DATE:
September 12, 2023
PARTIES:
University of Toronto v. X.M. ("the Student")
HEARING DATE:
August 11, 2023, via Zoom
PANEL MEMBERS:
Patricia D.S. Jackson, Senior Chair
Professor Ramona Alaggia, Faculty Panel Member
Brinda Batra, Student Panel Member
APPEARANCES:
William Webb, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
The Student
HEARING SECRETARY:
Carmelle Salomon-Labbe, Associate Director, Office of Appeals, Discipline and Faculty Grievances
The Trial Division of the University Tribunal found the Student guilty of the offence of unauthorized assistance, contrary to section B.I.1 (b) of the Code. On appeal before the Discipline Appeals Board, the Student acknowledged her liability and apologized for the offence. She appealed the length of the two-year suspension alone and sought a timely reduction of the period of her suspension so that she might register in the University before she lost her international student status. She also sought to introduce new evidence in support of her appeal.
In dismissing the Student’s motion to introduce new evidence, the Board considered the four traditional criteria for the admission of fresh evidence on appeal, i.e., that the evidence: (a) was not available at the time of the hearing by the exercise of due diligence; (b) must be relevant to a potentially decisive issue at first instance; (c) must be credible; and (d) if believed and taken together with the rest of the evidence, could reasonably be expected to affect the initial decision. The Board agreed with the University’s assertion that a party seeking to adduce new evidence on appeal need not satisfy all of these criteria to succeed, and that the Board has greater discretion to permit the introduction of such evidence than may exist in other forums. The Board noted that the matters the Student sought to introduce as new evidence were known to her at the time of the hearing, and that the reason that evidence was not adduced was because she did not attend the hearing. In the Board’s view, the new evidence would not affect the outcome beyond the adjustment the Board made to the sanctions.
The Board discussed the standard of review and referenced section E.7 of the Code. It noted that past decisions have recognized the Board’s very broad powers, and, especially as it relates to sanction, little obligation to show deference to the decision below, but that there must be a principled reason for the Board to vary the sanction imposed at trial. When discussing the Provost’s Guidance on Sanctions at Appendix “C” of the Code, the Board observed it is helpful guidance to students; it is not guidance to or from the Tribunal, nor is it binding on the Tribunal. It did not consider that a suspension of two years is appropriate in the circumstances.
In allowing the appeal, the Board considered evidence relating to three other students who had admitted to copying each other’s assignments. One of these students had also previously committed another serious academic offence. In each of these three cases, the sanction imposed on each student was a zero in each copied assignment, and a time-limited annotation on their record. In the case of the student who had committed three academic offences and was in first year, the annotation was two years; for the other two students the annotation was until graduation. The argument in this case proceeded on the basis that the same penalty was proposed to the Student if she would admit to the offence.
Further, the Board commented that there must be some rational relationship, connected to the reasons for imposing a more serious sanction, between the sanctions imposed on a student who immediately admits an offence, and one who unsuccessfully contests it.
The Board indicated its agreement with the University of Toronto v C.A.M. (Case No. 684, June 3, 2014) for the following propositions: (1) It is appropriate that the sanctions imposed after a contested hearing be more serious, often significantly more so, than those imposed at the decanal level; and (2) Where the record discloses a sanction proposed at the decanal level for the very offence in issue by the student in question, the difference between that sanction and the one to be imposed by a Tribunal must be generally explicable by the factors described above as they apply in the circumstances of the particular case.
In addition to the six factors set out in the oft-cited Mr. C. case, the Board added a seventh factor to be considered in the imposition of the more serious level of sanctions imposed for offences found after a Tribunal hearing. It commented that this new factor is an important one for the proper and timely administration of the discipline process at the University of Toronto. That additional factor is the cost in time and resources to the University of proceeding to a contested hearing.
According to the Board, the appropriate penalty for the Student is the zero in her course and a time limited annotation on her record (neither of which she contested) but with the period of suspension reduced to one year, not two. It accordingly allowed the appeal to the extent of reducing the two-year suspension to a one-year suspension, and otherwise affirmed the decision below.
Student’s appeal allowed as it relates to sanction.