Case 658

DATE: July 5, 2012
PARTIES: University of Toronto v. N.G.

HEARING DATE: June 21, 2012

Panel Members:
Ms. Rodica David, Chair
Dr. Joel Kirsh, Faculty Member
Ms. Emily Holland, Student Member

Appearances:
Ms. Lily Harmer, Assistant Discipline Counsel, Paliare Roland Barristers
Ms. Mary Phan, Legal Case Worker, Counsel for the Student, Downtown Legal Services

In Attendance:
Ms. Lucy Gaspini, Academic Affairs Officer, University of Toronto Mississauga
Ms. Natalie Ramtahal, Coordinator, Appeals, Discipline and Faculty Grievances

Trial Division – s. B.i.1(a) of Code – forgery of documents – Student knowingly forged, altered or falsified documents (specifically, medical certificates) required by the University in support of petitions for deferrals of exams in two courses – Agreed Statement of Facts (ASF) – guilty plea – Joint Submission on Penalty (JSP) – relevance of previous offences – pattern of forgery and falsification - challenging personal circumstances carry some weight in determining appropriate penalty – University’s lack of intervention after initial offences a mitigating factor – University has duty to proactively assist students in distress rather than simply penalizing such students – test for disregarding JSP is very high – to reject a JSP the recommended penalty must be contrary to public interest or bring the administration of justice into disrepute – JSP accepted - limited circumstances in which motion can be brought to reopen case – final grade of zero; five-year suspension; notation of sanction on academic record and transcript; and publication by the Provost of notice of decision and sanctions with the Student’s name withheld.

The Student was charged with six counts of academic misconduct under s. B.i.1(a) of the Code of Behaviour on Academic Matters, 1995 (the “Code”) on the basis that she knowingly forged, altered or falsified documents (specifically, medical certificates) to obtain deferrals for writing final examinations in two courses at the University.

The parties submitted an Agreed Statement of Facts (ASF) and a Joint Submission on Penalty (JSP). The agreed facts were that the Student had registered as a student at the University in Fall 2007. In 2011, the Student petitioned for permission to write deferred examinations in two of her courses, which petitions were granted. The Student failed to write deferred examinations in either of the courses. The University then requested evidence of the Student’s illness to support the reasons for missing her exams. The Student did not respond to this request. The Student subsequently submitted two formal online petition requests for a second deferral in each of the courses, both petitions indicating medical sickness as the reason for the requests. These petitions were refused on the basis that they had been submitted outside the designated deadline. The Student then submitted a medical certificate in support of her petitions. Upon investigation, the University discovered that the medical certificate was not genuine. The Student admitted that she had made up the certificate by obtaining the address stamp on line.

The Tribunal was satisfied that the facts in the ASF discharged the burden on the University to prove the offences by clear and convincing evidence. It unanimously found the Student guilty of the four charges upon which the University proceeded.

The Parties submitted a JSP in support of a final grade of zero in the two courses, a five-year suspension, a notation of the sanction on the Student’s academic record and transcript from the date of the order until the earlier of her graduation from the University or June 30, 2018 and that the case be reported to the Provost for publication of a notice of the Tribunal’s decision and the sanction imposed, with the name of the Student withheld.

In considering the appropriate sanction, the Tribunal noted two previous offences committed by the Student: the submission of a false quiz in one case and a false essay in the other. The Tribunal also noted the Student’s challenging personal circumstances; that she was a 22 year old single parent of two young children, working two jobs and under significant financial pressure. The Tribunal found that the Student had shown a pattern of forgery and falsification as a means of obtaining credits toward her degree and that the previous sanctions she had received had no deterrent effect on her. The Tribunal took the view that the Student had numerous legitimate options open to her for dealing with her challenging personal circumstances, including seeking counselling at the University, applying for financial assistance, withdrawing from the programme or becoming a part-time student. While the Tribunal found that the Student’s circumstances were not an excuse for her behaviour, it was satisfied that they did carry some weight in determining the appropriate penalty. The Tribunal stated that the University’s lack of intervention after the Student’s initial offences was a mitigating factor, noting that the University should consider that it has a duty to give proactive assistance to students in distress rather than simply imposing penalties on such students. Additional mitigating factors included that the Student acknowledged her wrongdoing at a meeting with the Dean, signed two ASFs and the JSP and pleaded guilty.

While the Tribunal considered that a recommendation for expulsion might have been more appropriate than the five-year suspension proposed in the JSP, it noted the very stringent test for rejecting a JSP set out in the case of Regina v. Tsicos. To reject a JSP, the Tribunal must find that the recommended penalty is contrary to the public interest or will bring the administration of justice into disrepute. Due to the high deference the JSP must be given, the Tribunal accepted the JSP.

Following the hearing, the Student sent an email to the two lay members of the Tribunal. The Tribunal noted in an addendum to its report that once a hearing is concluded, it might be open to a student to bring a motion to reopen the case in certain circumstances. These are: if any facts came to light which could not have been known with reasonable diligence at the time of the hearing, if the facts sought to be adduced would have a significant bearing on the outcome and if it does not prejudice the University. No such motion was brought in this case and the Tribunal members did not therefore read the email.

The Tribunal imposed the following sanctions: a final grade of zero on both courses; suspension for a period of five years, to end June 30, 2017; notation of the sanction on the Student’s academic record and transcript from the date of the order until the earlier of her graduation from the University or June 30, 2018; and publication by the Provost of a notice of the decision and sanctions imposed with the Student’s name withheld.