DATE:
March 11, 2024
PARTIES:
University of Toronto v. H.Z. ("the Student")
HEARING DATE:
January 12, 2024, via Zoom
PANEL MEMBERS:
Paul Michell, Chair
Professor Aarthi Ashok, Faculty Panel Member
Emily Hawes, Student Panel Member
APPEARANCES:
Lily Harmer, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
William Webb, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
Calvin Zhang, Counsel for the Appellant, Starkman Lawyers
IN ATTENDANCE:
The Student
HEARING SECRETARY:
Christopher Lang, Director, Coordinator & Hearing Secretary, Office of Appeals, Discipline and Faculty Grievances
The Trial Division of the University Tribunal found the Student guilty of obtaining unauthorized assistance, contrary to section B.i.1(b) of the Code of Behaviour on Academic Matters, 2019. The Student appealed the Tribunal’s decision on liability and submitted that the Tribunal had erred by (i) improperly shifting the burden of proof to the Student, (ii) by analyzing the witnesses’ credibility and reliability, by (iii) applying uneven scrutiny by emphasizing the Student’s motivation instead of evidence of the circumstances, and (iv) by admitting a Professor’s evidence as expert opinion evidence. While the Student also appealed sanction, they did not address the penalty imposed or set out any reason why the Tribunal had erred in imposing it.
At the outset of the hearing, the Board heard submissions with respect to the applicable standard of review on appeal. The Panel accepted the University’s position that the Board lacks jurisdiction to hear appeals by an accused from a conviction at trial upon a question of fact alone, and that, in practice, the Board adheres to a level of deference to the Tribunal on the weighing of evidence and findings of credibility.
With respect to the Student’s first ground of appeal, namely that the Tribunal improperly shifted the burden of proof to the Student, the Board rejected the Student’s submissions. The Board noted in particular that while the Provost bears the burden of proof, it may fulfil that burden in different ways, including through eliciting evidence on cross-examination of opposing witnesses that support the cross-examining party’s position. The Board concluded that the Student’s complaints regarding the Tribunal’s findings regarding the credibility of the Student’s witnesses did not establish that the Tribunal improperly shifted the burden of proof.
The Student’s second ground of appeal asserted that the Tribunal had committed a legal error in the way in which it had evaluated the credibility and reliability of witnesses. The Board rejected this ground of appeal. The Board concluded that, in substance, the Student was challenging the Tribunal’s preference for the evidence of the Provost’s witnesses over the Student and their witness’ testimony. The Board stated that it could not substitute its view for those of the Tribunal in assessing of credibility or the relative weight given to witness evidence, and that the Student’s submissions on this point failed to disclose a legal error.
The Board further rejected the Student’s third ground of appeal, namely that the Tribunal applied an uneven level of scrutiny to the evidence called by the students and by the Provost. The Board found that there was nothing in the Tribunal’s reasons to suggest that it applied unequal scrutiny, and the mere fact that the Tribunal found the Student’s witness evidence to not be credible did not suggest that it applied different standards to different witnesses.
Lastly, the Panel rejected the Student’s argument that the Tribunal erred in its treatment of the testimonial evidence of a Professor. The Board disagreed that the Professor had given opinion evidence, indicating that just because a witness has expertise in a subject does not make his or her evidence “opinion evidence”. The Board further found that if the Student was concerned about the admissibility of elements of the Professor’s evidence, they were obliged to object in a timely manner before the Tribunal decided the case on its merits.
The appeal was dismissed.