Executive Summary: Key Legal and Evidentiary Issues

• Applicant challenged academic dismissal from a college program through judicial review, alleging unfairness and discrimination.

• College’s refusal to accept internal academic appeal formed a key part of the procedural fairness argument.

• Central issue revolved around whether the college’s decision was reasonable and met the standards in Vavilov.

• Court assessed whether the college provided proper accommodations under the Human Rights Code.

• Judicial review was filed late, raising the issue of delay and whether an extension should be granted.

• Court ultimately dismissed the application, finding no manifest unfairness or legal error.

Background and academic history

Damjan Ilic enrolled in the three-year Respiratory Therapy Program at Canadore College in 2018 and identified as a student with learning disabilities, having received accommodations since high school. He completed his first two years of study with difficulties, including academic probation and course failures, but remained in good standing by 2022. Due to his twin brother’s serious motorcycle accident and resulting mental health issues, Mr. Ilic took a one-year medical leave in 2022 during his clinical placements.

He returned to the program in 2023 to complete his final year of clinical training. Despite some positive feedback and signs of progress, he ultimately failed both the neonatal and pediatric ICU clinical rotations in early 2024 due to unsatisfactory evaluations in communication and problem-solving. These failures, according to the college, fell short of competency requirements and triggered a third instance of academic probation, leading to Mr. Ilic’s involuntary withdrawal from the program.

The decision and attempted appeal

On April 26, 2024, the Associate Dean, Dr. Vivian Papaiz, formally informed Mr. Ilic that he could not complete the program due to his failure in the neonatal and pediatric rotations. The college cited specific standards from the program handbook, including the requirement of 80% competency in each patient population with no failing scores.

Mr. Ilic, through legal counsel, attempted to appeal the decision internally but did not meet the procedural deadlines laid out in the college’s Appeal Policy. Though the college provided general guidance and reiterated the time sensitivity of the process, it treated the April 26 decision as a Stage 2 decision under the appeal framework, giving Mr. Ilic only two business days to escalate the matter to Stage 3. His appeal materials were submitted well after that deadline. He also filed a civil lawsuit against the college and Dr. Papaiz and later sought judicial review in the Divisional Court, which was also filed beyond the 30-day statutory period.

Arguments on judicial review

Mr. Ilic argued that the college breached procedural fairness by failing to accommodate his mental health condition and disabilities, failing to follow its own academic policies, and denying him the opportunity to appeal. He emphasized that the decision came without proper notice or a chance to respond, and claimed that the appeal process was mishandled.

The college defended its decision as reasonable and justified, supported by detailed evaluations and academic policies. It maintained that Mr. Ilic had been given multiple opportunities, support, and accommodations throughout the program, but was ultimately unable to meet the required clinical competencies necessary for graduation in a high-stakes health profession. The college also denied any breach of procedural fairness in handling the appeal process and argued that the judicial review should be dismissed for delay.

Court’s findings and conclusion

The Divisional Court dismissed Mr. Ilic’s application for judicial review. The court found that the college’s decision was reasonable, well-supported by evidence, and clearly explained. It emphasized that courts show deference to academic institutions, especially in programs involving public safety like respiratory therapy. The court found no breach of the Human Rights Code or of procedural fairness.

On the appeal process, while the court expressed reservations about the college’s vague communication and inconsistent guidance, it held that Mr. Ilic had not been misled to the extent that would justify overriding the missed deadline. The college’s decision to reject the appeal for procedural non-compliance was not found to be unreasonable or manifestly unfair.

The court exercised its discretion not to extend the judicial review deadline, finding the delay unjustified and the case lacking sufficient merit to warrant extraordinary relief. However, it declined to award costs, noting the college’s less-than-ideal handling of the internal appeal communications.

Ultimately, Mr. Ilic’s challenge was rejected, and the college’s decision to withdraw him from the program remained in effect.