Case #258

DATE: December 14, 2001

PARTIES: A.M. (the “Student”) v. Faculty of Applied Science and Engineering

HEARING DATES: November 8, 2001; November 19, 2001

Committee Members:
Professor Emeritus Ralph Scane (Acting Chair)
Professor Luigi Girolametto
Professor Gretchen Kerr
Ms Karen Lewis

Ms Geeta Yadev

Appearances:
For the Student Appellant:
A.M. (the “Student”)
Mr. Craig Coughlan, Counsel for the Student

For the Faculty of Applied Science and Engineering:
Ms Sari Springer, Counsel for the Faculty of Applied Science and Engineering
Ms Colleen Kerluk, Faculty of Applied Science and Engineering
Ms Barbara McCann, Faculty of Applied Science and Engineering
Professor Kim Pressnail, Faculty of Applied Science and Engineering

The Student appealed a decision of the Ombuds Committee of the Faculty of Applied Science and Engineering (the “Faculty”) dismissing an appeal from the decision of the Faculty’s Committee on Examinations regarding the Student’s petition for relief in a course taken in the Fall term of 2000. The Committee on Examinations ruled that the final examination on the course, which the Student did not write, should not be counted in computing the final course mark. The mark was calculated by computing the average of all of the other grading components in the course, including the second of the term tests, which the Student also did not write. This test was graded for the purpose of arriving at the final course mark as 0/20. On this basis, the Student received an "F" in the course. The Student sought the removal of the failure in the course from her transcript and its replacement with a permitted late withdrawal without academic penalty.

The Student’s original petition was for relief on medical grounds. In responding to the appeal before the Academic Appeals Committee (the “AAC”), however, the Faculty introduced a strong collateral attack against the Student personally, arguing that she was not credible, was a chronic absentee from classes and was a frequent petitioner for special relief during the course of her undergraduate programme. The Student gave evidence that the symptoms of which she complained commenced shortly before the second term test. The Student attended a medical clinic and received a terse medical certificate which the AAC noted did little more than corroborate the fact that she had attended a doctor on that date. The Student gave evidence that on the date of the final examination, she was again very ill and attended another physician and obtained a much more detailed medical certificate. The AAC noted that the Faculty considered that the medical evidence was sufficient to excuse the Student from writing the final examination but not the second term test. The AAC stated that the Faculty's attack on the Student's credibility was relevant in considering the evidence; however, it made its own assessment of the available evidence and concluded that it was more probable than not that the Student had been seriously affected in advance of the second term test by the same illness that was admittedly affecting her at the time of the final examination, and that she had valid medical grounds for missing the second term test. Accordingly, the AAC determined that that examination should not have been included in the calculation of the final course mark.

The AAC then considered the question of what the final course mark should have been. The Committee decided that it would be unsafe to extrapolate a final course grade from components worth only 40% of the total available marks in the course and that as such, the proper remedy should be either the granting of aegrotat standing in the course, or permitted late withdrawal without academic penalty. The AAC stated that the Student's performance did not justify consideration of aegrotat standing, and thus if the medical issues were to be considered alone, it would allow the appeal and grant the remedy sought. The Committee noted, however, that the Faculty had taken the position that the Student was not credible and was a chronic absentee from classes, and that these factors justified the withholding of relief from the Student with regard to the final mark in the course even if the medical grounds otherwise justified granting it. The AAC considered whether, as a matter of policy, the University should have a discretion to withhold relief in the case of a petition based on medical grounds on the basis of the factors (other than credibility) indicated. The Committee stated that where the University grants relief to a student on medical or similar grounds, it does so because it accepts that the student's ability to perform to the standards normally demanded was so adversely affected that the University cannot rely upon the results obtained, or on the failure to undergo an evaluation process, to visit the student with the normal consequences of inadequate or missed performance. Whether a student has in other respects been academically delinquent is irrelevant in determining this issue. The Committee stated that it was not asserting that the missing of lectures cannot or should not be penalized by the University; rather the Committee stated that the University should not attempt to deal with this type of academic delinquency through the back door, by withholding otherwise proper relief in the case of a petition based on medical or similar grounds. Accordingly, the Committee found that it did not have to engage in a fact-finding exercise with respect to the charges arising out of the ‘collateral’ issues.

The AAC also noted that had it come to the opposite conclusion on the policy issue, it would have been very uneasy in finding against the Student on the basis of much of the case made against her. The Committee noted that a large portion of the evidence against the Student was hearsay, or consisted of statements made in reports and e-mails, where those making the statements did not appear before the Committee. Where a party decides to lead evidence intended to bring about a finding of fact that impugns the character of a student, a member of the University or anyone else, the AAC stated, the witnesses from whence that evidence emanates should be present to be confronted and cross- examined. If a tribunal's proceedings are thereby protracted, the AAC stated, so be it.

The AAC also noted that neither of the Faculty Committees published any reasons for their decisions. The Committee stated that elementary fairness to a student seeking relief requires that a tribunal publish at least a summary of the reasons for its decision. Published written reasons for a decision not only make the process more transparent, and therefore more credible, but may guide the student and the division with regard to future matters.

The AAC allowed the appeal, vacated the grade of “F” awarded to the Student in the course and ruled that the Student be deemed to have been permitted to withdraw from that course without academic penalty.