) ) DR. RAYMOND EVANGELISTA Applicant – v. –, 2017 ONSC 2513

CITATION : Evangelista v. University of Toronto, 2017 ONSC 2513 DIVISIONAL COURT FILE NO.: 482/16 DATE: 20170505 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, LINHARES de SOUSA, and SPIES JJ. BETWEEN: ) ) DR. RAYMOND EVANGELISTA Applicant – and – UNIVERSITY OF TORONTO Respondent ) ) ) ) ) ) ) ) ) Jordan Goldblatt , for the Applicant Robert Centa and Emily Lawrence , for the Respondent ) ) ) HEARD at Toronto: April 18, 2017 SPIES J. INTRODUCTION [ 1 ] This is an application for judicial review, brought by the applicant, Dr.

Raymond Evangelista, of a decision of the Academic Appeals Committee of the Governing Council of the University of Toronto (the “Appeals Committee”), dated April 28, 2016 (the “Appeal Decision”), which affirmed the decisions of the Academic Appeals Committee of the University of Toronto Faculty of Medicine (the “Faculty Appeals Committee”) and of the Board of Examiners Postgraduate Programs (“Board of Examiners”), to dismiss Dr. Evangelista from the University of Toronto’s Anesthesia Residency Program in the Faculty of Medicine. The decisions held that Dr.

Evangelista failed to achieve the requirements of a Remediation Plan intended to rectify his deficient performance as an anesthesia resident. [ 2 ] Dr. Evangelista argues that the Appeals Committee was unreasonable in not recognizing that there were multiple deficiencies in the implementation of the Remediation Plan that made it manifestly unfair. He asks that the decision of the Appeals Committee be set aside. [ 3 ] The Respondent, the University of Toronto (“UofT”) argues that the Appeals Committee’s decision was reasonable and that Dr.

Evangelista had not established that any deficiencies in the remediation process negatively affected or prejudiced him and asks that this application be dismissed with costs. [ 4 ] For the reasons that follow, I have determined that the findings and ultimate decision made by the Appeals Committee were entirely reasonable and there is no basis for this Court to interfere with the decision to dismiss Dr. Evangelista’s appeal. [ 5 ] BACKGROUND [ 6 ] The Applicant is an international medical graduate.

He was a certified anesthetist in the Philippines and was accepted into the second year of the Anesthesia Residency Program at the UofT in 2009 through a Specialist Pathway program. [ 7 ] Dr. Evangelista successfully completed the second and third year of the residency program. However, by year four, the Faculty of Medicine (“Faculty”) identified that he had gaps in knowledge and decision-making skills. He also experienced both personal and medical difficulties in the fourth year. In October 2012, he was placed on his first six-month Remediation Plan.

This Plan was extended for a further four months until September 2013. The Board of Examiners postponed its deliberations on next steps when Dr. Evangelista raised personal and medical circumstances and he was placed on a medical leave from September 2013 to May 2014. The Appeals Committee correctly found that this history was not relevant, save that it established that Dr. Evangelista was familiar with remediation plans and the Faculty had made previous attempts to support him in completing the program. [ 8 ] Once it was confirmed that Dr.

Evangelista’s personal and medical concerns had been addressed, the Board of Examiners placed Dr. Evangelista on a third Remediation with Probation period, which is the subject of this application.

[ 9 ] The Program Director of the Department of Anesthesia sent a “Request for Remediation” dated April 16, 2014 to the Board of Examiners.

The document contained a Remediation Plan “for 6 months, from May 5 to October 3, 2014.” [ 10 ] The Remediation Plan was to focus on the following goals and objectives: 1. achieve a grade of 3 (meets expectations) or higher in the areas of medical expert, communicator, and manager in 90% of the written evaluations in the final three months of the remediation period and achieve a grade of 3 or higher in the area of overall rating in 90% of those evaluations; 2. achieve an overall rating of “satisfactory” on Reflection on Encounter Forms evaluating sessions with a communications counselor, Dr.

Dawn Martin; and 3. achieve an overall average score of greater than 65% correct across the seven domains of the AKT 24 examination at the end of the period. [ 11 ] The Board of Examiners accepted the Request for Remediation with some modifications which were set out in a letter dated April 24, 2014. The modifications included: 1 . during the five to six week reintegration period that was proposed, a key focus should be whether additional time for readiness is required to refresh knowledge and skill; 2 . as it was not clear what Post Graduate Year (“PGY”) level Dr.

Evangelista was currently performing at, “baseline testing (e.g. written exam, simulator, oral exam) needs to be considered near the start of the remedial period to ensure the correct level is being assessed and that the medical expert efforts can be focused on the identified gaps”; 3 . the communication remediation may benefit from focusing on developing and maintaining trust in patient and collegial relationships, accepting and integrating feedback and effective communication in autonomous practice; and 4 . a request from the Board of Examiners for an interim progress report “in 3 months”. [ 12 ] The consequences to Dr.

Evangelista of an unsuccessful remediation were serious, as the letter concluded with the statement that, at the completion of the six months, options included that Dr. Evangelista be re-integrated into the program, allowed to continue with remediation, with or without probation, or dismissed. [ 13 ] The Request for Remediation indicated that the remediation period was to run for six months. However, in error, the start date was set out as May 5, 2014 and the end date was stated to be October 3, 2014; a period of five months.

Although this error was not noticed until after the decision of the Faculty Appeals Committee, the actual remediation period ran uninterrupted from May 5, 2014 to at least October 26, 2014 – a period of about six months. [ 14 ] The results of Dr. Evangelista’s remediation were presented at the March 27, 2015 Board of Examiner’s meeting. The members of the Board of Examiners are all medical professors and residents. The Faculty recommended Dr. Evangelista’s dismissal due to his failure to achieve the requirements set out in the Remediation Plan.

On March 30, 2015 the Board of Examiners accepted the Faculty’s recommendations. The specific grounds for dismissal were that Dr. Evangelista had: (

i) failed to achieve a grade of 3 or higher during 90% of the evaluations in the last three months; (ii) failed to achieve an overall rating of 3 or higher; and (iii) not reached the satisfactory standard in the communication skills area. [ 15 ] Given the result, Dr. Evangelista never wrote the AKT 24 examination. [ 16 ] Dr. Evangelista appealed the Board of Examiners’ decision to the Faculty Appeals Committee on July 16, 2015. The appeal was dismissed. The Faculty Appeals Committee held that Dr. Evangelista had not substantiated any of the grounds for allowing appeals under the Faculty guidelines.

Specifically, he had not established that the deviations in the actual remediation process from the process outlined in the Remediation Plan constituted a failure to follow Faculty regulations and procedures; that all relevant evidence, specifically with relation to Dr. Evangelista’s personal and medical problems, was not taken into consideration by the Board of Examiners; or that the decision could not be supported by the evidence which was considered when the decision was made. Furthermore, the Faculty Appeals Committee rejected Dr.

Evangelista’s argument that the implementation of the Remediation Plan was so inadequate as to warrant an additional probation period. [ 17 ] Dr. Evangelista then appealed to the Appeals Committee. The appeal was not heard until after Dr. Evangelista returned from another medical leave of absence from December 10, 2014 to March 27, 2015. [ 18 ] The Appeals Committee dismissed the appeal and held that the decision of the Faculty Appeals Committee was not

unreasonable and that the Faculty had provided Dr. Evangelista with ample opportunities to improve and succeed and was now justified in dismissing him from the Anaesthesia Program. The Appeals Committee stated: While the Student Appellant argues that some elements of the remediation plan were not carried out as specified in the Remediation Plan, the individual Remediation Plan is not the equivalent of an academic regulation or policy. It seems inevitable that in a detailed plan that takes place over the course of several months, there will be some deviation from the details set forth in the original document.

The Student Appellant has not established that any of those deviations were so significant as to render the remediation plan invalid. This was the primary finding of the Faculty Appeals Committee, and your Committee [the Appeals Committee] find that conclusion to be reasonable and supported by the evidence. [ 19 ] The Appeals Committee also held that while the Faculty had not made mistakes in the implementation of the Remediation Plan, it had made “immaterial mistakes in communicating” about the Plan to Dr. Evangelista.

However, the Appeals Committee concluded that the substantive goals of the Remediation Plan were met and that Dr. Evangelista should have communicated more effectively, especially as the stakes were so high for him. [ 20 ] In conclusion, the Appeals Committee agreed with “the more expert conclusion” reached by the Faculty Appeals Committee. It found that Dr.

Evangelista failed to reach the standards set out in the Remediation Plan, and, despite “ultimately insignificant administrative errors”, the substantive training and feedback he received during the remediation period were clearly sufficient to meet the objectives of the Remediation Plan and that the Faculty Appeals Committee reasonably concluded, based on the evidence, that Dr. Evangelista’s appeal was not substantiated. STANDARD OF REVIEW [ 21 ] Both parties agree that the standard of review of the Appeals Committee’s decision is reasonableness and that the onus is on Dr.

Evangelista to show the decision is unreasonable. As the Respondent points out, the Appeal Decision should be afforded the highest degree of deference by this Court because its decision was an exercise of discretion, made squarely within the university’s core function and its expertise relating to academic evaluation of its students; see Mulligan v. Laurentian University , 2008 ONCA 523 at para. 20 and Hayat v University of Toronto , 1999 CarswellOnt 3507 (ONCA) at para. 14 .

THE ISSUES ON APPEAL [ 22 ] The Applicant submits that the Appeals Committee’s decision was unreasonable in that it did not recognize that the differences between the approved Remediation Plan and the actual remediation process were so significant that it rendered the entire evaluative process unfair.

In particular, he claims that the Appeals Committee disregarded the evidence before it and the language of the Remediation Plan, that its findings were unreasonable and that it committed five crucial errors with regards to the following issues: 1 . whether the error in the stated end date of the Remediation Plan was manifestly unfair and unreasonable; 2 . whether the Faculty’s failure to administer baseline testing to the Applicant at the beginning of the remediation period undermined the entire remediation process; 3 . whether the late delivery of the Interim Report undermined the Applicant’s ability to ameliorate his performance; 4 . whether the evaluation of the Applicant by a non-evaluating mentor undermined the Remediation Plan; and 5 . whether the Applicant’s communication skills evaluation by a non-physician was unfair. [ 23 ] The Applicant also submitted that the Appeals Committee unfairly placed a burden on him to resolve the communication issues.

Although he did not submit this as one of the crucial errors, findings in this regard were part of the Appeals Committee’s decision on the issues raised. ANALYSIS 1. Was the Appeals Committee’s decision regarding the error in the stated end date of the Remediation Plan reasonable? [ 24 ] The Applicant submits that the end date of October 3, 2014 was reiterated and enforced throughout the remediation and the fact that this was only five months was a serious deficiency in what was to be an intense, structured and rigorous last chance opportunity for him.

He argues that the miscalculation of the timeline made it impossible for the Faculty to have fulfilled the Remediation Plan and

that the Appeals Committee’s conclusions with respect to this issue were entirely unreasonable. [ 25 ] The Appeals Committee noted that at the hearing before the Faculty Appeals Committee, the Faculty explained the discrepancy as a “typographical error” and insisted that the Remediation Plan was intended to occur, and in fact did occur, between May 3 and November 3, 2014. [ 26 ] On this issue the Appeals Committee made a number of important findings, including that there was never consistent clarity regarding the timeframe of Dr.

Evangelista’s Remediation Plan, that the start and end times of the remediation period are important because Dr. Evangelista was required to achieve a rating of 3 or better in 90% of the relevant categories for the last three months of the period, and that knowing whether the last three months were July 3 to October 3 or August 3 to November 3 was necessary in order to make this critical calculation.

The Appeals Committee also noted that the timeline was confused even further because a Department of Anesthesia UofT In-Training Evaluation Report ran from July 1, 2014 to November 16, 2014 and that the documents failed to track “what we now understand to be the relevant time period: August 3 – November 3, 2014.” [ 27 ] The Appeals Committee then concluded: This sloppiness about dates and calculations would be a serious deficiency for the Division’s argument but for three important points: first, the Appellant cannot point to any three month time period in which he reached the performance benchmarks set forth in the remediation plan.

Second, the remediation had a separate and independent requirement for the Appellant’s continued enrollment: he needed to achieve an overall rating of “satisfactory” in 80% of the Reflection on Encounter Forms completed by Dr. Martin. There is no doubt that the Appellant failed to reach that benchmark.

Finally, as the Faculty of Medicine’s Appeals Committee noted, the student “had the responsibility to raise concerns or seek clarification when the testing was not administered as [he] believed it should have been.” While it is unfortunate that the administration did not correct the error in the listed dates sooner, the significant factor is that the Student actually did have six months of Remediation. [Emphasis in original] [ 28 ] In my view these findings by the Appeals Committee were entirely reasonable and entirely supported by the evidence.

The Applicant disputes the Appeals Committee’s finding that the timeline errors and the determination of when the final three months occurred were not crucial because the Applicant could not point to any three month period when he met the requirements. The Applicant argues that the issue was not “whether slicing the remediation into different quadrants could yield a different result”, but whether the remediation process itself was unfair to him due to “the myriad of confusing, contradictory and simply incorrect dates.” [ 29 ] I do not accept this submission. As the Appeals Committee found, Dr.

Evangelista did, in fact, receive a six-month remediation period that ended about a month after the end date identified in the Remediation Plan. The documentation with respect to the formal daily evaluations begins July 23, 2014 and continues until October 29, 2014. Furthermore, the ongoing evaluations and feedback continued seamlessly after October 3, 2014. There is no evidence of any interruption in the Remediation Plan.

Although counsel for the Applicant argued that there were periods of time when no evaluations were recorded (July 3 to 24 and October 29 to November 16, 2014), he was not able to challenge the Appeals Committee’s central finding of fact that Dr. Evangelista cannot point to any three month time period in which he reached the performance benchmarks set forth in the Remediation Plan. [ 30 ] Dr. Evangelista did not raise this timeline issue until he was represented by counsel before the Appeals Committee. In my view this is not a legal argument, and if Dr.

Evangelista had really felt confused by the time period, he would have raised it as an issue earlier and at least by the time of his appeal to the Faculty Appeals Committee. [ 31 ] As counsel for the Respondent submitted, any confusion in the final three month evaluation period could have had a negative impact only if Dr. Evangelista argued that he needed to know when he had to put his best efforts forward for the purpose of the evaluation. Dr. Evangelista did not make this argument for good reason.

Given that he was responsible for patient care and was being evaluated on an ongoing basis, he clearly knew he had to put his best efforts forward every day. He could not and did not argue that he did not try his best because he did not know he was being evaluated. Furthermore, as I will come to, the Appeals Committee decision that Dr. Evangelista also failed to meet the communications assessments is also reasonable. [ 32 ] Accordingly, the findings of fact reached by the Appeals Committee were supported by the evidence.

Based on these findings, the conclusion of the Appeals Committee that the timing of the Remediation Plan was not a serious deficiency is reasonable. There is no basis to interfere with that conclusion. 2.

Was the remediation process undermined by the Faculty’s failure to administer baseline testing to the Applicant at the beginning of the remediation period? [ 33 ] The Applicant submits that the Appeals Committee was unreasonable in accepting the Faculty’s claim that the baseline testing at the beginning of the remediation period as suggested in the Board of Examiners’ letter was not necessary and that the daily questions asked on the floor by supervising physicians constituted that testing.

According to the Applicant, the goal of baseline testing was to provide him with a proper starting point and clear criteria for advancement. He claims that the Appeals Committee was unreasonable in not recognizing that the absence of the proper starting point undermined the entire remediation process. [ 34 ] The Appeals Committee noted that the Faculty changed its position on this issue. Before the Faculty Appeals Committee, the Faculty admitted that it had not carried out baseline testing. Before the Appeals Committee, the Faculty argued that baseline testing was not necessary and that daily questions of Dr.

Evangelista by the other doctors was baseline testing. [ 35 ] The Appeals Committee found that the Board of Examiners only suggested that the Faculty “consider” the testing; therefore, it was not a requirement. However, the Appeals Committee held that the Faculty should have communicated more clearly about whether or not it was going to administer such testing. Nevertheless, Dr. Evangelista did not request more specific testing during the period and

had not established that the failure to test him at the beginning of the remediation period affected his performance on the measures set forth in the Remediation Plan. Furthermore, I note that the ultimate decision in this matter was made by the Board of Examiners who were obviously aware of what they meant by baseline testing, and there is no evidence that they were concerned about the fact that it had not been done. [ 36 ] The Remediation Plan indicated that Dr. Evangelista was to be evaluated at the end of PGY4 level (the fourth year of residency), even though he was technically in his fifth year.

The purpose of baseline testing was to assess Dr. Evangelista’s knowledge so that the medical experts’ efforts could be focused on the identified gaps. I agree with the position of the Respondent that this function was fulfilled by daily quizzes of Dr. Evangelista by his supervisors and the assessments of his knowledge at the beginning of and throughout the remediation period. Furthermore, the feedback Dr. Evangelista received related primarily to his failure to implement his knowledge in critical situations, not his baseline of knowledge. The Faculty and Dr.

Evangelista’s supervisors were best positioned to assess what form the evaluative process of him should take, and their decisions in this regard should be afforded significant deference. As the Appeals Committee found, baseline testing was not a requirement of the Remediation Plan. [ 37 ] For these reasons, I find that the Appeals Committee’s finding on this issue was supported by the evidence and was a reasonable conclusion. 3.

Did the late delivery of the Interim Report undermine the Applicant’s ability to ameliorate his performance? [ 38 ] The Applicant submits that the Appeals Committee was unreasonable in finding that the Interim Report, which the Board of Examiners’ letter required to be provided “in three months”, could be delivered at “any intervening time” during the remediation period. He received the Interim Report on September 10, 2014 – five months into the remediation period.

The Applicant argues that the Appeals Committee failed to recognize that there was a specific timeline set by the Board of Examiners for the submission of the Interim Report, and that this failure undermined the Appeals Committee’s determination that Dr. Evangelista failed to meet the performance benchmarks in the final three months of the remediation period. Having failed to receive the Interim Report after the first three months of the six- month remediation period, Dr. Evangelista lost the opportunity to ameliorate his performance during the crucial final three months. [ 39 ] I note that Dr.

Evangelista never requested the Interim Report during the remediation period and did not raise an issue of its lateness when he received it in September 2014. Furthermore, the ultimate decision in this matter was made by the Board of Examiners, who were obviously aware of when they received the Interim Report. [ 40 ] On this issue I agree with the Applicant that the Appeals Committee incorrectly found that the Interim Report could be provided at any intervening time, as the Board of Examiners asked that the Interim Report be provided “in 3 months”.

However, as the Appeals Committee found, this was an Interim Report directed to the Board of Examiners, not Dr. Evangelista. Furthermore, and most significantly, I accept the submissions of the Respondent that the Appeals Committee was reasonable in finding that Dr. Evangelista was made aware of his lack of progress and poor performance prior to receiving the Interim Report through daily oral feedback from the doctors supervising him on the floor of the hospital.

As the Appeals Committee found, the “medical experts on the Faculty of Medicine Appeals Committee found this form of measurement and feedback to be ‘reasonable’ and we agree.” [ 41 ] Counsel for the Respondent drew our attention to the evidence before the Appeals Committee from Dr. Evangelista’s supervisor, Dr. Bahrey, who had her first of three formal meetings with him on August 12, 2014, approximately three months into the remediation period, where she provided Dr. Evangelista with a

summary of the written feedback from his supervisors. The

summary and Dr. Bahrey’s written feedback indicated that although Dr. Evangelista was found to have shown many areas of improvement since his last assessment, a number of areas of concern were detailed and discussed with Dr. Evangelista. This meeting, along with the ongoing oral feedback, leaves no doubt that Dr. Evangelista knew where he fell short and what he needed to do to meet the standards of the Remediation Plan. [ 42 ] Accordingly, I find that the Appeals Committee’s finding that this form of measurement and feedback was a reasonable conclusion based on the evidence.

There is no basis to interfere with this finding. 4. Was the remediation process undermined by the fact that the Applicant was evaluated by a non-evaluating mentor? [ 43 ] The Applicant submits that he was evaluated by his non-evaluative mentor, Dr. Ma, and that this undermined the Board of Examiners’ goal of providing him with a remediation process where he could benefit from “maintaining trust in patient and collegial relationships.” Dr. Evangelista submits that the Appeals Committee was unreasonable in its decision with respect to Dr. Ma’s role, and specifically in finding that Dr.

Ma was justified in providing feedback on his performance “on the day in question” because of serious concerns for patient safety. The Applicant submits that the Appeals Committee ignored the evidence that Dr. Ma, in fact, evaluated Dr. Evangelista on at least four occasions and that those evaluations were not caused by patient safety issues – they were done whenever they interacted. The Applicant submits that Dr. Ma’s evaluations should not have formed part of the data set that was used to quantitatively assess Dr.

Evangelista during the final three months. [ 44 ] I agree with the Applicant that the Appeals Committee was incorrect in finding that Dr. Ma evaluated him on only one occasion. Dr. Ma was of the view that he should evaluate Dr. Evangelista whenever they interacted. That appears to have been four times, as submitted by the Applicant. [ 45 ] Although this was arguably a deviation from the Remediation Plan, there is no evidence that it was prejudicial to the Applicant. Dr. Ma’s four evaluations did form part of the data set that was used to quantitatively assess Dr. Evangelista during the last three months.

However, his counsel was not sure that excluding these would have made a difference in the overall evaluation of Dr. Evangelista. Furthermore, as a non-evaluating mentor, the Appeals Committee accepted that Dr. Ma did not take

part in the final decision on Dr. Evangelista’s continuing participation in the program. Finally, regardless of Dr. Ma’s involvement in the evaluations, Dr.

Evangelista did not meet other independent and separate benchmark requirements of the Remediation Plan. [ 46 ] Accordingly, despite the factual errors, the finding of the Appeals Committee that Dr. Evangelista did not establish that the evaluations by Dr. Ma prejudiced him was reasonable. 5. Was it unfair to the Applicant to have his communications skills evaluated by a non-physician? [ 47 ] One of the requirements of the Remediation Plan was that Dr. Evangelista had to achieve a “satisfactory” score in 80% of his evaluations on his communications skills by Dr. Dawn Martin. However, Dr. Martin only met with Dr.

Evangelista twice and never delivered session encounter forms. Instead, Dr. Evangelista was substantially evaluated by a social worker, Maureen McGillivray. Of the seven occasions that Dr. Evangelista met with Dr. Martin and/or Ms. McGillivray, he received a “satisfactory” assessment on four Session Encounter Forms, being 57%, which meant that he failed to reach the established requirement of 80% in the communication skills area. [ 48 ] The Applicant submits that it was manifestly unfair for him to be evaluated by a non-physician with respect to his ability to communicate as a medical expert, and that because Dr.

Martin was named in the Remediation Plan, she had to be the person who evaluated Dr. Evangelista. [ 49 ] The Applicant raises this issue for the first time on this application for judicial review, and so it is not appropriate for this Court to determine whether the Appeals Committee was unreasonable in failing to consider it. An application for judicial review should generally be limited to the issues that were considered by the decision maker, on an appropriate record. [ 50 ] As the Respondent points out, Dr. Martin also has no medical degree, but rather a doctorate in educations. Both Dr. Martin and Ms.

McGillivray, a social worker, are communications coaches at the Postgraduate Medical Education Facility at the UofT. Both use the same diagnostic criteria and tools, and both were equally positioned to evaluate Dr. Evangelista’s communication skills. In addition, Dr. Evangelista received feedback on his communication skills from his supervising physicians. There is, therefore, no merit to this new ground of review in any event.

Did the Appeals Committee unfairly place a burden on the Applicant to resolve the communication issues? [ 51 ] The Applicant takes issues with the conclusion of the Appeals Committee that every single instance of the communication issues identified by them could easily have been resolved by Dr. Evangelista himself, if he had made any effort to do so. The Appeals Committee found that although the Faculty could have communicated more effectively, Dr.

Evangelista should have communicated more effectively – especially since, as he points out, the stakes were so high for him. [ 52 ] I see no issue with these conclusions of the Appeals Committee. In each case, this was an additional reason for the Appeals Committee in rejecting an argument by Dr. Evangelista. Given his experience with remediation plans and given that he was at the level of at least a fourth year resident, in my view it was relevant for the Appeals Committee to consider whether or not Dr. Evangelista had made any attempt to clarify any of the issues he later complained about.

Had he been truly confused about the baseline testing or the timeline or any of the other issues raised, one would have expected him to raise a question. His failure to do so suggests that these were issues argued for the purposes of an appeal or this judicial review, but were not matters of confusion at the time. Additional Issue: Was the Decision of the Appeals Committee manifestly unfair to Dr. Evangelista? [ 53 ] Counsel for the Applicant raised a new issue on the application that was not before the Appeals Committee.

In particular, he relies on Hayat , supra at paras. 21-22 for the proposition that there could be a case where the decision is reasonable but there was manifest unfairness to the student. In particular, he relies on the statement of Doherty J.A. for the Court that: “Assuming that there may be fact situations in which an

interpretation of the Policy that was not patently unreasonable could work a manifest unfairness, this is not that situation.” [ 54 ] As Justice Doherty pointed out, fairness concerns are usually directed at questions of procedural fairness and, in this case, Dr. Evangelista did not make any submissions that he did not receive procedural due process in any of the appeals. Furthermore, a finding that the decision of the Appeals Committee was reasonable goes a long way to deciding this issue against Dr. Evangelista. There was no submission that the Remediation Plan itself worked a fundamental unfairness against Dr.

Evangelista. Moreover, the Appeals Committee dealt with all of the issues raised by him concerning how the deviations to the Remediation Plan prejudiced him and I have found their conclusion that those deviations were not so substantial as to invalidate the remediation process to be reasonable. I see no basis upon which I could conclude that the decision of the Appeals Committee, although reasonable, was nevertheless manifestly unfair. Accordingly, I find this new argument is without merit.

DISPOSITION [ 55 ] There is no doubt that the decision of the Appeals Committee has serious repercussions for Dr. Evangelista, as it ends his medical career at the UofT. The Appeals Committee was alive to that reality. However, I have determined that the findings and ultimate decision made by the Appeals Committee were entirely reasonable and there is no basis for this Court to interfere with the decision to dismiss Dr. Evangelista’s appeal. [ 56 ] For these reasons, the application for judicial review is dismissed. [ 57 ] As the successful party, UofT is entitled to its costs on a partial indemnity basis.

The parties agreed at the conclusion of the hearing that costs be fixed at $5,000. This is a reasonable amount considering what was in issue on this application. Accordingly, the Applicant shall pay costs to the UofT in the amount of $5,000. _______________________________ SPIES J. I agree _______________________________ SWINTON J. I agree _______________________________ LINHARES de SOUSA J. Released: CITATION : Evangelista v. University of Toronto, 2017 ONSC 2513 DIVISIONAL COURT FILE NO.: 482/16 DATE: 20170505 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, LINHARES de SOUSA, and SPIES JJ.

BETWEEN: DR. RAYMOND EVANGELISTA Applicant – and – UNIVERSITY OF TORONTO Respondent REASONS FOR JUDGMENT

SPIES J. Released: May 5, 2017