Jim Seraj Applicant And: Memorial University OF NEWFOUNDLAND Respondent, 2021 NLSC 20

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Seraj v. Memorial University of Newfoundland , 2021 NLSC 20 Date : February 5, 2021 Docket : 202001G4031 Between: Jim Seraj Applicant And: Memorial University OF NEWFOUNDLAND Respondent Before: Justice Alphonsus E. Faour Edited Transcript of Oral Reasons for Judgment On Judicial Review From: A Decision of Memorial University of Newfoundland’s Senate Committee on Academic Appeals dated February 20, 2020 Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 19, 2021 Appearances: Cletus E.

Flaherty Appearing on behalf of the Applicant Stephen F. Penney Appearing on behalf of the Respondent Authorities Cited:

CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Baker v. Canada (Minister of Citizenship & Immigration) , 1999 SCC 699 STATUTES CONSIDERED: Memorial University Act , R.S.N.L.1990, c. M-7 REASONS FOR JUDGMENT Faour, J. : INTRODUCTION [ 1 ] This is an interesting case because of its history, and because it involves an individual who obviously had some difficulty from an academic perspective some years ago, but who has gone on to have what appears to be, based on what’s before me, a successful practice in medicine.

The importance of this Application at this time to the individual or the university is not clear. I accept Mr. Penney’s comment that it’s one thing for counsel to talk about these facts, but I have no facts before me, I have no evidence before me on this. So, I can only take the record as it stands before me and to that effect the issue of delay, which I have raised on a couple of occasions, is one of the factors which I will take into account.

It’s not determinative of the outcome, but it certainly bears on the exercise of discretion that’s involved in a case like this. [ 2 ] I’ll review the facts briefly which form the background for what I’m about to decide. Dr. Seraj was admitted to the Faculty of Medicine in the fall of 2003. He was not successful. He was required to repeat his first year beginning in the fall of 2004. He was successful at the second try, and then began his second year in the fall of 2005. In his second year, the same result obtained: he was not successful for the second time.

And by virtue of the Regulations for the Degree of Doctor of Medicine, made under authority of s. 56 of the Memorial University Act , R.S.N.L.1990, c. M-7 (hereinafter called the “Medical School Regulations”), he was required to withdraw from the program. [ 3 ] The Medical School Regulations from that period bear on this issue. Both counsel have talked about Regulations what were at the time numbered 8.3.3(

a) and 8.3.3(b). Mr. Flaherty has talked about 3(

c) and 3(

d) as well. Notwithstanding that the numbering has changed, their content remains the same. Based on the Regulations, having failed a year for the second time he would not have been able, without a waiver, to do a second repeated year. [ 4 ] There were a couple of committees involving a couple of stages of appeal. First, the Pre Clerkship Promotions Committee considered whether he should be provided such a waiver. It decided in the negative and issued a decision June 19, 2006. At that point he was required to withdraw from the program. He had the right to request an appeal from the same committee.

On June 20th of that year he entered his appeal. On reconsideration, the committee denied his appeal and the previous decision was confirmed on July 17, 2006. He was for a second time required to withdraw from the program. He appealed further to the Executive Committee of the Faculty of Medicine. It heard his appeal on December 11, 2006. At that time he had a full hearing, with his legal counsel and family members present. Everyone had an opportunity to make submissions. The decision of the Executive Committee was communicated to him by a letter from James Rourke dated December 13, 2006. Dr.

Rourke was the Dean of the Medical School at that time. [ 5 ] I think it’s worthwhile to read a portion of this letter. The committee in its first or second paragraph notes that the appeal is from the decision of the Pre-Clerkship Promotions Committee which essentially did two things. It ruled that he was not able to repeat the year for a second time, and that he withdraw from the study of Medicine.

Dean Rourke went on to say: The decision by the Executive Committee of the Faculty of Medicine was that you will be allowed to repeat year 2 of the MD program with academic prejudice under the Faculty of Medicine calendar Regulations 2005-2006 time 8.3.3.b on the basis of extenuating circumstances that adversely affected the students performance. [ 6 ] And Dean Rourke further clarifies his

interpretation of the decision: This means that you may return to Memorial University Faculty of Medicine to repeat the second year of the MD education program with academic prejudice. The next beginning term when you can start will be the fall semester 2007. [ 7 ] This was the critical decision of the university that permitted Dr. Seraj to resume his studies in the fall of 2007. Dean Rourke’s letter changed the decision of the Pre-Clerkship Promotions Committee to permit him to repeat the second year which meant he sat out the academic year 2006/07.

The decision of the Executive Committee was silent on the issue of whether he continued to be enrolled in the Medical School or whether he had withdrawn for that one year under the Regulations. The conclusion I draw is that the Executive Committee did not change the requirement to withdraw for the year, only that he be permitted to re-start his studies in the following academic year. [ 8 ] I just want to review the decision to ensure clarity. While the Applicant says the Executive Committee overturned the decision of the Pre-Clerkship Promotions Committee, it actually only dealt with part of that decision.

He was still required to sit out the year, but instead of being refused to repeat his second year, the December 13, 2006 decision permitted him to return to classes in the fall of 2007. [ 9 ] Now, that decision is not at issue before me. The decision that’s before me came much later and it appears significant today only because Dr. Seraj, during the period in question in 2006, applied to take the United States Medical Licensing Exam (USMLE). He

applied in May 2006 at a time when he was still enrolled in the program. As noted previously, he was required to withdraw on June 19, 2006. He took the exam on November 15, 2006 at a time when the Medical School recorded that he had withdrawn because of the June decision. And the date of the taking of the exam appears to have run afoul of some of the conditions involving the USMLE because four years later, in 2010, the USMLE authority sought clarification from the university as to whether Dr. Seraj was enrolled in Medical School at the critical time when he took the exam.

The response from the Student Affairs Coordinator was an email dated September 24th, 2010. The response stated that Dr. Seraj was enrolled on May 21, 2006 at the time the status was sought for his application for the USMLE but was not enrolled when he took the USMLE on November 15, 2006. [ 10 ] The same issue arose a year later when counsel for Mr. Seraj, I presume counsel in California, made an inquiry about his status. In an email from the Registrar’s office on August 5, 2011 the earlier advice was confirmed. The email reviewed the facts as we understand them and ended up by saying: . . . while Mr.

Seraj might have been actively seeking a medical degree in the 2006/07 academic year, he was doing so through the appeals process, but was not at that time in any university program. [ 11 ] Eight years after that communication in 2011, on May 21, 2019 Dr. Seraj filed a notice with the Senate Committee of Undergraduate Studies appealing the decision of the Registrar’s office in 2011. That committee dismissed his appeal on October 30, 2019. The response took the view that the Registrar’s comments in 2011 did not amount to a decision. It did note that Dr.

Seraj was successful in his appeal, his academic appeal in December 2006 and that appeal is not able to be reopened. Dr. Seraj has said through his counsel that it is not his intent to reopen that appeal. That’s certainly a factor that I can consider. He appealed further to the Senate Committee on Academic Appeals which decided on February 20, 2020 to uphold the earlier decision. So it’s from that decision that Dr. Seraj seeks judicial review. [ 12 ] There are four issues raised by Dr.

Seraj: First it was an error to determine that his appeal did not concern the application of academic Regulations; second, that it was an error to determine there was no academic merit to the appeal; third, that it was an error to determine that the Registrar’s communication was not a decision concerning the Applicant’s enrolment status, and fourth, that it was an error to determine the appeal without a hearing. [ 13 ] In my view, there are two essential issues here.

One, was it reasonable for the committee in February of 2020 to make the decision it did, and secondly, was it an error to determine the appeal without a hearing. Whether it concerned the application of academic Regulations or whether it was determined there was no academic merit, or whether it was a decision concerning the Applicant’s enrolment status, is not germane to the issue. The issue is whether it was reasonable in the circumstances for the Senate Committee on academic appeals to make the decision it did. [ 14 ] The standard of review is always a major factor in cases of judicial review.

The recent case of Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 in the Supreme Court of Canada has reinforced the notion that this Court is to provide deference to decision making bodies on the basis of reasonableness and a finding of unreasonableness appears to me to require a fairly high threshold. In this case, both sides agree that the standard is reasonableness and the standard of reasonableness should apply to the substantive decision of the committee. I will not pursue that inquiry further. [ 15 ] Mr.

Flaherty has raised a second issue, whether the failure to hold an oral hearing denied Dr. Seraj procedural fairness. This latter issue engages the factors to which counsel have referred in the Baker v. Canada (Minister of Citizenship & Immigration) , 1999 SCC 699 case and I’ll deal with those in a few minutes. They require, in my view, a higher standard of scrutiny by this Court than an application of the standard of reasonableness in respect of any substantive decision. In Vavilov the Court reviewed the issue of reasonableness generally in paragraphs 81 through paragraph 108.

Counsel in their submissions have reviewed the relevant provisions there. My

interpretation is that a determination of reasonableness in these circumstances requires an examination of the context of the decision and a finding that there’s a rational chain of analysis as opposed to either an irrational chain or a reasoning process which contains an obvious gap. I would also determine whether the reasons together with the record make it possible to understand the decision maker’s reasoning. [ 16 ] Dr.

Seraj submitted that the decision of the Senate Committee on academic appeals is flawed when it confirmed there was no academic merit to the appeal even though it notes that the appeal does concern the enrolment status of the Applicant during the 2006/2007 year. My view is that the appeal to the committee must be viewed in the light of the earlier decisions and the Medical School Regulations in effect at the time.

If one looks at the record and the series of decisions that were made in 2006, then it provides the background for the decision of the Committee. [ 17 ] The University has said that essentially this is an attempt to re-litigate the 2006 decision, but Mr. Flaherty has submitted that it’s really only a question of an

interpretation of a decision which would have him continuing his enrolment through the 2006/07 academic year and this would retroactively, it is presumed, validate his status when he wrote the USMLE in the fall of 2006. [ 18 ] Dr. Seraj seeks to have his recorded enrolment status for the relevant year arise from the application of 8.3.3 of the applicable Regulations. He takes the view that nothing in the record actually interrupted his enrolment between June of ’06 and September of ’07 when he was permitted to recommence his studies. [ 19 ] On a related point, and perhaps not relevant because Mr.

Flaherty didn’t emphasize it in his oral argument, in his written submission he asked the Court to consider that in fact Dr. Seraj was placed on administrative leave or some other kind of leave during the relevant period.

I’m not going to consider that because that would clearly rewrite history and there is no basis either in the Regulations or in the record to say that there was some other kind of leave imposed. [ 20 ] In asking the Court to place a duty on the Registrar of the University to accurately record and report the enrolment status of students, the Applicant seems to presume that the record is inaccurate.

More to the point, the question is whether, based on the record, the various communications from the Registrar and, in particular, the final communication from the Senate Committee in February of 2020, are reasonable and consequently the Committee’s view of the Registrar’s

interpretation was reasonable.

[ 21 ] At the risk of repeating myself, I wish to review the sequence of events with which we’re concerned. [ 22 ] Dr. Seraj was not successful in completing his first year Medical School in 03/04 and was required to repeat the year. He did so successfully in the academic year 04/05. He was enrolled in the second year of medical studies in 05/06 and failed to successfully complete the year. The Medical School Regulations required he not be permitted to repeat a year for a second time. The Pre-Clerkship Promotions Committee decided in June ’06 that he be required to withdraw.

He had a second chance before the Committee; it confirmed its decision in July ’06. At this point, it is reasonable to assume that he was no longer a student enrolled as a student in the Faculty of Medicine. He exercised his right to appeal to the Executive Committee in the Faculty of Medicine. It held a hearing on December 11/06 and I think this is critical to the issue of reasonableness of the subsequent decision of the Senate Committee in 2020. It held a full hearing at which Mr. Seraj was present, his legal counsel and a family member. There was ample opportunity to make submissions.

He was successful as the Executive Committee issued a decision on December 13, 2006 that he be permitted to re-enroll and permitted to repeat his second year of studies in the fall semester of 2007. It did not comment on, nor did it change his enrolment status which had been determined in June and July ’06 that he had withdrawn.

He re-enrolled in his studies in the fall of ’07 and apparently went on to successfully graduate from the program and to this date appears to have a successful medical practice in the United States. [ 23 ] The record demonstrates full consideration of his situation three times: first, by the Pre-Clerkship Promotions Committee in June of ’06; second, by the same committee when it affirmed its earlier decision in July ’06; and third, by the Executive Committee in December ’06 which was instrumental in permitting him to return to his studies. [ 24 ] So those are the events that form the backdrop to the response of the then Registrar in 2010 and 2011.

Those same events were relied upon by the two Senate Committees in their responses in October 2019 and February 2020 and they form the background and brings us to the question of whether this Court, looking at that background, can find that this is reasonable. [ 25 ] The only decision for this Court is whether the Senate Committee’s response in February 2020 was reasonable. The Applicant says no. He submits that in fact he remained enrolled in the program and asked the university to alter its records to show that.

He provides no authority for any other approach to this, and in his written submission, I’ve already mentioned, he referred to some other kind of leave, but there’s no authority for that either. In my view, what was done by the Senate Committees in 2019 and 2020 was reasonable. It fact, it would have been unreasonable to expect the university to revise its records to insert a grant of administrative leave in the Applicant’s file where no reference or authority had been provided.

The only reasonable inference from the record and a review of the Regulations in effect at the time is that the Applicant withdrew from the program in June of ’06 and re-entered the program in September of ’07. I’ll repeat the words of the Deputy Registrar in her response to an inquiry in 2011. While Mr.

Seraj might have been actively seeking a medical degree in the 2006-07 academic year, he was doing so through the appeals process, but was not at that time in any university program. [ 26 ] In my view, in terms of the substance of this issue, the response of the Senate Committee considering the record, the full examination of Dr.

Seraj’s case by the various committees at least three times in 2006 considering also the time that had passed and the lack of authority to change the record and perhaps the unreasonableness to ask the record to be changed, all of this was reasonable and the Court should not interfere with it. [ 27 ] On the issue of whether there should have been a hearing in the appeal before the Senate Committee and undergraduate studies and the Senate Committee on academic appeals in October of 2019 and in February of 2020, my own view is that even applying the Baker principles that there was no obligation to have a full hearing.

And I say that in the context of what had gone before. I mentioned earlier in particular the fact that on the record there was a full hearing in December of 2006 with the Executive Committee of the Faculty of Medicine. That is part of the record which the Senate Committee at both levels had to consider the question of whether there would be a full hearing with the ability to make oral submissions. While the Regulations provide for oral submissions and a hearing in person, it doesn’t require them in all cases.

The issue is whether it was reasonable for the Senate Committees to have decided in the circumstances that there should not be a hearing. [ 28 ] Applying the Baker factors, set out by the Supreme Court of Canada at paragraphs 23-27, I must first examine the nature of the decision. The nature of the decision was essentially a review of the record and a reporting of what had gone on before. The second Baker factor refers to the statutory scheme.

That does not help the Applicant in this case because it’s accepted that the statutory scheme was valid, and it provides the University with full authority over its proceedings. The Applicant has not challenged the regulatory scheme itself. [ 29 ] The third Baker factor, the importance of the decision to the individual, must again be considered in light of the record. I accept that this is important to Dr. Seraj, but I have no evidence of how important, or the consequences to him of the decision of the Senate Committee. I have a couple of comments from counsel on the impact, but those comments are not evidence.

Plus I have the fact that even after engaging counsel in 2011 to inquire into this matter, there was no further action or movement on this file on the part of Dr. Seraj until 2019. And that to me says while it may have been important, it wasn’t so important that it attracted his attention and required immediate action. We’re looking at reviewing a decision of the Senate Committee which essentially was asked to review a decision from 15 years previously and it strikes me that the time that has passed, without evidence, would appear to minimize the factor of the importance of the decision to the individual.

So that factor, that Baker factor doesn’t help the Applicant. [ 30 ] The fourth factor involves his legitimate expectations of the process. I would consider two factors: first, the delay in bringing this matter forward would indicate less urgency, and second, that Dr. Seraj must be taken to have been aware that the Regulations governing the Senate Committee on Academic Appeals do not require a hearing, but make it an optional consideration. [ 31 ] The Fifth and final factor in Baker emphasize that the decision-making body’s decisions as to procedure must be respected.

This factor favours the choice of the Committee not to hold a formal hearing. [ 32 ] Those are the factors which must be considered when determining the impact of a decision whether to hold a hearing. I do not think they help Dr. Seraj in his argument that applying the Baker factors, a higher level of procedural fairness, including an oral hearing, is required.

[ 33 ] In my view the procedural choices made by the Senate Committee were reasonable in the circumstances. I am mindful of the fact that time had passed and that the Applicant had been afforded a full opportunity previously on three occasions to have his case reviewed in 2006. While I’m not sure I fully accept the position of the Respondent, of the University, that this is an attempt to rewrite history, I think that it was reasonable for the University to find the way it did on the appeal. I would dismiss the application. [ 34 ] Both parties have sought costs on this Application.

However, I’m inclined without further argument to make no Order as to costs. Is there any strenuous objection to that on the part of the University? Okay, so no Order as to costs. Is there any clarification needed on either side? Okay. _____________________________ Alphonsus E. Faour Justice