Said v. University of Ottawa , 2011 ONSC 6179
What happens when the chair of a promotions committee is found to be biased against an applicant whom he previously found guilty of sexual harassment and tried (unsuccessfully) to dismiss?
In March 2009, the University of Ottawa appointed an investigator to conduct a fact-finding process into an allegation of sexual harassment made by a resident, Dr. Forbes, against one of its doctors, Dr. Said. The Investigation reported that Dr. Forbes accused Dr. Said of asking her out to supper three times and that Dr. Said admitted to asking her out twice. Based on the investigator’s report, the dean then conducted his own investigation and recommended that the University terminate Dr. Said’s employment as Assistant Professor. University did not accept this recommendation; it instead placed Dr. Said on probation for one year and required him to receive training in harassment in the workplace.
The previous year (August 2008) had applied for promotion to associate professor in August 2008. By the time the Clinical Teaching Personnel Committee (CTPC) met to consider his application, which had already been recommended by the Departmental Faculty Promotions Committee, the University had already investigated and disciplined the doctor. The Dean, who was the chair of the CTPC, advised the committee that the Dr. Said had been found guilty of sexual harassment; that he was under probation by the university and under investigation by the College of Physician and Surgeons of Ontario (CPSO). The CTPC recommended that Dr. Said not be promoted to associate professor based solely on this information, which put him at odds with section 3 of the Standards & Procedures for Promotion of Clinical Faculty.
In January 2010, the Dean communicated the negative recommendation to Dr. Said and suggested that there could be no appeal. In response, Dr. Said’s counsel intervened securing an appeal for Dr. Said and raising a concern of “reasonable apprehension of bias”. It requested that the dean recuse himself from the process given his involvement in the sexual harassment investigation and his decision to terminate Dr. Said.
The dean did not recuse himself from the process. Following Dr. Said’s appeal to the CTPC, the dean appeared before the committee where he stated that “it was not the CTPC’s role to re-open the sexual harassment investigation” (16). The CTPC voted unanimously to uphold its previous negative recommendation based on the fact that “Dr. Said did not meet the professional standards expected as per the standards and procedures for promotion for clinical faculty in the Faculty of Medicine”. (17). While the dean invited the doctor to make further submissions before he submitted a recommendation to the Joint Committee, the doctor, seeing the futility of the situation, chose not to avail himself of the opportunity.
The Joint Committee met to discuss the Dean’s negative recommendation of Dr. Said in June 15, 2010 and denied the doctor his promotion based on his failure to meet professional standards expected for promotion according to Policy.
As a result of this decision, Dr. Said was unable to practice medicine in Ontario. He was forced to leave the country to find work. He filed a complaint to the Supreme Court of Ontario.
The Court found that the University had a procedural duty of fairness in carrying out application processes, especially those where the stakes were so high. In this case, for example, a negative recommendation of Dr. Said would result in his inability to practice medicine in Ontario. It noted that the duty of fairness includes a requirement that the application process be free from bias or from the reasonable apprehension of bias.
It used “the test for reasonable apprehension of bias […] found in the dissent of de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board)8:
... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.... [T]hat test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." (29)
The Court noted that a violation of the bias rule in this context would be found where a member of a tenure committee had a preconceived opinion of the candidate’s suitability “played a significant role in the making of the decisions” (31)
The Supreme Court provided the following rationale in paragraphs 32 and 33:
In our view, the respondent did not meet its obligation of procedural fairness in the circumstances of this case because of the Dean's participation at every level of the process, after he had made a determination in 2009 that Dr. Said ought to be dismissed.
In this case, the Dean investigated the allegations of sexual harassment, determined that Dr. Said was guilty11 and recommended that he be dismissed. The University disagreed and placed Dr. Said on probation instead, the terms of which Dr. Said complied with as directed. The Dean chaired the meeting of the CTPC and while he was not a voting member, he contributed to its discussion by advising it of the finding made against Dr. Said. Following its first decision, the Dean issued his concurrence, without giving Dr. Said the opportunity to appeal. It was only after the intervention of counsel that Dr. Said was permitted to do so. The Dean continued to be involved thereafter. We are satisfied that a reasonable apprehension of bias is raised. A reasonably informed person would conclude that Dr. Said would not be treated fairly.
34 An order will issue quashing the decision of the Joint Committee. The applicant shall have his costs of the application fixed at $15,000.