DATE: April 25, 2001
PARTIES: University of Toronto v. R.D. and K.U.
Hearing Date(s): February 28, March 7, March 14, April 17, April 25 and June 5, 2001
C. Anthony Keith, Q.C., Senior Chair
Roland J. Le Huenen, Faculty member
Paul Macerollo, Student member
Maurice Vaturi, Campione & Vaturi, for K.U.
Yvonne D. Fiamengo, Barrister & Solicitor, for R.D.
Linda R. Rothstein, Discipline Counsel and Lily I. Harmer, Assistant Discipline Counsel, for the University
Siobhan Brady, Invigilator
James B. Campell, Faculty
R. D., accused
Mazda Jenab, Invigilator
Betty I. Roots, Emeritus faculty
Rebecca Spagnolo, Chief Presiding Officer, examination
Lilian U. Thompson, Faculty
Tanya Wood, Chief Presiding Officer, examination
Trial Division - s. B.i.1(b), s. B.ii.1(a), s. B.ii2 of Code – unauthorized aid - joint hearing – inappropriate communications during two final examinations – objection to joint hearing – no consent to joint hearing - power to determine Tribunal practices and procedures subject to provisions of Code¬ – see s. C.ii.(a).7 of Code¬ – consent requirements of Statutory Powers Procedure Act not applicable – see ss. 9.1(1) of Statutory Powers Procedure Act – single proceeding because same evidence tendered - exigencies relating to University community - application for separate proceedings dismissed - circumstantial evidence - onus of proof on University not discharged - motion for costs not awarded - University not reckless malicious or unreasonable
Two Student’s charged with identical offences under s. B.i.1(b), s. B.ii.1(a), s. B.ii2, and alternatively, under s. B.i.3(b) of the Code. The charges related to allegations that the Students engaged in inappropriate
communications during the final examinations of two courses, in an attempt to cheat or obtain unauthorized assistance. Student U., with the support of Student D., raised an objection to hearing the charges in a joint hearing, on the grounds that he did not consent to a joint hearing and that to combine the proceedings or hear them jointly would be prejudicial. The Panel considered s. C.ii.(a).22 of the Code and found that it was the Chair’s function to rule individually on the issue. The Chair considered s. C.ii.(a).7 of the Code, the Statutory Powers Procedure Act, and whether the matter was two proceedings or one proceeding involving charges against different people. The Chair found that the power of the Tribunal to hear and dispose of charges included the power to determine its practice and procedure subject to the provisions of the Code and that the consent requirements in ss. 9.1(1) of the Statutory Powers Procedure Act did not apply if another act or regulation that applied to the proceedings allowed the Tribunal to combine them or hear them at the same time without consent. The Chair found that while not free from doubt, it was his view that the matter was a proceeding involving two accused against whom identical charges had been laid because the same evidence was to be tendered with respect to the charges against both of the Students. The Chair found that while the Tribunal was an administrative tribunal, it had to be mindful of the exigencies that related to the University community. The Chair found that the matter should be heard as one proceeding and dismissed the application for separate proceedings. The Panel considered the evidence, including the oral testimony and the written exhibits and the submissions of counsel, and found that the University’s evidence was circumstantial and that the onus of proof on the University had not been discharged. The Senior Chair did not exercise his discretion under ss. C.ii.(a).17(b) of the Code to grant the Students’ motion for costs because he found that the University did not act recklessly nor maliciously in laying the charges and it did not act unreasonably in bringing forward the evidence that it did.
DATE: April 25, 2001