Case #858 - Appeal 2

PARTIES: A.S. (Appellant) v. The University of Toronto (Respondent)
Hearing Date: February 1, 2019
Panel Members:
Ms. Patricia D.S. Jackson, Chair
Dr. Ramona Alaggia, Faculty Panel Member
Ms. Alena Zelinka, Student Panel Member
Professor Aarthi Ashok, Faculty Panel Member
Appearances:
Mr. Hatim Kheir, Downtown Legal Services, for the Appellant, also in attendance
Mr. Robert Centa, for the Respondent
DAB Decision
Note: See Tribunal case summary for detailed facts
Discipline Appeals Board – Student appeal from Tribunal decision – request for new Tribunal hearing - concoction of academic sources and falsification of academic record – s. B.i.1(f) and s. B.i.1(a) of Code - - the standard of proof to be applied in proceedings under the Code is the civil standard of proof on a balance of probabilities – appeal dismissed
Appeal by the Student from a Tribunal decision finding the Student guilty of two offences under the Code of Behaviour on Academic Matters (the Code) and recommending expulsion. The Student knowingly submitted a report for course credit containing references to concocted sources contrary to section B.i.1(f) of the Code. The Student also submitted to the Provost a falsified version of a disciplinary letter from his Vice-Dean contrary to section B.i.1(a) of the Code.
The Student asked the Discipline Appeals Board (DAB) to remit the matter to a new panel of the Tribunal for a new hearing on the basis that the Tribunal had applied the wrong standard of proof in finding him guilty on a balance of probabilities. The Student submitted that the Code required the offence to be proved “on clear and convincing evidence,” which he asserted was a higher standard than on a balance of probabilities. The Student relied upon the Supreme Court of Canada’s decision inPenner v. Niagara Regional Services, 2013 SCC 19, which found that the “clear and convincing” standard of proof in the Police Services Act was a higher standard of proof than the balance of probabilities.
The Provost submitted in response that there was no statutory regime similar to the Police Services Act establishing a standard of proof in Tribunal proceedings. The Provost further submitted that the Code is an internal University policy to be interpreted and administered within the mainstream of civil and administrative law, including the Supreme Court of Canada’s decision in C. (R.) v. McDougall, 2008 SCC 53, which concluded that there is only one civil standard of proof at common law and that is proof on a balance of probabilities.
The DAB declined to accept this characterization of the Code as simply a statement of policy, and found instead that the Code, although not itself a statute, was enacted pursuant to an express delegation of statutory power granted to the Governing Council of the University pursuant to the University of Toronto Act, 1947 and the University of Toronto Act, 1971. The DAB found that the creation of the relevant standard or proof under the Code was a valid exercise of this statutory authority by the Governing Council and that it intended to create a standard of proof under the Code that is the ordinary civil standard of proof on a balance of probabilities.
In so doing, the DAB referred to a consistent and substantial body of Tribunal and DAB authority interpreting the standard of proof under the Code as the ordinary civil standard of proof on a balance of probabilities. The DAB found that the Penner decision did not overturn this line of authority because the wording employed in the Police Services Act is different than the wording employed in the Code. The DAB found that the words “clear and convincing evidence” as employed in the Codedescribe the kind of evidence required to prove, on a balance of probabilities, that the Student committed the offence. Finally, the DAB found that the absence of a reenactment of the Code in the face of Tribunal and DAB authority applying the civil standard of proof, indicates that the intention of the Governing Council was to adopt the civil standard of proof under the Code.
Upon dismissing the appeal, the DAB concluded that the result would not be any different if the Student was correct and the Tribunal should have applied a higher standard of proof because the Student failed to address the allegations raised by the first offence, and effectively admitted that he had received the disciplinary letter in its original form.