Khan, a Medical student, failed her biology examination. Upon viewing her examination booklets, she realized that she had been marked on three booklets and that a fourth was missing. That fourth booklet could not be found. She appealed her grade, to the Faculty of Medicin Examinations Committee and then to the Senate Committee. Without giving her any notice or opportunity to appear before the Committee, each dismissed her application on the basis that she had failed to demonstrate any error or injustice in the grading of her examination.
Khan applied for judicial review, contending that each Committee denied her procedural fairness. The Divisional Court disagreed with her position that her credibility was the pivotal concern. In dismissing her application, the court concluded that she had failed to demonstrate that the fourth booklet had been handed in and that any denial of natural justice in the proceedings before the Examinations Committee had been cured in the proceedings before the Senate Committee.
- Was the appellant denied procedural fairness before the Examinations Committee?
- If so, did the proceedings before the Senate Committee cure the unfairness?
Laskin, writing for the majority, held that a university student threatened with the loss of an entire academic year because of one failing grade was entitled to a high standard of justice - the delay could seriously harm, or even end, the career being worked toward. In his opinion, credibility was a critical issue; whether or not the fourth booklet existed turned entirely on an assessment of Khan's credibility. The Examinations Committee denied the appellant procedural fairness by failing to give her an oral hearing, by not considering the procedures followed during and after the Evidence examination, and by not giving her an opportunity to correct or contradict the three "factors" it relied on in its decision. The "factors" amounted to little more than circumstantial evidence which caused them to disbelieve Khan. He also stated that she need not demonstrate actual prejudice to have been denied procedural fairness, merely that there was a breach of the duty of fairness owed. The appeal before the Senate Committee did not cure the procedural unfairness before the Examinations Committee because the former did not completely reconsider the appellant's appeal or give her a trial de novo.
Finlayson, in dissent, argued that the nature of the proceedings did not warrant an oral hearing. Khan had not been denied the ability to practice law, she had merely been delayed by one semester in this pursuit in order to demonstrate the necessary standard. This was not solely due to the failing grade in this class, but also due to her low grade point average overall.
- An oral hearing should be granted where:
- credibility is a serious issue; and
- where the consequences to the interest at stake are grave.
- An oral hearing should include an opportunity to appear, to make oral representations, and correct or contradict circumstantial evidence on which the decision might be based.