Report #359-1

DATE: August 25, 2011
PARTIES: University of Toronto v H.M. and M.Y.


Hearing Date(s): August 17, 2011

Committee Members:
Prof. Hamish Stewart, Chair

Secretary:
Mr. Christopher Lang, Director, Appeals, Discipline and Faculty Grievances

Appearances:
For the Students, H.M. (student)
For the Students, M.Y. (student)
For the School of Graduate Studies, Robert Centa, Counsel
For the School of Graduate Studies, Julia Wilkes, Articling Student

NOTE: These reasons address the findings on the motion only. Reasons for the decision on the merits are reported in H.M. and M.Y. v. School of Graduate Studies (Report # 363, February 7, 2012)

Motion brought by School of Graduate Studies (“SGS”) for direction concerning the jurisdiction of the Academic Appeals Committee (“AAC”) and the admissibility of some of the Students’ material. The Students appealed a decision of the Graduate Academic Appeals Board (“GAAB”) to the AAC seeking some 37 remedies, grouped into five categories: (1) academic remedies, (2) remedies relating to tuition and funding, (3) compensation for various costs incurred since 2007, (4) compensation for losses and damages flowing from the Depart of Economics’ conduct, and (5) an official apology letter from the SGS and the University.

The SGS conceded that the AAC had jurisdiction to grant the remedies in the first category and jurisdiction to recommend the rebate or cancellation of fees, but no jurisdiction to grant any of the remaining remedies. The Chair observed that the AAC only has the powers given to it by the Governing Council, expressly or by necessary implication, in its Terms of Reference; it has no inherent jurisdiction. The Chair commented that some light may be shed on the AAC’s jurisdiction by examining the jurisdiction of those bodies whose decisions it reviews, in this case, the GAAB. Upon review of the AAC and GAAB’s Terms of Reference, the Chair concluded that the AAC’s jurisdiction is limited to considering whether academic regulations and requirements have been applied correctly, consistently, and fairly. The Students argued that s.19 of the GAAB’s Terms of Reference gives the GAAB, and by extension the AAC, the power to award financial compensation for losses flowing from academic decisions. The Chair did not accept this argument. The Chair observed that s.19 does not enable the GAAB Chair to decide any dispute arising under the law of Ontario or Canada as it would give him or her powers comparable to those of a Superior Court judge. The Chair noted that the purpose of s. 19 is to enable the GAAB Chair to determine a point of law and a point of privilege that arises in connection with an issue that is otherwise within its jurisdiction. As such, a GAAB Chair would not have the jurisdiction to decide an issue of law that was not otherwise properly before them. Similarly, s.19 does not give the GAAB, or the AAC, the power to award damages. Awarding financial compensation for the losses flowing from an erroneous or unfair application of academic regulations and requirements is not within the jurisdiction of the AAC, nor is requiring the SGS and the University of Toronto to apologize to the Students.

The Chair granted the Students’ permission to argue at the hearing on the merits for a recommendation concerning their tuition but not for the remedies sought under categories (2) – (5). The Chair stated that the AAC will not grant any of these non-permitted remedies. The Chair held that it had jurisdiction to grant some of the remedies grouped into category (1): the removal of FZ grades, and the request for final exams taken while auditing courses to be marked. The remaining remedies grouped into category (1) were left to be decided at the hearing on the merits.

The SGS submitted that some of the materials filed by the Students were inadmissible at the hearing on the basis that they were communications in furtherance of dispute settlement and therefore privileged. The SGS submitted in the alternative that this material was irrelevant. The Chair reviewed the law of privilege and relevance. In the Chair’s view, privilege applies whether the settlement discussions took place with or without a mediator. The Chair noted that the fact that settlement discussions were underway, though not the content of those discussions, may be admissible if relevant. In 2009, the Students initiated a consultation process with the Department of Economics for advice and informal mediation. After receiving information from the Students, a professor made a proposal to the Students. One of the Students sought some clarifications. After receiving clarification, one of the Student wrote to the professor stating “This is to accept the offer.” The Students did not register as had been suggested and several weeks later declined the offer and pursued an appeal. The Chair held that the discussions and information exchanged during this period were covered by settlement privilege. The dispute was contemplated by the Students at the time, though the appeal had not yet been launched. The nature of the offers made by the Department of Economics and the SGS supported the inference that the discussions were intended to be kept confidential. And in light of the structure of the discussions, and the fact that some of the proposals involved compromising usual University policies, it was wholly implausible to describe all of the discussions as the giving and receiving of academic advice, rather than as negotiation to resolve a dispute. The possibility that the Students may have accepted the offer and nonetheless proceeded with a grade appeal did not destroy the privilege. The 2009 negotiations were designed to settle a dispute about whether the Students could resume their studies. Even if this was not the precise dispute now before the AAC, those discussions were privileged and therefore inadmissible. The Chair further held that the content of these negotiations had no bearing on the issues currently before the AAC and thus were irrelevant and inadmissible. The fact that negotiations occurred was relevant, but only to explain why the Students were permitted to write tests while auditing courses. In 2010, another series of discussions took place between the Students and Counsel for the Department of Economics. The Chair concluded these discussions were privileged and therefore inadmissible. The fact that negotiations occurred was not relevant and was inadmissible.

Both before and during the motion, the Students made a number of requests of the Chair that were all declined. The Students requested documents, including notes, minutes, and statements, produced at or as a record of the GAAB hearing. The Chair refused to make the requested order. The Chair concluded that he had no power to compel anyone to produce documents, that the GAAB is not a court of record and that any documents prepared to assist the GAAB are immune from disclosure to the parties in the appeal to the AAC, and that the documents were irrelevant. The Students also requested the Chair order the SGS to register them immediately for the 2011/2012 academic year. The Chair declined to make the requested order, as it was not within the jurisdiction of an AAC Chair hearing a preliminary motion to decide questions of law.