Last week the Court of Appeal of Alberta released an important decision on the rights of post-secondary students to procedural fairness in internal discipline proceedings.

Facts + Issues

The Appellant, Ms. Penn, was a registered psychotherapist in the Netherlands with over 30 years’ experience. She moved to Canada in 2013 and enrolled in the Master of Psychotherapy and Spirituality (MPS) program at St. Stephen’s College. The successful completion of the program would allow her to apply to practice psychotherapy in Canada. One program requirement was a counselling practicum.

As part of the practicum, Penn was required to record at least half of her client sessions for educational purposes. After watching footage from one of Penn’s client sessions, Penn’s supervisor expressed concerns about her professionalism and inability to take feedback. The supervisor found a concerning 20-minute video clip during which Penn was alleged to have made “graphic self-disclosure with a client to dissuade the use of antidepressants”. As a result of that exchange, the supervisor ended Penn’s practicum.

The Dean then requested Penn’s attendance at a disciplinary meeting to discuss her practicum termination and invited her to present her information in writing prior to the meeting. However, Penn did not have access to the video clip or to two other internal communications between professors in the program who had been informed about the supervisor’s concerns and had reviewed and opined on the video clip.

The Dean concluded Penn had violated the College’s Code of Student Behavior by:

1. Contravention of the Code of Ethics of the Canadian Counselling and Psychotherapy Association (CCPA).
2. Having exhibited “careless or negligent behavior resulting in harm to clients, practicum supervisors, or to the practicum practice”.

As a result, she was withdrawn from the practicum course, and excluded and restricted from enrolling in all future courses and from entering any future practicum placement.

The Dean’s decision was upheld on an internal appeal. The student then applied for judicial review in 2019, which was successful: the Court referred the matter back to a new internal Appeal Panel for reconsideration. The Appeal Panel held a new hearing and again affirmed the Dean’s decision. The student then brought a second judicial review, represented by senior criminal defence counsel.

On judicial review, the Court found that the student had failed to identify any palpable and overriding error on the part of the Appeal Panel, and concluded that the Dean’s decision was reasonable. The Court determined that the College’s procedure was “more than fair”, and that even if the Dean had misunderstood the facts, this error was cured on appeal, in light of the agreement by the student and her counsel to the procedure and documents before the panel.

The student appealed the decision to the Court of Appeal of Alberta, this time self-represented.

Decision

The Court allowed the appeal and set aside the decision of the Court below, and the Appeal Panel, and quashed the Dean’s decision to expel the student.

Rationale

The Court held that the College breached its obligation of procedural fairness when it refused to permit the student to view the video clip in which she would have made the alleged statements that were at the basis of the decision to expel her. This was a serious breach which was not remedied in the three appeal hearings that occurred after the expulsion.

The record revealed that from the termination of the student’s practicum to the present, the student and her counsel frequently and persistently requested the opportunity to view the video clip or a transcript of it. The College denied the student the opportunity to do so, citing confidentiality concerns regarding the patient and taking the position that because Penn was no longer a student, she had no right of access. For a period of time, it was assumed the video clip no longer existed, as the College at some point insinuated that any copies that the College may have possessed had been destroyed.  

The College argued that the student had agreed to the contents of the record before the third Appeal Panel, and that as a result, she should be denied the ability to view the video clip. The Court rejected this argument as well as the confidentiality argument, as the student had asked to view the video on multiple occasions, and as the issue of confidentiality could have been addressed by a simple undertaking from the student and her counsel to treat the material as confidential. The Court found that “the College [could not] hide behind a claim of confidentiality to deny Penn access to the very evidence which resulted in her expulsion.”

The Court emphasized the high degree of procedural fairness owed in academic discipline proceedings given the “actual and potential impacts on the careers and livelihoods of the student or academic member of the institution, adding that “the decisions of post-secondary institutions have a significant adverse impact on the trajectory of the individual’s career.”

The Court also recognized that the specific content of the duty of procedural fairness owed to a student by a post-secondary institution with respect to disciplinary matters can be modified somewhat by the statutory scheme, including the Post-Secondary Learning Act, which contains language suggesting an intent to afford the institution discretion in dealing with student disciplinary matters. The Court was satisfied that the College owed the student a high degree of procedural fairness, which included the ability to review the video that she had been requesting, as the video clip was stated by the College to be the primary reason for the student’s expulsion, and was therefore a key piece of evidence.

The student argued that procedural fairness required an oral hearing. The Court, however, rejected that argument, relying on the Student Handbook which made it clear that appeals had to be in writing, and distinguishing this case from jurisprudence where the court directed an oral hearing because credibility was central to the university’s decision.

Remedy

The Court stated that while the usual remedy would be to direct the production of the video and direct the College to reconsider its decision, the student did not wish to return to the College in this instance, and both parties were seeking finality. The student had requested an apology and costs. The Court encouraged the College to offer an apology and directed further written submissions dealing with the issue of costs. 

Takeaways

Designing student disciplinary processes is tricky. Institutions try their best to balance efficiency, proportionality, and the interests of many different stakeholders—the accused student; the complainant; the student body generally; faculty; staff; and maintaining the institution’s independence and public integrity.

The decision in Penn suggests that the procedural rights of the accused student are a clearly required aspect to be balanced in that calculus. Indeed, this is the second time in recent years that the Court of Appeal has emphasized the high degree of procedural fairness to which students are entitled. In Dalla Lana v University of Alberta the panel dismissed a challenge on procedural fairness grounds by blessing a process which was “close to a judicial one. It is structured and adversarial. The parties are entitled to legal representation and to call evidence.” The decision in Penn recognizes another component of procedural fairness: a right to some measure of fair document disclosure.

While approving a full court-like process as fair, the courts have not yet explained what departures from it will be acceptable and which will fall below the minimum standards of natural justice. However, the recent trend means that procedural rules for student discipline should likely include the elements commonly seen in professional regulatory tribunals or labour relations hearings, for example. Where procedural protections dip below that level, the resulting decisions are at risk of being overturned on judicial review. An adverse judicial decision would have effects beyond any one individual case; it would effectively require the institution to revise its policies to provide appropriate protections. For other cases in the pipeline at the time of such a judicial decision, the effects would be disruptive and potentially derailing.

For assistance evaluating current practices, identifying potential areas for improvement, and implementing changes that align with the latest legal standards contact Scott Matheson in Edmonton, Frank Molnar, KC in Calgary, or any member of Field Law's Post-Secondary Education Group.

Link to decision: Penn v St Stephen's College, 2024 ABCA 99