Houston v University of Saskatchewan

							Houston v. University of Saskatchewan Joint Senate-Council Board For Student
Appeals

Saskatchewan Court of Queen's Bench

Barclay J.
1 This is an application by Simon Houston ("Houston"), a student at the University of
Saskatchewan, for an order quashing the decision of the Joint Senate-Council Board for
Student Appeals, University of Saskatchewan (the "Board"). Houston requires a
teaching practicum to complete his Bachelor of Education degree. The effect of the
decision is that Houston was required to discontinue his studies from the College of
Education and will not again be permitted to register in an extended practicum
(internship placement).

2 This application involves the review of a proceeding and decision of the Board
established by the Council and Senate of the University of Saskatchewan pursuant to
The University of Saskatchewan Act, R.S.S. 1978, c. U-6 (the "Act").

3 Pursuant to the University of Saskatchewan, Student Grievances, Appeals and
Discipline Regulations approved by Council and Senate in April, 1991 and revised
April, 1985 (the "Regulations"), students have a right to fair and equitable procedures
for the lodging of complaints arising out of University regulations, policies and actions
that affect them directly. Such procedures, except in cases involving only substantive
academic judgment, may culminate in a hearing before the Board.

4 The Board has authority to decide all cases of student appeals from rulings of other
forums on matters of academic standing other than those involving a substantive
academic judgment alone, as well as direct appeals by students in respect of any other
allegations of injustice and appeals arising from disciplinary hearings.

5 Houston, in his prayer for relief, has asked that his request to continue studies in the
College of Education and a new placement in an extended practicum be remitted to the
Board to be reconsidered according to law. In short, Houston is seeking an order
remitting this matter back to the Board for a re-hearing.

6 Houston argues that the Board made an error in law and failed to exercise its
jurisdiction in holding that the College of Education's decision constituted a matter of
substantive academic judgment and failed to consider the allegations of injustice and
bias. He also contends that the Board took into consideration matters that were irrelevant
and that generally there was a lack of natural justice.

Regulations

7   The relevant sections of these Regulations are as follows:
Part D Joint Senate-Council Board For Student Appeals

Joint Senate-Council Board for Student Appeals

Senate and Council have agreed that:

Senate establish a Joint Senate-Council Board for Student Appeals and delegate to this
Board its authority to decide all cases of student appeals from rulings of other bodies
(Deans, College Committees, etc.) on matters of academic standing (other than those
involving a substantive academic judgment, alone) as well as direct appeals by students
in respect of any other allegations of injustice, and certain appeals arising from
disciplinary hearings ...

The right to hear and determine appeals should be subject to the following:

1. The Board shall have no jurisdiction to hear an appeal on substantive academic
grounds from a decision respecting a mark given in an individual course.

2. The Board shall have no jurisdiction to hear an appeal on substantive academic
grounds from examination decisions made in the College of Graduate Studies.

3. It shall be a precondition to the jurisdiction of the Board to hear an appeal that an
appellant has exhausted all procedures and appeals (if any) available to her/him in
her/his college or school.

4. The Board shall have no jurisdiction to hear an appeal from a decision to refuse
admission to a college or department with enrolment quotas.

5. The Board shall have no jurisdiction to hear an appeal from a decision of a college
concerning the granting of permission to take courses outside the University of
Saskatchewan ...

II. Purpose of an Appeal

The Joint Board for Student Appeals adjudicates appeals by students of rulings by other
university authorities on matters of academic standing which do not require solely
substantive academic judgment. It also adjudicates complaints by students of certain
other injustices and certain appeals in disciplinary cases and cases of academic
dishonesty. The panel appointed to hear an appeal reviews the evidence, both written
and oral, upon which the former decision was based, and may call for and may permit
the introduction of new evidence when relevant, and disposes of the case on behalf of
the Board. The decision of the Appeal Board is final and is reported to Senate and
Council only for information.
III. Procedure Before the First Hearing

a. The student informs the Registrar of the University in writing that she/he wishes to
lodge an appeal.

b. The Registrar asks the student to submit a written statement outlining the grounds of
her/his appeal, summarizing her/his arguments, specifying the relief being sought, and
listing the witnesses to be called ...

d. The Chair of the Board for Student Appeals determines if the appeal falls within the
authority of the Board, and notifies the student and the respondent of her/his decision.

e. The Chair appoints a panel to hear an appeal. The panel will consist of at least three
members of the Board. One member of the Appeal Committee will be the Vice-Chair (or
Chair) of the Board. In the absence of the Chair, the hearing panel may be appointed by
the Vice-Chair ...

IV. Procedures for Appeal Hearings

a. General Rule

The hearing is to be conducted in such a way as to ensure that the appellant receives a
fair hearing and that all parties have appropriate notice of hearings and opportunity to
participate. Much is left to the discretion of the tribunal.

b. Burden of the Appeal

The onus is on the appellant to show why the previous ruling should not be accepted.
However, the hearing panel has the right to elicit information or clarify details.

8 The appeal that was filed on June 28, 1993 by Houston from the decision of the
College of Education that he not be granted any further opportunity to repeat the
extended practicum and that he discontinue his studies at the end of the 1992-93 year
reflects that the grounds of appeal include allegations that the Board failed to consider
injustices and bias towards him. It is clear from the letter that there were factors other
than substantive academic judgment involved in the method used by the College of
Education in determining his rights to continue with his studies. This letter reads in part
as follows:

Dear Dr. Smith:
I wish to appeal the College of Education's decisions that I not be granted any further
opportunity to repeat the Extended Practicum and that I be required to discontinue my
studies at the end of the 1992-93 academic year. The letter of Dr. Murray P. Scharf, the
Dean of Education, dated June 25, 1993, upholds the earlier decisions of the
Administrative Coordinator, the Head of the Department, and the Committee on
Academic Standards.

I allege an injustice in the method of determining my academic outcome in the Extended
Practicum at Warman High School in the spring of 1992. The basis of my allegation is
that there were factors other than "substantive academic judgement (see letter March 1,
1993)" involved along the chain of command between the cooperating teacher and the
college supervisor that greatly prejudiced the determination of my academic standing.

The Review Committee, chaired by Dr. Dennis Dibski, dismissed the three specific
claims that I made before them, as stated in my letter of March 1. I am not satisfied with
their answer ...

My entire case is based on the plan of a cooperating teacher to have me teach a lesson
for him on January 14, 1993. This contract was formulated and agreed to by Phil
Cheveldayoff and myself on January 11 and 12. Nothing was said about a third-party
observer, namely the college supervisor Dr. Edwin Ralph. I refused to teach on January
14, 1993, because I felt that my fragile rights as a College of Education intern had been
violated.

9 By way of background, Houston had been placed four times in extended practicum
and on each occasion he was unsuccessful. He was denied a fifth placement and was
subsequently required by the Committee on Academic Studies to discontinue his studies.
This decision was appealed to Dr. Ralph Fram, Head of the Department of Curriculum
Studies who confirmed the decision not to reassign Houston to an extended practicum.
Dr. Fram's ruling was appealed to the Committee on Academic Standards. This tribunal
sustained the decision of Dr. Fram.

10 The next appeal was to a Review Committee. This Committee, which was chaired
by Dr. D.J. Dibski, consisted of faculty members of the College of Education with no
previous experience with Houston. This Committee filed a report which reads in part as
follows:

The second task as defined by the Review Committee was to assess the validity of the
general claim by Mr. Houston that the decision made by school and College officials at
Warman High School (that Mr. Houston was not capable of continuing with the
Extended Practicum) and that decisions made by CAS (that Mr. Houston's appeal be
denied and that he be required to discontinue) were made on grounds other than
"substantive academic judgment".
In reviewing the documentary and oral evidence which bears on the reasons given to Mr.
Houston for the decisions made by officials at Warman High School and at the College,
the Review Committee is satisfied that the reasons were properly academic and
professional in nature since they pertained to such matters as pedagogy, classroom
management, teacher-pupil rapport, and collegial relationships with the cooperating
teacher and with other teachers.

The Review Committee, therefore, dismisses Mr. Houston's specific claims (1) that the
Coordinator for School-Based Programs prejudiced his chances of succeeding in the
Extended Practicum by deliberately placing him in Warman High School, (2) that a
personality conflict and differences in educational philosophy between him and his
cooperating teacher, and inappropriate expectations on the part of the college supervisor
were the main reasons for terminating the practicum at Warman High School, and (3)
that the decision made by the Coordinator of the Centre for School-Based Programs and
upheld by Dr. Fram and CAS (that a repeat practicum not be granted) was arbitrary and
not made on academic and professional grounds.

11 The written decision of the Board was made on October 7, 1993, and this
application involves that ruling which reads as follows:

October 7, 1993

Simon Houston

1201 Edward Avenue

Saskatoon, SK

S7K 3A9

Dear Mr. Houston:

Re: Decision of the Joint Senate-Council Board for Student Appeals

After hearing the testimony and arguments provided by you, the College of Education
and the witnesses called both by you and the respondent, the hearing panel has
unanimously concluded that the appellant failed to demonstrate why the ruling of the
College of Education should not be upheld. It appears to the panel that the decisions,
made by the College and appealed by you in your written statement dated June 28, 1993,
constitute substantive academic judgement.

The panel understands, as a consequence, that the decisions made earlier by the College
of Education regarding your academic standing remain in force. That is, you have been
required to discontinue from the College of Education, and you will not again be
permitted to register in an extended practicum.

By University regulations, students appeal to the Joint Senate-Council for final
adjudication. There are, within the University, no other avenues of appeal open to you.

Yours truly,

"Ken Smith"

Ken Smith, Ph.D.

Registrar and Secretary to

the Joint Senate-Council

Board for Student Appeals

What is the Record?

12 In proceedings of this nature, the record consists of the documents that instituted
the proceedings, the pleadings, if any, and the adjudication, but not the evidence or the
reasons unless the tribunal chooses to incorporate them. (See R. v. Northumberland
Compensation Appeal Tribunal; Ex parte Shaw , [1952] 1 K.B. 338, Saskatchewan
Insurance Office & Professional Employees' Union, Local 397 v. Saskatchewan
Government Insurance, [1984] 4 W.W.R. 668 (Sask. Q.B.), and Hnatchuk v.
Saskatchewan (Workmen's Compensation Board) , [1972] 3 W.W.R. 395 (Sask. C.A.).

The Law

13 The principles of law contained in the English decisions of R. v. Dunsheath; Ex
parte Meredith, [1950] 2 All E.R. 741 (K.B.), and Thorne v. University of London,
[1966] 2 All E.R. 338 (C.A.), are to the effect that the holding of examinations or the
conferring of degrees are domestic questions within the exclusive jurisdiction of the
University and therefore the High Court has no jurisdiction to intervene.

14 In the case of King v. University of Saskatchewan (1968), 1 D.L.R. (3d) 721, the
Saskatchewan Court of Appeal adopted these principles. In King, supra, the appellant
was admitted to study law at the respondent university in the 1956-57 academic year. At
the conclusion of the 1961-62 academic year he had not attained the standard required
for graduation. He was readmitted for the 1963-64 academic year and, although in that
year he passed in all of the classes, he still did not meet the minimum requirement for
graduation. The Faculty of Law then required the appellant to discontinue and ruled that
he would not be permitted to re-register in the collage.
15 In August of 1964 the appellant, in a letter to the president of the respondent
university, made application for an inquiry by the university council to examine the
reasons why the law faculty had refused him graduation.

16 An application was then made to the court to compel action by the university
council. The Court of Appeal held that the enforcement of the regulations or statutes of
the University of Saskatchewan, the holding of examinations and the conferring of
degrees are purely domestic questions not subject to review by the courts. The duty of
the university council to hear an application to review a faculty decision not to grant a
degree and the duty of the senate to hear an appeal from the council are, however,
imposed by s. 76(c) (am. 1964, c. 17, s. 21) of The University Act, R.S.S. 1953, c. 167
(later R.S.S. 1965, c. 181) [the legislation in force at that time], and mandamus may be
granted where there has been a failure to perform them. A second hearing may not,
however, be compelled. (See R. v. Dunsheath, supra and Thorne v. University of
London, supra.) At p. 723 Hall J.A. states:

I do not doubt that the learned Chambers Judge correctly interpreted the principle of law
contained in the decisions of R. v. Dunsheath; Ex p. Meredith , [1950] 2 All E.R. 741,
and Thorne v. University of London, [1966] 2 All E.R. 338. These cases establish that
such matters as the enforcement of the regulations or statutes of the university itself; the
holding of examinations or the conferring of degrees, are domestic questions within the
exclusive jurisdiction of the visitor. If I were satisfied that the application was one to
compel the respondent to grant the appellant a degree in law, then I would have no
hesitation in dismissing the appeal for the reasons given by the learned Chambers Judge.
In my opinion, however, although the ultimate aim of the appellant may be to obtain a
degree in law, the immediate purpose of his application was to compel compliance with
s. 76(c) of the University Act.

The University Act has imposed upon the university council the duty to hear the
appellant's application and upon the senate the duty to hear his appeal. The respective
duties so created are therefore not domestic matters within the university but are in the
nature of public duties, and as they specially affect the rights of the appellant, mandamus
may be granted if there has been a failure to perform them.

17 An excellent review of the law with respect to matters involving grievances
between students and a university is contained in the case of Polten v. University of
Toronto (1975), 59 D.L.R. (3d) 197 (Div. Ct.). The dispute here arose as a result of a
doctoral student's refusal to change his thesis and the university's eventual rejection of
his formal paper. The judgment of Weatherston J. is regularly cited as authority for the
non-interventionalist approach of the courts towards such disputes. The court held that
the standards for a university degree and the assessment of a student's work are so
clearly vested in the university that the courts have no power to intervene merely
because it is thought that the standards are too high, or that the student's work was
inaccurately assessed. However, the prerogative writs of certiorari and mandamus are
available to a student who has been denied natural justice in respect of his examinations.
The university has been entrusted with the higher education of a large number of the
citizens of the province. This is a public responsibility that should be subject to some
measure of judicial control.

18 Houston submits that the Board made an error of law and failed to exercise
jurisdiction by deciding that the decisions made by the College of Education which were
subsequently appealed, constitute substantive academic judgment and thereby failed to
consider inter alia: (a) the alleged injustice in the method of determining the applicant's
outcome in an extended practicum at Warman High School in January, 1993; (b) bias;
(c) irrelevant considerations; and, (d) decisions that were not made in accordance with
the requirements of natural justice.

19 Houston further submits that the Board failed to properly adjudicate his grievance
and limited its considerations to the procedure followed by the College of Education in
making their decision.

20 In my view there is no merit to these submissions. It is clear from the decision of
the Board when it stated that "the appellant failed to demonstrate why the ruling of the
College of Education should not be upheld" was agreeing with the decision of the
Review Committee of the College of Education which dismissed all of Houston's
specific claims, namely: (1) that the Coordinator for School-Based Programs prejudiced
his chances of succeeding in the Extended Practicum by deliberately placing him in
Warman High School; (2) that a personality conflict and differences in educational
philosophy between him and his cooperating teacher, and inappropriate expectations on
the part of the college supervisor were the main reasons for terminating the practicum at
Warman High School; and (3) that the decision made by the Coordinator of the Centre
for School-Based Programs and upheld by Dr. Fram and CAS (that a repeat practicum
not be granted) was arbitrary and not made on academic or professional grounds.

21 It is obvious from the above that the Board dealt with each of the grievances of
Houston.

22 After the Board dismissed those specific grievances it then quite properly ruled
that the other decisions constituted substantive academic judgment which is clearly not
within their jurisdiction. (See Part D of the Regulations.)

23 Houston also purports to argue that there was a denial of natural justice. In Doane
v. Mount Saint Vincent University (1977), 74 D.L.R. (3d) 297 (N.S.T.D.), Morrison J.
after citing with approval the decision of Polten, supra, did state however if it can be
established that there was a denial of natural justice, the court may be required to grant
relief. At p. 300 he states:

... it seems to me that the Court would indeed have power to intervene in the internal
affairs of a university in certain circumstances by way of prerogative writ. In my opinion
this would only be done if the decision of the university which is being challenged was
arbitrary or malicious, or otherwise exercised on a principle of bad faith. To my mind a
denial of natural justice to a plaintiff where such circumstances were proven would be
sufficient to give the Court jurisdiction to interfere.

24 In the case at bar there was no suggestion that he did not have a fair hearing. The
evidence is to the contrary. It establishes that Houston was: (a) given notice that a
committee was considering his case; (b) that he was advised of the nature of the case; (c)
that he was afforded the opportunity to make submissions (written or oral) relating to the
substance of the matter; and (d) there was not an element of bias with respect to the
adjudications.

25 It is quite apparent in the instant case that the College of Education has dealt with
and decided upon the application of Houston and also that the Board has heard and
determined the subsequent appeal. There has been therefore no failure by the Board to
perform its duties as required by statute and for that reason Houston has no right to the
relief requested. There shall be no order as to costs.

Application dismissed.