In Translation: the decision of Québec Superior Court in Weisfeld vs. the Université duQuébec à Montréal -

La décision de la juge Grenier est maintenant publiée sur Canlii - Weizfeld c. l'UQAM [ note: Weisfeld (English) & Weizfeld (français) ]

JG 11162009 QCCS 5341 (CanLII) 500-17-039409-076 18 pages

http://www.canlii.org/fr/qc/qccs/doc/2009/2009qccs5341/2009qccs5341.pdf

English translation follows here:(Note: This is an unofficial translation made by Abraham Weizfeldand for purposes of legal reference the original source at theCourt link above must be referenced.)2009-12-25

Weisfeld vs. Université du Québec à

2009QCCS 5341Montréal (University of Québec at Montréal)

SUPERIOR COURT

CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL

No : 500-17-039409-076

DATE : November 17, 2009 ______________________________________________________________________

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IN THE CHAIR: THE HONOURABLE DANIELLE GRENIER, J.C.S. ______________________________________________________________________

ABRAHAM WEISFELD Plaintiff

vs. UNIVERSITY OF QUEBÉC AT MONTRÉAL

Defendant

____________________________________________________________________________

DECISION ________________________________________________________________________

_____

[1] On October 29, 2007, the plaintiff, Mr. Abraham Weisfeld,introduced a mandamus action to quash the decision October 14,2005 of the Defendant, the University of Quebec at Montreal,expelling him from the Ph.D. program in political science, andforcing the latter to let him proceed to the defence of histhesis.

Facts

[2] In September 1987, the plaintiff is admitted to the Ph.D.programme in political science of the defendant.

[3] By the autumn of 1988, have experienced health problems, theplaintiff enjoys three sessions of authorized absence, aspermitted by the Regulation Number 8 of the Masters and Doctoralgraduate studies programmes (Regulation No. 8).

[4] In the fall of 1993 to the summer of 1995, the defendant hassix more sessions additional leave of absence following anagreement between the Directorate of Research Management Programand the Dean's Office of Advanced Studies and research.

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[5] On September 15, 1995, having exceeded the number ofsessions regulatory granted to students to complete a doctorate,the plaintiff is excluded from the Ph.D. program.

[6] In the fall semester 2000, according to Regulation No. 8,the plaintiff registers again and was readmitted to the sameprogram. His thesis is then complete and should be submitted inSeptember 2000.

[7] The plaintiff's Thesis is actually filed September 22, 2000.His Thesis Director is then Professor Lawrence Olivier.

[8] The process of evaluating the plaintiff's Thesis begins inthe fall of 2000. Pursuant to Regulation No. 8, a first jury wasformed October 10, 2000. The four people on the jury are:Lawrence Olivier, Thesis director; Thierry Hentsch, professor inthe Department of Political Science (UQAM); Michel Seymourprofessor in the Department of Philosophy at the University ofMontréal; Anne Légaré, Professor in the Department of Political Science (UQAM).

[9] The withdrawal of a member of the jury, Professor ThierryHentsch, requires the defendant to appoint a new member.Professor Samuel Noumoff joins thus joins the three othermembers, November 29, 2000.

[10] On January 31, 2001, Professor Noumoff delivers hisassessment. He concludes that the plaintiff's Thesis should bereturned to him for major corrections, without the possibility ofa defence before the corrections were accomplished and the Thesisre-evaluated by the members of the jury (D-16).

[11] Two other board members, being Professor Légaré andProfessor Seymour, made the same recommendations as ProfessorNoumoff (D-20 and D-21).

[12] Professor Oliver is alone and cavalier. He recommends thatthe thesis be accepted without modification and presented fordefence.

[13] Subsequently, the board members meet seeking,unsuccessfully, to reach a unanimous recommendation, as required

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by Regulation No. 8. Therefore it became necessary to repeat theprocess. [14] A second panel is formed in accordance with Regulation No.8. It is composed of Professors Lawrence Olivier, Roman Serbyn(Chairperson), Sami Aoun and Daniel Weinstock (D-25 D-26). Theevaluations of these latest members are once again contradictory.

[15] Professor Oliver proposes to accept the Thesis of theplaintiff unconditionally (D-28).

[16] Professor Serbyn recommends that the plaintiff's work bedismissed without the right of appeal (D-29).

[17] Professors Weinstock and Aoun recommend the return of thethesis for major corrections.

[18] The conclusion was not unanimous, the director of theProgramme requires the jury members to meet. The jury must, underthe Regulations, arrive at a conclusion at least by majority, ifnot unanimity (R-8, art. 10.20.21).

[19] On January 31, 2003, Professor Olivier formulates a list ofcorrections required by the jury members (D-46 D-47 D-48 D-49),the unanimous recommendation is to return the thesis to theplaintiff so that he makes major corrections (D-45).

[20] On January 31, 2003, the program director contacts theplaintiff to him to share orally corrections requested by thejury (D-48).

[21] On March 27, 2003, the Program Director completes theofficial form - Revised Form for the progression of a researchproject - in which she noted that the work be returned to thewriter so that he carries out major corrections (D-50).

[22] On March 31, 2003, the Deputy Director of the Office forEducation and Programmes (BEP), Mr. Norbert Morin, writes to theplaintiff and requests him to communicate with the ProgramDirector or his research Director to know the changes required bythe jury members. He mentioned to him that he has a period of oneyear to make these changes and that each member of the jury will

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be asked to give their assessment of the revised text before thethesis defence could be recommended. (D-51).

[23] On November 13, 2003, a list of required corrections is sentto plaintiff, at his request (D-52).

[24] On April 7, 2004, the plaintiff files a second version ofhis thesis (D-53 D-54).

[25] On April 8, 2004, this second version is sent to the jurymembers with the note that they have until June 8, 2004 tocomplete their evaluation (D-55).

[26] On April 30, 2004, Professor Oliver recommends acceptance ofthe thesis unconditionally (D-56).

[27] In a letter dated June 7, 2004, Professor Serbyn informsNorbert Morin his intention to resign from the jury. He seems illat ease: first, he said, he does not believe that the text of theplaintiff meets the criteria that should meet for PhD thesis. Onthe other hand, he says he is "unable to do justice for the workof the student and, at the same time, remain loyal to [him] self"(D-57). Subsequently, he changed his mind and remained a member of the jury.

[28] On July 30, 2004, Professor Weinstock delivers hisevaluation form and recommends the acceptance of the thesiswithout condition, but with marked minimum, that is to say "Good"(D-59).

[29] On 1 October 2004, Professor Aoun delivers his evaluationform and recommends acceptance of the thesis, provided that minormodifications be made before the defence. He indicates on thisform, that the corrected text should be submitted to him forapproval before a final recommendation is issued (D-60).

[30] On November 25, 2004, Professor Serbyn recommends rejectionof the thesis without right of further modifications (D-61).

[31] Once again, the recommendations of the various jury membersare contradictory. They consult one another and reach a unanimousconclusion. They recommend that minor corrections be made. Theplaintiff is notified December 21, 2004 (D-63).

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[32] On January 20, 2005, Norbert Morin, assistant director ofthe BEP, notifies the plaintiff that he will need to make minorcorrections and that these corrections must be approved by thejury members before they could recommend the public defence [vivevoce] (D-65).

[33] On March 22, 2005, the plaintiff files the third version ofhis thesis (D-66) as well as a note in which he claims not havehad time to make all the requested changes.

[34] On March 31, 2005, this third version is forwarded toprofessors Serbyn and Aoun.

[35] On April 28, 2005, Professor Serbyn recommends rejection ofthe plaintiff's Thesis (D-72), and on June 6, 2005, ProfessorAoun states he is dissatisfied with the corrections made (D-73). [36] Subsequently, as required by Regulation No. 8, the reportsfrom the jury members Board are forwarded to the Sub-committee onadmission and evaluation (SCAE / CAES) in order to make asynthesis.

[37] In summary, two evaluators initially accepted the Thesisunconditionally while the other two, after minor corrections,opted for its rejection.

[38] The Regulation provides that in case of a tie, the vote ofthe jury Chairman (Professor Serbyn) is counted twice.

[39] On October 12, 2005, Mme. Lucille Beaudry, director of theProgram, sent Norbert Morin the decision the Sub-committee onadmission and evaluation for the Thesis of the plaintiff (D-77 D-78). The same day she also sent a copy to the plaintiff (D-79).

[40] On October 14, 2005, the plaintiff is notified that histhesis is rejected without the right of appeal, and is thereforeexcluded from the Ph.D. program in the Department of politicalscience at UQAM. (D-80).

[41] Dissatisfied with a result that he had not anticipated, theplaintiff addresses himself to the Ombudsman of UQAM, Mr. Pierre-Paul Lavoie, asking him to carry out an enquiry.

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[42] On December 12, 2005, Mr. Lavoie sent his report to NorbertMorin. It concludes that the plaintiff had acquired the right tosupport his thesis once he made minor adjustments as required,and recommends that "the thesis of the student be evaluated by anexpert appointed jointly by the Program and the student." [43] On January 30, 2006, Diane Demers, Vice-Dean of Studies inthe Faculty of Political Science and Law, indicates to Me Lavoiethat the process followed is in compliance with the Rules, andthat the Faculty of Political Science and Law opposes hisrecommendations, "both because of the applicable regulations andas their discretionary character clearly susceptible" (D-84).

[44] On April 2, 2006, the plaintiff wrote to the Ombudsman andthe Commission of Studies. He reiterates his incomprehension atthe decision to reject his thesis without legal right to appeal(D-85 D-86).

[45] On April 11, 2006, the Ombudsman wrote to Ms. CaroleLamoureux, Vice-Dean of Studies and student life. He acknowledgesthat his recommendation to evaluate the thesis by an expert isoutside the Regulation No. 8, but reiterated that the evaluationprocess of the plaintiff 's Thesis was "flawed from the point ofview of equity as well as regulatory" (D-89).

[46] On May 31, 2006, Lamoureux informed Me Lavoie that she willnot intervene in the file. According to her the regulatoryprocess of the University was respected.

[47] Therefore, taking into account this background, it isnecessary to consider the arguments of the parties.

[48] Position of plaintiff

The plaintiff submits the following arguments:

1. The decision taken by the jury was not followed;

2. Regulation 8 does not allow to move from a situationof

minor corrections to a dismissal;

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3. Delays were incurred in respect of the Charter ofStudents;

4. Given the circumstances, the remedy of mandamus wasfiled

within a reasonable time.

[49] Position of the defendant

1. The appeal of mandamus is late;

2. The report of the Ombudsman is not relevant;

3. The requirements of Regulation 8 have been followedand the plaintiff has not the right to defence;

4. The appeal of mandamus is unfounded, the Act imposesno specific duty to the defendant;

5. The courts should not interfere in academic activitiesand the operation of educational institutions.

1. The lateness of the appeal

[50] The appeal filed by the plaintiff is he late? This is thefirst question to resolve.

[51] Section 835.1 C.p.c. states that extraordinary remedies mustbe filed within a reasonable time after the fact or event givingrise to appeal.

[52] As recalled by Judge Dalphond in the case Soucy v. MartransExpress 1, in general terms, the jurisprudence has held that thereasonable delay according to Article 835.1 is thirty (30) days,unless under exceptional circumstances. The Court believes thatsuch circumstances exist here.

- The plaintiff is notified of the rejection of histhesis and his exclusion from the PhD program on October

1 2005, QCCA 654 (C.A.).

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14, 2005 (D-80).

- The plaintiff decided to exhaust his internalremedies; he first seeks the intervention of theOmbudsman;

- The Ombudsman forwards his enquiry report to NorbertMorin on December 12, 2005 (D-84).

- An exchange of correspondence between the Ombudsmanand the plaintiff and various interested parties of the defendantfollows (D-82 to D-85 D-88 D-89 D-91);

- On April 2, 2006, the plaintiff appealed to theStudies Commission;

- On May 31, 2006, the Vice-Dean wrote to the Ombudsmanand informed him she did not intend to intervene;

- In September 2006, the plaintiff meets his Thesisdirector who advises him to initiate legalproceedings;

- In October 2006, the plaintiff, a welfare recipient,meets two lawyers in a legal aid office who say they donot have the expertise to help;

- In December 2006, the plaintiff meets Me Julius Gray,who accepts to intervene on his behalf with theRector of the University;

- On March 12, 2007, Me Gray sends a notice to theActing Rector, Dr. Danielle Laberge, asking her tosearch for a solution to this situation which hecalls a mess;

- On April 19, 2007, Me Normand Petitclerc wrote to Mr.Gray and informed him that any procedure that could bebrought would be contested, in particular itslateness;

- On June 14, 2007, the plaintiff applied for legal aid;

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- On July 19, 2007, his application for legal aid isrefused on the following grounds: non-likelihood oflegal right, impossibility of application, appeal

delay has expired;

- On October 3, 2007, the plaintiff is informed that thereview committee of Legal Aid has maintained thisdecision;

- On October 30, 2007, the plaintiff filed hisapplication for mandamus.

[53] It appears from the affidavit filed in support of thepetition for mandamus, that the claimant is receiving socialassistance and that his financial resources are very limited.Only after having been turned down by the Bureau for review oflegal aid, did the Plaintiff succeed in raising the fundsnecessary to bring his appeal.

[54] Given the need to exhaust the remedies available to him andthe precarious situation in which he was and still is, theTribunal is opinion that the plaintiff's situation similar to that describedby Justice Dalphond in the case Soucy vs. Martrans, previouslycited supra. The narrative of events preceding the initiation ofan action for mandamus shows that the plaintiff has not remainedinactive; that he never ceased to assert his rights and chose todo so by respecting the avenues open to him internally,subsequently, requesting assistance outside the University.

[55] The steps taken by the plaintiff were logical even if theyproved illusory. The proof is that the ombudsman has proved himright. What is more relevant than to refer first to the personresponsible for protecting the rights of the student facing theUniversity (D-81). The role of the ombudsman is defined inRegulation 16. He investigates and intervenes with individualswho can make appropriate remedies (art. 22). He has a power ofrecommendation. The Regulations specify that the Ombudsman "shallact fairly and elicit adjustments desired by bringing to bear theweight of consideration and the strength of persuasion."

[56] This is what the Ombudsman has tried to do. Although hisreport did not bind the University in any way, his findings

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suggested that the process assessment was flawed, both in termsof fairness and regulatory procedure. Hence the conclusion wasarrived at that the plaintiff was entitled to defend his Thesis.

[57] Having somehow convinced the Ombudsman of the merits of hisapproach, it is hardly surprising that the plaintiff decided toturn to other individuals or organizations once he had found thatthe University had no intention whatsoever to follow therecommendations of the Ombudsman.

[58] The plaintiff is not an expert in legal matters. He followedthe advice that was given him more or less pleased, and hesometimes became mired in fruitless procedures. Whatever. He wasnot represented by counsel and he did not have the means to doso. The first time he visited a legal aid office, he was toldthat the two lawyers who worked there did not have the expertiseto treat this type of file.

[59] In the Union of Commercial Workers of Riviere-du-Loup vs. Turcotte 2 theCourt of Appeal set out the factors that allow an assessment ofthe reasonableness of delays. They are:

- the material in question and the foundation in lawthat the plaintiff claims to exercise;

- the nature of the organization whose jurisdiction iscontested;

- the nature of the order that was issued;

- the nature of the error committed by the lowertribunal;

- the injustice that the delay may cause one or other ofthe parties.

[60] Applying these criteria to this current debate convinces theCourt that the delay incurred since the event which gave rise tothe appeal is justified, given the circumstances: 1) exhaustionof internal remedies, 2) precarious financial situation; 3)

2 [1984] C.A. 316. See also: Rent vs. Welfare Commission, JE 99-957 (CA).

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multiplication of processes, 4) absence of prejudice to thedefendant; 5) lack of legal knowledge by the plaintiff.

2. The relevance of the Ombudsman's Report

[61] The defendant objected to the testimony of the Ombudsman andthe Court maintained that objection.

[62] However, the Ombudsman's report is relevant in many respectsand it is admitted into evidence. It focuses on the opinion ofthe Ombudsman regarding compliance with the Regulations by thedefendant, an opinion which may not in any way bind the Court.However, the Ombudsman's report demonstrates that the plaintiffhas discharged his duty of diligence by exhausting his internalremedies and by appealing to the person responsible, according toRegulation 16, for the rights of students facing the publicauthority that is the University. In this sense, the report isrelevant.

3. The right to a defence under Regulation

[63] The process of assessing doctoral Theses is provided for inRegulation No. 8, in particular, sections 10.19 and 10.20.

[64] As previously reported in the statement of facts, the firstjury failed to reach a unanimous decision as required by section10.19.3 of Regulation No. 8, a second jury was constituted (D-23). The process of evaluation of the Thesis originally submittedhas been resumed in accordance with Article 10.20 of theRegulations.

[65] The second jury composed of professors Lawrence Olivier,Daniel Weinstock, Sami Aoun and Roman Serbyn also arrived atcontradictory conclusions. The evaluators, after discussion,agreed to return the thesis to the plaintiff so that he makesmajor modifications in accordance with Article 10.20.2 b) ofRegulation No. 8 (D-45 D-46 D-47 D-48 D-49 D-51 D-52).

[66] The plaintiff then proceeded to modify his thesis based uponthe major modifications which were presented to him. Once thesecorrections were finished, the jury members once again presentedconflicting recommendations.

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[67] Professors Oliver and Weinstock have recommended that thethesis be accepted for defence without modification (D-56 and D-59). Professor Aoun recommended only minor corrections be madebefore the defence and they are brought to its attention forapproval (D-60). Professor Serbyn opted for rejection withoutresumption (D-61).

[68] Subsequently, the four evaluators consulted and theydecided, by common agreement, to require minor corrections to bemade. However, and this is where things get complicated, there isconflicting evidence about the question at hand of whether thesecorrections were to be approved by the evaluators before thedefence or if only the approval of the director of research wasrequired.

[69] It is important to note that at this stage, the jury couldnot require other major modifications to be made to the text.Indeed, the Regulation No. 8 states that the candidate may submit a new textonly one time (Art. 10.19 2 b) and 10.20.2 b). The jury had onlytwo choices: they could recommend acceptance for defence withoutcorrection or with minor corrections, or outright rejection ofthe thesis. They opted for the first solution.

[70] Following this consensus, letters were written by theDirector of graduate studies, Mme. Lucille Beaudry.

[71] A letter dated December 21, 2004 is addressed to theplaintiff as follows:

"After evaluation of the second jury of yourdoctoral Thesis, the following decision ofthe Subcommittee of admission and assessmentof the programme: you must make minorcorrections as requested before thedefence." (D-63)

(emphasis by Madame Beaudry)

[72] Together with this letter a list of corrections was attachedthat were required to be submitted no later than March 15, 2005"to succeed in your defence."

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[73] The same day, that is December 21, 2004, Mme. Beaudry wroteto the four jury members as follows:

"Please note that the doctoral Thesis of Mr.Abraham Weisfeld will be admitted to defenceafter the required minor modificationsbefore defence and communicated to thecandidate. The deadline fixed by the Bureauof education and programs to make thesemodifications is scheduled for March 15,2005.

(...) " (D-65).

(underlining added)

[74] At first glance, the situation seems clear. Once theminor corrections were made, there would be a defence without itbeing necessary to again seek the opinion of the jury members.

[75] However, January 20, 2005, Norbert Morin wrote to theplaintiff the following letter :

"The jury members of your Thesis, presentedfor the doctorate in political science, havecompleted the evaluation of the writtentext. They require that certain correctionsbe made before recommending the defence. Iwould remind you that these corrections mustbe approved by the director of researchbefore their final evaluation by the boardmembers concerned.

I invite you then to contact the programdirector or your research director, as soonas possible, in order to know thecorrections to carry out. A maximum periodof two months is allocated to carry thesecorrections, with the deadline for thesubmission of your Thesis on March 21, 2005.Your corrected version should be filed in 5copies to the Bureau of education andprograms, local D-3300.

(underlining added)

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[76] As can be seen from reading this letter, the words of Mr.Morin contradict those of Mme. Beaudry. According to Mr. Morin,the members of jury require giving their approval to the minorcorrections that must be made before recommending the defence. Asfor Mme. Beaudry, she says that once the corrections arecompleted, there will be defence. In the latter case, only theresearch director is concerned (R. 8, art. 10.19.2 a), 1er al.).

[77] It is difficult to believe that Mme. Beaudry and Mr. Morin,who assume responsibilities so important within the Universitydid not consult one another. Moreover, a copy of the letteraddressed to the plaintiff by Mme. Beaudry, December 21, 2004,was mailed to Mr. Morin.

[78] Mr. Morin testified. He affirmed not to have contacted Mme.Beaudry before writing his letter of January 20, 2005. To explainthe content of his letter, he argued that under the thirdparagraph of section 10.19.3 of Regulation No. 8, it remains hisduty to inform the student of the decision taken on by the Sub-committee on admission and evaluation.

[79] If the Regulations (Article 10.19.3, 3rd para.) provides forthe Dean or his delegate powers, namely Mr. Morin, to inform thestudent of the decision by the Sub-committee on admission andevaluation, nothing in this provision allowed Mr. Morin to changethe tenor of this decision. But that is what he did.

[80] Mr. Morin also said the practice is, at UQAM, that oncecompleted, minor corrections are subject to approval by themember of the jury which has required them.

[81] However, oral evidence allows one to believe that theconsensus which Board members had come to, is reflected in thetwo letters of Mme. Beaudry and not that of Mr. Morin.

[82] Of the four jury members, three testified. Only theprofessor Serbyn has not been heard by the Court.

[83] Professor Oliver affirmed that the consensus aimed atallowing the plaintiff to make minor corrections before thedefence, and that the Director of Research was, under Regulation

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No. 8, the only person responsible for assessing whether theseminor corrections were made.

[84] Professor Weinstock has confirmed the testimony of ProfessorOlivier. According him, the jury members had unanimously decidedto test the candidate orally, at the defence, without requiringthat the minor corrections be subject to any approval from thejury.

[85] Only Professor Aoun claimed that minor corrections had to bebrought to his attention for approval.

[86] However, there is every reason to believe that ProfessorAoun has confused the two stages of the process. We cannot blamehim. The situation was at least unseated. At the first stage ofthe second evaluation, that is to say, after the plaintiff hadmade the major modifications required by the jury, Professor Aounsaid he was ready to accept the Thesis of the plaintiff on thecondition that minor modifications would be made before thedefence. He then demanded that these minor modifications be madeavailable to him for approval (D-60).

[87] As has already been noted, Professor Serbyn had opted foroutright rejection while professors Olivier and Weinstock haddeclared themselves in favour of acceptance without modification.

[88] Finding themselves, once again, facing contradictoryopinions jury members decided to allow the candidate to defendhis thesis after having made minor modifications.

[89] Professor Aoun remembered more or less of this episode.According to him, the members of the jury met to vote in favourof rejecting the Thesis. However, contrary to what Professor Aounbelieved to have remembered, this meeting never occurred. Oncethe minor corrections were made, the plaintiff's Thesis wasforwarded to professors Aoun and Serbyn for approval, and hadnever been forwarded to the other two jury members for approval.It would seem that the University had taken for granted thatprofessors Oliver and Weinstock did not need to be consulted,since they had already given a positive opinion.

[90] In resorting to the preponderance of evidence, bothdocumentary and testimonial, none of the jury members had to

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approve the minor corrections before the defence, the consensusbeing that the appropriateness of these modifications would besubject to questioning in the framework of the defence.

[91] The Court has no other choice but to conclude, in light ofevidence, that the minor corrections required according to theconsensus need not be submitted to anyone other than the Directorof Research, Professor Oliver, so that they should be validatedas to their completion, without as such judging their content.

[92] The defendant has rightly pointed out that Professor Olivierhimself seemed to believe that the minor corrections had to beapproved by professors Serbyn and Aoun. On April 25, 2005, hewrote to Mme. Trudeau.

"I would like to be informed of (sic)follow-up taken on the requestedcorrections to the thesis of AbrahamWeisfeld. It seems to me that there was ayes or no to state for the two jury memberswho requested corrections. After 5 years ofwaiting, we would like to set a defencedate for May (...)" (D-71)

[93] However, March 30, 2005, a month previously, ProfessorOliver had written Madame Trudeau:

"I hereby confirm my consent to the filingof the Doctoral Thesis of Abraham Weisfelf.He has made the requested modifications andmore. I know that the Thesis does not yetmeet the methodological requirements ofUQAM (form). These corrections will be madeafter the defence of the Thesis beforefinal submission.

(underlining added)

[94] It should be acknowledged that the delays incurred since thefiling of the Doctoral Thesis of the plaintiff have caused anindescribable confusion. The process followed lacks clarity inrespect to the operations of the University. There are so manyinterventions it is difficult to understand how a student could

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find themselves. Such confusion can only lead tomisunderstanding.

[95] As an example, on September 20, 2004, the plaintiff receivesan email from the University that deals with registration for thegraduation ceremony scheduled for October 16, 2004. By the sametoken, an academic sash is sent to him. He is then under theimpression that the defence is soon. It was, as testified by Mr.Morin, an administrative error, but an error which only added tothe confusion of the plaintiff's classified file, according tothe document D-88, in the "special case"

[96] Another incident is worth mentioning. On June 13, 2005, Mme.Lucille Beaudry, director of graduate studies, wrote to Mr. Morinto inform him that the Thesis of the plaintiff was not admittedto the defence. She asked him, elsewhere, to ensure that theposition adopted by the Subcommittee of Admission and Evaluation"does not contravene Regulation no. 8 and that the candidate'srights are not infringed upon." During his testimony, Mr. Morinsaid he had never seen such a request except for only two timesduring his career, and his career at the University began in1983.

[97] Several factors have muddled the procedure, the mostimportant is the attitude of members of the jury towards theplaintiff. They were under the impression that they would commitan injustice by rejecting the Thesis. For them, the situationraised a purely ethical question. The testimony of ProfessorWeinstock is eloquent on this subject. He considered that theplaintiff's Thesis was bold, innovative, erudite and impassioned,even though useless details blurred the text and even if themodalities of presentation were not met. He felt that the issueswhich the applicant does not meet could be clarified during thedefence, even asking for further modifications (R.8, art.10.19.5). For Professor Weinstock, there was no doubt that thestudent had the intellectual capacity required. During thesixteen years of his career, he stated that he had never seensuch a disjunction between the intellectual capacities of a PhDcandidate and an inability to adjust to the required standards.He attributed this to the fact that the applicant did not receivethe necessary support. He also stated that at the University ofMontréal, minor corrections are never submitted to a committee.They are evaluated by the Thesis Director only.

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[98] And this brings us to underline another fact, anepiphenomenon which has its importance. Reading the list of minorcorrections shows that they are, in reality, major modificationswhich could all, as acknowledged by the plaintiff himself, besubject to separate doctoral dissertations. If we compare thislist to the list of major modifications required during theinitial evaluation of the second jury, we realize that minorcorrections are "minor" in name only. [99] One reminds oneself that Professor Serbyn, for fear of beingunfair to the plaintiff, had wanted to resign from the jury. Thisfear probably disposed him favourably to the plaintiff and ledhim in this way to rally with the other jury members.

[100] As for Professor Aoun, he admitted that themodifications required arising from the second assessment weremajor corrections. However, Regulation No. 8 does not allow forsuch corrections to be required a second time. By respect for thestudent whose intellectual abilities were obvious, the jurydecided to give him a chance, hence the term used.

[101] The jury had therefore chosen indulgence rather thandiscipline. It felt ethically obliged to be benevolent. Withoutfalling into derision, it can be argued that the plaintiff wasthe victim of a favourable disposition by the jury towards him.The student, of course, did not attend the evaluation sessions ofthe jury and could not understand the significance.

[102] Upon receiving the letter from Mme. Beaudry, theplaintiff expected an invitation to the defence, since the minormodifications were completed. As he had already made the majormodifications required, it was normal, for him, to conclude thatthe word "minor" means, smaller, lesser than "major" How could heunderstand it otherwise?

[103] Of course, the letter that Mr. Morin had sent to him,on January 20, 2005, (D-65) was contrary to that of Mme. Beaudrysent December 21 2004 (D-63). It could perhaps have cast doubt inhis mind. However, the plaintiff did not request an explanationbecause he had received the Revised Statement of ResearchProgress (D-64) in which it was stated that the Thesis of

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plaintiff was accepted on condition that there were minormodifications made before the defence.

[104] This brings us to address the role played by thevarious peoples' interventions within the University.

[105] Mr. Morin occupies the position of Deputy Director ofthe Bureau of Education and Programs (BEP). As such, he isresponsible for graduate studies. The section "graduate" of theBEP is the institutional crossroads for everything concerninggraduate studies: programming, regulatory, financial support forstudents etc..

[106] The BEP is the custodian of the records of doctoralstudents from the first filing of their Thesis until they obtaintheir diploma (Doctorate).

[107] The graduate school was governed by Regulation No. 8of both graduate studies until 2005. However, Resolution 2005-A-12731, of June 14, 2005, of the Administration Council of theUniversity stated that the former regulation applied to theresearch submitted before August 29, 2005.

[108] The "Dean" mentioned in Regulation No. 8 signifies theDean of Graduate Studies and Research or his representative.Arising out of the abolition of the post in 1998, theAdministration Council of the University assigned the role to theVice-Rector for Training roles and responsibilities which waspreviously vested in the "Dean" under Regulation No. 8.

[109] The reorganization of Vice-Rectors in 2001 had made itinto some responsibilities, formerly assumed by the Vice-Rectorof Training, were assigned to the Vice-Rector associated withstudies, including responsibility for the implementation ofRegulation 8. Subsequently, February 25, 2002, the Vice-Rector ofStudies has delegated to Mr. Morin the roles and responsibilitiesassigned to the Dean of Graduate Studies and Research underRegulation No. 8 (D-5).

[110] Until November 11, 2005, at the BEP, the ExecutiveSecretary in charge of clerical management of Theses was MadameLorraine Trudeau.

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[111] In 2002, Madame Chantal Rondeau was the Chairperson ofthe Bureau of Admission and Evaluation. She was also the Directorof Graduate Studies Program of the Department of PoliticalScience in the University. In 2003, these functions were occupiedby Mme. Lucille Beaudry.

[112] All the people intervening mentioned above have a roleto play in the University.

[113] By virtue of Regulation No. 8, the role of the Dean - of Mr.Morin in this case - is to forward the evaluators' reports to theSub-Committee of Admission and Evaluation. This is the committeewhich summarizes the recommendations of the members of the juryand, thereafter, forwards the jury's decision to the Dean (Mr.Morin) (R.8, art. 10.19.2 c) and (10.19.3, 3rd para.). In turn,the Dean (Mr. Morin) informs the student of the jury's decision.Its role is one of information. Neither he, nor the Sub-Committeemay change the jury's decision. And yet this is what has beendone.

[114] Unfortunately, the last decision of the jury, the onethat had been the subject of a consensus requiring minormodifications before the defence without them having to bebrought to the attention of jury members (R.8, art. 10.19.2 a),para. ii) has not been written. The Director of Research for theplaintiff, Professor Oliver, communicated it to Mme. Beaudryorally.

[115] Ms. Beaudry has played an important role during theevents described above. And yet, she did not testify.

[116] The letter sent by Mr. Morin to the plaintiff, January20, 2005 (D-65), did not reflect reality. Evaluators, contrary towhat Mr. Morin states, have never required that certaincorrections be made "before recommending the defence."Accordingly, the plaintiff has reason to claim that once theminor modifications are presented and accepted by the Director ofResearch, he has acquired the right to the defence of his Thesis.

4. Is Mandamus the appropriate appeal

[117] The defendant contends that following negative

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evaluations from both juries, it had no obligation to allow theplaintiff to support his thesis.

[118] The Court does not agree. The latest assessment of thejury was not negative. The members of that jury had decided, bymutual agreement, to test the plaintiff during the defence.

[119] The defendant has the duty to comply with itsobligations under Regulation No. 8. Just as the evocation and theappeal for declaratory judgment, the appeal for Mandamus is ameans of implementing the power of supervision by the SuperiorCourt. Even if the defendant is right to argue that an orderstrictly speaking would be in the circumstances, inappropriate, adeclaration may constitute a satisfactory alternative because theappeal in Mandamus and a declaratory judgement areinterchangeable appeals.

5. The intervention of the courts in matters of academicevaluation

[120] Contrary to what the defendant presents, the plaintiffdoes not request the Court to substitute itself for the jury. Heasked the Court to ensure that decision of the jury be respected.It will be for the members of the jury to decide, in compliancewith Regulation No. 8, especially art. 10.20.3 of thisRegulation, if the Thesis of the plaintiff is accepted orrejected.

[121] Generally, the courts will not immerse themselves inthe internal functioning of educational institutions except wheresuch institutions do not act fairly 3. This is not a matter of,in a sense, of deciding to award a diploma to the plaintiff 4.The university retains full discretion. It is simply a matter ofobliging the defendant to act according to rules that it hasgiven itself, and which are listed in Regulation No. 8.

FOR THESE REASONS:

[The Court]

3 Quebec Bar v. Boyer,] 1994) R.J.Q. 29.4 Melanson vs. University of Montréal, C.S.M. 500-05-010589-800, May 24, 1988 (C.S.), 1996 CanL11 5913 (C.A.).

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WELCOMES the appeal of the plaintiff ;

ANNULS the decision of the defendant of October 14, 2005 toexpel the plaintiff from his doctoral programme in politicalscience;

DECLARES that the plaintiff became entitled to the defence of histhesis under Regulation No. 8;

With costs.

____________________________________ DANIELLE GRENIER. J.C.S.

Me Patrice Blais Plaintiff's attorney

Mr. Scott Hughes and Me Anne-Marie Peltier Monette Baraket Solicitors for the defendant

Dates of Hearing: September 14, 15 and 16, 2009 2009 QCCS 5341 (CanLII)

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2009 QCCS 5341 (CanLII) 500-17-039409-076

http://www.canlii.org/fr/qc/qccs/doc/2009/2009qccs5341/2009qccs5341.pdf

Translated byAbraham  WeizfeldB.Sc., M.A., Ph.D. cand.2009-12-25

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http://www.canlii.org/fr/qc/qccs/doc/2009/2009qccs5341/2009qccs5341.pdf

(Note: This is an unofficial translation made by AbrahamWeizfeld and for purposes of legal reference the original sourceat the Court link above must be referenced.)2009-12-25

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