DATE:
February 8, 2022
PARTIES:
University of Toronto v. R.S. ("the Student")
Motions DATE:
June 8, 201, via Zoom with written submissions in June and September 2021
PANEL MEMBERS:
Mr. Paul Michell, Associate Chair
APPEARANCES:
Ms. Tina Lie, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
NOT IN ATTENDANCE:
The Student
HEARING SECRETARY:
Ms. Krista Kennedy, Administrative Clerk & Hearing Secretary, Office of Appeals, Discipline and Faculty Grievances
The Student appealed the sanction imposed by the Tribunal’s Trial Division to the Discipline Appeals Board (“Board”) but took no steps to advance his appeal and did not respond to any inquiries. The Provost moved to have the Board dismiss the appeal summarily and without formal hearing. The Associate Chair noted that the Provost’s motion raises two questions concerning appeals to the Board. First, what is the scope of the Board’s jurisdiction to dismiss an appeal summarily and without formal hearing, where the appeal is frivolous, vexatious or without foundation? Second, does a single member of the Board have the jurisdiction to hear and decide such a motion?
The Associate Chair outlined that section E.7(a) of the Code of Behaviour on Academic Matters, 1995 (“Code”) expressly confers jurisdiction to a three-member panel of the Board to dismiss an appeal summarily and without formal hearing in appropriate circumstances. Furthermore, section 7(a) of Appendix A of the Board’s Terms of Reference (“Terms”) contains a substantially identical provision. The Associate Chair noted that the issue in this motion is whether he may exercise this power alone. The Code, the Terms, and to the extent they apply, the Tribunal’s Rules of Practice and Procedure (“Rules”), are silent on this question. The Associate Chair noted that the Code does not define the term “Discipline Appeals Board” and the Provost argued that the division of responsibilities between the chair of a panel of the Tribunal and the other members of a panel also applied by analogy to panels of the Board hearing appeals from decisions of the Tribunal. The Provost further suggested that to dismiss an appeal summarily is, in some cases, a “question of law” that can be determined by the chair alone. The Associate Chair was not persuaded by this submission because the Code specifies a division of responsibilities for deciding different types of questions as between chairs and other members of a panel of the Tribunal. However, it does specify that a chair of a panel can decide questions of law without a full panel. Furthermore, the Associate Chair noted that this motion does not raise a question of law alone. The Associate Chair found that the Code itself does not grant a single member of the Board the jurisdiction to hear and decide a motion to dismiss an appeal summarily and without formal hearing.
The Associate Chair considered whether another source of law could provide some guidance on whether a single member of the Board has jurisdiction to hear and decide a motion to dismiss an appeal summarily and without formal hearing. Due to the lack of clarity on whether the Statutory Powers Procedure Act (“SPPA”) applies to appeals to the Board from decisions of the Tribunal, the Associate Chair sought additional submissions from the parties on this issue. The Provost provided additional submissions; the Student did not respond. The Provost submitted that the SPPA applies to appeals to the Board from decisions of the Tribunal, and that subsection 4.2.1(1) of the SPPA applies. The Associate Chair noted that he agreed with both of these submissions. The Associate Chair outlined that the basis for these submissions was that the Code in section C.II(a)(7) states that the procedures of the Tribunal “shall conform” to the requirements of the SPPA, and section C.II(a)11 of the Code defines “Tribunal” to mean both the trial and the appeal divisions of the Tribunal, which includes the Board. The Associate Chair noted that the use of “conform” suggests that the Code and the Terms seek to make their procedures consistent with the SPPA, whose application normally arises by operation of section 3 of the SPPA, not simply because a tribunal chooses to make the SPPA apply to it. The effect of the Tribunal’s use of the “conform” language in the Code and the Terms is to create a legitimate expectation on the part of the parties before the Tribunal in the sense employed in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 26 and 29, and in Canada (Attorney General) v. Mavi, [2011] 2 S.C.R. 504 at para.68, that the Tribunal will conduct a hearing. The Associate Chair further noted that an appeal to the Board falls within section 3 of the SPPA, because the SPPA applies to a proceeding by the tribunal where the tribunal is required, otherwise by law, to hold or afford the parties an opportunity for a hearing before making a decision. The Associate Chair outlined that subsection 4.2.1(1) of the SPPA applies to this motion because, by designating him to respond to the Provost’s request for a proceeding management conference, the Senior Chair assigned him to hear and decide any motions that might reasonably arise from it. Furthermore, the University of Toronto Act, I97l, as amended by 1978, Chapter 88, contains no requirement that appeals to the Board be heard by a panel of more than one person, nor does any other statute (including the University of Toronto Act, l947, as amended, to the extent it may still be in force). Therefore, there is no “statutory requirement” that appeals (or this motion) be heard by a panel of more than one person.
The Code and the Terms specify that the Board only has the power to dismiss an appeal summarily and without formal hearing when it determines that an appeal is frivolous, vexatious or without foundation. The Associate Chair noted that a similar dismissal power is set out in section 4.6 of the SPPA, but this dismissal power differs from the Board’s dismissal power in a critical way. The Associated Chair outlined that the Code and the Terms address the issue of dismissal of an appeal summarily and without formal hearing, where section 4.6 of the SPPA permits dismissal without a hearing. The Associate Chair noted that neither the Code nor the Terms define a “formal hearing,” or distinguish it from other types of hearings. In the Associate Chair’s view, the Code and the Terms contemplate that in appropriate cases an appeal may be dismissed summarily without an oral hearing, not that no hearing is required at all. A motion in writing is sufficient. Therefore, the Code and the Terms permit the Board, and where a designation has been made, a single member to dismiss an appeal summarily by way of a motion in writing, where the appeal is shown to be frivolous, vexatious, or without foundation. Furthermore, the Code and the Terms contemplate that the Board’s ability to dismiss appeals summarily in appropriate circumstances means that it may do so by way of something less than a full formal hearing. The Associate Chair found that because the Code and the Terms do not purport to empower the Board to dismiss an appeal summarily without a hearing, section 4.6 of the SPPA is not triggered, and does not apply to this motion. Therefore, the Associate Chair’s jurisdiction to hear and decide the motion is unaffected by section 4.6 of the SPPA. Accordingly, the Associate Chair found that he had jurisdiction to hear and decide the Provost’s motion.
Regarding the Provost’s motion to dismiss the appeal, the Associate Chair agreed that the appeal was frivolous, vexatious or without foundation but for different reasons than those contemplated by the Provost in their submissions. The Associate Chair noted that appeals from sanction need not be limited to a question of law alone. However, the Student’s proposed grounds of appeal did not identify any errors. Instead, the Student claimed that due to the challenges caused by the Covid-19 pandemic and the resulting “new education model” that followed, it was difficult for him to adapt in a short period of time. The Associate Chair further noted that there was no basis for this claim in the evidence that was before the Tribunal. Therefore, the Student would need to seek leave to admit new evidence to provide a basis for his proposed appeal. The Student had not done so. Section E.8 of the Code and para. 8 of Appendix A of the Terms provide that the Board may allow the introduction of further evidence on appeal which was not available or was not adduced at the trial in exceptional circumstances. The Associate Chair relied on University of Toronto v. M.M. (Case No. 543, April 14, 2011) and University of Toronto v. D.B. (Case No. 1107, August 18, 2021) which outline that absent special circumstances, a student who fails to appear at a hearing before the Tribunal of which they had reasonable notice cannot introduce evidence on appeal that they otherwise could have led before the Tribunal. Therefore, even if the Student had brought a motion to admit new evidence, there would have been no realistic prospect that it would be granted. Furthermore, since there would be no realistic prospect that the Student could establish an evidentiary basis for his appeal, it would fail.
Based on the foregoing, the Associate Chair found that the appeal was frivolous and without foundation. The Associate Chair also concluded that the appeal was vexatious because the only reasonable inference to be drawn from the Student’s failure to take steps to advance his appeal is that he no longer had a genuine intention to appeal. A party who commences an appeal but then takes no steps to advance it ceases to have a genuine intention to appeal. Absent a continuing genuine intention to appeal, an appeal must be viewed as vexatious. Appeal dismissed.