DATE: November 17, 2020
PARTIES: University of Toronto v. A.M. ("the Student")
HEARING DATE: August 18, 2020, via Zoom
Ms. Patricia D.S. Jackson, Chair
Professor Aarthi Ashok, Faculty Panel Member
Mr. Said Sidani, Student Panel Member
Ms. Tina Lie, for the Respondent, Appellant by Cross-Appeal, Paliare Roland Rosenberg Rothstein LLP
Mr. Sean Grouhi for the Appellant, Respondent by Cross-Appeal, Downtown Legal Services
Mr. Christopher Lang, Director, Office of Appeals, Discipline and Faculty Grievances, University of Toronto
Ms. Krista Kennedy, Administrative Clerk & Hearing Secretary, Office of Appeals, Discipline and Faculty Grievances, University of Toronto
NOTE: See the Tribunal case summary for detailed facts.
The Student appeals the finding of the Tribunal on the basis that the standard of review is correctness and that the Tribunal erred in law by permitting the University to call reply evidence from two teaching assistants. Relying on the Supreme Court of Canada’s decision in R. v. Krause,  2 SCR 466, the Student argued, among other things, that the University should have anticipated his evidence.
The University cross-appeals on the basis that the Tribunal erred in acquitting the Student of a charge under s. B.i.1(a) of the Code of Behaviour on Academic Matters, 1995 (“Code”), which makes it an offence to forge, alter or falsify a document required by the University and to make use of such forgery. This was the first of three charges that were subject of the hearing before the Trial Division. Alternatively, the University had also charged the Student under s. B.i.1(b) of the Code for knowingly obtaining unauthorized assistance in connection with a midterm examination (“second charge”), and under s. B.i.3(b) of the Code for knowingly engaging in a form of cheating, academic dishonesty or misconduct, fraud or misrepresentation to obtain academic credit or other academic advantage of any kind in connection with a midterm examination (“third charge”).
In dismissing the Student’s appeal, the Board agreed that it is an important element of a fair hearing that the University should not split its case, leading in reply evidence that it could and should have made part of its initial case against a student. It also held that, in general terms, the principles enunciated in cases such as R. v. Krause and R. v. Sanderson, 2017 ONCA 470 apply. However, it noted that the Tribunal is not bound by the strict rules of evidence and highlighted that there have been in the past, and there may in the future be, circumstances where fairness justifies the calling of reply evidence which might not be permitted in a criminal case.
Further, the Board held there was no obligation on the University to prove the contents of the Agreed Statement of Facts and that it would be unwise and a waste of hearing resources to have multiple witnesses confirm facts that the parties have agreed to. Relying on R. v. Sanderson, it stated that the principles that govern the calling of reply evidence should not be interpreted so rigidly that the University should call as part of its case evidence that addresses any possible issue that a student may raise and to address a position that is at odds with the facts to which the student appears to have agreed. The obligation is to lead evidence on the issues that are relevant to material issues in dispute or to a defence that they can or ought reasonably to anticipate. While recognizing that the Student may choose not to disclose his defence to the University, including by declining to deliver an opening, the Board also indicated that in this case, the decision not to do so meant that the University had no reason to suspect that the Student intended to depart from the facts to which he appeared to have agreed.
Ultimately, the Board concluded that it could not be said that the University ought reasonably to have anticipated the defence that the Student put forward in his evidence. According to the Board, the Tribunal’s decision was both reasonable and correct. It would have come to the same result as the Tribunal without regard to the reply evidence.
In allowing the University’s cross-appeal, the Board indicated that the issue it raises lies in the definition of the offence which the Tribunal found had been committed and that this offence can only be found in circumstances where the conduct in question is not an offence under any other section of the Code. The Tribunal had found the Student guilty of violating s. B.i.3 of the Code, which constitutes the third charge. To find the Student guilty under this section, the Tribunal was in effect determining that the conduct that was the subject of the charges was “not …otherwise described” in the Code. This implies that the first charge could not be established. According to the Board, it is not apparent that the Tribunal was alive to this issue because its reasons for decision contain no analysis of whether or why the first charge was not made out.
The Board considered that the facts found by the Tribunal made out the offence contained in the first charge. It agreed with the University that the Student should not also be convicted for the same conduct under the third charge and that as soon as it is found that the conduct is an offence under the section of the Code referenced in the first charge, the offence referenced in the third charge ceases to apply. Accordingly, the Board substituted a conviction under the first charge for the conviction found by the Tribunal.
Finally, the Board agreed that the substitution of a conviction under the first charge ought not to alter the sanctions imposed by the Tribunal.
Student’s appeal dismissed. University’s cross-appeal allowed.