Case 709 - Appeal

November 2, 2017

Ms. Patricia D.S. Jackson, Chair

Professor Allan Kaplan, Faculty Panel Member Ms. Wendy Wang, Student Panel Member

Ms. Alena Zelinka, Student Panel Member

Mr. Robert Centa, Assistant Discipline Counsel, Paliare Roland Barristers 

Mr. Darryl Singer, Counsel for the Student

Ms. Nadia Condotta, Counsel for the Student

Ms. Tina Lie, Affiant

The Student

 

DAB Decision

Note: See Tribunal case summary for detailed facts

 

Appeal by the Student. from a Tribunal decision in which the Student was found guilty of one count of plagiarism contrary to s. B.i.3(d) of the Code and sentenced to a final grade of zero in the affected course, degree recall and cancellation, permanent notation on his transcript, removal of his thesis from the library, a recommendation of expulsion and that the case be published with the Student’s name withheld. The Student appealed on the grounds that the Tribunal’s decision not to grant the Student’s request for adjournment and proceeding with the hearing in his absence was a breach of procedural fairness; that his counsel’s withdrawal denied him a fair opportunity to make submissions at the hearing; and that procedural fairness required that the Tribunal Panel  adjourn before its determination of penalty. 

 

The Board referred to its broad powers to review a Tribunal decision as found in section E.7 of the Code, and noted that particular deference ought to be given to a Tribunal’s decisions concerning the conduct of a hearing and whether or not to grant a request for an adjournment. The Board stated that justice and procedural fairness can only be said to be infringed where the Panel exercised its discretion in an unreasonable or non-judicious fashion.

 

The Board was referred to the case The Law Society of Upper Canada vs. Igbinosun, (2009 ONCA 484 at para. 37) which provided that factors that supported the denial of an adjournment include: a lack of compliance with prior court orders, previous adjournments that have been granted to the applicant, previous peremptory hearing dates, the desirability of having the matter decided and a finding that the applicant is seeking to manipulate the system by orchestrating delay. Factors in favour of granting of an adjournment include: the fact that the consequences of the hearing are serious, that the applicant would be prejudiced if the request were not granted, and a finding that the applicant was honestly seeking to exercise his right to counsel and had been represented in the proceedings up until the time of the adjournment request. In weighing these factors, the timeliness of the request, the applicant's reasons for being unable to proceed on the scheduled date and the length of the requested adjournment should also be considered. The Board found that all of the factors in favour of a denial of an adjournment existed in this case and the factors that might have allowed for the granting of an adjournment had in fact led to multiple adjournments in the proceedings prior to the hearing. 

 

The Student had six prior notices of hearing that warned him "if the panel finds you guilty, it will then be asked to determine an appropriate penalty", a warning that was reinforced in decisions on his multiple requests for adjournments.  The Board referred to Rule 17 of the Rules of Practice and Procedure which provide that a person who does not attend a hearing of which they have had notice is not entitled to further notice of different stages of the proceeding.   There could be no basis for a suggestion of non-disclosure to the Student as the University did not call additional evidence at the hearing. Further, the Student had been advised on several occasions that his general assertions of a “mental health issue” were not a sufficient basis upon which to grant an adjournment and he had failed to provide evidence of a medical condition that prevented him from participating in the proceedings. 

 

The Board found that the Tribunal’s decision to recommend the cancellation and recall of the Student's degree was reasonable and appropriate, and that character evidence and letters of support could not reasonably be expected to make a difference to this sanction. Appeal dismissed.