Case #948-Interim Decision

DATE: December 21, 2018
PARTIES: University of Toronto v. S.W.
HEARING DATE: September 12, 2018

Panel Members:
Mr. Nader R. Hasan, Co. Chair
Professor Pascal van Lieshout, Faculty Panel Member
Ms. Yusra Qazi, Student Panel Member

Appearances:
Ms. Lily Harmer, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
Ms. Lauren Pearce, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
Mr. Lorne Sabsay, Counsel for the Student
Ms. Jennifer Jackson, Assistant to Mr. Lorne Sabsay, Counsel for the Student
S.W., the Student (via Skype)

In Attendance:
Ms. Krista Osbourne, Administrative Clerk and Hearing Secretary, Appeals, Discipline and Faculty Grievances

The Student was charged with academic misconduct under the Code of Behaviour on Academic Matters, 1995 (the “Code”) on the basis that she allegedly submitted fraudulent transcripts to support her transfer application to the University. There was no dispute between the parties that fraudulent transcripts were submitted on the Student’s behalf; the dispute was whether the Student was aware of the fraudulent nature of the transcripts. The Provost intended to call as a witness Y.L., the ex-boyfriend of the Student, who was expected to testify about the Student’s knowledge of the fraudulent transcripts. In advance of the hearing on the merits, the Student brought a motion before the Panel to preclude Y.L. from testifying in the proceedings. The Provost in turn sought an order declaring that the judgment and portions of the transcript from Y.L.’s criminal trial be admissible in the hearing on the merits of the charges against the Student. The Provost further sought an order that the transcripts from Y.L.’s criminal trial be admissible for the purpose of impeaching Y.L. or the Student during their respective cross-examinations before the Panel.

Counsel for the Student asserted that it would be a violation of the Student’s rights under the Canadian Charter of Rights and Freedoms (the “Charter”) and the Ontario Human Rights Code to have Y.L. testify, and that not only should a portion of Y.L.’s evidence be excluded, but that the Provost should be precluded from calling him altogether. Counsel for the Student argued that the Student would be traumatized by having Y.L. testify. The Panel noted that this motion presented a threshold issue of whether the Charter applies to University discipline proceedings, which assertion the Provost contested. The Panel held that it was not necessary to decide this issue because even if the Charter did apply, the Student’s motion must be dismissed. It noted that Y.L’s evidence went to the heart of the issues (whether the Student had knowledge of the fraudulent nature of the transcripts) and that Counsel for the Student had provided no authority for the proposition that the Tribunal had the power to preclude a witness with relevant evidence due to the emotional impact on another party. Neither did Counsel for the Student tender any evidence from a physician or otherwise that supported the proposition that the Student would be traumatized by having Y.L. testify. The Panel invited Counsel for the Student to seek alternative relief in the form of accommodation for the Student to deal with the anticipated emotional issues, which accommodation was ultimately reached between the parties.

With regard to the admissibility of the judgment from Y.L.’s criminal trial (in which adverse findings of credibility were made against the Student and to some extent Y.L.), the Panel noted that generally, a trier of fact's assessment of a witness' credibility in one proceeding is not relevant to another tribunal's assessment of that witness' credibility in a subsequent proceeding. The Panel was satisfied that it was for it to independently assess and come to its own conclusions with respect to the Student's credibility. It noted subsection 15(1) of the Statutory Powers and Procedure Act (the “SPPA”) which permits a tribunal to admit as evidence at a hearing any oral testimony and document relevant to the proceeding, and to exclude anything unduly repetitious. The Panel noted that this subsection affords it latitude in admitting evidence that may not be admissible in a civil or criminal proceeding, but that evidence must be relevant and must not lead to unfairness. Guided by the rules of evidence, under which evidence can be excluded where its probative value is outweighed by its prejudicial effect, the Panel noted that the risk of prejudice here was significant. Although the Panel would no doubt direct itself not to be unduly influenced by the judgment delivered in the criminal trial, the findings in that trial had the potential to overpower the Panel. Given the slight probative value and the high potential for prejudice, the Panel ruled that the judgment was inadmissible.

The Panel was satisfied that different considerations applied to the transcripts from Y.L.’s criminal trial, noting that it is established law that an out-of-court statement made by a party to a proceeding that is adverse to their interest in that proceeding may be tendered by an opposing party to prove the truth of the facts contained in the statement. Even if it were wrong in this regard, the Panel decided, it would admit the transcripts under subsection 15(1) of the SPPA. The Panel stated that the probative value of admitting the transcripts outweighed its prejudicial effects and noted that although transcripts are hearsay statements, they contain the hallmarks of reliability. The Panel also noted that the Student was not a compellable witness in the proceedings before it and if she chose not to testify, the transcripts would be the only evidence of what she had said about the fraudulent academic transcripts. The Panel therefore ruled that the transcripts be admitted.

Finally, in ordering that the transcripts could be used for cross-examination, the Panel stated that it had no basis to interfere with the long established principle that parties may be cross-examined on their prior statements. The Panel accepted that cross-examination on a prior inconsistent statement may be used to impeach the credibility of the witness.

The Student’s motion to preclude Y.L. from testifying was dismissed. The University’s motion was allowed in part; the judgment from Y.L.’s criminal trial was held inadmissible, but the transcripts were held to be admissible in the hearing on the merits of the charges against the Student and were permitted to be used for the purpose of cross-examination.