Case #01-02-01

Case #01-02-01

FILE: Case #01-02-01 (2001-2002)
DATE: November 19, 2001
PARTIES: University of Toronto v. Mr. P. (Applicant, Respondent by cross-application)

Hearing Date(s): October 4, 2001

Board Members:
C. Anthony Keith, Q.C., Senior Chair

Gary E. Shortliffe, for Applicant
Lily I. Harmer, for Respondent

Discipline Appeals Board – application for extension of time to appeal - cross-application request that extension of time not operate as stay of Tribunal decision – notice of appeal not delivered within time provided – see E.5 of Code – understanding from Tribunal Secretary that legal representation should be secured before filing formal notice of appeal - exceptional circumstances required to enlarge time for appeal made before or after expiry of time provided - see s. E.5 of Code – no reference of exceptional circumstances in past decisions, Code or Code of Student Conduct - time limits not rendered mandatory by imperative language in Code – exceptional circumstances demonstrated – application not opposed by University provided conditions incorporated into order – acceptance of conditions - extension for the time of appeal granted with conditions - submissions on costs reserved to Chair of Appeal Tribunal

Application by the Student for an extension of time to bring his appeal from a Tribunal decision. The University brought a cross-application, pursuant to section E. 10 of the Code, requesting that any extension of time not operate as a stay of the decision of the Tribunal below. The Student claimed that while no formal notice of appeal was delivered to the Secretary of the Tribunal within the time provided by E.5 of the Code, he understood from his conversations with the then-Secretary that he should proceed with his attempts to obtain legal representation and when he had secured that legal representation he should then file a formal notice. The issue before the Chair was whether or not the circumstances described by the Student would reasonably fall within the language of the Code and constitute “exceptional circumstances” so that the Chair could exercise his power under s. E.5 of the Code and enlarge the time for appeal upon application made either before or after the expiry of time provided. The Chair considered the Code of Student Conduct and previous Tribunal decisions found that the Code of Student Conduct did not contain the phrase “exceptional circumstances” or any provision for the extension of time and that there were no previous decisions of the Tribunal addressing the issue. The Chair considered the general jurisprudence on the issue of administrative tribunals and extensions of time and found that the use of imperative language found the in Code did not by itself render time limits mandatory. The Chair considered the chronology of events and the submissions of the Student, and affidavit evidence which indicated his understanding of what was expected of him as a result of a conversation with an employee representing the University, and the fact that the University had not decided to controvert by cross-examination or filing additional material, and found that on the circumstances of the case alone, there were exceptional circumstances upon which to exercise the power under the enactment to enlarge the time for appeal. The University’s did not oppose the Student’s application provided that certain conditions were incorporated into the order granting an extension of time. The Chair considered the Student’s acquiescence to the conditions and ordered that an extension for the time of appeal be granted, conditional upon: the appeal of the Tribunal decision would not operate as a stay of that decision, pursuant to s. E.10 of the Code; the granting of leave to appeal would not operate so as to prevent the University from raising as an issue on the appeal any practical difficulties which may arise in terms of presenting the necessary witnesses to deal with any new hearing the appellant tribunal might see fit to order; and the parties were to abide by a strict timetable. The Chair ordered that any submissions as to costs of the hearing would be reserved to the Chair of the Appeal Tribunal.