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

School of Graduate Studies – motion – admissibility of evidence of communication with University staff and counsel – evidence of communications inadmissible – settlement privilege – evidence of the fact of negotiations admissible if relevant – jurisdiction to grant remedy – remedies sought included academic remedies, remedies relating to tuition and funding, compensation for costs incurred, compensation for losses and damages resulting from academic decisions, and an official apology –AAC’s powers limited to those granted expressly or by necessary implication in the Terms of Reference – purpose of s. 19 of GAAB terms of reference is to enable GAAB Chair to determine a point of law that arises in connection with an issue that is otherwise within its jurisdiction – GAAB and AAC jurisdiction limited to considering whether academic regulations and requirements have been applied correctly, consistently, and fairly – jurisdiction does not include all the consequences flowing from an otherwise reviewable academic decision – GAAB and AAC remedial jurisdiction limited to orders of an academic nature and making recommendations regarding tuition – GAAB and AAC have no jurisdiction to award financial compensation or demand an apology – AAC Chair has no jurisdiction to order production of documents prepared for the purpose of assisting the GAAB – GAAB is not a court of record – AAC Chair has no jurisdiction to order registration of students in upcoming academic year when hearing a preliminary motion on questions of law


Motion brought by School of Graduate Studies (SGS) for directions concerning the jurisdiction of the Academic Appeals Committee of Governing Council (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 Committee observed that the AAC is a committee of Governing Council and as such has only the powers given to it by the Governing Council, expressly or by necessary implication, in its Terms of Reference. The Committee examined the Terms of Reference for both the AAC and the GAAB and concluded that the AAC’s jurisdiction is limited to considering whether academic regulations and requirements have been applied correctly, consistently, and fairly. S. 19 of the GAAB Terms of Reference does not give the GAAB, and by extension the AAC hearing an appeal from the GAAB, the power to award financial compensation for losses flowing from academic decisions. Nor does s. 19 give the GAAB or the AAC the power to award damages. The purpose of s. 19 is to enable the GAAB Chair to determine a point of law that arises in connection with an issue that is otherwise within its jurisdiction.

The Committee noted that its remedial jurisdiction is limited to making ordering of an academic nature. Jurisdiction over the application of academic regulations and requirements does not include all the consequences of an academic decision, even if the decision itself may be reviewed by the AAC. 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 Committee permitted the Students to argue for a recommendation concerning their tuition but not for the remedies sought under categories [2] – [5]. The Committee stated that the AAC will not grant any of these non-permitted remedies. The Committee 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 its 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 Committee reviewed the law of privilege and relevance. The Committee held that privilege applies whether the settlement discussions took place with or without a mediator. The Committee also held 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, 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 Committee 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 Committee 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 Committee concluded these discussions were privileged and therefore inadmissible. The fact that negotiations occurred was not relevant and inadmissible. Both before and during the hearing, 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.