Case 1107 (Appeal)

DATE: August 18, 2021
PARTIES: University of Toronto v. D.B. ("the Student")

HEARING DATE: July 21, 2021, via Zoom

Panel Members:
Ms. Roslyn M. Tsao, Chair
Professor Allan Kaplan, Faculty Panel Member
Ms. Samantha Chang, Student Panel Member

Appearances:
Mr. Robert Centa, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
The Student

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

NOTE: See the Tribunal case summary for detailed facts.

The Student appeals the finding of guilt and the sanction imposed by the Tribunal’s Trial Division on the basis that (1) it was improper to proceed with the original hearing in the Student’s absence; (2) the University is required to establish that the Student received notice of the hearing “beyond a reasonable doubt”; (3) the sanction imposed is unreasonable; and (4) the appropriate remedy on appeal is to set aside the Panel’s Order and order a new hearing.

In dismissing the Student’s appeal, the Board discussed the Student’s grounds for appeal in three main issues. First, it was the Student’s position that it was improper to proceed with the original hearing in the Student’s absence and that the University is required to establish that he received notice of the hearing “beyond a reasonable doubt.” In examining Rule 9(c) of the Tribunal’s Rules of Practice and Procedure, the University’s Policy on Official Correspondence with Students and the affidavits regarding service, the Board found that the Student had reasonable notice of the charges and the hearing. The Board found that the Tribunal did not make any error in concluding that the University had discharged its onus to demonstrate that the Student had reasonable notice of the hearing and that they could proceed with the hearing in the Student’s absence. The Student argued that although he should have checked his University email more frequently, the onus is still on the University to prove, beyond a reasonable doubt, that he accessed or read the emails that were sent to him regarding the hearing. The Board rejected this argument. As correctly noted by the Panel, the onus is on the University to demonstrate that the Student had reasonable notice of the hearing on a balance of probabilities. Once the Panel was satisfied that reasonable notice had been given to the Student, the Panel had jurisdiction to proceed in the absence of the Student. The Board does not find any error in that finding. At the hearing, the Student referred to it being “unfair” that he was not present at the original hearing. The Board noted that “unfairness” is not the test for procedural fairness. The fairness standard relates to having reasonable notice of the adjudication and, thereby, having the opportunity to attend and be heard.

The second issue was whether the sanction imposed on the Student, if the finding of guilt was upheld, was unreasonable. Upon review of the Tribunal’s reasons and the authorities provided to the Panel, the Board found that the sanction ordered was consistent with penalties imposed in similar cases. The Board noted that consistency and predictability are valid goals in encouraging general deterrence. Relying on University of Toronto v. M.M. (Case No. 543, April 14, 2011(Appeal)) at paras. 61-64, the Board did not feel that this was a situation of “special circumstances” to grant the Student an opportunity to adduce fresh evidence when the Student had reasonable notice of the hearing and failed to attend. The Student advised the Board that he had withdrawn from his courses in Winter 2021 even though he filed an appeal which stayed the order pending the appeal decision. Seeing as the Student acted as if he was suspended from the University since the date of the Tribunal’s Order, the Board felt it was appropriate to affirm the Order, including the commencement date of the suspension.

Lastly, the Student argued that the appropriate remedy on appeal is to set aside the Tribunal’s Order and order a new hearing. The Board noted that given its finding that the Tribunal did not err in their decision, they dismissed the Student’s request for a new hearing.

Appeal dismissed. Order of the Tribunal affirmed in its entirety.