Case #00-01-05

DATE: March 8, 2001
PARTIES: University of Toronto v. Mr. W.

Hearing Date(s): August 29, 2000

Board Members:
Patricia D.S. Jackson, Chair
Professor Marvin Gold
Josh Hunter
Professor Lorraine Weinrib

W. Gerald Punnett, Counsel for the Appellant
Lily I. Harmer, Counsel for the University

Discipline Appeal Board – Student appeal from finding of guilt – Students should not have been tried jointly, attribution of sources demonstrated the lack of intent to plagiarize or alternatively the lack of plagiarism, University wrongly allowed to reopen its case, evidence wrongly excluded, pre-hearing procedures not complied with as per Code, and inappropriate penalties imposed – considerations met - see s. 9.1 of Statutory Powers Procedures Act - consent of parties to joint trial not avoided by failure of trial reporter - no injustice as result of joint trial - finding of necessary mental element to constitute plagiarism - findings on fact supported by evidence – case not reopened by exchange between Chair and University witness - no injustice occurred so as to interfere with discretion to permit reopening case - decision to exclude evidence not in error - evidence irrelevant to charges - no evidentiary basis for argument - no requirement to afford meeting with teaching assistant – see Code - no disadvantage as result of defect in procedures - no substantial wrong, detriment or prejudice - not appropriate to vary penalty imposed - signal to Student and other students of severity of offence not signaled by sanction limited to report mark - appeal dismissed

Appeal by the Student from a Tribunal decision in which the Student was found guilty of submitting a plagiarized report, contrary to s. B.i.1(d) of the Code. The Student submitted that the Tribunal should not have tried the Student at the same time as a second student charged with the same offence in relation to the same report; that the attribution of sources in the report demonstrated that the Student did not intend to plagiarize, or alternatively such attribution was sufficient that there was no plagiarism; that the Chair of the Trial Panel wrongly allowed the University to reopen its case during the course of submissions, resulting in fundamental unfairness to the Student; that the Tribunal wrongly excluded evidence of plagiarism by other students who wrote other chapters of the same report; that the University did not comply with the pre-hearing procedures specified in the Code; and that the penalties imposed were inappropriate. At the Trial Division hearing, the Student was not represented by counsel. The Board considered the transcript of the Trial Division hearing. With respect to the first ground of appeal, the joint trial, the Panel considered the Student’s submissions and s. 9.l(l)(a) of the Statutory Powers Procedures Act, and found that the conditions of s. 9.1 had been met because the Trial Panel made it clear to both Students that if either of them objected to a joint trial then they would be tried separately; that there was no suggestion that they had to justify such a separation; and that the similarity of the facts and law underpinning the identical charges against the two students was evident, and that it was not incumbent upon the Tribunal to identify such evident similarities as a basis for exercising its jurisdiction. The Panel considered the transcript of the Trial Division hearing and the submissions on the Student’s counsel and found that the parties did consent to a joint trial and that the failure of the reporter to fully record that consent did not avoid it. The Panel found that there was no injustice as a result of the joint trial because there was no indication at the trial or on appeal of an area in which the appellant sought to cross-examine and was denied, and no indication that the defences of the two Students were in conflict. With respect to the second ground of appeal, the Panel considered the definition of plagiarism in the Code, and found that the Trial Panel’s finding was a finding of the necessary mental element to constitute the offence of plagiarism. The Panel found that the Trial Panel’s rejection of the Student’s defence was based on findings on fact and that those findings were supported by the evidence. With respect to the third ground of appeal, the Panel found that an exchange between the Chair and the course professor, which did not go to proving any element of the offence, did not amount to a “re-opening” of the University’s case, and that even if it did amount to a re-opening, there is a discretion to permit such re-opening which should not be interfered with unless an injustice had resulted and that no injustice had occurred. With regard to the fourth ground of appeal, the Panel found that the Trial Panel’s decision to exclude evidence of the potential commission by others of an offence to not be in error, and that such evidence was irrelevant to the question of whether the Student committed the offence. With regard to the fifth ground of appeal, the Panel considered the Code and found that there was no evidentiary basis for the Student’s argument that the matter may have been resolved without having to proceed with the prosecution if the he had the opportunity to meet with the teaching assistant who marked the Report. The Panel found that there was no requirement in the Code to afford a meeting with the teaching assistant, that there was no basis for departing from the conclusion of the Trial Panel that the Students was not disadvantaged as a result of the defect in procedures, and that there was no substantial wrong, detriment or prejudice to the Student. With regard to the sixth ground of appeal, the Board considered the Student’s academic status and the Trial Panel’s object in imposing a sanction, and found that it was not appropriate to vary the penalty imposed by the Trial Panel. The Board found that penalizing the Student only in relation to his mark in the report, rather than in the course as a whole, would not reflect the reality that plagiarism reflects a want of academic integrity, and a sanction limited to the report mark would not adequately signal to the Student and other students, the severity of the offence. Appeal dismissed.