



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Albu v. The University of British Columbia,









2015 BCCA 41




Date: 20150203

Docket: CA041595

Between:

Mihaela Albu

Appellant

(Petitioner)

And

The University of
British Columbia, Vancouver Senate

Respondent

(Respondent)






Before:



The Honourable Madam Justice Garson

The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Savage




On appeal from:  An
order of the Supreme Court of British Columbia,
dated February 14, 2014 (
Albu v. The University of British Columbia
,
2014 BCSC 239, Vancouver Docket S134435)




Counsel for the Appellant:



P. T. Busch





Counsel for the Respondent:



D. J. Jordan, Q.C.





Place and Date of Hearing:



Vancouver, British
  Columbia

January 7, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

February 3, 2015









Written Reasons by:





The Honourable Madam Justice MacKenzie





Concurred in by:





The Honourable Madam Justice Garson
The Honourable Mr. Justice Savage










Summary:

Appeal from the dismissal of
a petition for judicial review of a decision by the Universitys Senate
Committee declining to hear an appeal of the petitioners academic standing in
a course in which she committed plagiarism. The petitioner previously had
agreed to withdraw her appeal in a settlement agreement. Held: Appeal
dismissed. The settlement agreement was legally binding. The chambers judge
properly confined the record on judicial review to the record of the
proceedings before the Senate Committee, which does not support the
petitioners allegations of bad faith and improper motive.

Reasons for Judgment of the Honourable
Madam Justice MacKenzie:


[1]

Mihaela Albu appeals the dismissal
of her petition for judicial review of the refusal of the University of British
Columbias Senate Committee on Student Appeals on Academic Standing (the
Senate Committee) to hear her appeal of a failing grade. The Admissions and
Academic Progress Committee of the Faculty of Dentistry (the Faculty)
assigned her the failing grade for a course in the 2007-2008 academic year.

[2]

On judicial review, Ms. Albu
sought orders in the nature of
mandamus
to compel the Senate Committee
to hear her appeal of her academic standing in the course, to compel the
respondent University of British Columbia (UBC) to enforce the decision of
its President to issue a letter of reprimand regarding her academic misconduct
but without further penalty (including reversing the failing grade assigned to
her for the course), and to compel UBC to issue her a clean academic
transcript. Mr. Justice Truscott dismissed her petition for judicial review. On
appeal, she seeks an order granting the relief sought in the court below.

[3]

For the reasons that follow, I
would dismiss the appeal.

Background

[4]

The record of proceedings before
the Senate Committee was enumerated by Mr. Justice Truscott in his reasons
for judgment (2014 BCSC 239) at para. 6.  For convenience, I will set out the
background as follows.

[5]

In the winter semester of 2008,
when Ms. Albu was a student in the Bachelor of Dental Sciences (Dental
Hygiene) program at UBC, an academic judgment was made in grading a paper 
submitted by Ms. Albu for a literature review assignment for a course she
was taking  that Ms. Albu committed plagiarism. She was given a failing
grade for the course. The Dean of the Faculty referred the matter to the
Presidents Advisory Committee on Student Discipline (the Presidents Advisory
Committee), which found Ms. Albu had committed academic misconduct by
submitting a plagiarized assignment. This Committee noted Ms. Albu had
admitted her misconduct and she had apologized.

[6]

After receiving and considering
the report from the Presidents Advisory Committee, the President issued
Ms. Albu a letter of reprimand on June 5, 2008.  On August 5, 2008,
Enrolment Services advised Ms. Albu that her application of July 6 for Review
of Assigned Standing had been returned and there was no change to the
previously assigned grade of 0%.  Ms. Albu then initiated an appeal to
the Senate Committee.

[7]

However, on February 10, 2009,
before that appeal was heard, Ms. Albu, represented by counsel, entered
into a settlement agreement, a term of which required the Faculty to allow her
to repeat the plagiarized assignment.  The agreement included these terms:

2.         Ms. Albu will
withdraw her appeal by notifying the Senate Committee on Appeals on Academic
Standing in writing of that fact;

3.         Ms. Albu will
immediately and irrevocably execute a full and final Release of all claims in
favour of the University;



8.         After Ms. Albu
has submitted the Assignment for marking, the Instructor will grade the
Assignment. This Assignment will be treated as a Supplemental Assignment and as
such will be graded on a Pass/Fail basis;



10.       A Fail grade on the
Assignment will result in a failing grade for the course, which will be
recorded as a Supplemental grade of F on the transcript. In accordance with
UBC policy, A student at any level of university study who fails for a second
time (which need not be consecutive) will be required to withdraw from the
University. After a period of at least one year, an appeal for permission to
re-enroll will be considered. Such an appeal will be granted only after the
appeal has been reviewed and approved by the dean of the faculty concerned. A
negative decision by the dean may be appealed to the Senate Admissions
Committee. (UBC Calendar 2008-09, V. Policies and Regulations,
Advancement Regulations, para. 6);



13.       Ms. Albu will
keep confidential and will not disclose to anyone except her legal advisors the
fact that she has made this settlement agreement and the terms of this
settlement agreement except as she may be compelled by law;

14.       The
grade which Ms. Albu receives for the Assignment and the resulting grade
for the course are final (Grades).
Ms. Albu agrees that she will not
pursue any grievance, appeal or any other remedy against the University as a
result of the Grades or for any other reason. Ms. Albu recognizes that
this is a last chance agreement as consideration for allowing her to redo the
Assignment
.

[Emphasis added.]

[8]

Ms. Albu submitted the
assignment on May 14, 2009.  An Associate Dean of the Faculty advised
Ms. Albu by letter dated July 7, 2009, that her supplemental assignment
had been graded and she had been given a failing grade.

[9]

In April 2010, Ms. Albu
commenced a civil action against UBC, a professor in the Faculty, and the
director of the Dental Hygiene program over the finding of plagiarism and her
assigned standing in the course. Counsel for UBC says this action, which is
outstanding, includes allegations of negligence, breach of contract and breach
of fiduciary duty, which are based substantially on Ms. Albus claims that
the Faculty entered the settlement agreement in bad faith and with improper
motive.

[10]

In May 2012, by email,
Ms. Albu sought to continue the appeal of her academic standing in the
course to the Senate Committee. In a letter dated April 29, 2013, she
requested a hearing before the Senate. The Senate Committee, by email dated May
14, 2013, denied her request to initiate an appeal on the basis that the
agreement and release had fully resolved the issues.

[11]

Ms. Albus claims of bad
faith and improper motive were not before the Senate Committee.

The record on judicial review

[12]

At the outset of the proceedings
below, the chambers judge refused Ms. Albus attempts to introduce various
materials that were not part of the record before the Senate Committee.

[13]

Ms. Albu had obtained,
through disclosure and examinations for discovery in the civil action,
information she says demonstrates the Facultys bad faith. She had attempted to
introduce, among other things, extracts from the transcript of an examination
for discovery, emails between Faculty staff disclosed in the civil action, and
materials obtained pursuant to an application under the
Freedom of
Information and Protection of Privacy Act
, R.S.B.C. 1996, c. 165.
Ms. Albu had endeavored to rely on those materials to support her argument
that the letter agreement was not done properly according to the law and in
good faith.

[14]

The chambers judge refused to
consider those materials, acceding to UBCs objections that the materials were
not part of the record of proceedings before the Senate Committee, and
therefore not part of the record to be considered on judicial review. He
decided that, in law, the judicial review had to be based on the actual record
that was before the Senate Committee.

The judicial review

[15]

The chambers judge determined,
subject to Ms. Albus claim the agreement was not legally binding, that the
petition was an abuse of process in that she sought judicial review over
matters she had compromised and settled through the agreement and release, with
the assistance of her counsel, in consideration for the right to repeat the
assignment.

[16]

At the hearing of the petition,
Ms. Albu informed the court that it was she who had asked the Faculty if
she could re-do the assignment. The Faculty agreed, but on the condition that
she withdraw her appeal to the Senate Committee.

[17]

Ms. Albu also told the court
below that she was satisfied and pleased with the paper she submitted for the
repeated assignment.

[18]

The chambers judge noted that Ms.
Albu sought to rely on the fact she has never complied with the term requiring
her to withdraw (in writing) her appeal to the Senate Committee as one reason
why she should be entitled to continue her appeal through judicial review.
Subject to his determination as to whether the agreement was valid and binding
on her, the chambers judge denied Ms. Albus judicial review, saying, The
Court will not countenance a party relying upon their own default to support a right
to judicial review

The agreement and release

[19]

Ms. Albu argued in the court
below that the agreement allowing her to repeat the assignment required
approval by the Senate or board of governors and because it was not so
approved, executed or otherwise authorized in accordance with the
University
Act
, R.S.B.C. 1996, c. 468, the agreement was void, voidable, unenforceable
and illegal. She contended those members of the Faculty who negotiated the
agreement acted without jurisdiction to bind UBC. While she submitted there
were no rules or policies within the Faculty requiring an undergraduate student
to sign an agreement and release, she also said negotiations, drafting the
terms of the agreement, and deciding the execution of the agreement, are part
of the Facultys affairs and business as authorized by s. 40(c) of the
University
Act
. This argument also appeared to form part of her submission that the
settlement agreement was entered into in bad faith and for improper motive on
the part of the Faculty.

[20]

Having cited s. 27 of the
University
Act
as to the powers of the board of governors, s. 37 as to the powers
of the Senate, and ss. 39 and 40 as to the constitution of faculties and
their powers and duties, the chambers judge then said he was satisfied the
Faculty had received the approval of the Senate when its rules were promulgated
and its examiners appointed. He concluded a supplemental examination, as
accorded Ms. Albu under the agreement, is part of the Academic Policies
and Procedures of the Faculty of Dentistry and is stated to be a privilege and
not a right (para. 24). The judge determined the agreement required the
Faculty to allow Ms. Albu to repeat the assignment; in return, she agreed
to immediately and irrevocably execute a full and final release, in favour of
UBC, of all claims. He found that the agreement and release were properly
executed by Ms. Albu, and that, because neither the Senate nor the board
of governors was obliged to do anything by the terms of the agreement, neither
was required to execute the agreement or the release. He concluded the
agreement was solely within the jurisdiction of the Faculty to negotiate with
Ms. Albu.

[21]

The chambers judge considered
other arguments advanced by Ms. Albu, including that the confidentiality
term (term 13 replicated above at para. 7) was wrong and showed bad faith on
the part of the Faculty. At the hearing, Ms. Albu argued this was so
because just drafting this term indicates the fact that faculty did not act in
good faith and requested I withdraw my appeal and trying to keep everything
within its boundaries . The judge responded, I think the university, to put
in this confidential clause, was concerned that if this became a matter of
public knowledge other students who failed may ask for supplemental
examinations.

[22]

Ultimately, the chambers judge
found no merit to the judicial review because the agreement was valid in law
and stood as the resolution of the issues between the parties. He declined to
direct the Senate to reconsider its decision not to permit an appeal by
Ms. Albu.

[23]

Finally, the judge exercised his
discretion not to grant the equitable remedy of
mandamus
as sought
because, having taken the privilege of repeating the assignment but having
failed to withdraw her appeal to the Senate Committee as she had agreed,
Ms. Albu did not come to court with clean hands.

On Appeal

[24]

Ms. Albus contentions on
appeal, as described in her factum, can essentially be reduced to these:

(a)      she did not have a fair hearing because the chambers judge did
not permit her to adduce evidence, described above, discovered after she signed
the agreement and release, and which she says demonstrated malicious behaviour
and bad faith by the Faculty;

(b)      the judge erred in limiting the evidence to the record before
the Senate Committee and by not intervening as
amicus curiae
on her
behalf when she was self-represented;

(c)      the agreement and release were not legally binding and therefore
it is not an abuse of process to seek judicial review;

(d)      the agreement and release were illegal because

(i)       the Faculty acted negligently and in bad faith in entering into
the agreement and release, did not disclose material information to her, and
created a natural injustice by requiring her to waive her rights to appeal her
grade so they could avoid the oversight of their negligence and academic
judgment; and

(ii)      the agreement and release were not within the jurisdiction of
the Faculty, the Faculty was required to obtain the approval of UBC for any
contracts and therefore had no authority to bind UBC, and the Faculty did not
follow the rules and procedures related to supplemental examinations;

(e)      the judge erred in applying the clean hands doctrine to her.

Ms. Albu also asserts the Faculty acted in bad
faith in assigning and assessing the repeated assignment.

[25]

In oral submissions, Ms. Albu
focused largely on her various allegations of bad faith and improper motive,
which she had attempted to pursue without success before the chambers judge.
She referred this Court to material he refused to consider because it was not
part of the record of proceedings before the Senate Committee.

[26]

UBC repeats its argument that if
the agreement and release are legally binding, these allegations, which are in
effect the claims of breach of contract and breach of fiduciary duty that form
the bases of Ms. Albus civil action, are outside the scope of judicial
review.

Fresh Evidence

[27]

Ms. Albu applies to adduce as
fresh evidence certain exhibits attached to her affidavit, sworn May 5, 2014,
to argue, it seems, that the Facultys academic judgment of her repeated
assignment, and an expert report, Dr. Farah Shroffs academic judgment of the
repeated assignment (obtained for the civil action), are contradictory. She
deposes, The UBC Vancouver Senate did not look at how the Faculty of Dentistry
arrived at its academic judgment regarding my repeat assignment 4 and the final
grade for the DHYG 404 course (para. 14). Through other exhibits attached to
her affidavit, Ms. Albu appears to dispute the characterization of the
repeated assignment as a supplemental assignment, and to clarify that she
sought to appeal to the Senate Committee her academic standing in the course,
not the Presidents decision to issue the reprimand letter (as set out by the
chambers judge in his summary of the record of proceedings in para. 6(e) of his
reasons  I note that at the outset of his reasons he refers to her appeal
from the standing assigned to her).

[28]

Ms. Albu also applies to
adduce a chambers decision on document disclosure made in the civil action,
which is new evidence as it was made after the Senate Committee declined, in
May 2013, to hear her appeal.

[29]

In
Golder Associates Ltd. v.
North Coast Wind Energy Corp.
, 2010 BCCA 263, Mr. Justice Chiasson set out
the test for admitting fresh evidence in civil appeals:

[33]      The test for the
admission of fresh evidence was stated in
Palmer v. The Queen
, [1980] 1
S.C.R. 759 at 775:

(1)        The evidence
should generally not be admitted if, by due diligence, it could have been
adduced at trial provided that this general principle will not be applied as
strictly in a criminal case as in civil cases: see
McMartin v. The Queen
[[1964] S.C.R. 484].

(2)        The evidence must
be relevant in the sense that it bears upon a decisive or potentially decisive
issue in the trial.

(3)        The evidence must
be credible in the sense that it is reasonably capable of belief, and

(4)        It must be such
that if believed it could reasonably, when taken with the other evidence
adduced at trial, be expected to have affected the result.

[34]

[35]      This Court in
Spoor
v. Nicholls
, 2001 BCCA 426, confirmed that the
Palmer
criteria apply
in civil cases and observed in para. 16 that in
Palmer
the court said
that the due diligence test should be applied more strictly in civil than in
criminal cases.

[36]      In
Scott v. Scott
,
2006 BCCA 504, Ryan J.A. observed in para. 21:

the nature of an appeal is
to examine the record and determine whether there has been an error of law or a
palpable error of fact: it is not a continuation of a trial at a different
stage. Thus, generally speaking, the need for certainty and finality leaves no
room for the admission of fresh evidence on appeal

[30]

In
Jens v. Jens
, 2008 BCCA
392, at paras. 31-34, Madam Justice Levine explained new evidence is rarely
admitted, but this Court will admit it where the failure to admit would result
in a long-term injustice. In this appeal, however, the chambers decision in the
civil action is not relevant and should not be admitted.

[31]

I conclude Ms. Albus
application does not meet the test for the admission of fresh evidence on
appeal. The fresh evidence with respect to the contradictory academic
judgments, the nature of the repeated assignment, and the subject of her appeal
to the Senate Committee are not determinative of any issue in the judicial
review, which turns on the validity of the agreement, and are not relevant to
that proceeding. I view this application to be another attempt to have this
Court consider material that was not part of the record before the chambers
judge and which he properly refused to consider.

[32]

I would dismiss the application to
adduce fresh evidence.

Analysis

[33]

Ms. Albu largely repeats the
arguments she either unsuccessfully advanced, or attempted to advance, in the
judicial review. She seeks to refer this Court, as she endeavored to refer the
chambers judge, to materials not before the Senate Committee, and therefore not
part of the record on judicial review.

[34]

Ms. Albu says the chambers
judge erred in limiting the evidence on the judicial review to the record
before the Senate Committee. But I agree he was precluded at law from
considering the extraneous material, including (amongst other items) emails
between members of Faculty staff, and excerpts from the transcript of an
examination for discovery in her civil action.

[35]

Ms. Albus submissions
reflect a fundamental misunderstanding of this Courts role in an appeal of a
judicial review decision. That courts perform a supervisory role on judicial
review is well known, as explained by Mr. Justice Bastarache and Mr.
Justice LeBel in
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R.
190:

[28]        Judicial review
is the means by which the courts supervise those who exercise statutory powers,
to ensure that they do not overstep their legal authority. The function of
judicial review is therefore to ensure the legality, the reasonableness and the
fairness of the administrative process and its outcomes.

The supervisory role, however, means that judicial
review proceedings are to be conducted on the record:
Actton Transport Ltd.
v. British Columbia (Employment Standards)
, 2010 BCCA 272 at paras. 19-23.

[36]

On judicial review, the reviewing
court generally does not admit evidence that is not part of the record:
SELI
Canada Inc. v. Construction and Specialized Workers Union, Local 1611
,
2011 BCCA 353 at para. 80. This Court clearly explained in
Actton Transport
Ltd.
at para. 23 that the reviewing court usurps the role of the tribunal
where it receives new evidence that was not before the tribunal and conducts a
de
novo
hearing rather than reviewing the tribunals decision based on the
record that was before the tribunal. Such an approach is not appropriate on
judicial review or on an appeal from a judicial review decision.

[37]

The chambers judge reviewed the
Senate Committees decision on the basis of the material before it. Thus, there
was no procedural unfairness in the court below in identifying the record, nor
has Ms. Albu identified any other unfairness in the conduct of the hearing
below.

[38]

Further, as the respondent
accurately says, her affidavits that were before the chambers judge and are now
in her Appeal Book contain various inadmissible statements of conclusion,
argument and hearsay.

[39]

Ms. Albu makes various
submissions about assistance she required as a self-represented litigant in the
proceedings below. From the, albeit brief, extracts of the transcripts of the
proceedings below that Ms. Albu put before us, I consider the chambers
judge was courteous and patient during the proceedings.

[40]

Ms. Albu maintains the
Faculty acted in bad faith in entering into and complying with the agreement
and release, and therefore they should not be enforced. However, the evidence
before the Senate Committee and properly before the chambers judge does not
support the conclusion Ms. Albu advocates before this Court. The chambers
judge concluded the agreement and release were legally binding on
Ms. Albu. She has not identified any reason that would permit this Court
to interfere with that conclusion.

Disposition

[41]

I would not sustain any of
Ms. Albus submissions. I see no merit to this appeal based on the record
of proceedings as properly limited and considered by the chambers judge. I
would dismiss the appeal.

The Honourable Madam Justice MacKenzie

I agree:

The Honourable Madam Justice
Garson

I agree:

The Honourable Mr. Justice
Savage


