Case #497 - Appeal

DATE: March 25, 2009
PARTIES: University of Toronto v. the Student

Hearing Date(s): June 21, 2005

Panel Members:
Patricia D.S. Jackson
Aaron Christoff
Professor Wendy Duff
Jemy Joseph

Linda Rothstein, for the University
Lily Harmer, for the University
Maurice Vaturi, for the Student

Discipline Appeal Board – University appeal from acquittal - balance of probabilities applicable standard of proof for proceedings under the Code - requirement to prove case on the balance of probabilities does not detract from requirement that the standard must be met by clear, convincing and cogent evidence – Student’s evidence and credibility of Professor’s evidence accepted – University erroneously required to prove case to a standard higher than balance of probabilities - irrelevant consideration focused on - finding of fact based on irrelevant consideration was material error of law - appeal allowed - matter sent back to Trial Division for a new hearing

Appeal by the University from a Tribunal decision in which the Student was found not guilty of submitting an answer booklet during a term test that was written prior to rather than during the test, contrary to s. B.i.3(b) of the Code. The University submitted that the Tribunal erred in three respects: by applying a standard of proof which required the University to prove its charges "conclusively or by necessary inference" and to disprove all possibilities inconsistent with guilt, rather than prove its case on a balance of probabilities; requiring "independent corroboration" of evidence from the University's witness notwithstanding the Tribunal's finding that the witnesses evidence was credible; and placing significant reliance on an irrelevant consideration. The Board stated that the applicable standard of proof for proceedings under the Code was according to a civil standard, on a balance of probabilities, but that the requirement to prove the case on the balance of probabilities did not detract from the Code and common law requirement that the standard be met by evidence that is clear, convincing and cogent. The Panel found that the case involved a conflict between the evidence of the Student and the course Professor, and that the Tribunal both accepted the Student’s evidence and did not question the credibility of the Professor’s evidence. The Tribunal had concluded that the offence was not "determined conclusively or by necessary inference", was not accompanied by "independent corroboration" and that the evidence had not eliminated the "many possibilities that are inconsistent with an inference of guilt." The Board found that the Tribunal, in concluding that the Professor failed to establish the offence, was requiring the University to prove the case to a standard higher than the balance of probabilities. The Panel found that a count of the examination booklets distributed and returned would not resolve the question of whether the Professor's evidence or the Student's evidence was correct. The Board found that in focusing on the failure to count, the Tribunal focused on an irrelevant consideration that did not resolve the conflict in the evidence. The Board found that the conflict fell to be resolved by the application of the standard of balance of probabilities. The Board found the Tribunal’s finding of fact based on an irrelevant consideration to be a material error of law. Appeal allowed. The Panel ordered that the matter be sent back to the Trial Division for a new hearing.