Andres v University of Lethbridge, 2021 ABQB 551

Court of Queen’s Bench of Alberta Citation: Andres v University of Lethbridge, 2021 ABQB 551 Date: 20210716 Docket: 1903 07181 Registry: Edmonton Between: Dr. Karen Andres Applicant - and - The Governors of the University of Lethbridge Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Susan L. Bercov _______________________________________________________ Introduction [ 1 ] In the summer of 2015, Dr. Andres began the Master of Counselling Program at the University of Lethbridge (Program). Dr.

Andres came to the Program with three graduate degrees and three undergraduate degrees. [ 2 ] Dr. Andres had concerns with the Program including: a lack of instructor presence in online sessions; a lack of meaningful feedback on assignments; and unclear, inconsistent grading criteria. Dr. Andres strongly communicated her concerns on several

occasions to numerous individuals at the University. [ 3 ] The University attempted to address Dr. Andres concerns. By May 2017, Dr. Andres remained dissatisfied. She continued to express her concerns using increasingly strong language and accusations against Faculty members, including alleging abuse and trauma by Faculty members. [ 4 ] The University Calendar requires students to withdraw if they fail to meet the Standards of Professional Conduct. The Calendar states that demonstration of professional standards will be judged by instructors and counselling psychology agency personnel.

Otherwise, the Calendar is silent about who makes the decision that a student fails to meet the Standards of Professional Conduct and how the decision is made. [ 5 ] On May 29, 2017, Dr. Shepard, one of the instructors in the Program, sent a letter to the Dean of the Program, Dean Loewen, asking for Dr. Andres to be removed from the Program.

The letter asks for her removal because: (1) she failed to meet the Program’s Standards of Professional Conduct; and (2) it would be unethical for Faculty members to continue to instruct her given her allegation of abuse and trauma by members of the Faculty. [ 6 ] Dean Loewen wrote to Dr. Andres informing her of Dr. Shepard’s letter. Dr. Loewen did not provide Dr. Andres with a copy of Dr. Shepard’s letter. He told her a meeting will be scheduled early the next week to discuss Dr. Shepard’s letter and its implications. Dean Loewen told Dr.

Andres that she is entitled to bring an advocate to the meeting. [ 7 ] The meeting occurred by phone on Monday June 19, 2017. Dean Loewen met with Dr. Andres, Dr. Shepard, and two other Faculty members: Dr. Bernes and Dr. Dixon. There is no recording or transcript of the meeting. [ 8 ] On June 20, 2017, Dean Loewen sent an email to Dr. Andres advising her that following the phone meeting, the instructors, the Assistant Dean and himself decided that it is time for her Program at the University to conclude. [ 9 ] On June 21, 2017, after the telephone meeting, Dean Loewen provided Dr. Andres with a copy of Dr.

Shepard’s letter. [ 10 ] On June 28, 2017, Dr. Andres’ lawyer wrote to Dean Loewen arguing that Dr. Andres’ removal from the Program was unfair and contrary to the principles of natural justice. Counsel asked that she be reinstated pending any appeals. Dean Loewen responded by outlining the appeal process in the Calendar and stated that it is not possible to reinstate Dr. Andres in advance of an appeal. [ 11 ] Dr. Andres followed the appeal process set out in the Calendar. She first appealed to the Graduate Programs in Education Committee (GPEC).

Her appeal was dismissed. [ 12 ] She next appealed to the School of Graduate Studies Executive Committee (Graduate Studies Committee) of the University of Lethbridge. The Graduate Studies Committee held a hearing de novo. Her appeal was dismissed with the following findings: a. The standard of review of the decision of the GPEC is reasonableness; b. A required withdrawal is not a constructive expulsion; c. The decision by Dean Loewen to require the withdrawal of Dr. Andres was reasonable; and d. It is not necessary to consider s 2(

b) of the Charter because the Faculty was concerned with the manner and approach taken by Dr. Andres and not with the words or speech she used. [ 13 ] Dr. Andres applied before me for judicial review of the decision of the Graduate Studies Committee (Decision). The parties agree that reasonableness is the standard of review for the Decision requiring Dr. Andres to withdraw. They also agree that correctness is the standard for the finding that s 2(

b) of the Charter does not apply. [ 14 ] Dr. Andres contends that correctness is the standard of review for procedural fairness. She argues that a required withdrawal is a constructive expulsion. As such, she is entitled to the procedural fairness provisions for an expulsion, including notice and the right to a hearing before the Discipline Committee, an impartial body. She was denied these rights. [ 15 ] Dr. Andres also argues that the Decision upholding her withdrawal is not reasonable because the reasons provide no meaningful justification for why the Graduate Studies Committee concluded it was reasonable to require her withdrawal. Further, the conclusion that s 2(

b) of the Charter does not apply is not correct in law. [ 16 ] Dr. Andres seeks several remedies including: declarations that the decisions of the various levels of the University are null and void; an order removing the “Required to Withdraw” notation from her transcript; and an order directing the University to amend the policies and procedures of the Program. [ 17 ] The University disagrees that correctness is the standard of review for procedural fairness. The University argues that reasonableness is the proper standard of review for procedural fairness.

The University asserts that the Decision that a withdrawal is not an expulsion is reasonable. Dr. Andres was not denied procedural fairness. [ 18 ] The University argues that the extensive Record before the Graduate Studies Committee justifies the Decision requiring Dr. Andres withdrawal. While the University concedes that the Decision regarding the Charter is not correct in law, the University invites me to determine that s 2(

b) does not apply on a proper analysis of the law. [ 19 ] If I find that the Decision is not correct or reasonable, the University contends that the proper remedy is to remit the issue back to the Graduate Studies Committee. [ 20 ] The issues I must determine in resolving the judicial review are:

1. What is the proper standard of review for procedural fairness? 2. Applying the proper standard of review, is the Decision that Dr. Andres was not denied procedural fairness reasonable or correct? 3. Is the Decision requiring Dr. Andres to withdraw reasonable? 4. Does s 2(

b) of the Charter apply? 5. If I find that the Decision is not reasonable or correct, what is the appropriate remedy? 1. What is the Proper Standard of Review for Procedural Fairness? Dr. Andres’ Position [ 21 ] Relying on the decision in Pierce v Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2019 ABQB 443 , at paras 33 – 35 , Dr. Andres argues that it is clear that the standard of review with regard to procedural fairness questions is correctness. University’s Position [ 22 ] The University contends that Dr.

Andres makes two errors in advancing a correctness standard: (1) conflating procedural review with substantive review; and (2) failing to recognize which decision is actually being judicially reviewed. [ 23 ] The University argues that while the terminology has at times been confused by parties as well as the court, the doctrine of “standard of review” applies to a substantive decision of the administrative decision maker. Questions of procedural fairness are reviewed to determine whether the level of fairness required by the common law has been afforded. [ 24 ] In addition, Dr.

Andres muddies the waters on which decision I can review. The decision under review is the decision of the Graduate Studies Committee, not the original decision of the Faculty. There is no dispute about the procedural fairness of the Graduate Studies Committee. Both parties were represented by counsel, had ample notice of the hearing and made submissions to an impartial body. Where the decision of the Faculty becomes relevant is in considering the reasonableness of the Graduate Studies Committee’s decision that the original Faculty decision was reasonable.

I must look at the procedural fairness of the Faculty decision through the deferential lens of reasonableness, recognizing that my role is to determine whether the Decision was substantively reasonable.

Analysis [ 25 ] I agree with the University’s position on both arguments. [ 26 ] Questions of procedural fairness are reviewed having regard to the particular situation to determine whether the appropriate level of fairness required by the common law has been afforded: Emkay Canada Fleet Services Corp v Gemini Corp , 2020 ABCA 245 at para 28 ; Moreau-Bérubé v New Brunswick (Judicial Council) , 2002 SCC 11 at para 74 . [ 27 ] The confusion in the caselaw is identified by the Court of Appeal in R v Ferzli , 2020 ABCA 272 at para 21 : The standard of review for questions of procedural fairness is whether the standard of fairness required by the common law has been met, although some cases continue to characterize this as the application of the correctness standard of review: Mission Institution v Khela , 2014 SCC 24 at para 79 ; Hennig v Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee ) , 2008 ABCA 241 at para 12 . [ 28 ] The Court of Appeal in Yee v Chartered Professional Accountants of Alberta , 2020 ABCA 98 , at para 58 reminds me that the decision under judicial review is the decision of the Graduate Studies Committee, not the decision of the Faculty. [ 29 ] In

summary, I disagree with Dr. Andres that arguments of procedural fairness are to be reviewed by me on the basis of correctness. The decision under review is the decision of the Graduate Studies Committee. The Decision found that Dr. Andres was not denied procedural fairness by the Faculty decision. In reviewing the Decision, the appropriate standard is reasonableness. 2. Is the Decision that Dr. Andres was not Denied Procedural Fairness Reasonable? Decision of the Graduate Studies Committee [ 30 ] On the issue of procedural fairness, the Graduate Studies Committee found: a.

The University Calendar distinguishes between a required withdrawal and an expulsion. They are contained in different sections of the Calendar. The applicability of each action is different and the consequences for each are different. A required withdrawal is not a constructive expulsion. b. The Calendar specifically directs how to implement each decision. While the Calendar requires a hearing before the Discipline Committee for an expulsion, no such requirement is mandated in the

section of the Calendar dealing with required withdrawals. c. The meeting Dean Loewen called Dr. Andres to with other faculty members, Dr. Dixon, Dr. Shepard, and Dr. Bernes, was not a hearing. The Calendar does not require a hearing for the Dean’s decision to require Dr. Andres to withdraw.

d. Despite the short notice of the June 19, 2017, meeting, the meeting did not impact the requirement to withdraw. The grounds for requiring to Dr Andres to withdraw existed prior to the meeting. Nothing that occurred during the meeting was used as grounds for the requirement to withdraw. Dr. Andres’ Position [ 31 ] Dr. Andres contends that the University’s actions constitute a “constructive expulsion” because the alleged misconduct falls within the provisions of the Student Discipline Policy of the Calendar, as an academic offence, or a non-academic offence. Accordingly, Dr.

Andres was entitled to the procedural protections set out in the Student Discipline Policy including: notice, the right to a hearing before an impartial tribunal and the right to continue in the Program until a final decision was rendered. [ 32 ] Dr. Andres argues that the alleged misconduct falls under s 5(

g) of the Student Discipline Policy as an academic offence that “... adversely affects the Integrity of the Instructor-student relationship...” Alternatively, Dr. Andres argues that if the alleged misconduct is more properly characterized as a non-academic offence, she still qualifies for the procedural protections under the Student Discipline Policy because the non-academic offence

section states that the policy “pertains to such conduct where it involves any person registered in a University course”. [ 33 ] In

summary, Dr. Andres maintains that in failing to engage with her argument that the alleged conduct falls within the provisions of the Student Discipline Policy, the Decision allows the Faculty to make arbitrary, ad hoc and self-serving rules with no procedural rights or protections. University’s Position [ 34 ] The University argues that the Decision does engage with Dr. Andres arguments. The Decision made key findings that rejected Dr. Andres’ position.

In particular, the Decision finds that: • The Calendar specifically directs how to implement a required withdrawal decision as well as decisions on disciplinary matters; • The required withdrawal provisions are different than the discipline provisions in both approach and consequences; • Under the provisions of the Calendar relating to required withdrawals, a hearing is not mandated to require a student to withdraw; • The June 19, 2017, meeting was not a hearing. Further, nothing occurred in the meeting that was used as grounds for the requirement to withdraw. Law [ 35 ] The burden is on Dr.

Andres to show that the Decision is unreasonable: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , para 100 . [ 36 ] In Ferzli , at para 20 , the Court of Appeal summarized the decision of the Supreme Court in Vavilov dealing with what reasonableness means in the context of administrative law principles. Reasonableness is a standard of deference.

I must look at the reasons given by the Graduate Studies Committee and the Record to determine whether the Decision is justifiable, transparent and intelligible. [ 37 ] I should not set aside the Decision where the reasons exhibit a minor misstep. To set aside the Decision, I must be satisfied that there are sufficiently serious shortcomings in the Decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency.

The flaw in the Decision must be sufficiently central to render the decision unreasonable: Vavilov , para 100 . [ 38 ] It is well established that individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm. However, this principle also has implications for how I conduct the reasonableness review. Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes: Vavilov , para 133 .

Analysis [ 39 ] I agree with the University that the Decision is reasonable in finding that a required withdrawal is not a constructive expulsion. The reasons for that finding note the different sections in the Calendar that apply to an expulsion and a required withdrawal and the key differences between an expulsion and a required withdrawal. In my view, this is a reasonable

interpretation of the Calendar. [ 40 ] Notwithstanding my view that the Decision is reasonable in concluding that a required withdrawal is different than an expulsion, I agree with Dr. Andres that the Decision is not reasonable because it fails to engage in the critical issue of what level of procedural fairness is owed to a student in the Program where the student is required to withdraw. [ 41 ] The law is clear that in deciding to require Dr. Andres to withdraw, a duty of fairness is owed to her.

In determining the content of the duty of fairness, an important consideration is the impact of the decision on her: Ferzli , para 47 . Counsel for the University properly acknowledges that the duty of fairness applies. [ 42 ] The provisions in the Calendar dealing with an expulsion set out the procedural protections afforded to a student in detail. In contrast, the Calendar is silent regarding what procedural protections are afforded to a student required to withdraw.

While I agree with the Decision’s conclusion that the Calendar is silent regarding a requirement for a hearing, the Decision fails to engage in the central

issue of what level of procedural protection a student who is required to withdraw is entitled to. For that reason, the Decision is not reasonable. [ 43 ] Dr. Andres is entitled to some level of procedural protection. I decline to decide what that level is or whether she is entitled to the level of protection she seeks. In my view, this is best determined by the University who has the expertise to make this determination. 3. Is the Decision Requiring Dr. Andres to Withdraw Reasonable? [ 44 ] The parties agree that the standard of review is reasonableness. I agree.

The parties disagree on whether the Decision is reasonable in finding that Dr. Andres is required to withdraw. Dr. Andres’ Position [ 45 ] Dr. Andres argues, relying on Okojie v Canada (Citizenship and Immigration) , 2020 FC 948 , that the reasons given in the Decision are deficient. Okojie explained the shift in Vavilov to a culture of justification in administrative decision-making. The reasons are the primary mechanism that show the decision is reasonable. [ 46 ] The reasons are contained in one paragraph and state: Upon reviewing the interactions of Dr.

Andres with the individual faculty members in the MC program, interactions with the Faculty, as well as Senior Administration at the University of Lethbridge the SGSEC has determined that the decision made by Dean Loewen in requiring the withdrawal of Dr. Andres was reasonable in the circumstances in which it was made. [ 47 ] Dr. Andres contends that the reasons given by the Graduate Studies Committee lack justification.

There is no reference to any specific interactions or communications to support the Decision, nor does the Decision link any specific interactions to the alleged violations of the Standards of Professional Conduct.

University’s Position [ 48 ] The University argues that Okojie is distinguishable for two reasons: (1) the interests at stake are less serious in this case; and (2) the reasons given in Okojie to justify the Minister’s Delegate decision were limited to two words: “Submissions Considered.” In this case, the Decision spanned 20 paragraphs. [ 49 ] While acknowledging that the reasons could have been more elaborate, the University argues that Vavilov does not demand perfection from administrative decision makers.

Reviewing courts may consider the evidence before the decision maker, the submissions of the parties and other documents that inform the decision. [ 50 ] The University notes that the Record contains ample evidence, including the many email interactions between Dr. Andres and her instructors, the Faculty, and senior University administration, demonstrating Dr. Andres’ failure to meet the Standards of Professional Conduct. [ 51 ] The Decision spans 20 paragraphs and includes the following findings: a. The Graduate Studies Committee reviewed the interactions of Dr.

Andres with the Faculty and other University members; b. Dr. Andres understood the Standards of Professional Conduct; c. Of particular concern to the Faculty in its decision was Dr. Andres’ manner and approach in dealing with issues of disagreement; and d. On the information, documentation, and evidence provided to the Graduate Studies Committee by both parties, the Faculty’s decision to require Dr. Andres to withdraw was a reasonable one. Analysis [ 52 ] I agree with Dr. Andres that the reasons given for the conclusion that the Decision to require Dr.

Andres’ withdrawal are deficient because: (1) the reasons lack sufficient justification; and (2) while the hearing was a hearing de novo , the Graduate Studies Committee applied a standard of reasonableness in arriving at the conclusion. [ 53 ] In his letter to Dr. Andre, Dean Loewen gives three reasons for his decision requiring her to withdraw: (

a) The statements made in the emails you provided to Dr. Shepard and to others on campus make it impossible for the instructors to ethically continue to teach you; (

b) There exist elements of unprofessional conduct in your communications, and while they may be unintentional they do extend over a significant period of time indicating an ongoing pattern, and (

c) This pattern creates concern regarding your existing conflict resolution skills, which may put your coming placement, the reputation of the institution and program, or possibly even your potential clients at risk. [ 54 ] Under s 7(

j) of the Calendar, a student is required to withdraw if the student “... fails to meet the Standards of Professional Conduct for Counselling Psychology students (see p. 78)”.

[ 55 ] The Standards of Professional Conduct are set out on page 78 of the Calendar, s 6(a) – (o). [ 56 ] I agree with the University that the Record does contain evidence supporting the reasons given by Dean Loewen. However, in this case, where Dr. Andres argues that the alleged conduct fits within the Student Discipline Policy provisions of the Calendar, it is important for the reasons to justify how the alleged misconduct fits within s 6(a) – (o), of the Standards of Professional Conduct provisions of the Calendar.

Notwithstanding that the evidence supports the reasons, if the reasons do not fall within s 6 (a) – (o), then the decision to require Dr. Andres to withdraw is not reasonable. In failing to articulate in any manner which sections of s 6(a)- (

o) of the Calendar Dr. Andres failed to meet, I find that the Decision is not reasonable. [ 57 ] In addition, I also find that the Decision is not reasonable because the Graduate Studies Committee determined that the hearing would be held de novo from the previous GPEC hearing. The decision is silent on why the Graduate Studies Committee made this decision. In terms of standard of review, the Graduate Studies Committee states that the Faculty decision will be reviewed on a standard of reasonableness. [ 58 ] Counsel for the University acknowledges that the Decision on the face of it is inconsistent.

On a hearing de novo , the standard of review is correctness. The Decision, at Paragraph 10, suggests the issue is correctness of the Faculty decision. Notwithstanding, it is clear from paragraphs 15 and 17 of the Decision that the Graduate Studies Committee applied the reasonableness standard, not the correctness standard. [ 59 ] This inconsistency is sufficiently central to the Decision to render it unreasonable. There is a difference between the standard of correctness review and the standard of reasonableness review. In the end, the two different standards may yield the same result.

However, approaching a decision using the wrong standard of review is not a minor misstep. It has the potential to impact the final decision. Accordingly, I find that for this reason as well, the Decision is not reasonable. 4. Does s 2(

b) of the Charter Apply? [ 60 ] The parties agree that the standard of review is correctness. The parties agree that the Decision regarding the applicability of the Charter is incorrect. I agree. [ 61 ] The University invites me to substitute my own conclusion on the applicability of the Charter . The University argues that the Decision is not subject to Charter review because a decision to require an individual in the Program to withdraw is not a form of governmental action subject to the Charter .

In the alternative, if it is a form of governmental action subject to the Charter , it should be upheld under Doré v Barreau du Québec, 2012 SCC 12 . Alternatively, the University asks that the applicability of the Charter be remitted for reconsideration by the Graduate Studies Committee. [ 62 ] I conclude that it is appropriate to remit this issue back to the Graduate Studies Committee for reconsideration. As I previously stated, the Decision is not clear about which provisions of the Standards of Professional Conduct were breached and why.

In considering whether the Charter applies, it would be helpful to be clear on what specifically the University relies on to justify the decision to require the Applicant to withdraw. 5. What is the Appropriate Remedy? [ 63 ] Dr. Andres does not seek reinstatement.

Rather, she asks: (1) for a declaration that she was wrongfully removed from the Program; (2) for a declaration that the Faculty’s decision is null and void; (3) for an order removing the requirement to withdraw from her transcript; and (4) that the University be directed to bring the policies and procedures of the Program in line with the provisions of the Student Discipline Policy so that Program students are guaranteed the same procedural protections as other graduate students. [ 64 ] The University argues that where a decision reviewed on a reasonableness standard cannot be upheld, the usual remedy is to remit the matter back to the decision maker to reconsider the decision: Vavilov , paras 139 – 142 .

In this case, there is no reason to depart from the usual remedy. [ 65 ] I agree with the University that the appropriate remedy in this case is to remit the Decision back to the Graduate Studies Committee for reconsideration with the benefit of my reasons for two reasons. [ 66 ] The first reason is that remitting the matter back to the Graduate Studies Committee for reconsideration is consistent with the rationale for applying the reasonableness standard which is a standard of deference. [ 67 ] The second reason relates to the fact that I cannot conclude from the Record that the University’s position that Dr.

Andres failed to meet the Standards of Professional Conduct is without merit. I agree with the University that the Record indicates that for several years Dr. Andres was not happy with the Program. She expressed her unhappiness to various individuals at the University. Efforts were made to address her concerns. She was not satisfied with these efforts. She continued to allege very serious allegations of abuse and impropriety against certain Faculty members. Although these Faculty members disagreed with Dr. Andres’ allegations, Dr.

Andres was not willing to meet with them to discuss the allegations because she saw no point in meeting. I agree with the University that by June 2017 the situation was at a point where some action needed to be taken. In these circumstances, I conclude that it is not appropriate for me to declare that she was wrongfully removed and that the requirement to withdraw notation be deleted from her transcript. These issues should return to the Graduate Studies Committee for reconsideration. Conclusion [ 68 ] Dr. Andres’ application for judicial review is allowed.

I remit the Decision back to the Graduate Studies Committee for reconsideration.

[ 69 ] If the parties are not able to reach agreement on costs, they may provide me with brief written submissions on costs within 60 days of publication of this decision. Heard on the 11 th day of March, 2021. Dated at the City of Edmonton, Alberta this 16th day of July, 2021. Susan L. Bercov J.C.Q.B.A. Appearances: Matthew Woodley, for Respondent, University of Lethbridge Michelle Newman and Kwame Abrefah for Applicant, Dr. Karen Andres