Case #684

Case 684 - Sanction
Case 684 - Appeal

DATE: July 11, 2013
PARTIES: University of Toronto v. C.A.M.

Hearing Date(s): February 20; May 2, 2013

Panel Members:
Ms. Lisa Brownstone, Chair
Prof. Pascal Van Lieshout, Faculty Member
Mr. Yingxiang Li, Student Member

Appearances:
Mr. Robert Centa, Assistant Discipline Counsel for the University
Ms. Tina Lie, Assistant Discipline Counsel for the University
The Student
Stewart Aitchison, Professor (Feb 20, 2013)
Nick Carriere, Teaching Assistant (Feb 20, 2013)
Alex Wong, Teaching Assistant (Feb 20, 2013)
John Carter, Dean's Designate (Feb 20, 2013)
Diane Kruger, Forensic Document Examiner (Feb 20, 2013)

In Attendance:
Adam Goodman, to advise student, not on record (Feb 20, 2013)
Ms. Natalie Ramtahal, Coordinator, Appeals, Discipline and Faculty Grievances

Trial Division – s. B.i.1(a) of the Code – forged documents – submitted another student’s test as Student’s own – Student’s expert’s report submitted minutes before trial unsigned and in draft form –Student could not cross examine University expert on the contents of Student’s expert report where Student’s expert did not attend hearing – Student retracted admission made at Dean’s Meeting – Student did not sign anything at Dean’s Meeting – Panel held retracted admission was of limited assistance because it was possible the Student did not genuinely intend to plead guilty – finding of guilt – evidence against Student was substantial and unambiguous – offence was serious – no mitigating factors – Student implicated professor and TA as having presented fabricated evidence – not an aggravating factor for the Student to criticize the system; students must be free to comment without fear – grade assignment of zero in the course; recommendation that the Student be expelled; suspension lasting five years or until Governing Council makes decision on expulsion; report to Provost for publication

Student charged with one offence under s. B.i.1(a). Student was charged in the alternative with one offence under s. B.i.3(a) and in the further alternative, with one offence under s. B.i.3(b). The charges related to an allegation that the Student advised the professor a test mark was erroneously recorded as a zero and altered and submitted to the professor another student’s test claiming it to be the Student's own. The Student attended the hearing. The Student was accompanied at the hearing by the Student’s former counsel who was not on the record but had come to provide the Student with advice.

Both the Student and the University had retained their own forensic document examiners. A week prior to the hearing, an order was made by a Proceedings Chair that University counsel was to deliver the University’s expert report by February 13, 2013. The Proceedings Chair also held that if the Student’s expert did not attend the hearing, the evidence of the Student’s expert would not be admitted. The Student received a report from a forensic document examiner in Michigan on February 18, 2013. No arrangements were made to have the expert appear in person or by video conference. The Student delivered the report to University counsel, unsigned and in draft form, minutes before the hearing on February 20, 2013. The Student attempted to cross examine the University’s expert on the contents of the report prepared by the Student’s expert. University counsel objected and the Panel ruled that the Student could ask questions based on information learned from the report of his expert, but that the Student could not tender the report as evidence, nor refer to the report in cross-examination.

The Panel determined that the evidence that the Student did not write the test was substantial and unambiguous. The Panel found that the emails between the Student and the TA were sent from the Student, notwithstanding the Student’s attempts to characterize these emails as abnormal. The Panel stated that the contents of the email the Student sent to the TA and the email the student provided to the professor, along with the Student’s desire to keep the original test paper, all supported the University’s allegations. The Panel accepted the evidence of the University’s expert and concluded that there was no doubt that the Student’s name and student number had been written over top of those of the original student’s whose test had been altered. The Panel held that the admission made by the Student at the Dean’s Meeting was of limited assistance. The Student had retracted the admission and the Panel agreed that it was possible that the Student had never meant to plead guilty and had only said “yes” to “get it over with.” The Student had not signed any documents at the Dean’s Meeting. The Panel concluded that the standard of proof set out in F.H. v McDougall was met and found the Student guilty of the offence alleged under s. B.i.1(a) of the Code.

The sanction phase of the hearing occurred on a separate day. At the sanction phase the Student sought to introduce a variety of documents relevant to liability. The Panel considered whether it was appropriate to reconsider liability at the sanction phase. The Panel observed the existence of a broad right of appeal wherein fresh evidence may sometimes be admitted. The Panel noted that the right of reconsideration is never explicitly addressed in either the Code or the Rules. The Panel also stated that it was unclear whether it had jurisdiction to reconsider liability at the sanction phase, after considering the Statutory Powers and Procedure Act and the Rules. The Panel concluded that even if it had this jurisdiction, it would not exercise its discretion to admit new materials relevant only to the issue of liability at this stage given the full hearing had already occurred, the Student had access to counsel at the hearing, and all the information the Student wished the Panel to consider had been available to the Student at the time of the initial hearing.

The Panel underscored the seriousness of the offence and noted that there was a high degree of planning and deliberation involved. The Panel observed that there was no evidence of mitigating factors and was concerned that the Student had implicated one of the TAs and the professor by suggesting they either fabricated or possessed “bogus” emails. The Panel disagreed, however, with the University’s submission that it was an aggravating factor for the Student to suggest that there was a problem with “the system.” The Panel concluded that this suggestion was not sufficient to call into question the University’s integrity and students must be able to bring forward concerns about the systems in place without fear of those concerns being cast as aggravating factors. The Panel imposed a final grade of zero in the course, a recommendation that the Student be expelled from the University, a suspension of five years or until the Governing Council makes a decision on expulsion, whichever comes first, and ordered that the case be reported to the Provost for publication.

NOTE: This case was appealed. The majority allowed the appeal to the extent that it related to the recommendation for expulsion.