DATE:
November 21, 2023
PARTIES:
J.Z. ("the Student"). v. Rotman School of Management
HEARING DATE(S):
N/A/ (Pre-hearing motion councluded via written submissions)
Senior chair:
Professor Hamish Stewart
APPEARANCES:
FOR THE STUDENT APPELLANT:
The Student
FOR THE Rotman School of management
Lily Harmer, Paliare Roland Rosenberg Rothstein LLP
The Student sought a review of a final grade in a course which involved a re-reading of a paper submitted by the Student by an anonymous second reader. The Student appealed to the Academic Appeal Committee (the “Committee”) seeking to have a grade of CR substituted for B+ or, in the alternative, a grade based solely on the reaction paper, or, in the further alternative, a substantive re-evaluation of all of the components of the Student’s grade.
Prior to the commencement of the hearing, the Student provided written submission requesting that the Senior Chair [CSL1] issue summonses pursuant to ss. 10.1 and 12 of the Statutory Powers Procedure Act, R.S.O 1990, c. S.22 (“SPPA”), compelling the course instructor, the Academic Director of the Full-Time MBA Program at Rotman at the relevant time, and another Professor responsible for providing a second reading of a paper submitted by the Student in the Course (collectively, the “proposed witnesses”).
The Senior Chair noted that the power conferred by s. 12(1) of the SPPA is discretionary. The objectives stated in s. 2 of the SPPA are relevant to the exercise of this discretion. It further observed that a necessary, though not sufficient, condition for exercising the discretion to summons a person to be a witness before an administrative tribunal under s.[CSL2] 12(1) is that the person could offer testimony that would be necessary or helpful to the tribunal in resolving the factual issues before it. In this case, the Senior Chair found that such condition was not satisfied and that, to the extent that there were facts in dispute, the testimony of the proposed witnesses would add little to the written record.
The Senior Chair proceeded to address whether the proposed witnesses could provide testimony was necessary to the Student’s submissions. First, the Chair held that the proposed witnesses could not provide any testimony relevant to the Student’s submissions regarding the relevant Rotman policies concerning disputes about grading participation points and presentations. The Senior Chair further noted that to the extent that the Student’s submission required a substantive review of the course instructor’s evaluation of the Student’s participation and presentation grade, it was outside the jurisdiction of the Committee.
Next, the Senior Chair considered whether the proposed witnesses could provide any testimony material to the issue of whether the procedures undertaken to re-assess the Student’s reaction paper were unfair. In particular, the Student pointed to a lack of transparency due to Rotman’s refusal to disclose the identity of the anonymous regrader, or to otherwise provide the Student with an opportunity to object to the appointment of the regrader. The Senior Chair concluded that this issue required the Committee to interpret Rotman’s re-reading policy and to decide whether Rotman applied that policy fairly to the Student’s case. The Senior Chair concluded that the proposed witnesses could not provide any testimony material to that precise issue.
The Senior Chair noted that since the Student’s request to discover the identity of the second reader via a freedom of information request pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (“FIPPA”) was denied, the Senior Chair inferred that the Student wanted to call the Professor they believe was the second reader to ask them under oath if they were in fact the second reader. The Senior Chair noted that the Student’s apparent use of the Committee’s process to determine the identity of the second reader would be a collateral attack on the FIPPA process and would therefore be an abuse of the Committee’s process.
Lastly, the Senior Chair considered whether the proposed witnesses’ testimony would be necessary or helpful to the Student’s allegations of procedural unfairness. The Senior Chair noted that the Student’s submission indicated that they were entitled to a high degree of procedural fairness was essentially a question of law to which the testimony of the proposed witnesses would be immaterial. With respect to the Student’s submission impermissibly delegated his authority over grading the participation grade to the teaching assistant in the course, the Senior Chair concluded that two of proposed witnesses’ had no knowledge of the issue, or in the case of the course instructor, would be of limited, if any assistance to the Committee. The Senior Chair further noted that, if the Student’s apparent intention to cross-examine the course instructor with a view to impugning their credibility, such form of impeachment is impermissible as a matter of law. With respect to the Student’s assertion that the conduct of the course instructor and the GAAB demonstrated reasonable apprehension of bias, the Senior Chair concluded that the Committee could determine the issue without testimony from the proposed witnesses. Finally, the Student’s submission of procedural unfairness due to the instructor’s inordinate delay in rendering his decision, did not raise any factual issues for which the testimony of the proposed witnesses would be necessary.
The Student’s request to summons the three proposed witnesses was refused.