” The Respondent stated that proposals for resolution did not get as far as to solicit the willingness of potential co-supervisors to work with Karri, that there was no guarantee that a co-supervisor could be found and that there were “substantial challenges entailed in any decision that permits the appellant to remain registered”. [ 120 ] Karri complained to the GFC SAAC that by suggesting that a remedy would be difficult to reach, the Respondent conveyed to the FAC that allowing his appeal was undesirable.

He also suggested in oral submissions to the GFC SAAC that this information was an attempt to depict him as uncooperative. [ 121 ] Before the GFC SAAC, the Respondent denied that attempts to negotiate a settlement were a delay tactic or a strategy for winning the FAC appeal. [ 122 ] The GFC SAAC noted that, since the rules of evidence do not apply to administrative tribunals, there was nothing wrong with the Respondent submitting post facto evidence. It was up to the FAC to determine its admissibility and relevance and what weight to give to it.

The GFC SAAC noted that there was no indication in the record that Karri had asked the FAC to disregard this information. [ 123 ] The GFC SAAC noted that the Respondent addressed Karri’s complaint that Young did not include his responses to her offers.

Young explained that her offers were relevant because she wanted the FAC to understand the significant difficulties that would be entailed in implementing Karri’s proposed remedy, which would include overriding the objections of his former supervisor, Gilch. [ 124 ] The GFC SAAC, in reviewing the FAC Decision as a whole, concluded that the FAC placed no undue weight on Young’s offers or her commentary on them.

The GFC SAAC Decision states that: The GFC SAAC finds that you have not proven that the inclusion of post facto/post-hoc information in the record before the FAC and/or the FAC’s reference to same was prejudicial to you or otherwise constitutes a breach of procedural fairness. [ 125 ] The GFC SAAC then turned to Karri’s allegations of bias and noted that an appellant before the GFC SAAC must prove bias on a balance of probabilities.

The GFC SAAC Decision states that Karri pointed to the comments of de Grandpre J in Committee for Justice and Liberty et al v National Energy Board et al , [1978] 1 SCR 396 at pp 394-5 outlining the test for bias: ...the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information…[T]hat test is “what would an informed person viewing the matter realistically and practically –and having thought the matter through—conclude.

Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly?” …The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience.” [ 126 ] Karri submitted that if the FAC’s alleged incorrect findings of fact were not misunderstandings due to a language barrier, they should be attributed to bias.

He listed five of what he referred to as the most egregious findings of fact by the FAC. [ 127 ] The first related what he called contrasting excerpts from the FAC Decision: “We cannot find any credible evidence of bias against you in the course of your studies and lab work” and “That any shouting and rude behavior that occurred was not specifically directed at you.” [ 128 ] The GFC SAAC noted the unfortunate incident with Schaetzl, the subsequent efforts that were made to address committee composition and allow Karri to move forward and the Respondent’s position that “The appellant’s unwillingness to engage productively in these efforts led to the decision that he be required to withdraw.” [ 129 ] The GFC SAAC noted a distinction drawn in the FAC Decision between alleged bias in connection with Karri’s lab and thesis work and in connection with the FGS Decision.

The GFC SAAC stated that, strictly speaking, any bias with respect to his lab and thesis work did not constitute grounds for appealing the FGS Decision. In any event, the FAC rejected the allegations of bias both as they related to Karri’s lab and thesis work and in connection with the FGS Decision. [ 130 ] The GFC SAAC found that the FAC’s finding that bias against Karri in the course of his studies and lab work was not established was neither obviously incorrect nor indicative that the FAC itself was biased.

The GFC SAAC found that the Respondent’s statements above did not support the assertion that there was bias against Karri in the course of his studies and lab work. [ 131 ] The GFC SAAC rejected the claim of bias in respect of the remaining four allegedly incorrect findings as none of the evidence from witnesses supported it. [ 132 ] Finally, the GFC SAAC considered Karri’s submission that the FAC did not give fair weight to his submissions and consistently accepted the Respondent’s perspective over his, without justification.

Karri cited two examples from the FAC Decision. [ 133 ] First, the FAC Decision stated “you presented a great number of

interpretations, often out of context and sometimes impugning others’ contextual

interpretations”. Karri submitted that conflicting

interpretations are to be expected and such conflict is not justification for rejecting his submissions. [ 134 ] Second, the FAC Decision indicated that his witnesses were largely unhelpful. Karri argued that characterizing his witnesses as unhelpful meant the FAC did not use his witnesses’ testimony in coming to their conclusions and that, had they done so, they would have found it helpful. Karri asserts this means that he did not get a fair hearing and evidences the FAC’s bias. He also claimed that the FAC limited his witnesses’ testimony.

[ 135 ] Karri asserted that the members of the FAC became frustrated with him during the hearing, which prevented them from deciding his appeal fairly on the merits. [ 136 ] Finally, Karri argued that the FAC did not focus their questions on his academic performance and that he was not prepared for questions unrelated to that. [ 137 ] The Respondent commented that none of Karri’s witnesses was involved in interactions between him and Gilch; they could not corroborate his claim that he was treated differently within the research group.

The Respondent stated that the FAC listened to Karri’s witnesses and asked them questions directed at determining bias up to the point of Gilch’s withdrawal as his supervisor. [ 138 ] The Respondent acknowledged that members of the FAC became frustrated during the hearing with Karri’s arguments about the intellectual property issues. [ 139 ] The GFC SAAC stated that the FAC Decision must be considered broadly and in context.

Karri alleged bias because the FAC dismissed his submissions, but the FAC concluded that those submissions were a reinterpretation of existing evidence, not new evidence that justified interfering with the FGS Decision. Karri did not challenge that conclusion. The GFC SAAC found that this did not amount to dismissing Karri’s submissions nor to preferring the Respondent’s perspective. [ 140 ] The GFC SAAC then turned to the FAC’s conclusion that the testimony of Karri’s witnesses was “largely unhelpful”.

The FAC found that the witnesses did not address the critical issue relating to the requirement to withdraw, being Karri’s inability to make progress in completing his thesis work. The GFC SAAC observed that Karri did not provide any particulars of how, had the FAC used his witnesses’ testimony, they would have found it helpful. [ 141 ] The GFC SAAC commented that only two of the eight witnesses appearing before it had testified before the FAC and that they were properly considered character witnesses who did not address the grounds of appeal.

None of the three witnesses Karri claimed would corroborate that he was treated differently within the research group testified before the GFC SAAC. [ 142 ] The GFC SAAC acknowledged that members of the FAC became frustrated with Karri, but found that, without more, frustration does not amount to bias. The GFC SAAC also found that neither the FAC’s questions unrelated to academic performance nor placing time limits on witness testimony amounted to bias. [ 143 ] The GFC SAAC concluded that the FAC process was fair and that Karri had not proven a reasonable apprehension of bias on the part of the FAC.

The GFC SAAC Decision states: The GFC SAAC finds that you have not proven that the FAC did not give fair hearing to your submissions.

In considering the whole of the submissions, the GFC SAAC finds that you have not proven that there was a reasonable apprehension of bias on the part of the FAC. [ 144 ] The GFC SAAC Decision states that Karri did not raise as a ground of appeal that there was substantial new evidence that could not have been presented to the FAC and that the GFC SAAC did not otherwise find such new evidence. [ 145 ] Beyond its consideration of procedural fairness, the GFC SAAC also addressed the merits of the FGS Decision and the FAC Decision. [ 146 ] With respect to the former, the GFC SAAC pointed to s 29(1)(

d) of the PSLA , which provides that a faculty council, such as the FGS, may determine the conditions under which a student must withdraw or may continue the student’s program of studies in the faculty. [ 147 ] The GFC SAAC acknowledged the necessity of Karri having a supervisor to continue his program.

While it acknowledged that FGS will attempt to mediate conflicts in order to maintain continuity of the supervisory relationship, the GFC SAAC also stated that Karri had a responsibility to maintain a strong working relationship with his supervisor. [ 148 ] The GFC SAAC Decision cites s. 4.19 of the Graduate Student Supervision Policy of the University of Calgary: Under exceptional circumstances, a Supervisor may request permission from the Faculty of Graduate Studies to discontinue supervision of a Graduate Student. [ 149 ] The GFC SAAC noted that Karri did not reply to the Young November 27, 2017 Letter by the deadline of January 5, 2018 and did not appeal the decisions outlined in the Young January 29, 2018 Letter, one of which was to accept Gilch’s request to withdraw as Karri’s supervisor.

The GFC SAAC noted that, as a consequence of Karri’s failure to appeal, he was left without a supervisor, a requirement of his continued participation. [ 150 ] The GFC SAAC found that the FGS Decision was defensible and fell within a reasonable range of outcomes. [ 151 ] Turning to the FAC Decision, while acknowledging that the FAC did not articulate their decision as carefully as they could have and that the reasons for decision could have been more comprehensive, the GFC SAAC noted that a lack of detailed reasons is not akin to an unreasonable decision. [ 152 ] The GFC SAAC found that the FAC recognized and addressed each of the grounds of appeal Karri submitted.

Having concluded that the rules of natural justice were observed before the FAC and that Karri’s grounds of appeal were not substantiated, the GFC SAAC found that the FAC Decision to reject his appeal was defensible and fell within a range of reasonable outcomes. [ 153 ] Accordingly, the GFC SAAC dismissed Karri’s appeal. III. Issues

[154] Karri articulated the issues as follows in his brief:

a) What is the appropriate standard of review in respect of the grounds advanced by Karri?

b) Did the GFC SAAC err by failing to overturn the FAC Decision on account of a breach of natural justice and procedural fairness?

c) Did the GFC SAAC unreasonably find that Karri ought to have been removed for failure to maintain academic progress? IV. Analysis A. Standard of Review [155] As always with a judicial review application, I begin by determining the appropriate standard of review. Both parties point toCanada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, where the Supreme Court of Canada held that, as thestarting point, reasonableness is the presumptive standard.

The Court held at paras 17 and 18 that the presumption may be rebuttedwhere the legislature intended a different standard or where the rule of law requires the correctness standard. [156] In discussing the presumption of reasonableness at para 23, the Supreme Court specifically excepted “…a review related to abreach of natural justice and/or the duty of procedural fairness.” The standard of review in respect of these matters remains correctness. [157] The parties are largely ad idem on the proper standards of review in this case. [158] With respect to the merits of the GFC SAAC Decision, the Respondent points to the GFC SAAC’s particular expertise withrespect to matters of academic performance at the University.

That expertise, it argues, should be given great deference by this Court andcalls for a reasonableness standard. Citing Vavilov, the Respondent asserts that the Court must ask whether the GFC SAAC Decisionbears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to therelevant factual and legal constraints that bear on it.

Karri acknowledges that a reasonableness standard applies to review of the merits ofthe GFC SAAC Decision and I agree. [159] The parties also agree that the standard of review on the question of whether Karri was afforded procedural fairness iscorrectness. [160] Karri cites Yao v University of Saskatchewan, 2014 SKQB 184, which predates Vavilov and addresses questions similar tothose in this case.

Yao involved the involuntary withdrawal of a student in his final year of Dentistry at the University of Saskatchewan.The Court reviewed both the merits of the decision and the process followed, adopting a correctness standard in respect of the latter. [161] Karri argues that the Court’s reasoning in Yao “fits within” the Vavilov approach and that there may be different standards ofreview for the process an administrative tribunal followed and the merits of that tribunal’s decision. [162] The Court in Yao held at para 41 that public universities must act fairly and in accordance with principles of natural justicewhen making decisions that affect the student’s standing and status at the university and that failure to apply the principles of naturaljustice amounted to an error in law. [163] The Respondent acknowledges that the standard of review remains correctness on matters of procedural fairness, but assertsthat reasonableness and common sense must be applied in assessing if that standard has been met. [164] Having determined that the issue of procedural fairness must be assessed on the correctness standard, two further questionsarise. [165] The first question is as to the content of the duty of procedural fairness.

Again, the parties are largely in agreement. Both citeBaker v Canada (Minister of Citizenship & Immigration), [1990] 2 SCR 817, which set out the following factors at para 21:

a) the nature of the decision and the process followed in making it;

b) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

c) the importance of the decision to the individual affected;

d) the legitimate expectations of the person challenging the decision; and

e) the choices made by the decision maker in determining its own procedures. [166] Citing Kane v University of British Columbia, (SCC), [1980] 1 SCR 1105 at para 31, Karri asserts that “Ahigh standard of justice is required when the right to continue in one’s profession or employment is at stake.” [167] Karri notes that the Court in Yao held at para 12 that requiring a student to withdraw is a drastic administrative action thatattracts a high standard of fairness. [168] Karri also points out that this Court has found that, pursuant to its policies, procedures and student calendar, there is acontractual source to a university’s duty of fairness to a student in making career-ending academic decisions: Yen v Alberta, 2010 ABQB380, at para 43. [169] Based on this case law, Karri asserts he was entitled to a high degree of procedural fairness.

His involuntary withdrawal from

the University was likely to have a very significant impact on his education and career prospects. Both his reasonable expectations andthe University’s choices of procedure necessitate a “stringent degree” of procedural fairness. [170] I agree. The issue for review, therefore, is whether the necessary degree of procedural fairness was observed. [171] This brings me to the second, and thornier, question, namely the scope of my review. The Respondent states as follows in itsbrief: This is an Application for judicial review of the GFC Decision.

However, the Applicant asks this Court to act beyond the limits ofjudicial review and not only set aside the GFC Decision but also the FAC Decision and the FGS Decision. [172] Strictly speaking, what is before me on this judicial review is the GFC SAAC Decision. However, Karri asserts that breaches ofprocedural fairness occurred at all of the FGS, the FAC and the GFC SAAC. He asks that I consider the proceedings in their entirety. [173] I agree that it is necessary for me to examine the entire process.

Assessing the fairness of the procedure that led to the GFCSAAC Decision requires consideration of the process leading to the FGS Decision and the FAC Decision. [174] To look at the GFC SAAC Decision in isolation would be, in my view, an overly myopic perspective.

I am concerned that sucha “silo” approach would permit any unfairness in the antecedent processes to be obscured and propagated. [175] Ultimately, the issue in these matters is whether the party affected by the decision in question was afforded procedural fairness.I do not see how that issue can be meaningfully assessed without taking into account the entirety of the proceedings. [176] Similarly, I do not think a superior tribunal’s decision upholding an inferior tribunal’s decision can be found reasonable unlessthe reasonableness of the inferior tribunal’s decision is examined in context. [177] I am, of course, mindful of the Supreme Court’s admonition in Vavilov at para 125 that a reviewing court must refrain from“reweighing and reassessing the evidence considered by the decision maker”, in this case the GFC SAAC.

Nonetheless, in thecircumstances of this case, to determine if the GFC SAAC Decision was reasonable, I consider it necessary to have regard to thereasonableness of each of the FGS Decision and the FAC Decision. B. Procedural Fairness [178] The most basic requirements of natural justice are notice, opportunity to make representations and an unbiased tribunal: Healeyv Memorial University of Newfoundland, [1993] NJ No. 61 at para 74, citing Lakeside Colony of Hutterian Brethren v Hofer, (SCC), [1992] 142 NR 241. [179] Karri focuses on the right to notice and the right to be heard.

While bias was argued before both the FAC and the GFC SAAC,it was not argued before me and Karri does not appear to take the position that the GFC SAAC was biased. 1.

Right to Notice [180] Procedural fairness includes the right to reasonably particularized notice which, Karri argues, means that the notice receivedshould properly reflect the possible outcomes of the hearing or procedure. [181] In fairness to parties who may be subject to findings of misconduct, the notices should be as detailed as possible to allow themto prepare for or respond to any possible findings: Canada (AG) v Canada (Commissioner of the Inquiry on the Blood Supply) (SCC), [1997] 3 SCR 440 at para 56. [182] In an academic context, the courts have noted that the person affected must be made aware with a sufficient degree ofspecificity of what is at stake at the impending hearing to enable them to prepare properly for effective participation: Carson vUniversity of Saskatchewan, 2000 SKQB 322. [183] The Respondent observes that: The power to deal with issues of academic performance are matters squarely within the University’s authority and expertise.

The FGSDecision requiring the Applicant to withdraw falls within that authority. [184] That is true, but that authority must be exercised fairly in accordance with the rules of natural justice. [185] Karri argues that the requirement for adequate notice in this case has two aspects. First, FGS had to ensure that he knew whatthe concerns were with his conduct and what needed to be done regarding his future conduct.

Second, FGS was obligated to notify himthat it was considering withdrawing him from his program. [186] Significantly, Karri’s arguments, as set out in his brief, refer only to the question of notice leading up to the FGS Decision. Hedoes not appear to take the position that he did not receive adequate notice of either the FAC Decision or the GFC SAAC Decision. [187] I disagree with Karri’s claim that he did not have adequate notice of what was to befall him.

The Young November 27, 2017Letter, the Young January 29, 2018 Letter and Curtin’s February 21, 2018 email should have made clear to him what was at stake. [188] One of Karri’s primary allegations is that he was not made aware of the potential consequences of the breakdown in hisrelationship with his supervisor in time to do anything about it. The Young November 27, 2017 Letter refutes that assertion. [189] The Young November 27, 2017 Letter offered Karri a number of viable options that would have allowed him to finish his

program. This should have made it painfully obvious to Karri that his ability to pursue his Ph.D. was in jeopardy. Mention of voluntary withdrawal and retaking his candidacy, even though not yet threatening involuntary withdrawal, were clearly harbingers of problems ahead.

Young expressly stated that “If none of the options set out above are acceptable to you, your best course of action would be to voluntarily withdraw from your program.” This makes clear that the current situation could not continue. [ 190 ] Karri complains that while Young requested his reply by January 5, 2018, she did not indicate the consequences of failure to reply.

I am not troubled by that because the tone of the Young November 27 Letter is sufficiently ominous that a reasonably intelligent person should have realized it required immediate attention. [ 191 ] Karri is an intelligent, educated person who described himself in his Appeal Submission to the GFC SAAC as “smart” and has sufficient proficiency in English to pass his Ph.D. candidacy exam . He was presented in the Young November 27, 2017 Letter with a finite list of options, only one of which permitted him to continue working in the Gilch Lab, and that only under specific conditions.

The suggestion that he did not appreciate the significance of this defies common sense. [ 192 ] Karri then received the Young January 29, 2018 Letter notifying him of Gilch’s withdrawal as his supervisor and again offering him an option to allow him to complete his program.

This was a clear message to Karri that he no longer had access to the Gilch Lab and that his ability to finish his research and Ph.D. program as originally envisaged had come to an end. [ 193 ] Karri complains that the Young January 29, 2018 Letter did not clearly and unequivocally explain to him that he was at risk of being withdrawn from his program. He asserts that the statement “you are entitled to appeal the decision that you be required to withdraw” was a reference to Dr.

Gilch’s withdrawal as his supervisor, not to his own withdrawal from the Ph.D. program. [ 194 ] I accept that this reference was inaccurate and I agree with Karri that the FGS Decision would have been redundant if the Young January 29, 2018 Letter was intended to effect Karri’s withdrawal from the Ph.D. program simultaneously with Dr. Gilch’s withdrawal as supervisor. The subsequent developments also indicate that that was not the intent. [ 195 ] Nevertheless, I agree with the FAC and GFC SAAC that the Young January 29, 2018 Letter as a whole sufficiently communicated the situation to Karri.

He was now without a supervisor and denied access to the Gilch Lab. His only options were to write up a thesis or appeal Gilch’s removal. He was on notice that his program was in jeopardy. [ 196 ] Karri also complains that the Young January 29, 2018 Letter did not indicate what he needed to do to avail himself of her offer or the time frame within which he needed to take her up on it.

Further, while he was informed that he would be required to meet specific milestones each month in order to get paid, he was not told what those milestones were, their commencement date or to whom he would report. [ 197 ] It is not surprising that the Young January 29, 2018 Letter did not include detailed terms and conditions governing Karri’s ability to write up a thesis, given that the University did not yet know whether he wanted to do so. Had he chosen this option, the terms of engagement would have to have been worked out.

Moreover, at the risk of stating the obvious, if Karri wanted further details, he could have asked. [ 198 ] Finally, Karri received the Curtin email on February 21, 2018, in which she expressly states that, absent response from him to the prior offers, she will proceed with his involuntary withdrawal. [ 199 ] Karri asserts that he had no idea prior to this email that involuntary withdrawal was a possibility and argues that his response to Curtin shows that he did not understand what was happening, what he was required to do, or what the potential consequences to him were.

He complained to the FAC that the correspondence left him with “gaps in understanding this process” and left him “unable to understand how to respond to the withdrawal process”. He asserts in his brief that he suffered from a “painful lack of understanding”. [ 200 ] It is significant, however, that he made little or no effort to seek clarification. He refused, as discussed below, to attend meetings where he might have asked questions. He refused even to answer the questions asked of him in correspondence or to discuss the proffered options. Instead, he chose to pursue a process of his own devising.

That does not substantiate a lack of adequate notice. [ 201 ] Karri cites Yao as an example of adequate notice. Annual expressions of concerns over Mr. Yao’s academic performance, years of opportunity to correct his shortcomings and advice that he would have to re-take an entire year’s courses left Mr. Yao with adequate notice and opportunity. [ 202 ] In Karri’s case, six months elapsed between an annual progress report that described his research as excellent and the FGS Decision. Six weeks elapsed between Dr.

Gilch’s withdrawal as his supervisor and the FGS Decision. [ 203 ] In my view, the relatively short time frame does not establish a lack of adequate notice.

Karri’s lack of positive response to Young’s efforts to facilitate completion of his Ph.D., his ongoing complaints about Gilch, his rejection of Matyas and Curtin, his inability or unwillingness to attend meetings and his ongoing complaints of unfair treatment contributed to an untenable situation that had to be addressed. [ 204 ] In my view, the correspondence from Young and Curtin gave Karri adequate notice that his continuation in the Ph.D. program was at risk. He knew or ought to have known that he faced a contracting range of options.

He cannot be heard to say that he thought he was fully engaged one minute and the next found he had been involuntarily withdrawn. The FGS Decision should have been no surprise to Karri. [ 205 ] Accordingly, I reject Karri’s claim that the University manifestly failed to provide him with adequate notice of possible involuntary withdrawal and a corresponding opportunity to avoid it. I reject his assertion that the GFC SAAC erred by failing to identify and correct such a failure. 2. Right to be Heard

[206] There is a duty to allow persons entitled to procedural fairness to take full advantage of their right to be heard: Carson at para39. An applicant must be given the opportunity to make submissions on all evidence and representations considered by the tribunal:Healey, para 120. [207] Karri refers to Burton v Kwantlen Polytechnic University, 2017 BCSC 1082, which in turn cites Harelkin v University ofRegina, (SCC), [1979] 2 SCR 561.

In Harelkin, the Supreme Court of Canada reaffirmed that, in matters affecting astudent’s status or educational standing, a university is required to act in accordance with the principles of natural justice, including thestudent’s right to be heard. [208] Karri begins by saying that FGS was required to provide him with an opportunity to be heard prior to the FGS Decision. I agree. [209] He asserts that FGS failed to do so. As with the right to notice, Karri’s focus is on the process leading to the FGS Decision.

Hedoes not appear to take issue with the process at the GFC SAAC. [210] Karri points to the form setting out the FGS Decision entitled “Recommendation of Required Withdrawal from GraduateProgram for Failure to Maintain Academic Progress”. This form contained a

section entitled “Faculty of Graduate Studies Ruling” whichindicates that an “FGS internal hearing is required”. [211] In addition to stating that Karri was required to withdraw for failure to maintain progress and for “failure to maintain and adhereto supervision”, it also indicates that he had been invited to attend a number of meetings but had chosen not to attend. [212] Karri asserts that the only meetings he failed to attend either occurred or were scheduled in January 2018. He complains that hewas given inadequate notice of these meetings and that his requests for alternate dates were refused.

He points out that the meetings werescheduled unilaterally by FGS and that he did not confirm his attendance. [213] I do not find it odd or unfair that the meeting schedules were suggested by FGS. The purpose of those meetings was adiscussion among several parties, including Gilch, Curtin and Young, to attempt to find a way forward. Karri’s was not the only schedulethat needed to be coordinated. [214] Karri notes that Young declined the personal meeting he requested in response to the Young November 27, 2017 Letter.

By thattime, however, the matter required the participation of a larger group, including members of his supervisory committee. Input wasneeded from a number of stakeholders and a group meeting would provide the benefits of transparency and collective recognition ofwhat was discussed and decided. [215] Karri points out that Curtin requested confirmation from him in less than 24 hours regarding a proposed meeting at a time whenhe was otherwise engaged in euthanizing mice in his research project.

That is true, but it is also true that what Curtin asked for wasconfirmation of one of two proposed meeting dates approximately a week later. She did not ask Karri to attend a meeting 24 hours later,merely to advise within that time frame whether he would attend the following week. [216] Karri argues that FGS takes the position he waived his right to a hearing by not attending the meetings in January 2018. He asksif in the circumstances it is correct to conclude that he was given a fair and effective opportunity to comment on and criticize therecommendations of FGS.

He asserts that it is absurd that his non-attendance at meetings which did not consider the FGS Decision couldhave resulted in a permanent waiver of his right to a hearing. How, he asks, can this be a correct or defensible rationale for the waiver ofsuch a basic and essential right? [217] Karri’s position is that he should have been provided with ample opportunity to attend a meeting relating specifically to hispossible withdrawal.

He claims that natural justice required nothing less than a face to face meeting where he could be informed that theconsequence of a lack of decision on his part by a specified date was withdrawal. [218] He notes that the FAC reasoned that the FGS had made extraordinary efforts reach out to him and that the GFC SAAC Decisiondid not provide reasons specifically considering this point.

However, the GFC SAAC did find that the rules of natural justice wereobserved in this matter. [219] I agree with the FAC and the GFC SAAC that the rules of natural justice were observed in respect of Karri’s right to be heard.FGS provided him with that opportunity, but he did not avail himself of it. [220] Karri’s options were explained to him in the Young November 27, 2017 Letter and he was told that the purpose of the January2018 meeting was to discuss those options. When he neither attended the meeting nor responded to the letter, he was given anotheropportunity to meet.

When he did not take that opportunity, he was sent another letter, outlining his remaining options. Through hisconduct, Karri rejected the efforts of several people to salvage his academic program. [221] Karri asserts that the importance of process in respect of potential withdrawal from an academic program means that thereasonableness standard is not applicable.

He argues that reviewing bodies must correctly identify the issues and apply the requiredprinciples and that a decision cannot be considered to fall within a reasonable range of outcomes if the process followed in arriving at itwas incorrect. [222] He argues that both the FAC and the GFC SAAC failed to consider effectively his stated concerns that the process leading tothe FGS Decision was deficient. [223] That is simply incorrect. Both the FAC and the GFC SAAC considered his concerns regarding process in some detail, albeitmore detail in the case of the GFC SAAC.

Both considered the process followed by the FGS in arriving at the FGS Decision to havebeen fair. I agree. [224] Taking all of the foregoing into account, I find that there was no breach of Karri’s right to procedural fairness in respect of the

FGS Decision. The FAC and the GFC SAAC were correct in so finding. C. Merits [ 225 ] I turn now to the merits.

Karri raises three issues in respect of the reasonableness of the FGS Decision: 1) Karri continued to have supervision at the date of the FGS Decision despite Gilch’s withdrawal; 2) Karri’s withdrawal from his program was not a necessary or reasonable consequence of Gilch’s withdrawal (independent of Matyas’ continued supervisory role); 3) Maintaining and adhering to supervision is not a supportable ground for failure to make academic progress. [ 226 ] The Respondent notes that Karri did not raise any of these grounds before the GFC SAAC.

It points out that the GFC SAAC conducted what was essentially a hearing de novo over the course of two days. It heard from witnesses, including some who had not appeared at the FAC, considered a lengthy evidentiary record and reviewed written and oral submissions of all parties.

The Respondent argues that the GFC SAAC’s careful consideration of the matter is evident from its lengthy questioning of the parties about possible outcomes, including whether Karri could realistically complete his Ph.D. [ 227 ] The Respondent asserts that “The careful reasoning … in the [GFC SAAC Decision], when read in light of the specific factual circumstances of this case, clearly meets the test for reasonableness set out in Vavilov .” It cites the

summary of that test in Canada Post Corp v Canadian Union of Postal Workers , 2019 SCC 67 at paras 31-34 : A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”... Accordingly, when conducting a reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion”...

The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made”... A reviewing Court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review”...

The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”... Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable”...

The challenging party must satisfy the court “that any shortcomings or flaws relied on…are sufficiently central or significant to render the decision unreasonable”… The analysis that follows is directed first to the internal coherence of the reasons, and then to the justification of the decision in light of the relevant facts and law. However, as Vavilov emphasizes, courts need not structure their analysis through these two lenses or in this order...

As Vavilov states , at para. 106 , the framework is not intended as an invariable “checklist for conducting reasonableness review”. [Citations omitted.] [ 228 ] This brings into sharp relief the thorny question I identified above. Fundamentally, of course, Karri’s objection is to the FGS Decision. His criticism of the GFC SAAC Decision, essentially, is that it upheld the FGS Decision. Therefore, while this is not a hearing de novo , my assessment of the reasonableness of the GFC SAAC Decision will necessarily have regard to the FGS Decision as context.

I will review Karri’s arguments, but as a framework for considering the reasonableness of the GFC SAAC Decision. 1. Supervision [ 229 ] As noted above, in the Young November 27, 2017 Letter, You

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