DATE: October 20, 2014
PARTIES: University of Toronto v S.F.
Hearing Date(s): October 7, 2014
Ronald G. Slaght, Chair
Elizabeth Peter, Faculty Member
Jenna Jacobson, Student Member
Graeme Norval, Faculty Member
Robert Centa, Counsel for the University
Julia Willkes, Counsel for the Appellant
John Britton, Dean’s Designate
Appeal Division – Trial Panel rejected Joint Submission on Penalty – Appellant joined by Respondent – Discipline Appeal Board has power to modify trial level sanction – Trial Panel can accept or reject Joint Submission on Penalty – Joint Submission on Penalty can only be rejected where contrary to the public interest or brings the administration of justice into disrepute – APPEAL ALLOWED – JSP imposed – grade of zero in 17 courses; five-year suspension; seven-year notation on transcript; report to Provost for publication
Matter before the Discipline Appeals Board (DAB) on appeal from a penalty imposed by a Panel. The appellant was not at the Panel hearing but had negotiated an Agreed Statement of Facts (ASF) and a Joint Submission on Penalty (JSP) including a grade of a zero in the 17 courses, a suspension from the date of order for five years, and a permanent notation be placed on his academic record. The Panel added a recommendation that the Appellant be expelled from the University. The Appellant, joined by the Respondent Provost, argued that the Panel erred in its decision not to impose the JSP sanction. The appeal raised the question of when and under what circumstances a Panel may impose a penalty other than one agreed to in a JSP and if the original Panel was justified in rejecting the proposed sanction agreed to by both parties.
The DAB noted its broad appeal powers in section E.7(c) of the Code, which states: “The Discipline Appeal Board shall have the power … in any other case, to affirm, reverse, quash, vary or modify the verdict, penalty or sanction appealed from and substitute any verdict penalty or sanction that could have been given or imposed at trial.” The DAB also recognized that while it has jurisdiction to do so, it will not interfere with decisions found to be reasonable in all circumstances, even if other reasonable dispositions can be supported.
An ASF set out that in two separate years the Appellant submitted petitions seeking late withdrawal from 17 courses; 10 in the first year and 7 in the second. The second petition was denied and the Appellant submitted a third petition seeking the same relief as the second petition, this time on account of a grandmother’s death and accompanied by a death certificate. The Appellant submitted a Certificate of Death and a newspaper death notice for his grandmother. The Appellant met with the Dean’s Designate in July 2012 where he admitted to some falsifications in his submissions. In October 2012 the Appellant was formally charged with 22 counts of academic misconduct. In the ASF the Appellant admitted that much of his submissions were false and a further AF revealed that the Appellant had been sanctioned for plagiarism on two prior occasions.
The DAB examined principles guiding when a JSP may be accepted or rejected. A Panel is not obliged or required to accept a JSP, however one may be rejected only when to give effect to the JSP would be contrary to the public interest or bring the administration of justice into disrepute. If it is to reject a JSP the Panel must clearly articulate why it is doing so. The Panel must assess a JSP against the backdrop of the values of the University, which may be found in the Preamble to the Code and in the shared expectations which members of the University abide by. The DAB cited a Law Society Appeal Panel decision which stated that only truly unreasonable or unconscionable joint submissions should be rejected.
The DAB allowed the appeal as the imposition of a five-year suspension, as opposed to a recommendation of expulsion, was not so fundamentally unreasonable to justify rejection of a JSP. The DAB noted the benefits joint submissions promote including early resolution, saving time and expense, and fostering trust and cooperation. The DAB also noted that the penalty in the JSP was so severe it could not in any way be said to “condone” the Appellant’s conduct, and that the Appellant saved the University from a large evidentiary burden in his ASF and JSP. The DAB felt that the Panel did not decide if the JSP was reasonable, rather it determined that expulsion was an appropriate penalty and imposed it.
The DAB ordered the Panel’s Order on penalty to be set aside and imposed the penalty provided in the JSP.