Case #848 - Appeal

Case 848
DATE: October 13, 2017

PARTIES: University of Toronto v. D.H. (“the Student”)
Hearing Date(s): August 4, 2017
Panel Members:
Ms. Patricia D.S. Jackson, Chair
Mr. Sean McGowan, Student Panel Member Professor Elizabeth Peter, Faculty Panel Member
Ms. Alena Zelinka, Student Panel Member
Appearances:
Mr. Glenroy K. Bastien, Counsel for the Student
Ms. Tina Lie, Counsel for the Respondent, the University of Toronto
In Attendance:
The Student
DAB Decision.
NOTE: See the Tribunal decision for detailed facts.
Discipline Appeal Board – Student appeal from sanction – request to set aside order of expulsion - s.B.ii.2 – s. B.i.3(a) – forged academic record – third offence – Board need grant little deference given its very broad powers – deference given on the issue of credibility – expulsion generally penalty for forgery when prior offence – Appeal dismissed – recommendation for expulsion
Appeal by the Student from a Tribunal decision in which the Student pled guilty to two charges of forging or falsifying an academic record contrary to s. B.ii.2 and s. B.i.3(a) of the Code, and sentenced to expulsion. The Student asked the Appeals Board to set the penalty aside because the Tribunal either overlooked his medical evidence, or failed to provide reasons which indicated what weight, if any, was attached to that evidence. Finally, the Student alleged that the Tribunal arbitrarily attempted to fit this case into the penalties imposed in previous cases, without regard to the Student’s fragile mental condition.
The Board stated that it had very broad powers and that it need not show deference to the Tribunal decision except for matters relating to credibility, where the Tribunal has the opportunity to observe witnesses giving evidence and draw conclusions from this based on their first-hand exposure to the demeanour and quality of evidence. The Board also stated that it is appropriate for it to vary a sanction which it believes to be wrong whether because of an error of law, significant errors of fact, or a material inconsistency with the weight of other Tribunal and appeal decisions.
The Board found no such errors in the Tribunal decision. The Board found that the Tribunal did not overlook the medical evidence, but rather admitted it notwithstanding its late delivery, absence of any cross-examinations or testing and over the objection of the University. The Tribunal specifically referred to the Student's "fragile mental state", and noted as a mitigating factor that the offence occurred when the Student was suffering from significant mental distress and at the lowest point of his academic career. Finally, the Board did not find that the Tribunal was artificially trying to fit this case within the confines of previous cases and without regard to the facts and circumstances of the Student. The Board found that in cases where a Student has forged an academic record, the penalty of expulsion (or where the student has completed a degree, the revocation of that degree) recognizes both the seriousness of the harm inflicted on the institution and the fact that it is difficult to detect. In the rare cases where expulsion has not been recommended, the Board stated that it was generally on the basis that the student had no prior offences and also, usually, because the case proceeded by way of a joint submission on penalty. In this case, the Board agreed with the Tribunal’s conclusion that given that it was the Student’s third conviction, that forgery is a serious offence, and that it occurred immediately after the Student was notified of the penalty for his second offence, that a recommendation of expulsion was appropriate.
The Board accepted the University’s request that, due to delay associated with the hearing caused by the Student, the Student’s current period of suspension be extended to the later of May 19, 2018 or the date on which the Governing Council makes its decision on expulsion. Appeal dismissed.