Case 1054

DATE: January 31, 2020
PARTIES: University of Toronto v. A.M.

HEARING DATE: November 13, 20, 2019 and January 15, 2020

Panel Members:
Mr. Shaun Laubman, Chair
Professor Julian Lowman, Faculty Panel Member
Ms. Karen Chen, Student Panel Member

Appearances:
Ms. Tina Lie, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
Ms. Hanna Yakymova, The Student's Representative, Downtown Legal Services

In Attendance:
Ms. Krista Kennedy, Administrative Clerk & Hearing Secretary, Appeals, Discipline and Faculty Grievances

The Student was charged under ss. B.i.1(a) and B.i.1(b) of the Code of Behaviour on Academic Matters, 1995 (“Code”) on the basis that a) he knowingly falsified, circulated or made use of a forged academic record, namely a Scantron sheet that he submitted in a midterm examination; and b) he knowingly obtained unauthorized assistance in connection with that midterm examination. Alternatively, he was charged under s. B.i.3(b) of the Code for knowingly engaging in a form of cheating, academic dishonesty or misconduct, fraud or misrepresentation in order to obtain academic credit or other academic advantage of any kind in connection with a midterm examination.

For the examination in question, two different versions of the exam were distributed (version A and version B) to reduce the potential for cheating. The Student received a version B exam but misrepresented on his Scranton form that he had received a version A exam.

The Panel delivered reasons for mid-hearing motions and evidentiary issues orally. First, the Student sought to call his initial legal representative to provide evidence regarding his observations of the distribution of answers across the exams that were completed for the mid-term. The Panel did not permit the Student to call his initial legal representative as a witness. Instead, he was allowed to address the representative’s proposed observations and arguments as part of the closing submissions. Second, after the Student completed his evidence and the defence rested its case, the University requested an adjournment to call reply evidence. The Panel granted the adjournment on terms. It explained that while it was reasonable to argue that the University could have called the TAs as witnesses during their case in chief given their involvement in the events in question, the Student had chosen to provide his explanation for the first time during his testimony. It acknowledged that it was the Student’s right to do so, but that fairness dictated that the University be given an opportunity to call reply evidence. To negate any potential prejudice, the Panel imposed the following terms: a) The University was instructed not to discuss the evidence at the hearing with the potential reply witnesses; b) Any reply evidence was strictly limited to true reply, that is, it had to be in response to evidence that was raised for the first time in the Student’s testimony; c) The delay due to the adjournment was brief as all parties and counsel were accommodating and able to find a date within one week to resume the proceeding; and d) The Student was given the opportunity to participate in the resumed hearing via videoconference. Since he had already testified, there was no impact on the quality of the evidence as a result of this accommodation. Finally, the Panel denied the Student’s motion seeking production of University counsel’s notes of interviews conducted with the reply witnesses in between the hearing dates. The Panel highlighted the general principle that notes prepared by counsel of interviews conducted in preparation for a hearing are subject to litigation privilege. The underlying facts are not subject to privilege; however, the notes themselves ordinarily will be. That applies even in a case such as this one where the University acknowledged that the discussions with the TAs in between the hearing dates were the first time that the potential witnesses were interviewed. To ensure that the Student had full disclosure of the underlying facts within the proposed reply witnesses’ knowledge, the University was ordered to review the counsel notes and to provide a summary of any additional facts that were not reflected in the “Will Say” summaries that had already been produced even if the additional facts were not evidence that the University intended to lead.

The Panel found the Student guilty of knowingly engaging in a form of cheating, academic dishonesty or misconduct, fraud or misrepresentation in order to obtain academic credit or other academic advantage of any kind in connection with the midterm examination, contrary to section B.i.3(b) of the Code. However, it was not convinced that the Student had cheated in the manner alleged by the University because there was no direct evidence showing that he had copied off another student at the exam. Furthermore, the Panel accepted the University’s submission that it did not have to prove exactly how the Student cheated in order to establish that an academic offence was committed.

In determining the sanctions, the Panel considered the following factors: the Student’s prior offence; his submission concerning his return to the University to complete his studies; the concern regarding the possibility of the Student re-offending if he elected to immediately pursue graduate studies after graduation; the length of time that had passed between when the offence was committed and when the matter was brought to a hearing. The Panel also noted that it is expected that the discipline process will typically be much shorter since students should not be subjected to the stigma, uncertainty and stress of being charged any longer than necessary.

The Panel imposed the following sanctions: a grade of zero in the course; a suspension for just over 29 months; a 40 month notation on the transcript or until the date of graduation, whichever date is later; and a report to the Provost for a publication with the Student’s name withheld.