Hetland v. University of British Columbia (Faculty of Medicine), 2024 BCHRT 315
Date Issued: November 5, 2024
File: CS-000936
Indexed as: Hetland v. University of British Columbia (Faculty of Medicine), 2024 BCHRT 315
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Jason Hetland
COMPLAINANT
AND:
University of British Columbia Faculty of Medicine
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(f)
Tribunal Member: Theressa Etmanski
On their own behalf: Jason Hetland
Counsel for the Respondent: Kacey Krenn
I INTRODUCTION
[1] Jason Hetland was a student at the University of British Columbia’s Faculty of Medicine [UBC]. He alleges that UBC discriminated against him by giving him a failing evaluation based on an assessment in which he was not provided extra time for his learning disability. He was subsequently required to withdraw from the MD Undergraduate Program [MD Program]. He says this is discrimination in services based on his mental disability.
[2] UBC denies discriminating and applies to dismiss this complaint without a hearing pursuant to sections 27(1)(c) and (f) of the Human Rights Code. UBC says this complaint has no reasonable prospect of success and the substance of the complaint has been appropriately dealt with in another proceeding. Specifically, UBC says that the issue of whether Mr. Hetland was denied appropriate accommodation has already been decided by UBC’s Senate Committee on Student Appeals on Academic Standing [Senate Appeal Committee].
[3] Mr. Hetland has not provided a response to this application, although he was given the opportunity to do so.
[4] I find this application can be resolved most efficiently under s. 27(1)(f) of the Code. The issue before me is whether Mr. Hetland’s allegation that UBC required him to withdraw from the MD Program in part due to his performance on an assessment in which he was not accommodated for his learning disability has been appropriately dealt with by the Student Appeals Committee. I find it has been.
[5] For the following reasons, I allow the application and dismiss the complaint. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision.
II BACKGROUND
[6] The following information is taken from the materials provided by the parties. I make no findings of fact.
[7] According to UBC, the MD Program typically takes four years for students to complete. By the third year, students are expected to work fairly independently in a clinical setting, such as a hospital, where they provide care to real patients. Two critical functions provided by third year students are taking patient histories and performing initial physical examinations. The information obtained by the students through these methods is used to formulate a diagnosis and determine an initial treatment plan. Students must be able to provide medical care safely and competently in a fast-paced environment.
[8] Two modalities used to assess students in the MD Program are Objective Structured Clinical Exams [OSCE] and Workplace Based Assessments [WBA]. An OSCE is a formal examination designed to objectively test knowledge, skills and attitudes in a simulated clinical environment, involving standardized scoring and content over a variety of timed stations. Students must attain a result of at least 60 per cent in all stations in order to pass.
[9] In contrast, one type of WBA used is direct observation, in which a clinical supervisor provides feedback on directly observed clinical tasks. Students are assessed as being “on track” or “not on track”.
[10] UBC says Mr. Hetland was enrolled as a student in the MD Program intermittently from the 2008 Winter session to the 2019 Summer session. His involvement was interrupted by academic difficulties and medical leave. In July 2017, the Student Promotion Review Board [SPRB] notified Mr. Hetland that he was required to withdraw from the MD Program because of his academic standing. Mr. Hetland appealed, and was reinstated on academic probation, with certain conditions. If he did not meet the conditions, he would not be offered a supplemental assessment and would be required to withdraw from the MD Program.
[11] UBC has accommodation policies and procedures in place which are aimed at ensuring students with disabilities are provided with equal access to education through the provision of reasonable accommodations. Students who need accommodations are required to register with UBC’s Centre for Accessibility and provide medical documentation. The student then works with an Accessibility Advisor to determine appropriate accommodations, which are then communicated to the student’s instructors.
[12] In June 2018, Mr. Hetland re-entered third year of the MD Program with approved accommodations. Specifically, he was entitled to be given 1.5 the allotted time to complete OSCEs.
[13] On June 20, 2019, Mr. Hetland completed a patient history assessment as part of his Internal Medicine rotation. Mr. Hetland says he understood this assessment to be an OSCE. However, he says he was not given additional time to complete it based on his approved accommodation. UBC disagrees that the assessment was an OSCE. Rather, they say it was a WBA for which Mr. Hetland did not require additional time as an accommodation.
[14] Two days earlier, one of Mr. Hetland’s patients died. He says this death impacted him emotionally and hindered his performance on the patient history assessment.
[15] On June 21, 2019, Mr. Hetland received his End of Rotation Assessment for Internal Medicine and learned he did not receive a passing result. Subsequently, the Regional Student Promotions Subcommittee [RSPS] recommended that the Mr. Hetland be required to withdraw from the MD Program on the basis that he had not met the third-year requirements. UBC says the SPRB considered this recommendation, as well as evidence presented by Mr. Hetland, including his position that he should have been given an extra time accommodation for his patient history assessment. The SPRB concluded that Mr. Hetland should withdraw from the MD Program.
[16] Mr. Hetland appealed the decision, and an Appeal Advisory Committee [AAC] was constituted to consider the appeal and make a recommendation to the Dean regarding the decision requiring Mr. Hetland to withdraw from the MD Program. UBC says Mr. Hetland submitted an appeal letter and supporting documents in this process. The AAC recommended that the appeal be dismissed and the requirement that Mr. Hetland withdraw be upheld. The Dean accepted this recommendation and informed Mr. Hetland of the decision on June 8, 2020.
[17] In September 2020, Mr. Hetland brought an appeal of the Dean’s decision to accept the AAC’s recommendation to the UBC Senate Appeal Committee. The matter was heard on December 15, 2020, and January 13, 2021, and a decision was issued on March 30, 2022. The Senate Appeal Committee voted unanimously to deny the appeal and upheld the decision requiring Mr. Hetland to withdraw from the MD Program.
III DECISION
[18] The Tribunal may dismiss a complaint under s. 27(1)(f) of the Codeif the substance of the complaint has been appropriately dealt with in another proceeding. The principles underlying s. 27(1)(f) flow from the doctrines of issue estoppel, collateral attack and abuse of process, and include finality, fairness, and protecting the integrity of the administration of justice by preventing unnecessary inconsistency, multiplicity, and delay: British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52 at paras. 25 and 36.
[19] To decide whether the substance of a complaint has been appropriately dealt with in another proceeding, the Tribunal must ask itself three things:
a. Did the other proceeding have jurisdiction to decide human rights issues under the Code?
b. Was the previously decided legal issue essentially the same as what is being complained of to the Tribunal?
c. Did the complainant have the opportunity to know the case to be met and have a chance to meet it, regardless of whether the previous process mirrored the Tribunal’s?
Figliola, 2011 SCC 52 at para. 37
[20] Ultimately, the Tribunal must decide “whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute”: Figliolaat para. 37.
[21] UBC says that the substance of Mr. Hetland’s complaint has been appropriately dealt with through the Senate Appeal Committee decision and the Tribunal should dismiss the complaint pursuant to s. 27(1)(f) of the Code. For the following reasons, I agree.
[22] First, I am satisfied that the Senate Appeal Committee is another proceeding that has concurrent jurisdiction to consider human rights issues.
[23] The Tribunal has previously found that academic appeal processes are “another proceeding” for the purposes of s. 27(1)(f) of the Code: Franco v. Vancouver Community College, 2004 BCHRT 6; E v. British Columbia Institution, 2010 BCHRT 212; Alexander v. University of British Columbia , 2010 BCHRT 124. More specifically, the issue of whether UBC’s Senate Appeal Committee is “another proceeding” that has concurrent jurisdiction to decide human rights matters has previously been before the Tribunal: Baharloo v. University of British Columbia and another (No. 2), 2011 BCHRT 290. The Court of Appeal affirmed that the Senate Appeal Committee does have concurrent jurisdiction for the purpose of s. 27(1)(f) of the Code: 2016 BCCA 277 at paras. 66-72, leave to appeal denied 2017 CanLII 4179 (SCC).
[24] Hearings of the Senate Appeal Committee are authorized under s. 37(1)(b) of the University Act, and these proceedings are an exercise of statutory decision-making powers. There is nothing in the University Act that expressly or implicitly precludes a Senate Appeal Committee from applying the Code to consider human rights matters. The Senate Appeal Committee’s Terms of Reference provide the following jurisdiction:
2.04 The Committee shall allow an appeal where it decides that the decision has been arrived at through improper or unfair procedures, and that as a result a wrong decision on the merits has or may have been arrived at. Without limiting the generality of the phrase “improper or unfair procedures,” it shall be construed to include the consideration of information that ought not to have been considered, and the failure to consider information that ought properly to have been considered.
[25] The Supreme Court in Baharloo considered this specific language and concluded that the Senate Appeal Committee’s jurisdiction to determine what constitutes unfair or improper procedures, includes the ability to apply legal principles to findings of fact. The Court of Appeal upheld this finding: paras. 52 and 93. This reasoning appropriately applies to the present complaint as well.
[26] Second, I have reviewed the March 30, 2022, decision of the Senate Appeal Committee and am satisfied that the same issues as those raised before the Tribunal were considered by both the AAC and the Senate Appeal Committee.
[27] The proceeding before the Senate Appeal Committee concerned Mr. Hetland’s appeal of how his completion of the year three milestones were evaluated, which led to UBC’s decision to require him to withdraw from the MD Program.
[28] One of the grounds of appeal raised before the Senate Appeal Committee was the: “Failure of the AAC to consider the impact of the Faculty of Medicine’s failure to implement appropriate accommodations for Mr. Hetland having consideration for the Terms of Academic Probation dated June 11, 2018 for the 2018-2019 Academic Year.”
[29] The decision of the Senate Appeal Committee sets out the following finding of the AAC with respect to Mr. Hetland’s allegation that UBC had not provided him with the required accommodation for his patient history assessment, which he claimed to be an OSCE:
The AAC reviewed the accommodations required by Mr. Hetland which included additional time to perform on an OSCE (Objective Standardized Clinical Examination). The Committee found that the assessment was neither an OSCE nor an OSCE equivalent for which the Program is normally required to provide an accommodation. The Committee found that Mr. Hetland did not establish this ground for appeal.
[30] With respect to the issue of the impact of the patient death on Mr. Hetland’s performance on the assessment, the decision notes:
The AAC noted that Mr. Hetland is fully aware of the supports available to him within the Program and through UBC Access and Diversity. He is also aware of his obligation to identify changes in his requirements for accommodation resulting from changes in his circumstances. Mr. Hetland did not notify the Program that the death of his patient had an impact on his ability to proceed with the history taking assessment at the time. As the Program was not notified, it was unable to support Mr. Hetland or arrange for any required accommodations. The Committee found that Mr. Hetland did not establish this ground for appeal.
[31] The Senate Appeal Committee accepted UBC’s evidence that the patient history assessment “was neither an OSCE nor an OSCE equivalent which would require that Mr. Hetland be given 1.5 times the allotted time to complete the examination.” It further noted that as the assessment was not timed, there was no time limit imposed. Mr. Hetland could have taken as much time as he needed to complete the assessment, so no time accommodation was needed. The Senate Appeal Committee therefore rejected Mr. Hetland’s claim that UBC failed to implement appropriate accommodations.
[32] The issue before the Tribunal concerns whether UBC discriminated against Mr. Hetland by requiring him to withdraw from the MD Program after he did not successfully complete his third-year requirements, even though he was not given an extra time accommodation for his patient history assessment as required by his learning disability.
[33] In essence, whether UBC failed to reasonably accommodate Mr. Hetland by providing him with additional time to complete his patient history assessment is the same issue raised in both proceedings. While the legal characterization of the issue may differ in the two forums, the factual foundations for both appear to be identical.
[34] Third, I am satisfied that Mr. Hetland was provided with an opportunity to know the case to be met and to meet it. I accept UBC’s submission that Mr. Hetland had the opportunity to raise his allegations and the facts which underlie them, including providing submissions and evidence, to the SPRB, RSPS, the AAC and the Senate Appeal Committee. By the time he reached the Senate Appeal Committee, he had heard UBC’s response to his allegations multiple times. He was represented by legal counsel at the Senate Appeal Committee and had the opportunity to provide submissions and evidence in support of his allegations.
[35] There is nothing before me to suggest that the proceeding before the Senate Appeal Committee was procedurally unfair. As the Tribunal said in Baharloo, the fact that another proceeding was conducted in accordance with procedures different than those used at the Tribunal does not amount to a breach in procedural fairness: para 51; see also Migliorini v. Greater Victoria Public Library, 2005 BCHRT 47 at para. 14.
[36] Accordingly, I am satisfied that it is not reasonable to expend public and private resources on the re-litigation of essentially the same issue that has already been resolved elsewhere.
IV CONCLUSION
[37] The substance of the complaint has been addressed through proceedings before the Senate Appeal Committee. It would not further the purposes of the Code to allow the complaint to proceed. The complaint is dismissed pursuant to s. 27(1)(f) of the Code.
Theressa Etmanski
Tribunal Member