The right for an affected party to receive reasons explaining an administrative decision is a well-established rule of procedural fairness. The result in a recent case before the Court of Queen’s Bench of Alberta, Andres v University of Lethbridge, 2021 ABQB 551, highlights the importance of adhering to this rule in post-secondary administrative decision making.
In Andres, the court reviewed a decision of the University of Lethbridge’s School of Graduate Studies Executive Committee (the “Committee”) to require a graduate student to withdraw from their program of study (the “Final Decision”). Upon judicial review of the Final Decision, the court ultimately decided to send the matter back to the Committee for reconsideration. Why? In short, because the reasons the Committee gave for the Final Decision were deficient.
Background
Following a decision of the Dean of the Faculty of Education, a graduate student in the University’s Master of Counselling Program (the “Program”) was required to withdraw from the Program on the basis that she had failed to meet the Standards of Professional Conduct required of students. The University Calendar sets out the Standards of Professional Conduct and states that students may be required to withdraw if they fail to meet them. The Calendar did not set out the procedure for how to make a decision that a student failed to meet the Standards of Professional Conduct.
In this case, an instructor felt the student had failed to meet the Standards of Professional Conduct. The student, over a long period of time, had expressed concerns about the Program by using increasingly strong language, and alleged that abuse and trauma had been inflicted on her by Faculty members. Her instructor then wrote to the Dean requesting that the student be required to withdraw on this basis. After hearing from various instructors and the student, the Dean issued his decision requiring the student to withdraw from the Program (the “Faculty Decision”). The student appealed the Faculty Decision to an appeal committee on the basis that the Faculty Decision was unfair and contrary to the principles of natural justice. The appeal was dismissed. The student then appealed to the Committee. The Committee held a hearing de novo (in other words, with new evidence allowed) and ultimately dismissed the student’s appeal in the Final Decision.
The Committee made a number of findings in the written Final Decision, including that (i) the student was not denied procedural fairness for the Faculty Decision, and (ii) the Faculty Decision requiring the student to withdraw was reasonable.
The student then applied to the Court of Queen’s Bench of Alberta for a judicial review of the Final Decision. She argued that she was denied procedural fairness in the Faculty Decision, and that the Final Decision upholding her withdrawal was not reasonable because it provided no meaningful justification for why the Committee concluded it was reasonable to require her to withdraw. In other words, she argued that the reasons given for the Final Decision were deficient.
Application for Judicial Review – Was the Final Decision reasonable?
In assessing the Final Decision, the court first determined that the appropriate “standard of review” (i.e., the level of deference shown by the court to the decision being reviewed) was one of reasonableness. This meant that the “Final Decision” need only be reasonable for the court to uphold it, even if the court would have made a different decision if it were in the place of the Committee.
In discussing the law surrounding the determination of whether an administrative decision is “reasonable”, the court relied on the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (Vavilov) and stated:
“[36]…I must look at the reasons given by the Graduate Studies Committee and the Record to determine whether the Decision is justifiable, transparent and intelligible: Vavilov, para 100.
[37] I should not set aside the Decision where the reasons exhibit a minor misstep. To set aside the Decision, I must be satisfied that there are sufficiently serious shortcomings in the Decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. The flaw in the Decision must be sufficiently central to render the decision unreasonable.
[38] It is well established that individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm. However, this principle also has implications for how I conduct the reasonableness review. Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes.
[Emphasis added]
Applying these principles to the Final Decision:
- The court found that the portion of the Final Decision stating that the student was not denied procedural fairness was not reasonable because the Committee failed to include reasons addressing what the appropriate level of procedural fairness was, and why it was met. While the Committee did include reasons as to why the Faculty Decision exhibited procedural fairness, the Committee never engaged the issue of what degree of procedural fairness was owed to the student in the circumstances.
- The court also found that the portion of the Final Decision that required the student to withdraw (by upholding the Faculty Decision) was not reasonable for two reasons. The first reason was that the Committee applied the wrong standard of review to the Faculty Decision and as a result, the reasons given for the Final Decision were deficient. The second was that the Final Decision failed to articulate what Standards of Professional Conduct the student actually failed to meet, which meant the Final Decision provided no justification for the requirement that the student withdraw from the program.
The court allowed the application for judicial review on the basis that the Final Decision was not reasonable and determined that the appropriate remedy was to send the decision back to the Committee for reconsideration.
The court was also asked to consider whether section 2(b) of the Charter of Rights and Freedoms, which protects freedom of expression, should have been considered by the Committee in making the Final Decision. The issue of the applicability of the Charter to university decision-making has been addressed in other recent Alberta court decisions. In this case, however, the court declined to consider the applicability of the Charter, stating that “the [Final] Decision is not clear about which provisions of the Standards of Professional Conduct were breached and why. In considering whether the Charter applies, it would be helpful to be clear on what specifically the University relies on to justify the decision to require the Applicant to withdraw.”
Takeaways
Not only are sufficient reasons a key aspect of procedural fairness, but reasons also provide the means for courts to determine whether an administrative decision was reasonable or not. Reasons, as stated by the Supreme Court of Canada in Vavilov, are “the primary mechanism by which administrative decision makers show that their decisions are reasonable — both to the affected parties and to the reviewing courts”.
Accordingly, all administrative decision makers would be well advised to:
- carefully consider their reasons in rendering a decision, with the help of legal counsel if necessary;
- ensure such reasons are justifiable, transparent and intelligible; and
- where the impact of a decision on an individual is significant, ensure the depth of those reasons appropriately reflect what is at stake.
And of course – after all is said and done, write those carefully crafted reasons down and provide them to the affected parties.
