2023 QCCA 868, 2023 QCCA 868

Alabdulraheem c. McGill University 2023 QCCA 868 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-030570-238 ( 500-17-118051-211 ) MINUTES OF HEARING DATE: July 4, 2023 THE HONOURABLE ROBERT M. MAINVILLE, J.A.

APPLICANT COUNSEL Najayeb Alabdulraheem Mtre Stéphane Nobert ( INEX Légal ) Absent RESPONDENT COUNSEL MCGill University Mtre Annie Bourgeois ( Langlois Avocats ) Absent DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on April 25, 2023 by the Honourable Marc St- Pierre of the Superior Court , District of Montréal (Arts. 30 para. 2 and 357 C.C.P. ) . Clerk at the hearing : Mélanie Camiré Courtroom: RC-18 HEARING Continuation of the hearing held on June 29, 2023. The parties were excused from appearing in Court. BY THE JUDGE: Judgment – see page 3.

Mélanie Camiré, Clerk at the hearing JUDGMENT [1] The applicant seeks leave to appeal from the April 25, 2023, judgment rendered by the Honourable Marc St-Pierre of theSuperior Court, district of Montreal (2023 QCCS 1309), dismissing her application for judicial review of various decisions made byrespondent McGill University between June 18, 2020, and July 27, 2021, which confirmed her exclusion from the Neurology ResidencyTraining Program (the “Program”). [2] The applicant, who was a practising physician in Kuwait, was admitted to the Program and started her training on July 1, 2015.She asserts that she received superior and satisfactory mentions in her assessments until May 2017, at which time she had a verbalaltercation with one of her supervisors following a negative evaluation.

Her subsequent assessments were also negative, leading, onJanuary 6, 2019, to a six-month probation. After it was determined that the applicant had not successfully completed her probation, shewas dismissed from the Program. [3] The applicant availed herself, without success, of the review and appeal process within McGill’s University administrativestructure. [4] She sought judicial review of all the decisions made within this review and appeal process, asserting that the duty of fairnesshad been breached in that a medical evaluation dated October 8, 2020, prepared by neuropsychologist Dr.

Alain Simard, had not beenproperly taken into account at certain stages of the process and not at all at other stages. [5] That evaluation report concluded that, following an altercation with a supervisor, the applicant was affected by a “troubled’apadaptation avec humeur anxiodépressive” and possible “deficit de l’attention” with the result that “certains sympômes cognitifset/ou psychopathologiques interfèrent probablement dans son fonctionnement quotidien au point d’avoir un impact significatif sur sonrendement académique.” Dr. Simard added that “[d]es recommandations ont été faites dans la

section précédente du présent rapport etdes améliorations sont attendues dans les prochaines semaines”. [6] In the applicant’s view, this evaluation report confirms that, at the relevant time, she was experiencing a temporary disabilityakin to a mental disability. Consequently, she claims that her right under

section 10 of McGill University’s Charter of Student Rights tobe free from discrimination based, inter alia, on a disability, was breached by her dismissal from the Program and further breached bythe failure of the review and appeal bodies to acknowledge this discrimination and to take remedial actions to correct it. [7] She refers in particular to the April 12, 2021, decision of the McGill University Senate Committee on Student Grievances, whichdismissed her submissions on the ground of a “lack of concrete evidence and documentation to substantiate many of [her] claims,including any documentation confirming her diagnosis of an underlying mental health condition”, and which further stated that“[o]verall, the Committee does not find that Dr.

Alabdulraheem sufficiently substantiated her claims that her right to equal treatment as aperson with a disability was infringed. As such, the Committee finds no violation of

article 10.” [8] However, in reaching this conclusion, the Senate Committee on Student Grievances never considered the October 8, 2020,evaluation report prepared by neuropsychologist Dr. Alain Simard because that report had not been provided to it despite the fact it wasin the applicant’s student file and had previously been considered in the process leading to the Senate Committee’s decision. [9] The applicant thus sought leave to appeal from the decision of the Senate Committee on Student Grievances.

However, on July27, 2021, leave to appeal was denied by the Sub-Committee of the Appeal Committee for Student Grievances on the ground that theonus had been on the applicant to submit relevant evidence for the hearing before the Senate Committee. Since she herself had notsubmitted Dr.

Simard's evaluation report to the Senate Committee on Student Grievances, there was no breach of natural justice resultingfrom its failure to consider the report even though it had been submitted previously in the process. [10] Justice St-Pierre dismissed the judicial review application. [11] With respect to the standard of review, the judge concluded that “there is no standard of review anymore” pertaining to the dutyto act fairly: para. 14 of his judgment. [12] As to the substantive issues in dispute, after a brief analysis, Justice St-Pierre concluded as follows: [24] As for the reasonable expectation of the Plaintiff that the report would be taken into consideration because it was accepted at apreliminary step by the promotions review committee, as stated at the hearing, it is not because a decision maker accepts to receive somepiece of evidence that he would be obliged to render a decision based on it. [13] The applicant seeks leave to appeal this judgment on two principal grounds: (1) the judge addressed neither the issue ofdiscrimination nor the issues of procedural fairness and natural justice which were raised in her application: paras. 33.1 and 33.2 of theNotice of Appeal; and (2) the judge failed to apply a standard of review and therefore failed to consider the factors established in Bakerv.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817: paras. 33.3 to 33.5 of the Notice ofAppeal. [14] Though I recognize that the applicant will be facing challenges in her appeal, I am nevertheless of the view that leave should begranted, as the appeal raises prima facie issues that I consider should be submitted to the Court. FOR THESE REASONS, THE UNDERSIGNED:

[ 15 ] GRANTS the application for leave to appeal the April 25, 2023, judgment of the Superior Court in file no. 500-17-118051-211, legal costs to follow the outcome of the appeal. ROBERT M. MAINVILLE, J.A.