Dr. Mays Abdulghafoor v University of Calgary, 2021 ABQB 187

Court of Queen’s Bench of Alberta Citation: Dr. Mays Abdulghafoor v University of Calgary, 2021 ABQB 187 Date: 20210315 Docket: 2001 09448, 2001 09453 Registry: Calgary 2001 09448 Between: Dr. Mays Abdulghafoor Applicant – and – University of Calgary, University of Calgary Cumming School of Medicine, The Governors of the University of Calgary, Board of Governors of the University of Calgary, and Alberta Health Services Respondents 2001 09453 and Between: Dr.

Mays Abdulghafoor Applicant - and – University of Calgary, University of Calgary Cumming School of Medicine, The Governors of the University of Calgary, Board of Governors of the University of Calgary, University of Calgary operating as the Post Graduate Medical Education Office, The Resident Program Committee and the Clinical Fellowship Committee, and Alberta Health Services Respondents Corrected judgment: Corrigenda were issued on March 19, 2021 and March 22, 2021; the corrections have been made to the text and the corrigendum with all corrections is appended to this judgment.

______________________________________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R. Jeffrey ______________________________________________________________________________ [ 1 ] Dr. Mays Abdulghafoor applies for judicial review of a decision that ended her enrollment in a university clinical fellowship program. The Neonatal-Perinatal Medicine Residency Program Committee, operating as the Clinical Fellowship Committee, (the “ RPC ”) concluded that she had not satisfactorily completed her probation (the “ Decision ”). [ 2 ] Dr.

Abdulghafoor says the Decision was unreasonable and the process followed in reaching it was unfair. She seeks an order setting it aside and either that she be reinstated back into the Program or that I remit the matter back with directions. [ 3 ] Dr. Abdulghafoor commenced two separate judicial review applications, for reasons that are not relevant to this decision. No issue was taken with this and nothing turns on it. The applications were heard concurrently. I do not differentiate between the two in this decision. The claim for relief against Alberta Health Services (“ AHS ”) has been discontinued. I.

Background [ 4 ] Dr. Abdulghafoor (the “ Applicant ”) is a physician who had completed a residency in pediatrics. Her goal is to subspecialize further in neonatal and perinatal medicine. To that end she pursued a two-year Clinical Fellowship in Neonatal and Perinatal Medicine (the “ Program ”) at the University of Calgary Cumming School of Medicine. [ 5 ] The Applicant was accepted entry into the Program by letter of July 20, 2018, signed by Dr. Kamaluddeen, Program Director for the Program.

In a stand-alone paragraph the letter states: There is an initial 3 month highly supervised assessment/probationary period in the first year which must be completed satisfactorily in order to continue in the fellowship program. [ 6 ] The Program is run by the Post-Graduate Medical Education (“ PGME ”) Office of the University of Calgary Cumming School of Medicine. Its policy describes the Program as “mentored, advanced training for the purpose of enhancing the skills of a Clinical Fellow in pursuit of his/her chosen career path”: PGME Clinical Fellows Policy (the “ CFP ”) at para 3(

i) of the version then in force. The specific fellowship into which the Applicant soon enrolled leads to an advanced certification in neonatology. [ 7 ] The Program has a research component, but is primarily clinical. During the two-year Program, Fellows rotate through separate “blocks” of training and study, each lasting a number of weeks, each emphasizing a different topic and sometimes located in different medical facilities and with different subspecialist faculty supervision.

During these non-research clinical blocks, the Fellow works directly with patients, their families and other medical professionals in an intense environment with “highly supervised assessment”. These blocks primarily occur in the neonatal intensive care units at different health centres within Calgary, for example the Foothills Medical Centre and the Alberta Children’s Hospital. [ 8 ] On January 24, 2019, the Applicant accepted a position as a Fellow in the Program by signing and returning to the PGME Office its “Letter of Offer”.

The Letter of Offer says “This Letter of Offer constitutes a legally binding agreement.” It contains the following terms: - the Fellowship position will run from September 1, 2019 through to August 31, 2021; - the Applicant was asked to ensure she reviewed the CFP; - the Applicant would be expected to perform clinical duties in an appropriate professional manner and comply with applicable policies of AHS; - there would be a three-month probationary period, at the end of which “the position will be reviewed and if satisfactory, the continuation of your employment will be confirmed”; and - determining unsatisfactory completion would be “solely within the discretion of the Program and not subject to appeal”.

The Letter of Offer says nothing about the PGME being able to unilaterally change the policies applicable to the offered Fellowship as it may wish.

[ 9 ] While providing medical services within the Program, the Applicant was compensated by AHS. [ 10 ] On May 6, 2019, the probationary period was changed from three months to six, for all two-year Clinical Fellows commencing their Fellowship on or after July 1, 2019. The Applicant was not asked to agree to the change to her Program, nor was she asked if she still agreed to accept the position given that change, nor was she even informed of this change to the terms of her accepted Letter of Offer, before travelling to Canada to commence the Program.

The Applicant did not learn of this unilateral change until long after the expiry of what she had been told would be, and accepted would be, a three-month probation period. [ 11 ] On August 26, 2019, the Applicant met with Dr. Kamaluddeen who told the Applicant it was her last day as Program Director. [ 12 ] The Applicant commenced the Program September 1, 2019. [ 13 ] In September 2019 the new Program Director, Dr. Murthy, received two new forms for use in the Program. He received them from the PGME Fellowship Director and Associate Dean of PGME, Dr. Welikovitch.

One was an “Outcome of Probation” form and the other an “Assessment of Communications” form. The probation form states in the very first sentence that for a two-year fellowship the probationary period is six months. The second sentence makes it equally clear that a satisfactory probation outcome decision is required for a Fellow to continue in the Program. The covering email from Dr. Welikovitch indicated the two forms had been developed pursuant to the PGME’s “desire to create a more robust assessment strategy”.

The communications form was said by the PGME Director to be an “essential component of” determining the outcome of the probation period. Dr. Murthy was to pass the two forms on to all appropriate persons, including the Applicant. He did not do so at the time. [ 14 ] The Applicant commenced the Fellowship September 1, 2019. In-Training Evaluation Reports (“ ITERs ”) were prepared to evaluate her performance in each of the clinical blocks. The ITERs are six pages in length.

They call for an assessment of the Fellow’s performance across a number of separate skills, behaviours and other role specific parameters, not all of which will be applicable or measured in every clinical block. On each applicable parameter the Fellow can be ascribed a numeric grade of 1, 2, 3 or 4; an example of each of those ratings is explained in words for the evaluator to assist the grader. The ITER form says that a Fellow should be marked as failing a block if 25% or more of the individual parameter marks are 1s or 2s.

The ITERs also provide additional space for explanatory information and suggestions and ask the evaluator to aggregate the individual parameter marks and indicate that the resulting overall mark of either pass, borderline or fail. A separate form is used for assessing performance in the research blocks, which is three pages in length and also invites more general explanatory comments and an aggregate rating of pass, borderline or fail on its final page. [ 15 ] The Applicant completed three blocks between September 1 and November 17, 2019; the first was clinical and the next two were research related.

The Applicant received a rating of borderline on the sole clinical block and of pass on each of the two research blocks. For the clinical block, the explanatory comments suggest that a bit of ‘benefit of the doubt’ had been applied to the ratings to recognize that the Applicant had just arrived from outside Canada and was in her very first rotation. [ 16 ] The Applicant met with Dr. Murthy on October 17, 2019.

No concern was raised with the Applicant’s performance and the change from three to six months for her probationary period, still unknown to the Applicant, was not discussed. [ 17 ] She completed three more blocks between November 18 and February 9, 2020, all clinical. Each of the three blocks led to two separate ITERs, each by a different mentor, and each for (roughly) one half of a block.

She received aggregate ratings of pass on three, borderline on two and fail on one. [ 18 ] The Applicant received no communication regarding her performance or probation outcome after the end of the first three months in the Program. [ 19 ] Dr Murthy attempted to

schedule a meeting with the Applicant on December 2, 2019, but the Applicant had to cancel and re- schedule. As December 2019 continued, the Applicant had no reason to think she had not completed her probation satisfactorily and she remained unaware of any mandatory form necessary for her continuation. She had no reason, such as a failed evaluation, to cause her to doubt that she had a successful outcome to her probation. [ 20 ] The Applicant met with Dr. Murthy on December 23, 2019. He indicated that he had yet to review her evaluations to that point.

He asked for her views about her progress and she reported having received positive evaluations and reviews with her supervisors. The two borderline ratings and the fail rating were all received by her after that date. [ 21 ] At the December 23 meeting Dr. Murthy handed the Applicant the two blank forms to read. He said that he forgot to provide them to her earlier. He told her that one form was related to her probation and the other was a communication skills assessment. The Applicant says that she quickly reviewed the communications form at the time, but did not review the probation form.

There was no discussion of either form in the meeting. [ 22 ] On December 31, 2019, Dr. Doucette completed the ITER on the Applicant’s performance for the portion of her clinical block between November 18 and December 1. While Dr. Doucette gave the Applicant an aggregate rating of borderline, based on the wording of the ITER form her ratings of the various individual parameters suggested she should have rendered an aggregate rating of fail. Further, her explanatory comments about the Applicant’s performance were mostly negative. [ 23 ] The Applicant immediately asked to meet with Dr. Murthy about that evaluation.

The meeting occurred January 9, 2020. The Applicant was said to be upset about Dr. Doucette’s evaluation, alleging that it was biased and incorrect. Dr. Murthy felt at the time that the Applicant was not ready to accept any negative feedback. He said that he would not make Dr. Doucette change her evaluation of the Applicant. Dr. Murthy said that he would ask Dr. Doucette to speak with the Applicant about the evaluation. Over a month passed and no such meeting was held. A meeting was only scheduled by Dr.

Doucette after a further request for it was made mid-February. [ 24 ] At the January 9 meeting, the Applicant also told Dr. Murthy that she felt intimidated by Dr. Mesmeh, a physician she was working with on her current rotation. Dr. Murthy empathized, acknowledging “Dr. Mesmeh can be challenging at times.” He then told

the Applicant about a complaint Dr. Mesmeh had submitted against her. Dr. Murthy reassured her that he “had spoken to others on the team and the Mentor.” He told her that he “found the complaint to be frivolous and broadly incorrect.” He told her they “will try and keep their schedules apart”, but made no effort to do so right away; it would only occur after the end of the Applicant’s current rotation in which she continued to regularly encounter Dr. Mesmeh. [ 25 ] Dr. Unrau was one of the assessors of the Applicant’s fifth block (for the half between December 30, 2019 and January 12, 2020). Dr.

Unrau completed the ITER on February 7. She gave an aggregate rating of pass, but qualified it by reporting that she had limited observations of the Applicant (over four days) and no opportunity “to observe her resuscitation or technical skills”. [ 26 ] The fail rating came from Dr. Amin, the Applicant’s assessor for the period between January 27 and February 7, 2020; the ITER was completed February 18. [ 27 ] On February 10, 2020, before receiving the ITER from Dr. Amin, the Applicant asked to meet with Dr. Welikovitch about various concerns. A meeting was set for February 18.

At that meeting she revealed various concerns; some of them were about Drs. Murthy, Doucette, Stritzke and Amin. [ 28 ] On February 13, 2020, the Applicant met again with Dr. Murthy. By then she had received some further negative feedback in some of her ITERs, as indicated above. The matter of the Applicant not yet signing off on Dr. Doucette’s ITER came up. The Applicant explained she would not sign off on the Dr. Doucette ITER because Dr.

Doucette still had not met with her to discuss it, as required by the CFP, and because the Applicant considered the assessment to be unfair. [ 29 ] At the February 13 meeting Dr. Murthy informed the Applicant that a meeting of the RPC had been called to discuss her performance as the six-month probationary period was nearing conclusion. Dr. Murthy told her to consider resigning if the outcome was not satisfactory.

He told her the RPC discussion and her probation outcome decision were scheduled for the next week, on Feb 20, 2020. [ 30 ] The Applicant maintains that even after the February 13 meeting she did not think she faced a risk of termination or that it was possible she would be dismissed. I consider this unlikely, since, when she later described this part of her discussion with Dr. Murthy to Dr. Welikovitch (on February 18), she was reported to have said Dr. Murthy “urged her to consider resigning since this would be ‘better’ for her career than being dismissed from the program”.

In any event, I also find that after she received the two forms on December 23, 2019, the Applicant ought to have known that her probation period was now six months, that the probation period was still running and her satisfactory completion of the probation period was yet to be determined. [ 31 ] On February 14, 2020, Dr. Doucette contacted the Applicant by email, proposing to

schedule a feedback meeting about her assessment of the Applicant’s performance for the half block that began three months earlier – on November 18, 2019. Dr. Doucette proposed some times the next week. Internally she asked for a third person to be present when the time came to meet with the Applicant. I saw no record of the meeting ever occurring and find that it did not ever occur. [ 32 ] On February 18, 2020, over the noon hour, Dr. Murthy met with the Applicant to discuss her performance in the Program, this time with a third person present – the “Program Administrator”.

The Applicant was noted as appearing upset at Dr. Doucette’s evaluation, believing several of her comments to be biased and incorrect. The Applicant expressed discomfort voicing her concerns with the third person present. The meeting lasted only five minutes. She left to head to a “consult” with a neonatologist that was scheduled. [ 33 ] On February 18, 2020, the Applicant met with Dr. Welikovitch for the meeting she had requested on February 10, to express her concerns about her experiences in the Program to date. The Applicant brought with her an eight-page document she had prepared that explained her concerns.

In them the Applicant complained of unfair treatment in the Program. At various places in the document she spoke of being unfairly compared to Canadian trained doctors and was facing performance expectations inconsistent with her level of training. She also described suffering differential treatment based on her ethnicity. She described a number of experiences that, if true, reflected a bias against her succeeding in the Program. She described false statements made in some of the evaluators’ comments. She said she received comments about her dress and she was referred to as an immigrant.

She described “harassing behaviour” from staff and particularly from Drs. Murthy and Amin, from Dr. Amin to the point of her senior fellow apologizing to her for Dr. Amin’s treatment of her, coupled with the comment “he is like that sometimes”. [ 34 ] The Applicant also shared the further example of unfair treatment by referring to the complaint against her made by Dr. Mesmeh, stating that she was never given opportunity to respond to it, it had been escalated to the PGME and she did not even know about it until weeks after, when Dr. Murthy revealed it to her.

Despite being determined to be “frivolous” and “broadly incorrect”, Dr. Mesmeh was never disciplined. Further, despite the underlying animus Dr. Mesmeh obviously bore towards the Applicant, the Applicant was forced to continue working with him until the end of that rotation, though kept in the dark about her risk. [ 35 ] The discussion with Dr. Welikovitch covered at least the first 3-4 pages of the Applicant’s prepared document of concerns. Dr.

Welikovitch undertook to review the rest of the document after they concluded and told the Applicant that she needed the Applicant’s consent in order to disclose the Applicant’s concerns to those referred to in the document and before she would be able to follow-up on the Applicant’s concerns by speaking to those named or affected with the goal of hearing their side of the story. If the Applicant did not giver her consent, Dr.

Welikovitch explained to the Applicant that the concerns would have to remain confidential since the Applicant had reached out to her on a confidential basis. [ 36 ] On February 19, 2020, the Applicant emailed Dr. Welikovitch with permission to disclose the Applicant’s concerns with the persons affected. [ 37 ] On February 20, 2020, Dr. Kamaluddeen sent an email to Dr. Murthy, the entirety of which merits inclusion here: Hello Prashanth, It may not be my place or problem with Mays’s [the Applicant’s] evaluations and her performance, I have not had first-hand information and have no access to her evaluations.

This is just hearsay. I have not met with Mays either. But, what I would like to add based on my

previous experience is that we cannot compare fellows like Mays who join the program with less Neonatology experience and Canadian experience with those fellows who come with a lot of Neonatology experience and Canadian experience. We have to be patient with them. The pride of our program lies in taking such fellows and getting them on par with the fellows with Neonatology experience and Canadian training. Therein lies the strength and greatness of our program. It may take more than 3 – 6 months to promote them to senior position. We have had fellows in our program who took 8 – 9 months to be promoted to senior.

I did discuss with PGME in the past regarding this as there was a delay in promoting a fellow to senior position and their opinion was that as long as the RPC members have no concerns we don't have to worry about the delayed promotion. This fellow successfully completed the program on time, Evaluation by neos with less experience and some neos, In the

section who have been here for more than 5 — 10 years can sometimes be non-objective and be based on biased views formed by hearing what is discussed amongst the neos about a particular fellow. It is not fair to the fellow. The more he/she gets intimidated, the worse is the performance. The idea of being viewed constantly under the microscope will be devastating for the fellow and hinder progress. Taking Mays away from FMC/ACH and putting her at PLC for a month or so with senior neos such as Nalini and Albert would help her regain her confidence and perform well.

Once she is posted in FMC, make sure she works with senior/ Mid-career neos in the unit who are objective in their assessment and treatment of fellows. Mays has the potential. It is a matter of guiding her through this and helping her regain her confidence. She communicates well, gets along with everyone, professionalism is not an issue. It is a matter of time and she will start performing well. Essa, being her mentor can guide her. We could ask her to set aside her research for the time being and concentrate on clinical work.

If we are short of fellows at FMC, we could ask Essa/Albert if they could assign one of the CAs to FMC. This is my two cents worth. Thank you for listening. I thought not stating my views was doing disservice to Mays. I leave it with you to do what you think is best. Best, Majeeda [ 38 ] Twenty minutes later, Dr. Murthy responded: Hi Majeeda, Thank you for your sharing your views. I am not sure what you have heard regarding Mays, her performance and her evaluations. I feel that I need to clarify my position here. I have no bias against Mays and wish the very best for her.

I am not in any hurry to promote fellows to a senior role and am totally comfortable them operating at a junior level for 12 months or even longer, if required. I already have a remedial plan formulated for Mays and I will be implementing this if required. Since we are at the 6 months mark, we need to take a decision whether the outcome of her probation period is satisfactory or unsatisfactory, I am duty bound to discuss her evaluations and some of her interactions at RPC and get their opinion. I have made enquiries with PGME and there is no extension to the probation period which I am sure you know.

I will be discussing Mays at RPC today and am confident that the committee will take the correct decision. I will most certainly discuss your well thought out recommendations at RPC. Thank you, Prashanth. [ 39 ] As he had indicated to Dr. Kamaluddeen, Dr. Murthy had already formulated a remedial plan for the Applicant, in the event the RPC allowed the Applicant to continue in the Program. [ 40 ] The RPC met on February 20, 2020. Thirteen doctors were present at the start of the meeting. Among those present, at least at the outset of the meetings, were Drs.

Amin and Stritzke, two of the doctors that the Applicant raised concerns about to Dr. Welikovitch. [ 41 ] The meeting covered many matters, only one of which was whether the Applicant satisfactorily completed her probation. Prior to addressing the Applicant’s probation, the RPC covered matters of “old business” and ten other items of new. The meeting lasted one hour in total.

The Applicant’s probation question came on as one part of a larger agenda item, which was last on the agenda. [ 42 ] It is unclear whether the RPC members received the 266 pages of ITERs and research block evaluations pertaining to the Applicant, that are contained in the Amended Certified Record of Proceedings. Dr. Murthy prepared a three-page document prior to the meeting, and provided at least the first page at the meeting. The first page was his high-level

summary of all of the ITERs and their explanatory comments. It had one row per block of the Applicant’s rotation, naming the start and finish dates of each, the doctor evaluating the Applicant for that block or portion thereof and then the final grade: pass or fail or borderline. In a few of the rows, he added a further comment: that two of the three borderline assessments should have actually been fails, based on the established grading criteria, and that two of the aggregate marks should be “discounted”: Dr. Doucette’s because it was filled in late and she still had not met with the Applicant, and Dr.

Unrau’s because she had been away much of the block. This approach reveals that the RPC regarded the reliability of the ITERs to be a relevant consideration for probation decisions. The fact of the

summary being prepared for the RPC and tabled at the meeting suggests it likely that some RPC members would not be familiar with the contents of the ITERs. [ 43 ] The next two pages Dr. Murthy prepared were his “Suggestion Action Plan” (the second page) and his “Remedial Plan” (the third page). His recommendation for the Applicant on his second page stated: “I recommend that we continue Dr Abdulghafoor in clinical rotation …. We should implement an individualized learning plan targeting the gaps that have been identified by her supervisors.” It acknowledged her progress through the fellowship would be delayed, her program modified, and she may need more

clinical blocks and therefore a rethinking of the research expectations. [ 44 ] The RPC put the question to a simple vote. By then only ten doctors remained in the meeting. Of the ten, eight voted that the Applicant had not been successful in her probation, one voted that she had been successful, and Dr. Murthy did not vote. [ 45 ] Dr. Murthy took care to not inform those present of the concerns the Applicant had raised with the PGME Director until after the vote. He said it was so that it could not be thought to have affected the vote. Prior to the RPC meeting, Drs.

Murthy and Welikovitch agreed that if the probation decision was that Applicant’s probation was not satisfactory, then it would not take immediate effect until Dr. Welikovitch could follow-up on the Applicant’s concerns. [ 46 ] After the meeting, Dr. Murthy reported the result to Dr. Welikovitch and confirmed his earlier discussion with her that he would therefore place the Applicant “on a ‘Leave of Absence’ during which period PGME will investigate the complaint(

s) that were made against our program and/or me” and that “Dr. Abdulghafoor’s future in our program will be dependent on the above situation.” He then commented: “Our program is going through a particularly difficult period. I sincerely believe that we will be a stronger and better program once we work our way through this phase.” [ 47 ] On February 21, 2021, Dr. Murthy met with the Applicant, the Program Administrator and one other person, and informed the Applicant of the result: that she “had not fulfilled the probationary requirements and that there is no extension on her probationary period”. Dr.

Murthy told her the decision was “based on evaluations and opinions from others”. The RPC meeting minutes do not reveal these opinions from others or who these “others” were. Dr. Murthy also told her that the “PGME is going to investigate” her concerns and so, instead of immediate termination, she would be placed on a leave of absence at least until he and Dr. Welikovitch met on March 5, 2020, and then for “however long it takes for PGME to decide”.

He told her that if PGME decides that she can stay in the Program, he will have a plan in place to support her continued progress in it. [ 48 ] Drs Murthy and Welikovitch met March 5, 2020. Dr. Murthy took away from that meeting that “PGME will evaluate [the Applicant’s] complaints and determine whether recourse is for an appeal or not.” [ 49 ] On March 20, 2020, Dr. Welikovitch sent a letter to the Applicant outlining the developments since their meeting on February 18 and to confirm the outcome of the RPC decision made on February 20. In the letter Dr.

Welikovitch said that at the February 18 meeting she offered to speak to Dr. Murthy “and possibly other faculty members for their input on the complaints and to follow up and meet with the Applicant thereafter.” Dr. Welikovitch then reported having spoken with Dr. Murthy on February 20. She said: “His account of your training history, evaluation process, allegations of bias and overall performance differs substantially from your own.” She spoke of how the leave of absence approach was exceptional and only done to accord her time “to consider your situation”. She said she and Dr.

Murthy were unable to meet further regarding the Applicant until March 5 because of the exponentially escalated demands on their time by COVID-19 emergency planning and her commitments to clinical service. In addition to her administrative responsibilities, Dr. Welikovitch was also a teaching and practising cardiologist.

She said she intended to meet with the Applicant to “provide guidance about” the Office of Diversity, Equity, and Protected Disclosure” (the “ ODEPD ”) and explain why she believed the Applicant filing her complaint with the ODEPD would be her best option, “but your lawyer’s letter of March 6 th arrived.” She continued by saying it was not her role and never her intention to investigate the concerns or adjudicate them and that she would not be conducting any further inquiries. She expressed regret at having to inform the Applicant by letter that the RPC decision stands, effective March 27, 2020.

She announced termination of the leave of absence and said there was no appeal. [ 50 ] The ODEPD, I was told by counsel for the Respondents, is an office within the University designated to receive complaints of harassment and that the Applicant “is [still] not precluded from pursuing a complaint through that office”. It deals with such complaints on a confidential basis and “PGME, RPC, Dr.

Welikovitch, would not be involved in that process … until the [ODEPD] determined that there needed to be individuals spoken to.” The Respondents say the Applicant would be the person most appropriate to initiate that complaint. [ 51 ] On April 3, 2020, the Applicant wrote Dr. Murthy attaching her Notice of Appeal. [ 52 ] On April 8, 2020, Dr. Murthy wrote the Applicant explaining that in her case there is no right of appeal. [ 53 ] On April 22, 2020, the Applicant wrote to Dr. Welikovitch as a Notice of Appeal pursuant to

Article 8.11 of the CFP. [ 54 ] On April 28, 2020, a University of Calgary lawyer wrote to the Applicant saying the request for an appeal pursuant to

Article 8.11 of the CFP was not properly constituted since it operated on the premise that Dr. Murthy’s April 8 letter was a decision in the nature of a substantive ruling, when instead it was “purely an administrative exercise”. The lawyer said the March 20 letter from Dr. Welikovitch was not separate from the “original RPC decision.” [ 55 ] On May 12, 2020, the Applicant filed an appeal with the University Appeals Committee.

On May 14, 2020, it responded saying that the Decision could not be appealed to that Committee. [ 56 ] On Jun 23, 2020, the CFP was revised to read, among other things, that 2-year fellowships required satisfactory performance through a 6-month probation and that, in the immediate next article, “Clinical Fellowships must meet a minimum of 50% clinical requirements.” [ 57 ] The American Board of Pediatrics wrote to the Applicant on November 13, 2020, informing her that it understood she had resigned from the Program on March 27, 2020, and that she had been evaluated as unsatisfactory for both clinical competence and professionalism for the period between September 1, 2019, and March 27, 2020.

II. Preliminary Issue – Admissibility of Additional Evidence [ 58 ] On November 20, 2020, this Court approved a consent order (the “ Order ”) that, among other things, permitted the filing of

affidavit evidence by the Applicant, permitted the Respondents to challenge its admissibility and permitted them to cross-examine her on it. [ 59 ] On December 1, 2020, the Applicant filed and served additional evidence (the “ Affidavit ”). On December 20, 2020, the Respondents cross-examined the Applicant on that Affidavit. [ 60 ] The Respondents contest its admissibility, arguing that leave of the Court to file it was not sought, that affidavit evidence is generally not admissible in a judicial review, and that the Affidavit evidence does not fall into the limited exceptions to that general rule.

They specifically say that the Applicant has failed to demonstrate either a complete lack of evidence on an essential point or that there was a breach of natural justice upon which the record is silent and thus the Affidavit is not necessary. [ 61 ] The Applicant disagrees, arguing that the Amended Certified Record of Proceedings does not clearly demonstrate the procedural unfairness or reveal her (lack of) knowledge regarding the extension of her probation from three months to six months.

She says the Affidavit provides evidence to support her allegations of the Respondents’ breach of the duty of procedural fairness. She says such things fall within the scope of admissible evidence contemplated by Rule 3.22 (

d) of the Alberta Rules of Court , Alta Reg 124/2010 . Dr. Abdulghafoor acknowledges that large portions of her Affidavit are not relevant to this judicial review. Some of those portions relate to a separate claim that she also commenced, against AHS. [ 62 ] Rules 3.21 and 3.22 say: 3.21 On an originating application for judicial review, no person may be questioned as a witness for the purpose of obtaining a transcript for use at the hearing without the Court’s permission. 3.22 When making a decision about an originating application for judicial review, the Court may consider the following evidence only: (

a) the certified copy of the record of proceedings of the person or body that is the subject of the application, if any; (

b) if questioning was permitted under rule 3.21, a transcript of that questioning; (

c) anything permitted by any other rule or by an enactment; (

d) any other evidence permitted by the Court. [ 63 ] The wording of Rule 3.22(

d) says the court’s permission is required before questioning, if a transcript of such questioning is intended to be used at the judicial review hearing (“no one may be questioned … without the Court’s permission”). Under Rule 3.22, however, the Court’s permission is only required before the Court considers the additional evidence; it does not appear that the permission must precede the preparation, swearing, filing, service or even a party’s reliance upon the evidence, only before the Court considers it.

Prudent practice would dictate, of course, a party request the Court’s permission before relying on the added evidence, since reliance suggests they commend it to the Court for its consideration. [ 64 ] A specific application by the Applicant for admission of the Affidavit was not necessary. The net effect of the Order contemplating both the Applicant’s ability to file evidence additional to the Record by Affidavit, and the Respondents’ ability to contest its admissibility, is that the parties agreed the evidence would be admissible (pursuant to the Order) unless challenged by the Respondents.

It fell to the Respondents to take exception to any actual fresh evidence, otherwise it would be admitted (subject of course to the judge that will hear the matter having over-riding discretion on admissibility). The Respondents have opted to challenge its admissibility and so the issue is now before the Court. [ 65 ] Rule 3.22(

d) provides the Court broad discretion to permit supplementary evidence on judicial review. When the merits of a decision are challenged, the reviewing Court considers just the information before the decision maker; when the challenge is to the process followed by the decision maker, it may be necessary to permit additional evidence: Bergman v Innisfree (Village) , 2020 ABQB 661 paras 41 to 48 . The limited circumstances under which supplementary information may be permitted include ( Bergman , at para 45 ):

a) to address standing;

b) to show bias or a reasonable apprehension of bias where the facts in support of the allegation do not appear on the record;

c) to demonstrate a breach of the rules of natural justice not apparent on the record;

d) to reveal the evidence actually placed before the decision maker where the decision maker provided an inadequate or no record of its proceedings. [ 66 ] I permit the admission of portions of the Affidavit. Specifically, I permit onto this record paras 1, 14, 19, 22-25, 28, 30, 32, 37-38 and Exhibit N, which relate to the alleged breaches of the duty of procedural fairness. Among other things, those portions include evidence pertaining to the Applicant’s degree of knowledge of the change in probation period, and the significance of the consequences of the Decision on the Applicant.

They contain relevant information that is not available within the Amended Certified Record of Proceedings. III. Standards of Review [ 67 ] The parties both say that I am to review the substantive decision for its reasonableness, not its correctness, as described by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 . I agree. [ 68 ] The parties both say that the context of this case gives rise to a duty of procedural fairness owed to the Applicant. I agree.

[69] The standard of review for procedural fairness, or natural justice, is not “correctness” or “reasonableness” but whether theprocess followed met the level of fairness required by law: see Nortel Networks Inc v Calgary (City), 2008 ABCA 370, at para 32;Alberta (Securities Commission) v Workum, 2010 ABCA 405, at para 28. [70] The parties all say that I am to determine the level of fairness required by law and owed to the Applicant by the RPC, basedon the considerations discussed in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR817, at paras 21 – 28.

Again, I agree. [71] The parties disagree on the result of applying Baker in this situation; that is, they disagree on the degree of procedural fairnessthat was due the Applicant. The Applicant says a high degree of procedural fairness was due her; the Respondents say a moderate levelof procedural fairness is the level required by law. [72] The Supreme Court in Vavilov repeated the Baker considerations as follows, at para 77: …The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific.

Where aparticular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that theduty imposes are determined with reference to all of the circumstances.

In Baker, this Court set out a non-exhaustive list of factors thatinform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required.Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutoryscheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the personchallenging the decision; and (5) the choices of procedure made by the administrative decision maker itself… [citations omitted] [73] I am inclined more to the view of the Respondents that the various considerations result in only a moderate degree ofprocedural fairness being owed to the Applicant. [74] If the only factor to be considered was the third of the five Baker factors, that is, the importance of the decision to theindividual affected, then I would agree with the Applicant.

There is no doubt the Decision is of the utmost importance to the Applicant.The Decision very likely brings her career trajectory and aspirations to an abrupt end.

Though she may still be able to practice generalpaediatric medicine without completing the Program, her public academic record now states that she was evaluated as “unsatisfactory forboth clinical competence and professionalism”. [A report to all “funding agencies” was required under clause 8.10.1 of the CFP; theRespondents pointed to that as the reason for their report to the American Board of Pediatrics.] The Decision significantly impacts theApplicant’s ability to obtain further subspecialty training which in turn impacts her career options, her job satisfaction, and her futurecompensation.

As a consequence of the records of the American Board of Pediatrics, she faces a potentially insurmountable impedimentin pursuing her career aspirations and, potentially, accessing many other career opportunities. [75] However, the importance of the decision to the individual affected is only one of five factors.

The other factors also influencethe degree of procedural fairness owed; in combination they serve to temper the otherwise very high degree of procedural fairness owed.I will next comment on each of those remaining factors. [76] The nature of the Decision, part of the first of the five Baker factors, is an assessment of academic performance. Specifically,the Decision is an assessment of aggregate performance of a Fellow in a combined academic and clinical environment, across a numberof separate assessments of distinct areas.

The individual assessments are a mix of objective and subjective metrics, by individuals having(I can reasonably assume) expertise and experience in those subject areas. The Program is heavily weighted towards hands-on clinicalexperience, under mentor-type supervision and with actual patients in a dynamic environment. The Program, it is important tounderstand, involves medical issues of life and death severity with patients who cannot communicate with words their symptoms.

Only asmall number of Fellows are active in the Program at any one time, enabling direct interaction, guidance and assessment by the specialistfaculty physicians. [77] These are not the sorts of decisions that attract procedural protections characteristic of adversarial hearings.

The nature of adecision around a Fellow’s academic ability, clinical proficiency, discernment and sensitive responsive interactions with patients’families, do not lend themselves in any way to according procedural protections characteristic of a quasi-judicial hearing: with notice, aright to be heard, an opportunity to test information presented that is contrary to the Fellow’s interests, and so on. [78] Instead, the process followed in making the Decision, the second part of the first of the five Baker factors, is what one mightexpect in a post-graduate clinical and academic context for a grading decision.

Individual Fellows are comprehensively assessed in eachblock of their Program, by a diversity of assessors. Those block assessments are captured on paper and intended to be the subject ofprivate face to face feedback sessions with the Fellow. The Fellows’ reactions during those individual block by block assessments, andpoints arising during each one to one session, may be recorded by the assessor and included with the information presented at the RPCfor the probation outcome decision. [79] The second Baker factor is the statutory context.

The Post-Secondary Learning Act, SA 2003, c P-19.5 governs the operationof the University of Calgary. Pursuant to

section 21 of that Act, the Senior Associate Dean of Education, Cumming School of Medicine,authorized the CFP.

The CFP governs the Program. [80] The CFP states, among other things, that: the Fellowship Director is responsible to advise the Clinical Fellow of theprobationary criteria and all other appropriate policies and procedures; satisfactory performance of a three-month probationary period isrequired of all Clinical Fellows before they may continue in the fellowship program (the May 2019 decision to extend this to six monthsfor two year Clinical Fellows was incorporated into the CFP after the Applicant’s fellowship had been terminated); a Clinical Fellowshipmay be terminated unilaterally at any time in any of seven circumstances, one of which is unsuccessful probation; the duration of aFellowship can be extended for valid educational purposes; and Clinical Fellows have access to the PGME appeals processes fromunsatisfactory evaluations after exhausting “initial appeal level(s)”. [81] Regarding the fourth Baker factor, any legitimate expectations of the Applicant, I find the Applicant legitimately expectedthree things.

First, she legitimately expected that she had already successfully progressed beyond her probation period after November

30, 2019, and termination for unsatisfactory probation was not a possibility for her. She legitimately expected that her probation period was three months throughout that time, as she was told in her confirmation of enrollment, signed Letter of Offer “binding agreement”, and in the CFP that was in effect the entire time she was in the Program. [ 82 ] Second, she legitimately expected that her concerns would be investigated prior to a final determination of whether she would be terminated from the Program. Dr. Welikovitch, had undertaken to follow-up on the Applicants concerns. Dr. Murthy, after meeting with Dr.

Welikovitch , reported to the RPC that PGME would evaluate the Applicant’s complaints and determine whether “recourse is for an appeal or not”. [ 83 ] Third, she legitimately expected that the PGME would abide by the assurances in its contract-like Letter of Offer and in the CFP that would govern her Program. [ 84 ] Regarding the fifth Baker factor, the choices of procedure made by the RPC itself, nothing is listed on paper as setting out any procedure that will be follows. At a scheduled meeting of the RPC, some time will be taken to make such decisions.

If this case was representative, then the chosen process is for the RPC at one of its regular meetings to receive a cryptic one-page

summary of 266 pages of performance evaluation information, hear the “opinions of others”, and vote. [ 85 ] The Applicant’s participation is not invited nor permitted prior to that evaluation – no opportunity is accorded to the Applicant to offer either context or differing perspective on the input assessment information.

That input assessment information may contain the Fellow’s perspective, if it is provided during the face to face feedback meeting and then recorded on the ITER. [ 86 ] The CFP says there shall be rights of appeal from unsatisfactory evaluations. [ 87 ] The Program is designed to give the Fellows opportunity to interact with the individual assessors during one to one feedback sessions after each block concludes, at which the instructor discusses the assessment with the Fellow. Comments from the Fellow at those sessions can be recorded onto the assessment form that makes its way to the RPC.

These comments from the Fellow do not influence the evaluator’s marks since they come after the marks are recorded. [ 88 ] It is from these considerations that I conclude that only a moderate degree of procedural fairness must be provided to the Applicant by the RPC in respect of the probation outcome decision. IV. Result on the Reasonableness of the Decision [ 89 ] The nature of a review for reasonableness is described in detail in Vavilov : at paras 73–100 . It is characterized by respect for the administrative decision maker and by judicial restraint. It considers both the reasoning process and the outcome.

Justification, intelligibility and transparency to those affected by the decision are said to be the hallmarks of reasonableness. A review for reasonableness looks for these elements, with due regard to the context of the decision. [ 90 ] Accordingly, reasonableness determinations are highly contextual. As the Federal Court of Appeal summarized at paragraph 30 of Coldwater First Nation v Canada (Attorney General) , 2020 FCA 34 , leave to appeal to SCC refused [2020] SCCA No. 183: […] The Supreme Court emphasized in Vavilov that reasonableness is a single standard that must account for context.

In its words, “the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case” ( Vavilov , para. 89 ). Thus, reasonableness “takes its colour from the context” and “must be assessed in the context of the particular type of decision-making involved and all relevant factors”.

In other words, the circumstances, considerations and factors in particular cases influence how courts go about assessing the acceptability and defensibility of administrative decisions [citations omitted]. [ 91 ] The legal and factual context of a decision and the history of the matter constrain what will be reasonable in a given case. The contextual factor of critical importance here is that of a university’s assessment of academic performance. When enrolling at a university, a student understands and accepts the institution’s agents will exercise discretion as they assess the student’s academic performance.

The students fairly expect the assessment will be made by persons having themselves achieved a degree of expertise, if not excellence, in the subject area under assessment, and being able to know when they see mastery, acceptability or deficiency in the work produced by the student.

The students fairly expect the assessment will be made objectively. [ 92 ] The implications of this academic assessment contextual factor were summarized by the Court in Lam v University of Western Ontario , 2017 ONSC 6933 , at paras 30 – 31 : […] by registering at a university, a student subjects him or herself to the discretion of the institution for the resolution of academic issues including evaluation of the quality of the student’s work, the structure and implementation of university programs, and the competence of thesis supervisors: Gauthier at paragraph 47; Jaffer at para. 26.

This discretion on the part of universities is very broad: Gauthier at para. 47. Courts should recognize the discretion involved in the decision-making process in the academic sector and respect its independence.

As a result, they should be reluctant to interfere in the internal affairs of universities: Gauthier at paragraph 30. [ 93 ] The Manitoba Court of Appeal made this further observation in Green v University of Winnipeg , 2015 MBCA 109 , at para 31 : As well, there is considerable jurisprudence from this Court and other courts establishing that, where the essential character of the dispute is one of an academic nature, the courts have no jurisdiction to interfere and the matter is left exclusively to the university and its process, provided that the university’s process is fair, comprehensive and effective and that in its implementation, the university does not breach the principles of natural justice [citations omitted]. [ 94 ] I am not persuaded the academic Decision here was unreasonable.

It is within the range of acceptable outcomes open to the

RPC, based on the information before it. The Decision was transparent; the Applicant had an extensive basis from which she could understand why the RPC reached the Decision. Given the nature of the area of medical practice and of the skills being assessed, that is, given the criticality of a Fellow’s accurate understanding of the subject matter, mastery of the necessary clinical skills, and discerning and commensurately responsive interpersonal manner, the RPC would understandably have high expectations.

It would not be considered an unreasonable decision if the RPC decided to not extend a Fellow’s enrollment in the Program beyond probation even where that Fellow’s block by block assessments were markedly better than the Applicant’s. [ 95 ] The Decision bears the hallmarks of justification and intelligibility. Its transparency is appropriate to the context. I find there not to be any meaningful challenge to its reasonableness. [ 96 ] The Applicant says the Decision was unreasonable because the University unilaterally extended her three-month probationary period to six months.

I found that she did not become aware of the change until well after the first three months concluded. But I consider that to be relevant to the degree of procedural fairness accorded the Applicant, not of significance to the reasonableness of the substantive Decision. [ 97 ] In the event I am incorrect in that treatment of the concern, I will add that I find neither the decision to extend the probation of all Fellows or its effect on the Applicant alone to be unreasonable.

A longer period of time avails each Fellow exposure to more assessors and, all other things being equal, dilutes the adverse effect of any biased evaluation by any one of them. By increasing the sample size of evaluations, more accurate aggregate outcomes should result, all other things being equal. Finally, on this point, the change from three to six months’ probation was not Applicant-specific. It applied to all two-year Fellows and was made before the Applicant commenced her Program.

It did not single her out to only her disadvantage. [ 98 ] She also challenges the Decision as unreasonable for terminating her from the Program without an investigation and without a right of appeal. As is the case with the unilateral extension of the probationary period, these relate more to the fairness of the process followed by the RPC than to the merits of its Decision. V. Result on the Fairness of the Process [ 99 ] I am persuaded that the Decision process fell short of the degree of fairness due to the Applicant.

This conclusion results not from any single procedural aspect, but from the combination of the following deficiencies. [ 100 ] First, the Decision followed a process that did not resolve the question of whether the input information considered by the RPC, and later by Dr. Welikovitch, was reliable. By “input information” I refer to both the ITERs and the views held by certain members of the RPC about the Applicant (for example Dr.

Amin) and potentially the views held by others whose opinions may have been considered at the RPC Decision meeting within the “opinions of others” or whose expression or display may have influenced the voters at the RPC meeting adverse to the Applicant (the “ Input Information ”). The Input Information had been called into serious question. Drs. Murthy and Welikovitch concluded the Decision could not be made final given the serious questions raised, impugning the reliability of the Input Information.

Those questions were not answered before the Decision was made final. [ 101 ] To be clear, the fairness of the Decision process is the subject of this review, not the fairness of the entire Program process. Yet the two are not neatly extricable from each other. The Decision process here uses as Input Information primarily the block evaluations that are generated over the course of the full probationary portion of the Program.

As the Respondents’ counsel noted regarding the application of the Baker factors, “we’re not looking at just one particular matter but the totality of what occurred and what was done and what steps were taken”. In this context, the fairness of the Decision process necessarily encompasses the fairness of the separate evaluations upon which the Decision is based. [ 102 ] The Decision process considered the block evaluations and “the opinions of others”.

The fairness of the process leading to both kinds of Input Information coming before the RPC is suspect because the reliability of both were impugned. [ 103 ] The RPC admitted that the challenges to the reliability of the Input Information were relevant to the Decision when it elected, quite appropriately, to delay the effective date of the Decision. It delayed the effective date until Dr. Welikovitch could follow-up on the Applicant’s concerns. Only after that step, Dr. Welikovitch indicated at the time, would it be determined whether the Decision would take effect.

Later, however, the Applicant’s concerns were thought to be the domain of others at the University, not the PGME office. Instead of waiting until some such other process might inform it on whether the concerns were borne out in some way that answered whether the Input Information was reliable or not, it was determined the Decision would take effect. Once the nature of the concerns was thought to be suitable for a different University process, Dr.

Welikovitch decided the Applicant’s leave of absence pending the follow- up would end, without conducting the follow-up, and the Applicant’s Fellowship termination would take effect. The Decision was confirmed, therefore, without the needed clarity on the reliability of the information upon which it was based, other than Dr. Welikovitch learning that one of the persons named, Dr. Murthy, had a contrary recollection of the events documented by the Applicant. [ 104 ] It would be dangerous to downplay the possible reach and effect of the dynamics described by the Applicant.

If they represent systemic issues, by definition its purveyors can be blind to their complicity. In an environment of great power disparity, such as this one, such behaviours demoralize and debilitate even the most resilient of victims, especially when others do nothing or just quietly apologize for the perpetrator(s). [ 105 ] The “frivolous and broadly incorrect” views of Dr. Mesmeh towards the Applicant warrant two comments.

First, they independently verify the bona fides of the Applicant’s perceptions – at least in the sense of removing from consideration the possibility of her fabricating her concerns only after she received adverse ITERs. The concerns she expressed predated her receipt of negative ITERs. Second, the failure of the Program administrators to adequately address Dr. Mesmeh’s conduct, and their continuing to expose the Applicant to it, could easily have contributed to the way she appeared to her assessors for not only the block during which she worked with Dr. Mesmeh, but also in subsequent blocks.

In this way the reliability of all ITERs subsequent to her enduring that conduct is suspect.

[ 106 ] The same could be said of the allegedly haughty approach of Dr. Amin, if the Applicant’s descriptions of his disdain for her are accurate. I do not know whether they are accurate or not. My point is that neither did the RPC or Dr. Welikovitch. Until light could be shed on whether the conduct of Drs. Mesmeh and Amin adversely affected the Input Information, the RPC and Dr. Welikovitch could not fairly decide the Applicant’s probation outcome on the basis of that Input Information. [ 107 ] For whatever reason, the behaviours of Dr. Mesmeh and, if validly described by the Applicant, also of Dr.

Amin, appear to be condoned by the Program, not confronted. This complacency may be giving license to others to speak and behave similarly. The significance of not excising such social cancers immediately cannot be overstated. More relevant to this application, though, are that the effects upon the Applicant may have also extended to her actual performance in subsequent parts of her rotation, as explained above, or to the perceptions of her performance by her evaluators.

Relying on evaluations that may have resulted from overt harassment or from systemic ethnic bias or gender bias, renders the deficit of ongoing interaction with a number of the evaluators more unfair procedurally. [ 108 ] Some of the individuals identified by the Applicant as perpetrators of the alleged harassment, inaccuracies, and bias, actually participated in the RPC Decision. Notably, Drs. Amin, Stritzke and Murthy attended the RPC Decision meeting. Therefore, the perception that their views of the Applicant may have influenced the Decision adverse to her was great.

That perception exacerbates the apprehension of procedural unfairness. [ 109 ] The parties’ debate about whether Dr. Welikovitch undertook a conduct full “investigation” or not, and if so what such a full investigation required at law, and further whether her office even had the authority to act in that capacity, is a red herring. It matters not who at the University inquires, just that for purposes of the Decision, it matters that someone conducts the necessary inquiries who can adequately inform the RPC and Dr.

Welikovitch on the reliability issue, so they can then assess whether the Decision warrants revisiting. Absent that understanding around the reliability of the Input Information, the Decision should not have been confirmed by Dr. Welikovitch on March 20, 2020. [ 110 ] At the request of the Applicant’s lawyer, the RPC did revisit the Decision on March 12, 2020. This time the RPC knew about the Applicant’s concerns. Fewer members attended than were at the Decision meeting. It chose to not reverse the Decision.

However, this is of no consequence since the RPC still acted without having any more insight into the reliability of the Input Information – the very reason for Dr. Welikovitch deferring the final ruling on the Decision. [ 111 ] The Amended Certified Record of Proceedings also reveals, and the Respondents in their argument before me allude to, the very significant practical difficulties encountered by the PGME office from unexpected and inordinate demands imposed on their clinical work by the COVID-19 outbreak. This hit, in Alberta, between the dates of the RPC Decision and its confirmation a month later by Dr.

Welikovitch. I have no doubt those demands were both intense and relentless for the PGME office, especially at the outset. I would have quite readily found it understandable if that preoccupation delayed the time it took to follow-up and ascertain whether the reliability of the ITERs and “opinions of others” were affected by the things the Applicant said she experienced. But the COVID-19 disruption did not justify confirming the Decision without that insight; it did not justify skipping that follow-up effort entirely. That effort was not precluded by responding to COVID-19, just very likely delayed.

The Applicant’s interests cannot become collateral damage to other pressing administrative obligations. [ 112 ] Second, there was no opportunity for the Applicant to appeal the Decision. This was contrary to the wording of the CFP. I agree with the Respondents that the follow-up that Dr. Welikovitch undertook was in no way an appeal of the Decision, nor did she at any time represent it to be one. However, her initially intended follow-up did have the potential to lead to the Decision being reconsidered. It was curtailed before reaching that point.

It was curtailed before revealing whether any of the concerns raised relevant to the reliability of the ITERs were of insufficient merit to invalidate the Decision. [ 113 ] This absence of any internal appeal rendered the deficit of further interaction with a number of her evaluators more unfair procedurally, since the Applicant was left without any recourse from the effect of that deficit on the Decision. Had the Program operated as designed (see in this regard

article 8.10 of the CFP), with regular feedback to the Applicant within the “highly supervised assessment” represented in the initial letter communications, the absence of a right of appeal would not have had so significant an impact on the procedural fairness of the Decision.

This deficit of interaction and constructive feedback however, it seems to me, compromised the Applicant’s ability to understand the areas to be focused on for improvement in future blocks; it risked her repeating the same behaviours that might otherwise improve in future blocks, leading to risk of further low ratings for the same deficiency. More germane to the fairness of the Decision process, though, that deficit of ongoing evaluative interaction increases the risk of unreasonable probation outcomes for Fellows.

That may have occurred here with the Applicant; the parameters graded as substandard in earlier clinical blocks, such as the portion evaluated by Dr. Doucette and for which the Applicant never had the opportunity to engage with and take guidance from Dr. Doucette after, may have perpetuated in subsequent blocks and led to similar poor ratings. I am in no position to gauge that.

My point is that from a procedural fairness perspective, without an appeal right this deficit exacerbates the procedural unfairness. [ 114 ] It might be argued that the duty of procedural fairness owed to the Applicant was satisfied here by her being heard as part of each block evaluation. I disagree with that reasoning. Within the probation period there is no formal opportunity to be heard before the Decision is reached. Each evaluation is designed to accord opportunity to the Applicant to interact with the evaluator about the evaluation and the Applicant’s performance.

The Applicant’s reaction was sometimes added to the ITER. However, that opportunity for the Applicant to comment on the evaluation occurs after the evaluation is final, so it is not a mechanism for the Applicant to be heard before an evaluation is decided. Rather, the post-evaluation feedback session appears intended as a pedagogical tool to ensure accurate understanding of feedback; an occasion to reinforce with the Fellow the required skills, techniques, manners, practices, and behaviours; and collaborating on areas of potential growth and improvement over the remaining period of the Program.

It should serve to develop in the Fellow appropriate self-awareness and self-review processes to be replicated over the course of a career. It also enables the Program to assess the Applicant’s reaction to differing perspectives and to constructive criticism, which it appears the RPC considers to be a relevant consideration in its evaluation of Fellows. [ 115 ] Of course, rarely is that the case with academic grading decisions that the student is allowed to comment and is heard before the grade is ascribed. The student speaks by their performance.

But generally grading decisions do include an appeal mechanism, providing at least some opportunity to be heard and procedural protection, even though after the fact. See, for example: Dhillon v

University of Alberta (General Faculties Council Academic Appeals Committee), 2000 ABQB 77, at paras 8-24; Yen v Alberta, 2010ABQB 380, at paras 14, 15, 20; Sardar v University of Ottawa, 2014 ONSC 3562, at paras 13-14; Khan v University of Ottawa, (ON CA), [1997] OJ 2650 at para 1, 72 ACWS (3d) 3 (ONCA); Phillips v Foothills Provincial General Hospital, [1989]AWLD 592, at paras 2, 40, 15 AWCS (3d) 276; Sharma v University of Calgary, [1990] AWLD 516, at paras 6-7, 21 ACWS (3d) 924;Karri v University of Calgary, 2021 ABQB 117, at paras 2-4. [116] Third, the procedures associated with the Decision fell short on a number of the Program’s commitments contained in the Letterof Offer or in the CFP and of its past practices.

Those include: (

a) unilaterally changing the duration of probation from what it first presented as if it was a term of a contract; (

b) not informing the Applicant in a timely fashion of the change to the duration of her probation; (

c) not informing the Applicant of the probation criteria, regardless of its duration; (

d) denying an appeal opportunity after saying in the CFP there would be one (though the Letter of Offer said there was notone); and (

e) the Program previously self-identifying as working with struggling international-sourced Fellows to get them up to thestandard of the locally trained ones, whereas the more recent pursuit of “robust” probation procedures permitted of no extensions toprobations. VI.

Conclusion & Remedy [117] The Decision was reasonable, premised at the time upon the belief the Input Information was reliable. [118] The Respondents then suspended the effective date of the Decision until it could follow-up on the Applicant’s concerns, on thebasis the Input Information or some of it may have been unreliable, or the Decision was otherwise invalid. [119] The Respondents ultimately did not adequately follow-up on those concerns; they did not proceed in a manner that could satisfythe doubts about the reliability of the Input Information or the validity of the Decision.

The reliability of that information remainsunknown. The validity of the Decision remains unknown. This was procedurally unfair to the Applicant. As Ms.

Viala put it, “how can[they] assess whether [the Applicant’s] performance was good or bad or indifferent when the appraisal process itself is being attacked?” [120] This procedural deficiency, in combination with the absence of any opportunity to appeal the Decision and the Respondents’failures to provide the procedures they represented would characterize the Program, constituted a breach of the duty of proceduralfairness owed to the Applicant. [121] I therefore set aside the Decision and remit the matter back to the RPC and/or the PGME to, first, ensure appropriate measuresare taken to enable them to ascertain whether the Applicant’s concerns have affected the reliability of the ITERs or of the opinions ofother people that were considered in the Decision, and to, thereafter and if warranted by what the RPC learns from those appropriatemeasures, to reconsider the Decision. [122] If the RPC and/or the PGME are caused to reconsider the Decision, the persons reconsidering it must inform themselves of thefull context of the Applicant’s ITERs learned through the resumed follow-up – from the “appropriate measures” by whomever ischarged with that task.

Further, the RPC and/or the PGME conducting the reconsideration shall not include anyone whom the Applicantnamed in her report of concerns if the further follow-up inquiries determined there to have been a valid foundation for the Applicant’sconcern(

s) about that decision maker. [123] I decline to reinstate the Applicant to the Program now as having completed her probation satisfactorily, as the Applicantrequested, since that may not be the appropriate substantive outcome. It is not for me to decide her probation, nor could I. It is entirelypossible that, once it is done more fairly in all the circumstances, the RPC and/or PGME will reach the same conclusion as the first time. [124] I also decline to remit the matter back on a requirement that an appeal must be accorded the Applicant.

Any such appeal isunlikely to bring to light whether or not the Applicant’s concerns warrant re-weighing the Input Information. Equally significantly, anappeal would put the onus on the Applicant to try to make the appeal process serve that purpose. That task should fall to theRespondents. They have the authority to effectively delve into whether or not the Applicant’s concerns warrant re-weighing the InputInformation, by reason of systemic issues or isolated behaviours; the Applicant does not.

The degree to which the Applicant mayparticipate in that effort will be in the discretion of those charged with the task. [125] Similarly, I do not direct the Applicant to pursue the ODEPD process. That may still remain open to her and if so I do notpreclude it, but it would not focus on the fairness of the RPC Decision process or the reliability of the Input Information.

It wouldaddress the merits of some (not all) of the Applicant’s concerns but not necessarily offer a remedy for the Decision. [126] Finally, instead of the foregoing follow-up inquiry the Respondents may, in their sole discretion, allow the Applicant to start herFellowship afresh at the earliest mutually acceptable future date, provided that if they do so, appropriate measures shall be taken to

address or protect against the past concerns raised by the Applicant re-surfacing in her new rotations. I do not order this option, nor do I believe I can, but just say that I do not preclude it by my decision.

If this route is chosen by the Respondents, I encourage both parties to discuss collaboratively and in good faith what might constitute such “appropriate measures”. [ 127 ] If under either path the Applicant continues in her Fellowship, nothing in this ruling derogates from or constrains the Respondents in exercising their remaining discretion as described in the CFP about the Applicant’s ongoing Program. [ 128 ] If it is decided the Applicant shall continue in the Program post-probation, then the Respondents must also correct the Applicant’s record with the American Board of Pediatrics, as I am sure they would want to do. [ 129 ] The parties may speak to me about costs if they cannot agree, provided they contact my office for that purpose within 30 days of this decision.

Heard on the 20 th day of January, 2021. Dated at the City of Calgary, Alberta this 10 th day of March, 2021. P.R. Jeffrey J.C.Q.B.A. Appearances: Taryn C. Burnett and Erin Runnalls of Gowling WLG (Canada) LLP and Erin Viala of HMC Lawyers LLP for the Applicant Mylène D. Tiessen and Shane Sackman of Peacock Linder Halt & Mack for the University of Calgary and University of Calgary Cumming School of Medicine, Respondents _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice P.R.

Jeffrey _______________________________________________________ The following changes were made to the Reasons for Decision: 1. In Paragraph 107, the following line was corrected as follows: The significance of not excising such social cancers immediately cannot be understated overstated 2. Appearances were corrected as follows: Taryn C. Burnett and Erin Runnalls of Gowling WLG (Canada) LLP and Erin Viala of HMC Lawyers LLP for the Applicant

Mylène D. Tiessen and Shane Sackman of Peacock Linder Halt & Mack for the University of Calgary and University of Calgary Cumming School of Medicine, Respondents 3. The citation was amended to remove “et al”.