DATE: December 11, 2017
PARTIES: L.R. (“the Student”) v. the University of Toronto, Mississauga (UTM)
Hearing Date(s): November 1, 2017
Mr. John Monahan (Chair)
Professor Jan Mahrt-Smith, Faculty Governor
Mr. Aidan Fishman, Student Governor
Mr. Christopher Lang, Director, Appeals, Discipline and Faculty Grievances
For the Student Appellant:
Mr. L.R. (“the Student”)
Mr. Robert Sniderman, Law Student, Downtown Legal Services
Ms. Jennifer Fehr, Staff Lawyer, Downtown Legal Services
For the Faculty of Engineering and Applied Sciences:
Mr. Rob Centa, Counsel, Paliare Roland
Ms. Emily Home, Counsel, Paliare Roland
Professor James Davis, Associate Professor Teaching Stream
Mr. Don MacMillan, Faculty Registrar
Faculty of Engineering and Applied Sciences – entitlement to have examination re-read performed by external examiners using clean copies of the exam – time limits to file an appeal – time limit started at the time the Student learned of the issue to be appealed – time limit paused when circumstances outside of the Student’s control interrupt his ability to proceed with an appeal – discretionary power to extend a time limit not exercised because lack of evidence of continuing intention to pursue an appeal – no evidence that examination re-read policy applied unfairly – appeal dismissed
Student appeal of the manner in which his examination re-reads were performed. The Student had successfully been granted an examination re-read for two courses by the Academic Appeals Board. The Student claimed that that the re-reads were performed in an unfair manner because they were not both conducted by external examiners and because neither involved the use of clean copies of his exams. The Student asked the Committee to grant him the remedy of obtaining re-reads of clean copies of both examinations by Faculty professors other than those who originally taught him the courses.
The Committee dismissed the Student’s appeal because it was not brought within the Faculty’s policy which provides that appeals must be filed within ninety days of the date of the notification of the Faculty’s final decision (Undergraduate Calendar, Engineering, Part XII.2). The Committee found that the 90-day-time limit became effective when the Student was aware that both of his exams would be re-marked by the same instructors who had marked them in the first place, and that clean copies of the exams would not be used. Having started once the Student learned that his exams would not be re-marked by external examiners using clean copies, the time limit was temporarily suspended in a number of circumstances including: (1) when a University staff member advised the student to hold off filing an appeal until they could meet in person; (2) the period of time between the Student’s initial contact with legal counsel and learning that they could not represent him; (3) and for one week after a period where the Student experienced serious medical issues and a hospitalization. Even with these periods of suspension, the Student still filed his appeal well-outside of the required 90-day time limit.
In deciding whether to exercise its discretionary powers to grant an extension of the 90-day time limit in this case, the Committee was referred to the Canada (Minister of Human Resources Development) v. Gattellaro  F.C.J. No. 1106), which provides that the discretion should be exercised by considering four factors : (1) A continuing intention to pursue the application or appeal; (2) a reasonable explanation for the delay; (3) the matter discloses an arguable case; and (4) there is no prejudice to the other party in allowing the extension. While the Committee found that there was a minimal amount of prejudice in granting the extension and that there was an arguable case for the Student (given the divergent practices regarding examination re-reads across faculties), there was no evidence that the Student had a continuing intention to pursue the application or a reasonable explanation for the delay in filing (beyond those causes for which the time limit was extended, discussed above). The Committee declined to exercise its discretion to extend the time period in this case. The Student’s appeal was dismissed on the grounds of a lack of timeliness.
The Committee went on to hold that even if the appeal were heard on its substantive merit, the appeal would be dismissed. Though other Faculties (including the Faculty of Arts and Science and the School of Graduate Studies) have their own faculty-specific policies regarding examination re-reads, for the Faculty of Applied Science and Engineering the University Assessment and Grading Practices Policy is silent on the matter of who should perform re-reads and whether or not they are given clean copies to review. There was no evidence that the relevant policy was applied unfairly, with partiality, or inconsistently by the Faculty in this case. Appeal dismissed.