Case #56 - Appeal

DATE: October 4, 2001

PARTIES: Mr. P. (Applicant) v. the University of Toronto (Respondent)

HEARING DATE: October 4, 2001

Panel Member:
C. Anthony Keith, Q.C., Senior Chair

Appearances:
Gary E. Shortliffe, for the Applicant
Lily I. Harmer, for the Respondent

Discipline Appeals Board (“DAB”) Decision
Note: See Tribunal case summary for detailed facts

Application by the Student for an extension of time to appeal a Tribunal decision

Formal written notice of the Tribunal’s decision was received by the Student on November 19, 2000. The DAB noted section E.5 of the Code, pursuant to which an appeal from a decision of the Tribunal shall be made by filing written notice with the Secretary within 21 days after the giving of notice of the decision of the Tribunal. It was common ground between the parties that no formal notice of appeal was delivered to the Secretary within that time, though the Student alleged that he had spoken with the then-Secretary regarding his intention to appeal and was told he should first attempt to obtain legal representation and then file a formal notice. The first written indication of an intention to appeal was contained in a letter from the Student’s counsel dated April 6, 2001. The DAB noted that under the Code, the Senior Chair has the power, in “exceptional circumstances”, to enlarge the time for appeal upon application made either before or after the expiry of the time. The DAB further noted that there is no further indication in the Code as to the meaning of the phrase “exceptional circumstances”. The issue was therefore whether or not the circumstances described would reasonably constitute exceptional circumstances.

The DAB considered the chronology of events and the submissions of counsel for the Student, in particular the affidavit evidence which indicated the Student’s understanding of what was expected of him as a result of a conversation with an employee representing the University. On this basis, the DAB stated that it was prepared to find on the circumstances of this case alone that there were exceptional circumstances upon which to enlarge the time to appeal. The Senior Chair stated that this was in no way to be taken as a general statement that in all similar circumstances such a decision would be reached. The DAB noted the reasons why the University would wish to require those seeking to appeal Tribunal decisions to do so promptly, however, the University in this case, did not oppose the Student’s application provided that certain conditions be incorporated into the order granting an extension of time. Counsel for the Student did not oppose the nature, or the imposition, of those conditions.

The DAB therefore granted the extension of time to appeal, on a number of conditions. The conditions were: that the appeal not operate as a stay on the decision; that the granting of leave to appeal not operate so as to prevent the University from raising as an issue on appeal any practical difficulties in terms of presenting witnesses to deal with any new hearing that the appellant Tribunal might order; and that the parties abide by a strict timetable to commence from the date of the DAB’s decision. This timetable included the arrangements for the obtaining and distribution of the transcripts of the Tribunal hearing; the service of the appeal materials; and the process for arranging a hearing date for the appeal. Submissions on costs were reserved to the Chair of the Appeal Tribunal.