FILE:
Case # 1262 (2022-2023)
DATE:
August 29, 2022
PARTIES:
University of Toronto v. G.L. (“the Student”)
HEARING DATE(S):
March 14, 2022, via Zoom with written submissions in May 2022
PANEL MEMBERS:
Lisa Brownstone, Chair
APPEARANCES:
Robert Centa, Assistant Discipline Counsel, Paliare Roland Rosenberg Rothstein LLP
Not in Attendance:
The Student
HEARING SECRETARY:
Carmelle Salomon-Labbe, Associate Director, Office of Appeals, Discipline and Faculty Grievances
The Student appealed the University Tribunal’s Trial Division decision on the basis that they were not in attendance and were not represented at the hearing. After submitting their Notice of Appeal, the Student engaged in very sporadic communication with Assistant Discipline Counsel and the Tribunal’s administrative office. The Associate Chair noted that two Directions were issued to ensure that the appeal proceeded in a timely fashion. The Student did not respond nor did they act as required in accordance with the Directions. In accordance with the second Direction, the Provost moved for dismissal of the appeal. The Student was afforded an opportunity to respond the Provost’s motion in writing. The Student did not respond.
The Associate Chair outlined that there were two issues. The first issue was whether the Tribunal, as a single member, has jurisdiction to entertain the Provost’s motion. The second issue was whether the Student’s appeal should be dismissed on the grounds that it is frivolous, vexatious, or without foundation.
With respect to the first issue, the Associate Chair agreed with the conclusion of the appeal motion in University of Toronto and R.S. (Case No. 1100, February 8, 2022) (“R.S.”) that the Tribunal has jurisdiction to hear this appeal, sitting as a single member. Specifically, the Statutory Powers Procedure Act, R.S.O 1992, c. 22 (“SPPA”) applies to appeals before the Discipline Appeals Board (“Board”) from decisions of the Tribunal’s Trial Division, and section 4.2.1(1) of the SPPA, permits a single member of the Board to decide a motion. The Associate Chair noted that historically university discipline tribunals were arguably not the sort of tribunals to which the SPPA would directly apply since the relationship between a student and a university has been characterized as contractual as opposed to statutory. However, the courts have long distinguished between procedural and substantive matters in this regard and have been willing to intervene on procedural matters (Re Polten and Governing Council of University of Toronto (1976), 8 O.R. (2d) 749 (Divisional Court); 1975 CanLII 709). The Associate Chair further noted that the University has codified the relationship between the student and the University, when it comes to academic matters, in the Code of Behaviour on Academic Matters issued by the University’s Governing Council (“Code”). Section C.ii.(a).7 of the Code provides that the procedures of the Tribunal shall conform to the requirements of the SPPA. Section C.ii.(a).11 of the Code provides that there are two divisions of the Tribunal: (a) Trial and (b) Appeal. Therefore, the Associate Chair found that the University has determined that SPPA procedures are to apply to hearings and appeals before its Tribunal, and that by including section C.ii.(a)7 in the Code, it has advised its students of such an application. The Associate Chair did not view the fact that the University had chosen to use the language “conform” rather than “apply” to be a material distinction and was confident that the language distinction between “conform” and “apply” would not aid the University should it attempt not to comply with the SPPA. In considering section 4.2.1(1) of the SPPA, the Associate Chair noted that this section provides that the chair of a tribunal may decide that a proceeding be heard by a panel of one person and assign the person to hear the proceeding unless there is a statutory requirement in another Act that the proceeding be heard by a panel of more than one person. The Associate Chair agreed with the observation in R.S. that there is no statutory provision contrary to section 4.2.1(1) of the SPPA, and, therefore, concluded that section 4.2.1(1) of the SPPA applies, and they may hear the motion as a panel of one person.
Having decided that they have jurisdiction to hear this appeal as a single member, the Associate Chair considered the second issue, namely, whether the appeal is frivolous, vexatious or without foundation. The Associate Chair noted that section E.7(a) of the Code gives the Board the power to dismiss an appeal summarily and without formal hearing if the appeal is frivolous, vexatious or without foundation. An appeal can be classified as frivolous or vexatious if the student takes no steps to move the appeal forward and fails to engage with the process or comply with Directions. The Associate Chair further noted that the failure to engage in the process or to be responsive to the Tribunal’s, ADFG’s, or counsel’s attempts to move the matter forward can render the appeal frivolous or vexatious. Whether an appeal is without foundation is concerned with the merits of the appeal, and while it can be difficult to opine on the merits of an appeal in the absence of the full participation of the student, there are circumstances, such as this one, where such a determination can be made. The Student engaged in a pattern of non-responsiveness and failure to engage with the process and while the Student’s subjective desire to appeal may exist, that is insufficient to overcome the frivolous and vexatious nature of the Student’s conduct in failing to pursue the appeal. In determining whether the appeal was with or without foundation, the Associate Chair noted that the Student’s own statements in an email to the ADFG Office indicated that the Student improperly used external aids in the assignment. The Student outlined that they received assistance from their brother and not Chegg.com, therefore, even if the Student were permitted to advance their version of events, they acknowledged that they violated the assignment’s requirements to do the work independently.
The Student’s appeal was frivolous, vexatious, or without foundation. Motion granted. Appeal dismissed summarily and without formal hearing.