DR. MAE CANTOS Applicant - v. -, 2023 SKKB 211

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 211 Date: 2023 10 04 Docket: QBG-SA-00862-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: DR. MAE CANTOS Applicant - and - THE UNIVERSITY OF SASKATCHEWAN (COLLEGE OF MEDICINE – OBSTETRICS AND GYNECOLOGICAL RESIDENCY PROGRAM) Respondent Counsel: Lauren J. Wihak for the applicant Robert J. Affleck and Caroline C. Seshadri for the respondent ___________________________________________________________________________ FIAT CURRIE J.

October 4, 2023 ___________________________________________________________________________ [ 1 ] Dr. Mae Cantos applies for judicial review of the decisions of: (

a) the University of Saskatchewan Appeal Board (“the UAB”), dated April 12, 2022; (

b) the Appeals Adjudication Board (“the AAB”) of Post Graduate Medical Education at the College of Medicine at the University, dated November 23, 2021; and (

c) the Post Graduate Medical Education Office (“the PGME Office”) of the College of Medicine, dated April 16, 2021. A. Circumstances [ 2 ] Dr. Cantos was a resident in the Obstetrics and Genealogical Residency Program of the College of Medicine of the University of Saskatchewan. Administration of the program was carried out on behalf of the College by the PGME Office. [ 3 ] Dr. Cantos began her residency in the program in 2014. During her second year, in the spring of 2015, the College placed Dr. Cantos on a knowledge-based modified learning plan. During her third year, she took a maternity leave.

On her return she continued on a modified learning plan. In April 2018 she began her fourth year of the program. [ 4 ] In the fall of 2018 the College decided to place Dr. Cantos on remediation. Since she was about to begin another maternity leave, the College deferred the commencement of that remediation until her return to the program in December 2019. [ 5 ] In February 2020 the College removed Dr. Cantos from clinical duties and placed her on paid leave while a probation plan was developed for her. In March 2020 Dr. Cantos received a medical diagnosis.

She notified the College of the diagnosis, and the College subsequently implemented a plan of accommodation relating to the diagnosis. [ 6 ] Dr. Cantos began the probation plan in April 2020. The probation plan was comprised of two phases. Phase one was a knowledge-building phase. Dr. Cantos performed well in phase one, successfully completing it. Dr. Cantos began phase two of her probation in November 2020. Phase two involved clinical rotations. The probation plan had been planned to conclude in December 2020, but in that month the College extended the probation period to April 2021.

In February 2021 the College added a professionalism requirement to the probation plan. [ 7 ] Administration of the program is governed in part by the College’s Resident Assessment Policy . This policy refers to substantial decisions, such as placing a resident on probation and recommending dismissal of a resident from the program, being made by a Residency Program Committee. In this case a committee called the Resident Assessment Subcommittee (the “RAS”) made such decisions.

As established in another governing policy, the College’s Postgraduate Medical Education, Assessment of Postgraduate Trainees: Guiding Principles (the “ Guiding Principles ”), the RAS is a subcommittee of the Residency Program Committee. The Guiding

Principles contemplate that the decisions relating to probation and dismissal are to be made by the RAS. [ 8 ] On April 7, 2021 the RAS met regarding Dr. Cantos. The RAS considered her standing in the program, specifically considering whether she had met the goals of her probation. In a decision that subsequently was adopted by the PGME Office for the College, the RAS recommended that Dr. Cantos should be dismissed from the program on the basis that she had not passed phase two of the probation plan. As Program Director, Dr. Jennifer Duda so advised Dr.

Cantos by a letter dated April 8, 2021: This letter is to inform you that the Resident Assessment Subcommittee (RAS) met on April 7, 2021 to discuss the outcome of your Probation Period. After reviewing the provided documentation, the RAS determined that there were significant concerns about your progress during the Probation Period, and that you failed the Probation Period. The RAS concluded that despite an extended Probation Period, you are not performing at the level of a PGY4 and determined that further probation is not appropriate in the circumstances.

Therefore, in accordance with the PGME Resident Assessment Policy the RAS is recommending that you be dismissed from the Obstetrics and Gynecology Residency Program. Please be aware that it is your right to appeal any academic decision made by the committee, pursuant to the PGME Resident Appeal Policy . [ 9 ] By an April 16, 2021 letter, the College confirmed to Dr.

Cantos that she had been dismissed from the program, as of June 30, 2021: This letter is to inform you that based on the outcome of the probation, the recommendation from the Obstetrics & Gynecology Residency Program from April 8, 2021, and the guidelines for dismissal from the Resident Assessment policy, you are being dismissed from the Obstetrics & Gynecology Residency Training Program. After careful consideration, PGME [Postgraduate Medical Education] will offer a one-time extension of your date of dismissal from April 8, 2021 to June 30, 2021.

This extension is to facilitate a potential CaRMS [Canadian Resident Matching Service] match, transfer to a different program, and/or elective experience in a different program. To continue appropriate support with these alternate training options, PGME recommends you continue to receive pay up until June 30th. The dismissal date will not be extended past June 30th. According to the Resident Assessment and Resident Appeal policies, you are entitled to appeal the program’s decision.

The signed notice of appeal must be delivered to the PGME Office no later than 30 calendar days past the dismissal date of June 30, 2021 (July 30, 2021). The following sources of support are available to you should you wish to access them: The Employee and Family Assistance Program (EFAP) is available to you and your family for up to three (3) months following the termination of your employment. EFAP service is available 24 hours a day, 7 days a week for personal support and can be contacted at 306-966-4300 or 1-844-44USASK. You may also contact Ms.

Gayathri Manoharan, Resident Resource Coordinator in the PGME Office at 306-966-1669, or your union office at 306-655-2134. B. Appeal to the AAB [ 10 ] Pursuant to the College’s Resident Appeal Policy , Dr. Cantos appealed the decision to dismiss her. She appealed to the AAB, which is the appeal tribunal within the College of Medicine. [ 11 ] The Guiding Principles , in Part D: Appeals, limit the parameters of such an appeal: … Grounds for Appeal The residents can not appeal academic standards. This means that the standards of training set by the CFPC and the RCPSC can not be appealed.

The residents have a right to appeal when their performance has been judged unsatisfactory (rotation evaluations, ITER, STACER, FITER) or other decisions as outlined above. However, the residents can not appeal an academic judgment, meaning that the judgment per se for its academic content can not be appealed. The basis of an appeal would be what the resident believes / perceives led to that judgment (e.g. perceived bias, process irregularity (ies) etc.) in accordance with the grounds of appeal given in the University of Saskatchewan guidelines.

See Appendix 3 for more detailed description of grounds for appeal. … Mandate of the AAB The mandate of the Appeal Adjudication Board is to address the grounds of appeal and process issues – not academic judgment or validity of educational assessments. If a process irregularity is identified, the magnitude of such an irregularity will be assessed. The presence of a process irregularity alone will not necessarily mandate overturning the decision under appeal.

The irregularity must be of sufficient magnitude to have, or likely have, meaningfully influenced the decision being appealed or the performance of the resident that led to the decision. … [ 12 ] The Resident Appeal Policy sets out the available grounds for an appeal to the AAB: Appeals at the College level can be based on the grounds pertaining to:

1) An alleged failure to follow procedural regulations of the College or the University dealing with assessment of Residents’ academic work or performance, or administrative decisions or alleged misapplication of regulations governing program or degree requirements; 2) alleged differential treatment of the Resident as compared to the treatment of other Residents in program, where the alleged differential treatment affected assessment of the Resident’s academic work or performance; 3) alleged discrimination or harassment, as set out in the University’s Policy on Discrimination and Harassment Prevention and procedures for addressing issues of discrimination and harassment, where the alleged violation affected assessment of the Resident’s academic work or performance; or 4) alleged failure to implement the approved policies and procedures of the University and the College dealing with accommodation of students with disabilities, when the alleged failure affected assessment of the Resident’s academic work or performance. [ 13 ] Dr.

Cantos cited all four of these grounds in her appeal to the AAB. [ 14 ] On November 23, 2021 the AAB dismissed Dr. Cantos’ appeal, summarizing its ruling at paragraph 7 of its decision: 7. The AAB finds that: (

a) There was no evidence of failure to follow procedural regulations of the College or University dealing with assessment of students’ academic work or performance or administrative decisions or alleged misapplication of regulations governing program or degree requirements; (

b) The evidence does not support that there was differential treatment of Dr. Cantos compared to other students; (

c) The evidence does not support that there was discrimination or harassment; and (

d) There was no evidence of failure to implement the approved policy and procedures of the College or University dealing with accommodation of students with disabilities. C. Appeal to the UAB [ 15 ] Dr. Cantos then appealed to the UAB, which is the appeal tribunal for the University of Saskatchewan. On April 12, 2022 the UAB dismissed Dr. Cantos’ appeal. D. Which decision is being reviewed? [ 16 ] Dr. Cantos now applies to this court for judicial review of the decisions of all three of the UAB, the AAB and the PGME Office (the RAS decision).

She asserts that she was denied procedural fairness at each level of the proceedings. She asks the court to quash or set aside all three decisions and to reinstate her in the program. She proposes other remedies in the alternative. [ 17 ] The University asserts that Dr. Cantos may ask for judicial review of only the decision of the UAB, since she has exercised her right of appeal from the other two decisions. In response, Dr.

Cantos alleges errors at all three levels, errors that influenced the decision of the UAB so that – she says – those errors also must be reviewed. [ 18 ] The University is correct in arguing that only the decision of the UAB is subject to judicial review here. Dr. Cantos’ avenue of review of the RAS decision was to appeal to the AAB. She pursued that avenue. Her avenue of review of the AAB decision was to appeal to the UAB. She pursued that avenue. [ 19 ] Had Dr.

Cantos sought judicial review of either the decision of the RAS or the decision of the AAB before exhausting her rights of appeal, the court almost certainly would have refused to conduct such a judicial review.

The court most likely would have ruled that the available appeal process must be pursued before the court will engage in a judicial review: Mbonyimana v Saskatchewan (Workers’ Compensation Board) , 2023 SKKB 9 ; Galger v Saskatchewan (Workers’ Compensation Board) , 2005 SKQB 424 , 271 Sask R 178 . [ 20 ] As a rule, a decision from which there is a right of appeal is to be reviewed by way of that appeal, not by way of judicial review.

For this reason, on this appeal I am conducting a judicial review of only the decision of the UAB. [ 21 ] Having said that, my review must consider procedural fairness at all three levels. I cannot fully appreciate the decision of the UAB without appreciating the proceedings that took place before the AAB and the RAS.

If those proceedings included a denial of procedural fairness, then how the UAB addressed that denial must form a part of my review of the decision of the UAB. [ 22 ] The same approach was taken by Justice Jones in Karri v University of Calgary , 2021 ABQB 117 at paras 171-175 : [171 ] This brings me to the second, and thornier, question, namely the scope of my review. The Respondent states as follows in its brief: This is an Application for judicial review of the GFC Decision.

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

[173] I agree that it is necessary for me to examine the entire process. Assessing the fairness of the procedure that led to the GFCSAAC Decision requires consideration of the process leading to the FGS Decision and the FAC Decision. [174] To look at the GFC SAAC Decision in isolation would be, in my view, an overly myopic perspective. I am concerned that such a“silo” approach would permit any unfairness in the antecedent processes to be obscured and propagated. [175] Ultimately, the issue in these matters is whether the party affected by the decision in question was afforded procedural fairness.

Ido not see how that issue can be meaningfully assessed without taking into account the entirety of the proceedings. E. Issues [23] Arising from Dr. Cantos’ originating application and from her submissions on this application, the questionbecomes whether the UAB erred, in its own proceedings or in reviewing the proceedings below, in relation to the following issues: 1. Was Dr. Cantos denied procedural fairness in relation to the disclosure of documents? 2. Was Dr. Cantos denied procedural fairness because she was not advised of the case that was being alleged against her? 3. Was Dr.

Cantos denied procedural fairness because the tribunals did not consider relevant evidence or submissions? [24] The fourth issue is this: 4. If Dr. Cantos was denied procedural fairness, what is the appropriate remedy? [25] Not under review here is the propriety or fairness of the various policies and procedures by which theseproceedings have taken place. Dr. Cantos attacks the fairness with which the University conducted the proceedings under the policiesand procedures; she does not attack the policies or the procedures themselves. F.

Standard of review [26] There is no dispute that procedural fairness, being an element of natural justice, is to be reviewed on thestandard of correctness. In considering whether Dr.

Cantos was treated with procedural fairness, I take guidance from the followingdecisions. [27] In Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 atpara 25, Justice L’Heureux-Dubé cited the following remarks of Justice Dickson (as he then was) in Kane v Board of Governors of theUniversity of British Columbia, (SCC), [1980] 1 SCR 1105 at 1113: [25] … A high standard of justice is required when the right to continue in one’s profession or employment is at stake. … A disciplinarysuspension can have grave and permanent consequences upon a professional career. … [28] In Yao v University of Saskatchewan, 2014 SKQB 184 at paras 11-12, Justice Allbright said (in remarksadopted by Justice Gabrielson in Zhu v University of Saskatchewan (College of Medicine), 2020 SKQB 308): [11] The University of Saskatchewan, established and governed by The University of Saskatchewan Act, 1995, S.S. 1995, c.

U-6.1, isa public university and it is well established that such a public university must act fairly in accordance with principles of natural justicewhen assessing a student and in making decisions that affect the student’s standing and status in the university. This overarching duty ofprocedural fairness includes the right to be heard and the right to an unbiased assessment of a student's performance within theuniversity. [12] In this instance, I am of the view that the College’s decision affecting the status of Mr.

Yao, by in essence failing him in themiddle of the fourth and final year of his studies, is a drastic administrative action and attracts the requirement for a high standard offairness in the actions of the decision makers. [29] In Akpan v The University of Saskatchewan Council, 2021 SKCA 129, Justice Barrington-Foote said atparagraphs 20 to 23: [20] … The Court summarized the standard of review that applies when the alleged error relates to a breach of procedural fairness inKupsar [2020 SKCA 142, 474 CRR (2d) 285]: [37] ...The standard of review relating to an alleged error of that kind is described in Saskatchewan as correctness: Mercredi vSaskatoon Provincial Correctional Centre, 2019 SKCA 86 at para 26, [2020] 4 WWR 212 [Mercredi]; Risseeuw v SaskatchewanCollege of Psychologists, 2019 SKCA 9 at paras 63-64, [2019] 2 WWR 452; Eagle’s Nest Youth Ranch Inc. v Corman Park (RuralMunicipality), 2016 SKCA 20 at paras 21-26, [2016] 7 WWR 35; Saskatoon (City) v Amalgamated Transit Union, Local 615, 2017SKCA 96 at paras 24-32, [2018] 4 WWR 822; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR339.

In substance, that means an appeal court must determine whether the procedure at issue was fair in the circumstances. [21] Mercredi v Saskatoon Provincial Correctional Centre, 2019 SKCA 86 at paras 26-29, [2020] 4 WWR 212 [Mercredi]; and Fengv Saskatchewan (Economy), 2020 SKCA 6 at paras 43-46, 70 Admin LR (6th) 237 [Feng], also discuss this standard. Both alsoemphasize that in deciding what is fair in the circumstances, “[t]he ultimate issue is always whether the process accords with theunderlying values reflected by the duty of fairness” (Mercredi at para 29; Feng at para 45).

Further, Kupsar, Feng and Mercredi all

affirm that determining the content of the duty calls for a contextual analysis. As the Court said in Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 at para 77, 441 DLR (4th) 1 [Vavilov], “the duty of procedural fairness in administrative law is‘eminently variable’, inherently flexible and context-specific”. In Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at paras 21-28, the Supreme Court listed five non-exhaustive factors that inform the content of theduty. In Phillips Legal Professional Corporation v Vo, 2017 SKCA 58 at para 122, [2017] 12 WWR 779 [Vo], Ottenbreit J.A.summarized those factors as follows: ...(

i) the nature of the decision being made and the process by which it is made; (ii) the nature of the statutory scheme and the role of theparticular decision within it; (iii) the importance of the decision to those affected; (iv) the legitimate expectations of the personchallenging the decision; and (

v) the choices of procedure made by the agency itself. [22] Here, there was a failure to comply with a prescribed procedural rule. However, such a failure – even if the rule is prescribed bystatute – is not always fatal: Potter v Halifax Regional School Board, 2002 NSCA 88 at paras 116-121, leave to appeal to SCC refused[2003] 1 SCR xv; Oates v Royal Newfoundland Constabulary Public Complaints Commissioner, 2003 NLCA 40, 231 DLR (4th) 648;Canadian Tire Corporation Ltd. v Regina (City) Board of Revision, 2001 SKQB 496, 212 Sask R 142; Robertson v Edmonton (City), (AB KB), [1990] 4 WWR 232 at 242-245.

The decision as to the effect of non-compliance has often been made bydistinguishing provisions that are mandatory from provisions that are directory. In M & D Farm Ltd. v Manitoba Agricultural CreditCorp., (SCC), [1999] 2 SCR 961, Binnie J. explained this distinction: [44] The distinction is well established between legislative provisions that are mandatory (in the sense that non-compliance results ininvalidity) and directory (where non-compliance may in certain circumstances be relieved against): Reference re Manitoba LanguageRights, (SCC), [1985] 1 S.C.R. 721, at p. 737.

In determining whether a statutory directive is mandatory or directory,this Court must be guided by the object of the statute and the effects of ruling one way or the other: British Columbia (Attorney General)v. Canada (Attorney General);

An Act respecting the Vancouver Island Railway (Re), (SCC), [1994] 2 S.C.R. 41 at pp.123-24. Indeed, these are the most important considerations: Blueberry River Indian Band v. Canada (Department of Indian Affairs andNorthern Development), (SCC), [1995] 4 S.C.R. 344, per McLachlin J., at para. 42. [23] See, to the same effect, Merchant v Law Society of Saskatchewan, 2014 SKCA 56 at paras 110-112, [2014] 6 WWR 643;Canada v South Yukon Forest Corporation, 2012 FCA 165 at para 63, 431 NR 286; and United Food and Commercial Workers, Local1400 v Affinity Credit Union, 2019 SKQB 236 at paras 13-20, 310 LAC (4th) 49.

Sara Blake, Administrative Law in Canada, 6th ed(Toronto: LexisNexis, 2017) at 10, offers the following helpful comments on this issue: ¶2.16 Some prescribed procedures must be followed strictly while others are flexible. Which procedural rules are mandatory? A rulemay be prescribed as something that “shall” be done or “may” be done.

Interpretation Acts state that “may” is to be construed aspermissive while “shall” must be construed as imperative.

However, the courts sometimes construe “shall” or “must” as being notmandatory and some doubt the usefulness of the traditional distinction between rules that are mandatory, which must be followed, andthose which are directory and may be waived. ¶2.17 The procedural choices in a specific case should reflect the statutory purposes of the proceeding and of the procedural requirementand should ensure that each party has a fair opportunity to be heard consistent with the significance of the effect of the decision on thatparty.

If non-compliance with a procedural rule is likely to cause prejudice to a party's right to be heard and if important interests of theparty are at stake, compliance with the rule may be mandatory. Prejudice must be proven with evidence as it cannot be assumed simplyfrom proof of non-compliance with the rule. Conversely, the public interest and statutory purposes should not be defeated by overly strictadherence to procedural rules. Common sense should be applied. (Footnotes omitted) [30] From these decisions I draw the following instruction, which I will apply in this matter: (

a) The dismissal of Dr. Cantos from the program has a severe effect on her career. Consequently, a high standard of procedural fairnessapplies to the process. (

b) The fundamental question before me is whether the procedure was fair in the circumstances. (

c) A consideration of whether in this case there was a breach of procedural fairness – whether the procedure was fair in thecircumstances – will include a consideration of: ...(

i) the nature of the decision being made and the process by which it is made; (ii) the nature of the statutory scheme and the role of theparticular decision within it; (iii) the importance of the decision to those affected; (iv) the legitimate expectations of the personchallenging the decision; and (

v) the choices of procedure made by the agency itself. (

d) Determining whether a procedural requirement in the governing policies and procedures is mandatory or directory will be aided byan examination of the relevant provisions of those policies and procedures, to ascertain the object of the provisions and the effects ofruling one way or the other, along with a consideration of whether a breach of a particular requirement resulted in prejudice to Dr.Cantos. G. The university context [31] This matter differs from many other judicial review matters. The difference arises from the circumstance thatDr. Cantos is a student of a university.

Chief Justice Richards addressed the university context in Taheri v Buhr, 2021 SKCA 9 atparas 30, 32-33, 456 DLR (4th) 306: [30] For my part, it seems most helpful to begin with the point, confirmed by the Supreme Court of Canada in Young v Bella, 2006SCC 3 at para 51, [2006] 1 SCR 108, that the relationship between a student and a university has a contractual footing. By virtue of that

relationship, a student impliedly agrees, by enrolling in a university, to accept the university’s determinations with respect to a range of academic matters, including, most obviously, the assessment of the student's work and the organization and presentation of academic programing. This notion is statutorily reinforced, at least with respect to the University of Saskatchewan, by the terms of The University of Saskatchewan Act, 1995 , SS 1995, c U-6.1 [ Act ]. Section 61(1) of that Act authorizes the University council to: (

c) grant academic degrees, diplomas and certificates of proficiency; (

d) grant scholarships, prizes, fellowships, bursaries and exhibitions; ... (

f) prescribe curricula, programs of instruction and courses of study in colleges, schools or departments; (

g) prescribe methods and rules for evaluating student performance, including prescribing examination timetables and the conduct of examinations; (

h) discipline students for academic dishonesty, including admonishing, dismissing, suspending or expelling students or imposing fines; (

i) prescribe academic and other qualifications required for admission as a student; (

j) hear appeals by students or former students concerning academic decisions affecting them; (

k) prescribe dates for beginning and ending lectures; (

l) prescribe and limit the number of students who may be admitted to a college or a program of study; ... … [ 32 ] Some of the cases in this area appear to see all of this as being a matter of jurisdiction in the strict sense of that term. See, for example: Albu [2019 BCCA 222] at para 14; and Green [2015 MBCA 109 , 323 Man R 157 ] at para 31. It may be more appropriate, however, to see it as being one of deference. See: Al-Bakkal [2016 MBQB 45 , [2016] 10 WWR 706 ] at paras 56 et seq .

In other words, the point is not that a superior court has no jurisdiction to entertain a claim against a university or a professor if the claim involves an academic issue. Rather, the courts have chosen not to exercise their jurisdiction in respect of such matters. [ 33 ] None of this means, of course, that the internal decision-making of a university in relation to student and academic matters is wholly beyond the reach of the courts.

The law of judicial review ensures the fairness and the regularity of internal university processes. [32] In its presentation to the UAB in this matter, the University emphasized this difference while acknowledging the need for procedural fairness. In its decision the UAB summarized the University’s explanation of the context of Dr. Cantos’ residency and dismissal: On behalf of the Respondent, Dr. Duda provided an overview of the Program, explaining that it is a busy five-year surgical residency program that requires quick acquisition and synthesis of knowledge.

They explained that in Obstetrics, five minutes can make a significant difference in terms of patient outcomes. It is a fast-paced and high-risk environment with exposure to many challenging cases. As is the case with all residency programs, there is the expectation of a progression towards independence as residents gain skills and knowledge. Dr. Duda noted that the Appellant was dismissed from the Program as a PGY4 after two modified learning plans, remediation, and probation.

As a PGY4, it is the expectation that a resident be able to manage the Labour and Delivery floor at near independence and see 10-12 patients in a day. At the end of her time in the Program, the Appellant was seeing 3-4 patients a day and was making potentially dangerous errors that could lead to poor patient outcomes. The Respondent assessed the Appellant’s level of competences as closer to a PGY2 or PGY3, but not a PGY4. … Upon completion of the six months of structured learning, the Appellant was placed in MFM [Maternal Fetal Medicine] for clinical practice.

In the clinical component, it was clear that there was a lack of reasoning and not just a lack of knowledge. She made errors in the clinical component that could have had significant impacts on patient care and safety. Given these challenges, the Appellant’s probation was extended to a full year (including the six months of structured learning). … Dr. Duda discussed the concerns raised in the submission about accommodation [of Dr. Cantos’ diagnosis]. The Program cannot lower the requirements of training.

An accommodation is implemented to help students meet the requirements, but the existence of a need for accommodation does not change the requirements. … … H. Issue 1: Disclosure of documents [33] Pursuant to the provisions of the Guiding Principles , on filing her appeal to the AAB Dr. Cantos also filed substantial documentation in support of the appeal. The College then filed its written response, including supporting documentation.

[ 34 ] In preparation for the appeal hearing before the AAB, Dr. Cantos asked that the College provide full disclosure of all material and documentation relating to her residency, including all meeting minutes, audio and/or video recordings and written evaluations that were generated over the years. The AAB declined to order such disclosure. Dr. Cantos asserts that this lack of additional disclosure constituted a denial of procedural fairness. [ 35 ] In

summary, the UAB dealt with this issue as follows: (

a) Neither the AAB nor the UAB has the power to order production beyond that specified in the policies and procedures. A party wishing to obtain such an order must seek it from the (then) Court of Queen’s Bench. (

b) More specifically, though, Dr. Cantos had asked for production of recordings of all of her meetings with the goal of determining whether the minutes of meetings were accurate. She was interested in the accuracy of the minutes because she wished to explore whether the RAS had considered the option of extending her probation or had considered remediation. She wondered also about whether her medical diagnosis had been discussed at meetings and how it had affected the RAS decision. She suggested (presumably with reference to the Mandate of the AAB, set out above at paragraph 11) that the AAB’s final conclusion may have been different if it had had such recordings. (

c) The evidentiary value of such recordings would not have been “particularly significant”. The participants in the meetings had confirmed the accuracy of the minutes, which were detailed. (

d) In any event, the Guiding Principles provide that probation may not exceed 12 months in duration, and in April 2021 Dr. Cantos’ probation had reached 12 months in duration. (

e) Furthermore, it was not in issue that the RAS did not discuss extending the probation, and it was not in issue that the RAS did not discuss Dr. Cantos’ medical diagnosis. For these reasons, too, there was no relevance to the requested recordings. The College’s failure to produce such recordings was not a significant procedural failure. [ 36 ] The matter of procedural fairness on this issue is influenced by the nature of the proceedings. The issues on the appeal were identified by Dr. Cantos, both by way of her notice of appeal and by way of her supporting documentation.

With her notice of appeal and supporting documentation she established the case that the College was to meet on the appeal. The College filed its response and supporting documentation to meet that case. [ 37 ] These steps, which are set out in the policies and procedures, establish a clearly delineated appeal process. The appeal process is not akin to a civil court action, where the scope of document production is much broader. In general terms, then, the AAB’s decision not to order further production by the College was procedurally fair.

The decision was consistent with both the overall nature of the appeal process and the specific provisions of the policies and procedures that dictate the discrete steps of the appeal process. [ 38 ] Furthermore, the specific reasons advanced by Dr. Cantos for wishing to have meeting recordings was addressed fairly by the UAB. There was no unfairness about the UAB’s conclusion that nothing was to be gained through production of such recordings. There was no procedural unfairness in the AAB’s decision or in the UAB’s decision in that respect. I. Issue 2: Notice of the case that was being alleged [ 39 ] Dr.

Cantos asserts that she has not had notice of the case against her, in two respects. [ 40 ] First, she says that the April 2021 termination letters did not include any clear explanation of her alleged deficiencies as a resident. Second, the outcome of her probation was not discussed with her. In fact, she says that even today she remains unaware of the shortcomings that led to her dismissal from the program. [ 41 ] As set out above, the policies and procedures emphasize that a student may not appeal an academic decision itself. In this case, Dr.

Cantos may not appeal on the basis that the decision to dismiss her was wrong. The tenor of the policies and procedures includes emphasis, though, on the entitlement of a student to procedural fairness. In this case, Dr. Cantos was entitled to know what were the deficiencies in her performance that led to her dismissal, and she was entitled to an opportunity to make submissions in the review process so that her perspective was considered. [ 42 ] Here Dr. Cantos says that she did not know – and still does not know – what were the deficiencies in her performance that led to her dismissal.

Consequently, she says, she did not have the opportunity to make submissions in the process so that her perspective was considered. [ 43 ] In

summary, the UAB dealt with this issue as follows: (

a) The Guiding Principles require a “final report” to be discussed verbally and provided in writing to the resident: Part B: Policies and Procedures for the Assessment of Postgraduate Trainees … Probation Policies … 6. At the end of a period of probation, the RAS must review all relevant information pertaining to the resident’s performance and make a decision as to the outcome of the probationary period. The resident must have reviewed all the information considered in determining the outcome of the probationary period. The final report will be discussed verbally and provided in writing to the resident and the report will

be sent to the Associate Dean, Postgraduate Medical Education. This report must be reviewed with the resident and should indicate theoutcome of the probation period. … [Emphasis (underlining) in original; emphasis (italics) added] (

b) The April 8, 2021 and April 16, 2021 letters summarized the concerns with Dr. Cantos’ performance, giving her a clearunderstanding of the incidents and issues that led to the RAS decision. (

c) In any event, the lack of greater detail in the letters would not have affected the decision of the AAB. (

d) Little was addressed, before the UAB, regarding the College’s failure to engage in a discussion with Dr. Cantos about the reasonsfor her dismissal. In any event, this technical breach of the probation procedures was not a significant procedural failure. [44] Two broad questions arise. The first is the overarching question of whether Dr. Cantos knew the concerns withher performance, so that she could respond to those concerns. The second question is whether an inadequacy in the April 2021 letters, orthe failure to discuss them with Dr. Cantos, was fatal to the process. [45] As to whether Dr.

Cantos knew the deficiencies in her performance that led to her dismissal, the evidenceestablishes that she did know. Even before the April 7, 2021 RAS meeting she knew, because it was happening to her, that she had beenstruggling in the residency program from the beginning, including the period of her probation.

She knew, for example, that: - in 2015 the College placed her on a knowledge-based modified learning plan; - in 2018 the College decided to place her on remediation, which she began in 2019; - in early 2020 the College suspended her participation in clinical duties, while it developed a probation plan for her; - in April 2020 she began the probation plan; - in December 2020, after Dr.

Cantos had begun the phase two clinical rotations in November 2020, the College extended theconclusion of that clinical rotation phase from December 2020 to April 2021; and - in February 2021 the College added a professionalism component to the probation plan. [46] These events in Dr. Cantos’ residency experience were the subject of discussion and meetings in which sheparticipated, many of which are documented in the documentation that she filed on her appeal to the AAB (and that is before me on thisreview).

That documentation includes documents that specify the concerns that the College had with her performance as a resident,including references to poor judgment and risk to patient safety. Dr. Cantos simply cannot have been unaware of the concerns and oftheir seriousness. [47] Dr. Cantos also argues that at no point in the process did she have a meaningful opportunity to respond to theallegations being made against her, or to respond to the evidence and documents being relied on by the University.

In fact, setting asideher having made a modest submission to the RAS before its April 7, 2021 meeting, in the appeal proceedings before the AAB she wasrepresented by counsel and she made both written and oral submissions. Likewise, before the UAB she was represented by counsel andshe made both written and oral submissions. In broad terms, then, her argument that she did not have an opportunity to be heard does notaccord with what happened.

She also points to some specific instances, which I address below. [48] As I have said, the second question on this issue is whether an inadequacy in the April 2021 letters, or thefailure to discuss them with Dr. Cantos, was fatal to the process. While the UAB concluded that the April 2021 letters were sufficient toconstitute the “final report” that is required by the Guiding Principles, Dr. Cantos accurately observes that neither letter sets out detail ofthe concerns that led to her dismissal.

Too, there is no dispute that the discussion described in the Guiding Principles did not take place. [49] This leads to an examination of the nature of those requirements – whether one or both is mandatory rather thandirectory. I return to the observation of Sara Blake, quoted by Justice Barrington-Foote in Akpan, at para 23: ¶2.17 The procedural choices in a specific case should reflect the statutory purposes of the proceeding and of the procedural requirementand should ensure that each party has a fair opportunity to be heard consistent with the significance of the effect of the decision on thatparty.

If non-compliance with a procedural rule is likely to cause prejudice to a party's right to be heard and if important interests of theparty are at stake, compliance with the rule may be mandatory. Prejudice must be proven with evidence as it cannot be assumed simplyfrom proof of non-compliance with the rule. Conversely, the public interest and statutory purposes should not be defeated by overly strictadherence to procedural rules.

Common sense should be applied. [50] Also applicable is the observation of Justice Binnie at paragraph 44 in M & D Farm Ltd. v ManitobaAgricultural Credit Corp., (SCC), [1999] 2 SCR 961 (quoted above by Justice Barrington-Foote in Akpan): … In determining whether a statutory directive is mandatory or directory, this Court must be guided by the object of the statute and theeffects of ruling one way or the other .… [51] At the outset, I am not persuaded that the April 2021 letters were insufficient to constitute the “final report”required in Clause 6.

The April 8, 2021 letter included the following: … the RAS determined that there were significant concerns about your progress during the Probation Period, and that you failed theProbation Period.

The RAS concluded that despite an extended Probation Period, you are not performing at the level of a PGY4 and determined that further probation is not appropriate in the circumstances. … [ 52 ] In that letter, then, Dr. Cantos was told that the reason for the dismissal was that she had failed the probation plan in that she was not performing at the required level. I am not prepared to read Clause 6 of the Probation Policies (quoted above at paragraph 43) as requiring an in-depth review of the residency.

Rather, I conclude that the “final report” requirement was met by virtue of the reason for the dismissal (inadequate performance) being identified, so that Dr. Cantos knew that her performance was the reason, and that she was not being dismissed for some other reason ( e.g. , misconduct). [ 53 ] In any event, I conclude that an object of Clause 6 is to ensure that the resident knows what the RAS decided and knows the reasons for the decision. As I have said, Dr. Cantos knew the reasons for the decision to dismiss her from the program.

Therefore, even if the April 2021 letters were insufficient to constitute a proper “final report”, Dr. Cantos was not prejudiced by that insufficiency because the purpose of the letters had been met. Dr. Cantos knew that she had been dismissed from the program, and she knew the reasons for the dismissal. Similarly, the failure to discuss the “final report” with Dr. Cantos did not cause her any prejudice because she knew that she had been dismissed and the reasons for the dismissal. [ 54 ] Dr. Cantos received written notice of her dismissal, including the reason for the dismissal.

For the above reasons, I conclude that the extent of detail that was to be included in the “final report” is directory. Likewise, I conclude that the discussion of the report is directory. In both instances, given the circumstances, no prejudice arose from a lack of greater detail, so that the lack did not amount to a breach of procedural fairness. [ 55 ] In this case, there was no procedural unfairness in how Dr. Cantos was notified of her dismissal, because the object of Clause 6 was met. On being dismissed, she needed to know that she had been dismissed and why she had been dismissed.

She knew both. [ 56 ] There was no denial of procedural fairness in this regard. J. Issue 3: Consideration of relevant evidence and submissions [ 57 ] Dr. Cantos asserts that she was denied procedural fairness in that relevant evidence and submissions were not considered by the tribunals.

This occurred, she says, because relevant information was not put before the RAS and because she was prevented at the AAB and the UAB appeals from filing certain evidence and from making certain submissions. [ 58 ] Specifically, she identifies the following: 1. incomplete information was provided to the RAS; 2. the UAB refused to permit her to submit new evidence; 3. the AAB refused to permit her to respond to the College’s submissions; and 4. the RAS or the AAB did not consider her allegations of bias, discrimination, late assessments and problems with accommodation. 1.

Incomplete information provided to the RAS [ 59 ] Dr. Cantos observes that, although the Guiding Principles provide that the RAS was to have reviewed “all relevant information” regarding Dr. Cantos, in fact there were two categories of documents that were not provided to the RAS. The circumstances are set out in this

summary of how the UAB dealt with this issue: (

a) The Guiding Principles provide that the RAS is to have all relevant information pertaining to a resident’s performance: Part B: Policies and Procedures for the Assessment of Postgraduate Trainees … Probation Policies … 6. At the end of a period of probation, the RAS must review all relevant information pertaining to the resident’s performance and make a decision as to the outcome of the probationary period. … [Emphasis (italics) added] (

b) The College did not submit to the RAS: (

i) certain emails; or (ii) the RAS meeting minutes regarding phase one of Dr. Cantos’ probation. (

c) The mandate of the AAB – as quoted at paragraph 11 of this judicial review decision – included assessing the magnitude of any “process irregularity”: … The presence of a process irregularity alone will not necessarily mandate overturning the decision under appeal. The irregularity must be of sufficient magnitude to have, or likely have, meaningfully influenced the decision being appealed or the performance of the

resident that led to the decision. (

d) The failure to submit the emails and minutes did not amount to a significant procedural error, because: (

i) Previously Dr. Cantos had raised concerns about the content of those emails, saying that the feedback in them was not timely and differed from what had been relayed to her verbally. Consequently the College had decided to not provide those emails to the RAS, to be fair to Dr. Cantos given her objections to them. That decision was appropriate and fair. (ii) The discussions regarding phase one of Dr. Cantos’ probation were not relevant to the April 7, 2021 RAS meeting. Dr. Cantos had passed phase one, and phase one (knowledge building) was not the subject of the discussion at the meeting.

The subject of the discussion at the meeting was Dr. Cantos’ performance in phase two (clinical) of the probation. [ 60 ] For the reasons expressed by the UAB, I agree that these instances do not constitute Dr. Cantos having been denied procedural fairness. Not providing the emails to the RAS was fair to Dr. Cantos, given her objections to them. Had the emails been provided to the RAS, it is a reasonable expectation that she would have asserted that doing so was unfair because of the objections that she had expressed earlier. As well, given Dr.

Cantos’ objection that the content of the emails was untimely and inaccurate, the emails fairly may be characterized as not relevant within the meaning of Clause 6. [ 61 ] As to the phase one discussions, the UAB was correct in concluding that the subject of the discussion on April 7, 2021 was Dr. Cantos’ performance in phase two (clinical). It was her performance in that phase that was being evaluated, not her performance in phase one or in any other contexts. The phase one discussions were not relevant to the decision that was being made on April 7, 2021. [ 62 ] Dr.

Cantos was not denied procedural fairness in this regard. 2. UAB refusal to permit new evidence [ 63 ] On her appeal to the UAB, Dr. Cantos asked permission to file, as new evidence, a letter from Dr. Chizen. In

summary, the UAB dealt with that request as follows: (

a) As set out in the University’s Procedures for Student Appeals in Academic Matters ,

Part V – B. University Level Appeal – 4. Appeal Procedure – Clause (d)(i): … Unless it could not have been reasonably presented at the initial hearing, and that evidence would have likely affected the decision of the original hearing, no new evidence will be considered at the appeal hearing. … (

b) Dr. Cantos argued that the letter was provided to her after the AAB hearing, so that it could not have been filed earlier, and that it contained corroborative evidence of her experiences in the program. Thus, she asserted, the evidence likely would have affected the AAB’s decision. (

c) The letter, though, reasonably could have been put before the AAB. Dr. Chizen was Dr. Cantos’ mentor. The letter could have been drafted at any time. No convincing reason was provided as to why it was not sought or provided prior to the AAB hearing. (

d) Furthermore, the letter would not likely have affected the AAB’s decision. First, a number of the interactions described in the letter were based on Dr. Cantos’ reports to Dr. Chizen – that is, for those items the letter simply reported what Dr. Cantos had reported, as opposed to reporting observations of Dr. Chizen. Second, other portions of the letter appeared to corroborate some of what Dr. Cantos said at the AAB hearing, but there was not anything “new or of particular significance that would likely have affected the AAB’s decision.” [ 64 ] On her appeal to the UAB, Dr. Cantos also asked permission to file, as new evidence, a letter from Dr. Kemp-Koo. In

summary, the UAB dealt with that request as follows: (

a) The letter was dated April 11, 2021, and the AAB hearing took place on December 22, 2021. Ms. Cantos explained that she did not request a copy of the letter until after the AAB hearing, but she did not explain why she did not request it prior to the AAB hearing. Thus the letter could have been obtained and filed at that hearing. (

b) In any event, the letter relates to Dr. Cantos’ medical diagnosis. As discussed above, it would not have been relevant to the matter of Dr. Cantos’ having met the program requirements, and so it was not likely to have affected the AAB decision. [ 65 ] For the reasons described by the UAB, I conclude that the refusal to permit the new evidence in both instances was correct and fair. Dr. Cantos was not denied procedural fairness in that regard. 3. AAB refusal to permit response to College submissions [ 66 ] As I have noted, the procedure on Dr.

Cantos’ appeal to the AAB began with her filing a notice of appeal and supporting documentation. The College then filed its response to the notice of appeal, along with its supporting documentation. Dr. Cantos then asked permission to file a written response to the College’s response. The AAB refused to grant that permission. Dr. Cantos asserts that the refusal constituted a denial of procedural fairness. [ 67 ] In

summary, the UAB dealt with this issue as follows: (

a) The Guiding Principles provide that, in filing an appeal to a board such as the AAB, a resident must attach any supporting documentation respecting the grounds of appeal. (

b) In her appeal to the AAB, Dr. Cantos had filed such supporting documentation and, as provided in the Guiding Principles , the

College then filed material in response to her notice of appeal. (

c) The Guiding Principles provide that further submissions are to be made only in “very exceptional circumstances”: Part D: Appeals … Process for Appeal … 7. Neither the resident nor program representative or their accompanying persons may: 7.1 Introduce new allegations to the committee not included in the prior documentation and distributed to both parties. Except in very exceptional circumstances, new information should not be brought to the committee once the committee has convened. … (

d) Dr. Cantos asked the AAB to permit her to submit further written submissions, in reply to the College’s written submissions, on the basis that the College’s submissions included documents that had not previously been disclosed to her. (

e) The AAB refused to allow Dr. Cantos to submit such further written submissions. (

f) The AAB, however, did allow Dr. Cantos to make submissions regarding certain minutes that were among the College’s documents, and the AAB granted Dr. Cantos the opportunity to make full oral submissions at the AAB hearing. The AAB also allowed Dr. Cantos to file written “talking points” (consisting of 14 pages of typewritten notes) at the hearing. (

g) These were not “exceptional circumstances” in which the AAB ought to have allowed Dr. Cantos to file additional written submissions. Denying her request did not constitute a procedural error, and therefore did not constitute a significant procedural error. [ 68 ] The AAB decision accorded the provisions of Clause 7. It was within the tribunal’s discretion to determine that Dr. Cantos’ request to file a written response did not fall under “very exceptional circumstances”. [ 69 ] Furthermore, while Dr.

Cantos was not permitted to file a formal written request, she was permitted to file the lengthy “talking points”, and she was permitted to respond to the College’s response in oral submissions. There is no sense of unfairness about that process. In the end, she was given the opportunity to address the College’s arguments, and she did so. [ 70 ] Dr. Cantos also points to the circumstance that the appeal hearing before the AAB was limited to three hours, with Dr. Cantos limited to one hour to make her submissions. This, she says, constituted a denial of procedural fairness. I do not accept that it is so.

It is not unusual for proceedings in courts and other tribunals to incorporate time limitations. Two examples of such courts are this court and the Supreme Court of Canada. Dr. Cantos has not established that the time limitation before the AAB was unfair, either in principle or specifically to her. [ 71 ] Dr. Cantos was not denied procedural fairness in this regard. 4. Consideration of allegations of bias, discrimination, late assessments, problems with accommodation [ 72 ] Dr.

Cantos says that the AAB did not consider her allegations that in the course of her residency she had experienced bias, discrimination, late assessments and problems with the accommodation of her diagnosis. [ 73 ] In

summary, the UAB addressed this assertion as follows: (

a) As to the allegations of bias and discrimination, the AAB had in fact considered the allegations and had concluded that there was no evidence of bias or discrimination. (

b) As to the allegation of late assessments, at paragraph 8(a)(

i) of its decision the AAB addressed those allegations and concluded that the College had responded to those concerns early in the clinical portion of the probation. (

c) As to the allegation of problems with accommodation of Dr. Cantos’ diagnosis, the accommodation program was not within the purview of the RAS. The RAS’s role was to make a decision as to Dr. Cantos’ performance during the probation period. A different committee had the jurisdiction to address the accommodation program. Therefore there was no procedural error in not addressing the accommodation program. In any event, the standard of performance for a resident cannot be lowered due to factors such as accommodations for diagnoses or other accommodations.

Though accommodations may be implemented, a resident still must meet the standard of performance. [ 74 ] These conclusions were open to the UAB to reach, and there is no sense of procedural unfairness about them. A failure to consider a legitimate argument typically constitutes procedural unfairness, but the record establishes that no such failure occurred here.

Each of the allegations regarding bias, discrimination and late assessments was considered and dealt with. [ 75 ] As well, the UAB was correct in ruling that a decision as to whether a resident has passed a probation plan is not affected by accommodations that have been afforded to the resident. Accommodations are aimed at assisting a resident in achieving academic goals. Accommodations do not lower the standard for achieving the goals. [ 76 ] Dr. Cantos was not denied procedural fairness in this regard.

K. Conclusion as to procedural fairness [ 77 ] In this decision I have examined each of the instances pointed to by Dr. Cantos, to determine whether it reveals a case of denial of procedural fairness. I have concluded that none of the instances falls into that category. [ 78 ] I consider also the proceedings as a whole, and I ask whether the proceedings as a whole were fair to Dr. Cantos. Specifically I ask whether Dr.

Cantos knew the concerns that led to her being dismissed from the program, whether she knew the information on which that dismissal decision was based, whether she had an opportunity to affect and change that decision by making submissions, and whether the decision-makers heard and considered her perspective. The answer to each of these questions is yes. [ 79 ] I conclude, then, that Dr. Cantos was not denied procedural fairness at any level of the proceedings. Accordingly, the UAB did not err in failing to find such a denial by the RAS or the AAB, and the UAB itself did not deny procedural fairness to Dr.

Cantos. L. Issue 4: Remedy [ 80 ] As I have concluded that there was no breach of procedural fairness in the proceedings, it is not necessary to address a remedy. M. Costs [ 81 ] As the successful party on this application, the University will have the costs of the application. Given the level of complexity involved in the application, costs under Column 2 are appropriate. N. Conclusion [ 82 ] Dr. Cantos’ application is dismissed with costs under Column 2. “G.M. Currie” J. G.M. CURRIE