REVIEW OF ACADEMIC AND NON-ACADEMIC … of Academi… · Violations of the Human Rights Policy ... 23. Training and Orientation ... CHAPTER 1 -- INTRODUCTION AND CONCLUSION

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REVIEW OF ACADEMIC AND NON-ACADEMIC

DISCIPLINARY PROCEDURES

AT THE

UNIVERSITY OF GUELPH

July 20, 2012

Christopher G. Riggs, Q.C.

Hilary E. Jarvis

Review of Academic and Non-Academic Disciplinary Procedures

Page i

Table of Contents

CHAPTER 1 -- INTRODUCTION AND CONCLUSION ............................................................................... 1

CHAPTER 2 – CALENDAR ......................................................................................................................... 3

1. Non-Academic Discipline ............................................................................................................... 3

2. General Principles .......................................................................................................................... 3

3. University Community Principles ................................................................................................... 3

4. Academic Responsibilities ............................................................................................................. 4

5. Offences ......................................................................................................................................... 4

6. Judicial Processes ......................................................................................................................... 4

7. Format ............................................................................................................................................ 5

8. Academic Misconduct .................................................................................................................... 5

9. Calendar Reference to Student Rights and Obligations ................................................................ 5

CHAPTER 3 -- THE LEGAL FRAMEWORK FOR UNIVERSITY TRIBUNALS .......................................... 6

1. Introduction .................................................................................................................................... 6

2. Jurisdiction of University Tribunals ................................................................................................ 6

(a) An Act to Incorporate the University of Guelph ....................................................................... 6

(b) University Case Law Regarding Jurisdiction Generally .......................................................... 7

(c) Jurisdiction of University Tribunals and the Jurisdiction of the Courts .................................... 9

3. Rules of Procedural Fairness ....................................................................................................... 10

(a) Procedural Fairness .............................................................................................................. 10

(b) Where Are the Rules of Procedural Fairness Located? ........................................................ 10

(i) The Statutory Powers Procedure Act ............................................................................... 10

(ii) The Canadian Charter of Rights and Freedoms ............................................................... 12

(iii) The Common Law ............................................................................................................ 14

4. Procedures of Internal University Tribunals ................................................................................. 15

5. Specific Procedural Rules ............................................................................................................ 16

(a) Audi Alteram Partem ............................................................................................................. 16

(i) Notice ............................................................................................................................... 16

(ii) Disclosure of Evidence ..................................................................................................... 17

(iii) Disclosure and Freedom of Information and Protection of Privacy Act Concerns ........... 18

(iv) Right to a Hearing – Oral or Written ................................................................................. 19

(v) Credibility .......................................................................................................................... 20

(vi) Issues Concerning Mental Health ..................................................................................... 21

(vii) Accommodation in the Hearing Process .......................................................................... 21

(viii) Right to Counsel ............................................................................................................... 22

(ix) Right to Cross-Examine Witnesses .................................................................................. 23

(x) The Decision -- Right to Reasons .................................................................................... 25

(b) An Independent Decision Maker ........................................................................................... 25


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(i) The Person Who Hears Must Decide ............................................................................... 25

(ii) Who Writes the Decision .................................................................................................. 25

6. Penalty ......................................................................................................................................... 26

7. Freedom from Bias and Independence of the Decision Maker .................................................... 26

8. Internal Appeals ........................................................................................................................... 28

9. Judicial Review ............................................................................................................................ 28

10. Test of Reasonableness ........................................................................................................... 31

CHAPTER 4 – NON ACADEMIC DISCIPLINE ......................................................................................... 32

1. Judicial Committee ....................................................................................................................... 32

2. Making Submissions to the Committee ........................................................................................ 33

3. The Composition of the Judicial Committee ................................................................................ 33

4. University of Guelph Offence Notice (UGON) .............................................................................. 33

5. Adjournments and Other Interlocutory Matters ............................................................................ 34

6. Documentation and Disclosure .................................................................................................... 34

7. Timeliness .................................................................................................................................... 34

8. The Availability of Precedents ...................................................................................................... 35

9. The Role of the Judicial Officer .................................................................................................... 35

(a) Advice to Students. ............................................................................................................... 36

(b) Advice to Administrators. ...................................................................................................... 36

(c) Advice to Tribunals. ............................................................................................................... 36

(d) Administrative Support . ........................................................................................................ 37

10. The Role of Campus Police ..................................................................................................... 37

11. The Process is too Legalistic .................................................................................................... 37

12. Penalties ................................................................................................................................... 38

13. The Language Adopted and the Educational Experience ........................................................ 38

14. The Nature of the Hearing ........................................................................................................ 38

15. Appeals to the Hearing Board ................................................................................................... 39

16. Timeliness of Appeals ............................................................................................................... 40

17. Adjournments and Other Interlocutory Matters at the Hearing Board ....................................... 41

18. Violations of the Human Rights Policy ...................................................................................... 41

19. Student Housing Services......................................................................................................... 41

20. Consistency and Double Jeopardy ........................................................................................... 42

21. Repeat Offenders and Penalties ............................................................................................... 43

22. The Applicability of External Statutes ....................................................................................... 43

23. Training and Orientation ........................................................................................................... 44

CHAPTER 5 – ACADEMIC MISCONDUCT .............................................................................................. 45

1. Jurisdiction ................................................................................................................................... 45

2. Calendars ..................................................................................................................................... 45

3. Academic Consideration .............................................................................................................. 45

4. Academic Review Sub-Committee .............................................................................................. 46

5. The Admissions and Progress Committee of the Board of Graduate Studies ............................. 47


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6. Academic Integrity ....................................................................................................................... 48

7. Academic Misconduct .................................................................................................................. 49

8. Education and Remediation ......................................................................................................... 49

9. Investigation and Judgment ......................................................................................................... 50

10. Data .......................................................................................................................................... 51

11. Making the Decision.................................................................................................................. 51

12. The Senate Committee on Student Petitions ............................................................................ 52

(a) General ................................................................................................................................. 52

(b) Composition of the Committee .............................................................................................. 52

(c) Review of the Committee’s Operations ................................................................................. 52

(d) Committee as Appellate Body ............................................................................................... 52

(e) Time Limits ............................................................................................................................ 54

(f) Preliminary Matters ............................................................................................................... 54

(g) Material for the Hearing of the Appeal .................................................................................. 55

(h) The Committee in Closed Session ........................................................................................ 55

(i) Communications to Academic Administrators....................................................................... 55

(j) The Judicial Officer ............................................................................................................... 55

(k) Full Hearing ........................................................................................................................... 56

(l) Training and Orientation ........................................................................................................ 56

13. A Single Body? ......................................................................................................................... 56

CHAPTER 6 -- OTHER CAMPUSES ..................................................................................................... 57

1. College d’Alfred ............................................................................................................................ 57

2. Kemptville .................................................................................................................................... 57

3. Ridgetown .................................................................................................................................... 58

4. University of Guelph-Humber ....................................................................................................... 59

Appendix .................................................................................................................................................... 60


Page 1

CHAPTER 1 -- INTRODUCTION AND CONCLUSION

The University Secretariat proposed that there be a “review and assessment of the effectiveness,

efficiency and economy of the current student academic and non academic appeal systems in light of

recent legal and legislative developments”. This review purports to address those questions.

A Memorandum to Senate dated December 5, 2011 from Kerry Godfrey, Chair, Boards of Undergraduate

Studies identified the responsibilities for academic and non academic discipline at the University as

follows:

Responsibility for academic standards, academic integrity, and continuation of study as

expressed through University’s educational policies falls under the mandate of Senate.

In order to fulfill these responsibilities, authority has been delegated to the Boards of

Undergraduate and Graduate Studies to formulate policy, subsequently approved by

Senate. Appeals under these policies are administered through the Senate Standing

Committee on Student Petitions, the highest academic appeal body at the University.

Cases of non-academic student misconduct are considered through the provisions and

regulations outlined in the Student Rights and Responsibilities policy, which is approved

by the Board of Governors, and overseen by the Student Rights and Responsibilities

Committee (SR&R). Appeals of non-academic student misconduct are heard by the

University’s Judicial Committee, with subsequent appeal to the University’s Hearing

Board.

We have had the advantage of working with the University Secretary, Vicki Hodgkinson and the

Associate University Secretary, Kate Revington in the conduct of this review. They have provided us with

a considerable body of policies and procedures, answered innumerable questions and have arranged for

us to meet with a large number of University administrators and others who have given us the benefit of

their experience at the University and their expertise on matters of academic and non academic

discipline. We have listed the names of all those with whom we have spoken in an appendix to this

review.

We believe that both the academic and non academic disciplinary policies and procedures at the

University work well. They operate largely in accordance with the applicable rules of natural justice.

Students are treated fairly.

We make some recommendations with respect to the operation of both academic and non academic

discipline. There are three related themes in our recommendations. First, on the need to streamline

policies and procedures in order to address and resolve disciplinary issues more simply, more quickly

and more efficiently. Second, to address some issues with respect to procedural fairness at both the

Judicial Committee and the Senate Committee on Petitions. Third, on the need to move the emphasis on

responding to violations from a model of culpability and sanction to one which views student discipline as

part of the wider educational experience.


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The review addresses the information provided to students in the calendar and elsewhere, the current

legal environment governing the operation of university tribunals, the treatment of non academic

discipline, academic misconduct and discipline at the other campuses.


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CHAPTER 2 – CALENDAR

1. Non-Academic Discipline

The University of Guelph Undergraduate Calendar (“Calendar”) contains information on non academic

discipline in Part XIV, General Information of the Calendar. It is set out in five parts.1

2. General Principles

The Calendar first sets out general principles governing student membership at the University.

Student membership at the University of Guelph is associated with fundamental rights

and responsibilities intended to maintain the integrity of the University as a community

for learning. Staff, faculty and students co-operate to sustain an educational

environment that promotes individual learning and development. The University is

responsible for providing the resources and opportunities that students require to

succeed.

The University accepts that you are able to make responsible decisions regarding your

own ethical and social behaviour. The purpose of these regulations is to provide for an

environment that supports personal and intellectual growth. These regulations are

intended to recognize your rights as a student and the rights of others, while also

identifying certain responsibilities of students that are a part of the exercise of these

rights. These regulations can apply to all students who are engaged in University-

sanctioned activities, and may apply to off-campus conduct, so long as the violation in

question materially affects the safety, integrity and/or educational interests of the

University community.

It then identifies the scope of the policy and identifies the right of a student to access the judicial system if

a violation of the policy has occurred.

3. University Community Principles

The second document, University Community Principles, refers – more generally – to the University as a

place “dedicated to the advancement of learning and the dissemination of knowledge; the intellectual

social, moral, and physical development of its members; and the betterment of society.”

These overall goals “commit us to three central values”:

• The development of all members of this University community, which implies and affirms the dignity, worth and autonomy of the individual.

1 Corresponding material for the Graduate Calendar is set out in Part III, General Information


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• A focus on learning and knowledge, which upholds the fundamental importance of reasoned debate and inquiry in all of this University’s academic and service functions.

• Societal enhancement, which extends the commitment to individual development beyond the walls of the institution to the ideal of service to the broader community.

4. Academic Responsibilities

The third document refers to the right to engage in free intellectual inquiry and the responsibility to pursue

learning objectives established by the University and related responsibilities and the responsibility to

abide by the University’s Policy on Academic Misconduct.

Although this section contains a reference to the obligation of the student to “abide by the University’s

Policy on Academic Misconduct”, there is no corresponding provision on non academic discipline.

5. Offences

The document sets out offences in six separate sections: Civil/Criminal statutes; offences against

persons, including bodily harm, harassment, human rights and sexual assault; offenses against life,

safety, equipment; offenses against property with particular reference to facilities, telecommunications,

library, university property and private property; disruption; and drugs, alcohol and firearms.

This section is strongly and clearly written.

6. Judicial Processes

The document notes that:

Every student has a RIGHT to a full and fair hearing by an impartial tribunal, of the

merits of any charge brought against him or her under these regulations. Every student

who is charged with a non-academic offence has a right to present a full and complete

defence and to be accompanied by an advisor (or legal counsel) at any hearing of the

charge against him/her. Students charged are presumed innocent until found guilty on

the basis of evidence presented, using the balance of probabilities as the standard of

proof.

It also makes reference to interim suspensions, the role of the judicial committee, appeals to a hearing

board and a reference to the address and phone number of the Office of Student Affairs.

This summary of judicial processes properly identifies the salient aspects of the judicial process.

However, there is no link to the Terms of Reference and Rules of Procedure of the Judicial Committee.

The only link provided (twice) is to the Human Rights and Equity Office.


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7. Format

The information on Non Academic Discipline is hard to locate. It is listed under Part XIV, General of the

Calendar which is not the most obvious place for students to find it. We recommend a specific calendar

listing for “Discipline”. We would also recommend putting a link to all the relevant material on non

academic misconduct in the Calendar in one place with suitable index headings: Student Rights and

Responsibilities, Terms of Reference and Rules of Procedure of the Judicial Committee and Hearing

Board and the Human Rights Policy.

8. Academic Misconduct

By way of contrast, the Undergraduate Calendar contains a considerable body of information on

academic misconduct in Part VIII, Undergraduate Degree Regulations and Procedures: education and

remediation, offences, penalties, procedures, appeals, record of academic misconduct and guidelines for

penalties for academic misconduct. The material is comprehensive and laid out in a logical sequence.

Its presentation is difficult to fault. We will refer to the contents in the Chapter on Academic Misconduct.2

9. Calendar Reference to Student Rights and Obligations

We suggest that it would be prudent to include in the Calendar a provision under which students are

reminded that, as students at the University, they have rights and obligations in connection with the

rules governing both academic and non academic conduct set out in the Calendar and other university

documents and as may be amended from time to time. A number of recent judicial decisions have

addressed the issue of the contractual foundation of the relationship between a student and the university

and the terms of the contract can incorporate the provisions set out in the Calendar.3

This may be of use in connection with summonses or subpoenas to students to attend hearings of the

Judicial Committee and the Senate Committee on Student Petitions. It is unlikely in our view that the

subpoena power under the Statutory Powers and Procedures Act would apply to the University tribunals.

However, this would not preclude the University through the use of provisions in the Calendar from

making the obligation of a student to respond to a summons or subpoena a contractual one pursuant to

their attendance at the University.

2 Corresponding material for the Graduate Calendar is set out in Part II, General Regulations

3 Young v. Bella, [2006] 1 SCR 108; Jaffer v. York University, 2009 CanLII 60086 (ONSC); Turner v. York

University, 2011 ONSC 6151.


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CHAPTER 3 -- THE LEGAL FRAMEWORK FOR UNIVERSITY TRIBUNALS

1. Introduction

The review raises questions regarding the role of university tribunals and what is expected of them in

terms of providing procedural rights. This chapter provides a broad overview of the jurisdiction of

university tribunals, the relationship between university tribunals and the courts, and the rules of

procedural fairness and their application to university tribunals. This legal overview provides the reader

with a framework, which can then be applied to the specific policies and procedures followed by the

University of Guelph.

2. Jurisdiction of University Tribunals

(a) An Act to Incorporate the University of Guelph

In 1964 the Ontario legislature passed An Act to Incorporate the University of Guelph (“Act”). It is this Act

that incorporated the University of Guelph and sets out its objects and purposes, which are:

3.(a) the advancement of learning and the dissemination of knowledge, including,

without limiting the generality of the foregoing, the advancement of learning and the

dissemination of knowledge respecting agriculture; and

(b) the intellectual, social, moral and physical development of its members and the

betterment of society.

To accomplish these objectives and purposes, the Act goes on to assign the government, conduct,

management and control of the University and its property, revenues, expenditures, business and affairs

to the Board, which has all powers necessary or convenient to perform its duties and achieve the objects

and purposes of the University.

The Senate is assigned the responsibility for the educational policy of the University and may create such

faculties, departments, schools or institutes or establish such chairs as it may determine, may enact by-

laws and regulations for the conduct of its affairs.

Although the University’s ability to discipline students for academic and non academic misconduct is not

explicitly mentioned in the Act, the Act does give the Board and the Senate the power to enact by-laws

and regulations for the conduct of the University’s affairs.4 Therefore, pursuant to that power, the Board

and Senate may formulate and implement regulations that govern the academic and non-academic

conduct of students.

4 Sections 11(i) and 13 of the Act.


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(b) University Case Law Regarding Jurisdiction Generally

Historically it has been accepted that decisions related to academic issues, such as grade appeals,

clearly fall within a university’s jurisdiction over its internal affairs; however, over the years questions

have arisen regarding whether or not a university has the ability to discipline students, particularly for

non-academic misconduct.

In Morgan v. Acadia University5 a student was penalized for carrying an open bottle of alcohol from one

room to another within residence, which was contrary to a rule in the student handbook. In that case the

Court held that disciplining the student was within the University’s jurisdiction:

The University has the right and the duty to maintain discipline on campus and in

residence. Public and private funds are involved in building and maintaining residences.

Discipline, with regulations, must be in place and enforced. Property must be protected

and students must have the right to study and live under the residence rules. Those who

choose to break the rules must be disciplined.

However, in that same decision the Court recognized that the University’s jurisdiction had limits. In

particular, the Court held that the University did not have jurisdiction to administer the Liquor Control Act

and could only deal with breaches of university policy.

There have also been questions raised about the ability of university tribunals to discipline students for

conduct off campus. In Re B and W6 the Court considered a case where a female student complained of

sexual harassment by a fellow student. The student was found guilty of harassment and sexual

harassment and was suspended from the University indefinitely with a proviso for lifting the suspension.

In that case the student argued that his private relationship was not something that the University should

concern itself with. The Court disagreed:

The university must make decisions with regard to the admission of students and their

right to remain. They are entitled to consider matters other than academic achievement

in deciding who to accept and who to allow to stay. Certainly, the conduct of the

applicant, both on campus and off, was something that they were entitled to consider.

They were within their jurisdiction in assessing his conduct and determining whether or

not to allow him to continue as a student.

Similarly in Healey v. Memorial University of Newfoundland,7 a medical student was required to withdraw

from medical school because of his alleged obsessive and abusive relationship with a female classmate.

In that case, the Court not only held that the University had the authority to protect persons and property

and that the Court should avoid interpreting the University’s regulations in a way that would unduly

hamper the University in exercising that authority, but the Court also indicated that the University had the

5 [1985] N.S.J. No. 74 [Morgan]

6 (1985), 52 O.R. (2d) 738 [B and W]

7 1992 CanLII 2756 (NL SCTD) [Healey]


Page 8

authority to take into account professional, as well as academic factors, in deciding whether to permit a

student to continue studies. In other words, it was within the Medical School’s authority to keep those

who abused and battered their sexual partners out of the profession of medicine. However, there were

certain minimum standards of fairness that the University officials had to observe and the Faculty of

Medicine was only entitled to take facts relating to professional competence into account when those

facts had been proven in accordance with those minimum standards of fairness.

A university’s jurisdiction can also extend to certain types of communication a student may have with the

external world. For example, in Shank v. University of Toronto,8 a law student was disciplined by the

University for submitting course results to prospective employers, some of which did not accord with the

results recorded by the University. The University argued that the student had committed an academic

offence, whereas the student argued that sending a letter misrepresenting her marks was not the

falsification of an academic record and therefore, the University did not have jurisdiction over the matter.

The Court disagreed with this argument and held that:

It is surely of fundamental importance that students not misrepresent their

achievements. Other students, the business community and the University alike have a

stake in the integrity of the record of achievement and the University’s Code of Conduct

can properly extend to such communications by students to the outside world.

In more recent case law a greater emphasis has been placed, not just on the University’s right to control

the non-academic behaviour of its students, but on its duty to protect other members of the University

community. For example, in Pacheco v. University of Dalhousie9 a student wrote a letter to the Minister

of Education, which was interpreted as containing a threat. As a result, the student’s privileges at the

University were suspended. Regarding the role of the University in disciplining students, the Court stated

that:

The University has a right to exert control over the non-academic behaviour of its

students. The University also plays a greater role in the community at large. It has the

duty to protect its students, faculty, members of the administration, staff and, indeed,

members of the public who may be affected by the conduct of any member of the

University community. In this case while criminal proceedings were not commenced

with respect to the letter sent to the Minister of Education, the University properly

retained the right to commence proceedings under a Discipline Code. Indeed I believe

this was the correct forum in which Mr. Pacheco’s conduct could best be dealt with in a

remedial fashion.

Similarly, in Zhang v. The University of Western Ontario10

a law student engaged in behaviour that

members of the University community found disturbing. As a result, the student was prohibited from

being present on campus pending an investigation and a requirement that he undergo a psychiatric

8 [2002] O.J. No. 50 [Shank]

9 2005 NSSC 222 (CanLII) [Pacheco]

10 2010, ONSC 6489 (CanLII) [Zhang]


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evaluation. The student was allowed to return to the University, but was later expelled for posting a

threatening message to another student on Facebook. The Court cited the decisions in Pacheco and B

and W and stated that:

The Code of Student Conduct expressly states that it applies to off-campus conduct.

The provision is neither vague nor over-broad. It places ascertainable limits on the

University’s right to regulate off-campus conduct. In our view, the provisions contained

in the Code are reasonable.

The Code states that it applies to off-campus conduct if that conduct has, or is

reasonably seen to have, an adverse effect on the rights of university members to “use

and enjoy the University’s learning and working environments.” The applicant submits

that the word “enjoy” is undefined, highly subjective and over-broad. We disagree. The

word “enjoy” is easily understood and must include the prohibition of conduct that is

threatening to the safety and security of a student, as directed against Mr. R.

Thus, what falls within a university’s jurisdiction is fairly broad and the courts are willing to interpret

Codes of Conduct and other university policies in a manner that does not unduly hamper with their ability

to exercise their authority. However, a university’s jurisdiction is limited to the application of university

statutes, regulations and policies, meaning that they are not generally able to administer outside statutes.

(c) Jurisdiction of University Tribunals and the Jurisdiction of the Courts

There is a general recognition by courts that universities are independent institutions and that they ought

to have a significant amount of control over their internal matters. In light of this recognition, universities

have been granted a wide degree of autonomy by the courts in fulfilling their mandate.

Thus, the courts are not willing to consider the merits of many internal university decisions. For example,

it is not the place of the court to consider whether a particular grading scheme was appropriate. In

Hague v. Senate of the University of British Columbia11 the Court indicated that it was not its role to

review the merits of a student’s case:

[T]he standards for a degree, and the assessment of a student’s work, are so clearly

vested in a university that the Courts have no power to intervene merely because it is

thought that the standards are too high, or that the student’s work was inaccurately

assessed.

However, at the same time, the courts have recognized that university tribunals are required to follow the

rules of procedural fairness and they will intervene when there has been an obvious denial of procedural

fairness. In Kane v. Board of Governors of the University of British Columbia12, the Supreme Court of

11

(1988), 47 D.L.R. (4th

) 150 B.C.S.C. [Hague] 12

[1980] 1 S.C.R. 1105


Page 10

Canada considered a case with a university professor facing a disciplinary suspension. In that decision

the Court highlighted some propositions that governed the appeal:

It is the duty of the courts to attribute a large measure of autonomy of decision to a

tribunal, such as a Board of Governors of a University, sitting in appeal, pursuant to

legislative mandate. The Board need not assume the trappings of a court…

As a constituent of the autonomy it enjoys, the tribunal must observe natural justice

which, . . . is only “fair play in action”. In any particular case, the requirements of natural

justice will depend on “the circumstances of the case, the nature of the inquiry, the rules

under which the tribunal is acting, the subject-matter which is being dealt with, and so

forth”: per Tucker L.J. in Russell v. Duke of Norfolk, at p. 118. To abrogate the rules of

natural justice, express language or necessary implication must be found in the

statutory instrument.

Thus, while internal university tribunals have significant autonomy, their decisions are subject to judicial

review when there is an allegation that they breached the rules of procedural fairness.

We will return to the role of courts in considering whether or not the rules of procedural fairness have

been violated in the section regarding judicial review.

3. Rules of Procedural Fairness

(a) Procedural Fairness

There is an emphasis in administrative law on ensuring that decisions that affect the rights of individuals

be made following procedures that are fair.

(b) Where Are the Rules of Procedural Fairness Located?

Rules regarding what procedures are considered fair can be found in statutes, as well as in the common

law.

(i) The Statutory Powers Procedure Act

The Statutory Powers Procedure Act (the “SPPA”) describes the procedural rules that every tribunal in

Ontario that exercises a “statutory power of decision” must adhere to. For example, the SPPA contains

rules regarding the type of hearing, how to conduct the hearing, the composition of the panel, receiving

evidence, etc. However, there is debate as to whether or not the SPPA applies to internal university

decision making.

Section 3.(1) of the SPPA indicates that the act applies as follows:

Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of

a statutory power of decision conferred by or under an Act of the Legislature, where the


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tribunal is required by or under such Act of otherwise by law to hold or to afford to the

parties to the proceeding an opportunity for a hearing before making a decision.

Section 1 of the SPPA defines statutory power of decision as follows:

“statutory power of decision” means a power or right, conferred by or under a statute, to

make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any

person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a

benefit or licence, whether the person is legally entitled thereto or not;

What constitutes a “statutory power of decision” has also been interpreted in the case law. In Paine v.

University of Toronto13

, the Ontario Court of Appeal heard an appeal of a judicial review decision where a

professor sought an order setting aside decisions of the Tenure Committee and the Tenure Appeal

Committee of the University. One of the questions that arose was whether or not the Judicial Review

Procedure Act (the “JRPA”) applied to the President’s power to determine tenure appointments. The

Court of Appeal stated that:

I doubt whether the general power granted to the Governing Council by s. 2(14)(b) of

the 1971 Act to appoint members of the teaching staff is a “statutory power of decision”

within the meaning of the Judicial Review Procedure Act, 1971 (Ont.) Vol.1, c. 46…it is

not enough that the impugned decision be made in the exercise of a power conferred by

or under a statute; it must be made in the exercise of a “statutory power of decision”;

and I think that must be a specific power or right to make the very decision in issue.

In B and W the Court cites the above passage from Paine and indicates that the SPPA and the JRPA

define statutory power of decision in the same way. Applying the test used in Paine, the question is

whether or not the University, in making its decision, is exercising the specific power conferred by statute.

In this case, the Court concluded that they were not:

In my view they are not. What they have done is pursuant to the York University Act,

1965 (Ont.), c. 143, s. 4, and in pursuance of the objects thereof which include:

(a) the advancement of learning and the dissemination of knowledge; and

(b) the intellectual, spiritual, social, moral and physical development of its

members and the betterment of society.

13

(1982), 34 O.R. (2d) 770 [Paine]


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Under the Act by s. 13(2)(c) the president has “power to formulate and implement

regulations governing the conduct of students and student activities.” Accordingly, the

Statutory Powers Procedure Act does not apply.

The provisions of the York University Act cited above are very similar to the provisions contained in the

Act to Incorporate the University of Guelph. Thus, although decisions of university tribunals may be

subject to judicial review, it is unlikely that they are subject to the SPPA. There is still case law that

indicates that the issue remains open for debate.14 However, the recent Telfer decision, referred to infra,

would suggest the argument that the tribunals which are the subject of this review are not exercising a

statutory power of decision.

(ii) The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms (“the Charter”) generally applies to proceedings of

statutory tribunals; however, many of its provisions do not apply because their application is restricted to

criminal proceedings and other proceedings where an individual’s liberty is at stake. For example,

section 11 of the Charter has been interpreted as being limited to proceedings in criminal and penal

matters. In Morgan the Court considered whether or not section 11 of the Charter applied and held that:

I find that Article 11 deals with offences at law and not with internal university

disciplinary procedures. I find also that the plaintiff specifically agreed to the disciplinary

system, the procedure and the substance as set out in the Student Handbook and in his

contract with the University.

Further, there is jurisprudence that indicates that the Charter does not apply to Ontario universities

because they are not government entities, nor are they performing a specific government activity . In

McKinney v. University of Guelph15

the Supreme Court of Canada considered whether or not the Charter

applied to the University’s policy regarding early retirement. In that decision, the Supreme Court held that

the core functions of universities are non-governmental and therefore, the Charter does not apply to

them:

It was not disputed that the universities are statutory bodies performing a public service.

As such, they may be subjected to the judicial review of certain decisions, but this does

not in itself make them part of government within the meaning of s. 32 of the

Charter…In a word, the basis of the exercise of supervisory jurisdiction by the courts is

not that the universities are government, but that they are public decisions makers. As

Beetz J. observed in Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 594, it

is only ‘in a sense’ that a university may be regarded as a public body. It is clear from

that case that judicial review may be available in certain circumstances even though a

university may be an autonomous body.

14

Rao v. McMaster University 2010 HRTO 1051 15

[1990] 3 S.C.R. 229 [McKinney]


Page 13

In Freeman-Maloy v. Marsden16 the issue before the Court was whether a claim alleging misfeasance in

a public office by the President of York University should be struck out on the basis that it was “plain and

obvious” that the President did not hold public office within the meaning of the tort. On the issue of

whether or not the President held public office the motion judge held that:

The mere fact that a statute passed by the Legislature of Ontario provides for the office

of President of the University, to be appointed by the Board of Governors, and accords

the President so appointed certain powers in respect of the university community, does

not make her a public officer. The University’s relations with its students are clearly one

of its core functions and McKinney held that the core functions of a university are non-

governmental. The government does not have control over how the President regulates

a particular student’s conduct. The plaintiff is not a member of the public at large; he is

a member of the University community, and, as he alleges in his pleadings and as was

held by this court in Ciano v. York University, [2000] CarswellOnt. 144, as such he has a

contractual relationship with the University.

This decision was subsequently overturned by the Ontario Court of Appeal17 which did not agree with the

motion judge’s characterization of what the required elements of the tort were; however, the Court of

Appeal agreed that the President of the University would not be considered a public officer under section

32 of the Charter:

I agree with the respondent and with the motion judge to this extent: if the tort of

misfeasance in a public office only applies to those public officers who are subject to s.

32 of the Charter of Rights and Freedoms, it cannot apply in the circumstances pleaded

to York University and its President given the autonomous nature of the university.

Thus, the Charter does not apply to decisions made by members of an Ontario university committee or

tribunal regarding student discipline.

In Pridgen v. University of Calgary18

the Alberta Court of Queen’s Bench held that the Charter did apply

to a disciplinary decision made by a university because the University was implementing a specific

statutory scheme or government program with respect to the actions taken by it in disciplining the

students: universities in Alberta are subject to a specific act, the Post-Secondary Learning Act, which

does not have an equivalent in Ontario. In a judgment released on May 9, 2012, the Court of Appeal for

Alberta concluded that the discipline in question was unreasonable and dismissed the university’s

appeal. However, the majority of the Court declined to deal with the argument that the Charter applied to

student discipline.

16

2005 CanLII 14319 (ON SC) [Freeman-Maloy (Superior Court of Justice)] 17

2006 CanLII 9693 (ON CA) [Freeman-Maloy (Court of Appeal)] 18

2010 ABQB 644 [Pridgen] Appeal dismissed 2012 ABCA 139


Page 14

Given the Freeman-Maloy decision, it is unlikely that an Ontario court would find that the Charter applies

to internal university decisions. This conclusion is confirmed by a recent decision of the Divisional Court

which addressed the issue of the application of the Charter to student discipline:

The University of Western Ontario was not implementing a government policy nor acting

in any way as an agent of the government in developing and applying its discipline

policy for students or carrying out its educational functions. Therefore, the Charter of

Rights does not apply.19

(iii) The Common Law

Even though the SPPA and the Charter do not apply to university tribunals, university tribunals are not

without procedural constraints. Rather, they are subject to common law requirement of procedural

fairness.

The common law requirement of procedural fairness requires that the parties whose rights may be

affected by the proceedings be given a fair process. What is required to ensure a fair process depends

on the circumstances.

In Baker v. Canada (Minister of Citizenship and Immigration)20 the Supreme Court of Canada identified

the following five factors to be considered when determining what is required to meet procedural fairness:

1. The nature of the decision and the process followed in making it;

2. The nature of the statutory scheme;

3. The importance of the decision to the individual affected;

4. The legitimate expectations of the parties; and

5. The procedure chosen by the Tribunal;

Keeping these five factors in mind, the more that the decision resembles a judicial decision, the higher

the standard of procedural fairness that ought to be applied will be.

In the university context, the courts have considered similar factors. For example, in Khan v. The

University of Ottawa21

the Ontario Court of Appeal described the content of procedural fairness in the

following manner:

The content of procedural fairness depends on the context. The context includes the

nature of the decision, the relationship between the decision maker and the person

19

Telfer v. University of Western Ontario, Divisional Court decision dated April 2, 2012 at para. 61 20

[1999] S.C.J. No. 39 [Baker] 21

1997 CanLII 941 (ON CA) [Khan v. Ottawa]


Page 15

asserting a claim to procedural fairness, the nature of the issue before the decision

maker and the effect of the decision on the person’s rights.

In the university context most of these factors will be similar and therefore, what is required in terms of

procedural fairness will also be similar; however, it is important to recognize that, even within the

university context, there will be differences. For example, an allegation of misconduct that can result in a

student being expelled is clearly of a greater importance to the student than an allegation of misconduct

that results in a small fine. In Kane the Supreme Court of Canada held that a high standard of justice

was required when the right to continue in one’s profession or employment is at stake.

Similarly, in Khan v. Ottawa, where a student was threatened with the loss of an academic year, the

Court of Appeal indicated that a higher standard of procedural fairness was required:

In my view, a university student threatened with the loss of an academic year by a

failing grade is also entitled to a high standard of justice. The effect of a failed year may

be very serious for a university student. It will certainly delay if not end the career for

which the student was studying. It may render valueless any previous academic

success. In some cases it may foreclose further university education entirely.

Therefore, it is important that the procedures followed by the university tribunal retain sufficient flexibility

and discretion to be able to tailor the procedural rights provided to those required for procedural fairness

in each individual case.

4. Procedures of Internal University Tribunals

As was indicated in Kane referred to above, university tribunals are not required to have the trappings of

a court and are able to determine their own procedures.

In particular, the Supreme Court of Canada described internal university proceedings in the following

manner:

The Board need not assume the trappings of a court. There is no lis inter partes, no

prosecutor and no accused. The Board is free, within reason, to determine its own

procedures, which will vary with the nature of the inquiry and the circumstances of the

case. Members of the Board are drawn from all constituencies of the community. They

normally serve without remuneration in the discharge of what is frequently an arduous

and thankless form of public service. Few, if any, of the members of the Board will be

legally trained. It would be wrong, therefore, to ask of them, in the discharge of their

quasi-judicial duties, the high standard of technical performance which one may

properly expect of a court. They are not fettered by the strict evidential and other rules

applicable to proceedings before courts of law. It is sufficient that the case has been

heard in a judicial spirit and in accordance with the principles of substantial justice.

Thus, university tribunals have the ability to determine their own procedure. This is positive as it can

reduce the cost and time associated with hearing a matter. Also, it enables the tribunal to focus more on


Page 16

the educational aspect of discipline, instead of the punitive aspect. The fact that student discipline can

be part of the students’ learning experience was recognized by the Court in Morgan:

In my opinion, in some comparatively rare circumstances, where the applicant has

exhausted all relevant appeal provisions within the University disciplinary system, if

there has been an obvious denial of natural justice, then the general supervisory powers

of the Courts should be available for appropriate relief.

However, I feel that the supervisory power should be exercised only in rare occasions.

The internal disciplinary proceedings are in themselves an educational exercise for

students as well as an efficient, inexpensive and fair way of dealing with disciplinary

problems. Discipline is being meted out by the peers of the student.

5. Specific Procedural Rules

The rules of procedural fairness can be divided into two categories: 1) the decision maker must provide

an adequate opportunity for those affected to know the case against them and to respond to the evidence

and arguments presented by the other side (audi alteram partem); and 2) the decision maker must be

independent and unbiased (nemo judex in sua causa).

(a) Audi Alteram Partem

This category of procedural fairness consists of various elements that enable those affected by the

decision to participate effectively in the proceedings: either in their ability to present their case, or in their

ability to respond to the case against them. As previously indicated, which of these elements must be

present to achieve procedural fairness will depend entirely on the context of the individual case.

(i) Notice

The first element of the right to know the case is the provision of notice of the allegations. The purpose

of notice is to alert all individuals whose interests may be affected by a decision on the matters in issue

and the proposed actions taken so that they may take steps to protect those interests.

Although the university case law does not focus on the issue of notice or describe in detail what the

content of the notice ought to be, it is clear that students ought to receive some kind of notice of the

allegation, as well as information about the proceedings that will follow, to enable them to prepare their

case.

In Harelkin v. University of Regina22

Dickson J. wrote that a tribunal charged with the responsibility to

“hear and decide” must:

22

[1979] 2 S.C.R. 561 [Harelkin]


Page 17

. . . give notice to all interested parties of, minimally the date, time and place of hearing.

In the present case no notice, of any description, was given by the tribunal to the person

most affected by the outcome of the hearing, the student.

In Morgan a letter was sent to the student from the Dean of Students indicating that a complaint of a

violation of the Liquor Control Act and verbal abuse had been laid against him by the Security Office. A

copy of the complaint was attached to the letter. The letter also indicated where the student could find

information regarding Judicial Procedures, the date, time and location of the hearing. As well as an

indication that he could meet with the Dean to reach a pre-hearing settlement and could obtain the

assistance of an advisor. The Court held that a fair interpretation of those documents was that they

conveyed to the student that he was to respond to a complaint of having or drinking liquor outside his

room. In other words, the letter adequately alerted him to the allegations that he was to respond to.

(ii) Disclosure of Evidence

In addition to knowing what the allegations are, the student has the right to know what evidence will be

presented to and considered by the decision-maker. Part of this principle is that the decision-maker

should not hear evidence or receive representations from one side behind the back of the other. For

example, in Kane, after the appeal was conducted, the Board decided that it needed additional necessary

facts before it could reach a decision and it received those facts from the President. The Supreme Court

of Canada held that the Board was under an obligation to postpone further consideration of the matter

until such time as Dr. Kane might be present and hear the additional evidence, or at the very least the

Board should have made Dr. Kane aware of those facts and afforded him a real and effective opportunity

to correct or meet any adverse statement made.

Similarly, in Healey the Court held that the University had exceeded its jurisdiction when it denied the

student access to several documents. The Court also held that this was the case even if the documents

did not contain new information:

I do not accept the submission by Counsel for the University that any mistake in failing

to disclose the contents of the Dean’s letter to Healey was not a matter of substance

since there was no new evidence contained in it. Even the dissenting judge in Kane

said that there should be no representations on the merits behind the back of the other

party. Whether or not the Dean’s letter contained any new evidence, it did contain

representations going to the merits of the case. Healey was entitled to a fair and

effective opportunity to attempt to rebut those representations. The Senate exceeded

its jurisdiction when it failed to provide the opportunity.

Thus, the case law indicates that the student alleged to have done something contrary to university

policies has a right to know the case against them. However, there is also some recognition in the case

law that the right of the student to know the case may need to be balanced against the rights of others

and that the University is not a court and it may conduct its hearings in a manner that it considers

appropriate. For example, in Healey a letter from his girlfriend who alleged that he abused her was sent


Page 18

to the Senate without disclosing the contents to Healey. On the issue of whether or not this letter ought

to have been disclosed to Healey the Court said that:

In some cases there may be reasons for concealing the names of informants or

complainants. There may be concern about the emotional pressures that may be

placed upon individuals should their complaints become public. Early in the process

N.H. was expressing reluctance about having her comments made known to Healey.

But this could not have been a consideration for not disclosing to Healey when N.H.

noted at the bottom of her letter that she was copying the letter to the Newfoundland

Medical Board, the Provincial Advisory Council on the Status of Women, and the

Council of the Students’ Union, in addition to the Dean of Medicine and the Dean of

Student Affairs.

(iii) Disclosure and Freedom of Information and Protection of Privacy Act Concerns

The individual who is alleged to have committed some kind of misconduct has a right to know the case

against them and therefore, to know the evidence that will be used against them. However, in certain

circumstances this right may have to be balanced with the rights of others contained in the Freedom of

Information and Protection of Privacy Act (“FIPPA”).

Issues may arise when a student seeks access to records within the University’s control so that they can

present their case. Sections 41 and 42 of FIPPA allow internal use of information for disciplinary

proceedings. Therefore, individuals are usually allowed to access their own information. However, an

issue may arise if the information that the individual seeks contains the personal information of other

students, which is protected pursuant to section 21(3)(d) of FIPPA. Section 21 protects harms flowing

from the disclosure of personal information of others (including witnesses) that is in the University’s

possession. However, this exemption only applies when the disclosure would cause an invasion of

privacy that is unjustified. In other words, FIPPA contemplates a balancing between privacy and

transparency. As a result, the outcome will always be fact specific.

In a decision involving Queen’s University (Order PO-2711, 2008 CanLII 46549 (ON IPC)) the University

received a request under FIPPA from a student who had been accused of academic dishonesty, but was

later cleared, seeking access to records related to the alleged academic dishonesty. In this case some of

the records at issue contained personal information regarding another student, including records

describing the progress of the investigation into the affected party’s involvement in the academic

dishonesty matter. As a result, the IPC held that the records formed part of the affected party’s

University record and therefore, section 21(3)(d) applied to the undisclosed information in the records

and was presumed to constitute an unjustified invasion of personal privacy under section 21(1).

However, pursuant to section 23 of FIPPA an exemption from disclosure of a record under section 21

does not apply where a compelling public interest in the disclosure of the record clearly outweighs the

purpose of the exemption. In this case the IPC held that there was not a compelling public interest: first,

because there was no compelling evidence that the relationship between the disclosure of the

information remaining and FIPPA’s central purpose of shedding light on the operations of government

and other institutions subject to the Act; second, the interest at stake was essentially private in nature;


Page 19

and third, to the extent that public interest considerations existed in ensuring the integrity of the post-

secondary accreditation, those had already been served because the substantial amount of information

already released would permit scrutiny of the academic dishonesty investigation process.

Also, if there is an ongoing criminal investigation there may be a reason not to disclose pursuant to

section 14.1 of FIPPA. There is some debate as to whether campus police are engaged in “law

enforcement”; however, even if this is the case, the investigation will be completed by the time that the

matter is being heard by the tribunal. Therefore, it would be difficult to apply section 14 in ordinary

circumstances.

For example, in a case involving the University of Western Ontario (Order PO-2967, 2011 CanLII 25436

(ON IPC)) a request was made for Campus Community Police Service records relating to incidents,

events and/or investigations involving the requester for a specified time period. On the issue of whether

or not Campus Police engage in “law enforcement” was considered and the IPC stated the following:

I accept that, in certain circumstances, the CCPS engages in “policing” within the

meaning of that term, and that the CCPS can engage in investigations that lead or could

lead to proceedings in a court or tribunal where a penalty of sanction could be imposed

in those proceedings. An example would be an investigation of an offence under the

Criminal Code that is within the jurisdiction of the CCPS. In that regard, there were

certain activities conducted by the CCPS as reflected in a number of occurrence

reports, some of which were released to the appellant where, in my view, they were

engaged in law enforcement. This is because the matters were being investigated as

potential breaches of the provisions of the Criminal Code, namely assault and/or

harassment. When no charges were laid with respect to those events, and no

investigations were continued to be conducted by the CCPS with respect to those

events, the CCPS was no longer engaged in law enforcement activities pertaining to

them. The process then became an investigation and proceeding under the Student

Code of Conduct.

In my opinion, proceedings under the Student Code of Conduct and the investigation

conducted by the investigator are not law enforcement related activities.

(iv) Right to a Hearing – Oral or Written

As previously indicated, a fundamental part of procedural fairness is the ability to respond to allegations.

In Khan v. Ottawa the Court of Appeal said the following regarding the right to procedural fairness:

The right to procedural fairness means little unless the person affected is informed of

contrary information and arguments and given an opportunity to address them before

the decision is made . . . Because the Committee did not inform Ms. Khan of the three

factors it relied on, the Committee decided her appeal on either inaccurate or

incomplete information.


Page 20

However, the form that that response can take depends on the context of the case. In some cases it is

sufficient for the individual to be able to present their case in writing, whereas in other cases an oral

hearing may be required.

In the university context, the case law indicates that students have the right to make submissions of

some kind, but that the rules of natural justice do not always require a formal hearing or the presence of

the student. Rather, the submissions can be made by way of written submissions. In Re Polten and

Governing Council of University of Toronto et al.23 the student was appealing a decision made regarding

an examination. In that case, the Court indicated that this was not a matter that lent itself to the

adversarial process and that a formal hearing is not always required:

. . . [A]lthough the appeal must be conducted according to the rules of natural justice,

these rules do not always require a formal hearing, or the presence of the appellant,

provided his case is presented to them by way of correspondence, briefs, memoranda

or otherwise. As Spence, J., said in King’s case, the considerations which are given to

the issue whether a student had attained the necessary standing in his studies are not

those which can be assisted by an adversary formula, and it is difficult to conceive of a

situation which would have the representatives of a faculty confronting the

representatives of a student in the trial of an issue as to whether a degree should be

granted. Thirdly, if the final appeal is in effect a new trial, and not an appeal in the

ordinary sense, I do not see why any want of natural justice in the intermediate appeals

is not cured . . . It may well be that in disciplinary cases, a formal hearing should be

given in the first instance, to avoid an accumulation of findings which would be hard to

ignore by the appellate body. This is not the case here.

As a general principle an oral hearing by a university tribunal is not required to satisfy the demands of

natural justice; however, there may be exceptions. The exceptions identified in the university case law

have been when: a) there are issues of credibility; and b) when there is an issue about mental health and

fitness to pursue academics.

The fact that an allegation is very serious and has potentially serious consequences is also a relevant

factor. The fact that an allegation is serious, does not always mean that an oral hearing should be

provided, but it does mean that a higher standard of fairness ought to be applied, which could mean that

an oral hearing would be appropriate. Similarly, as a decision proceeds to a more formal stage of

proceedings a higher standard of fairness ought to be applied. Therefore, it may also be the case that

while a written hearing is sufficient at the initial decision-making level, an oral hearing is required at the

appellate level.

(v) Credibility

In Khan v. Ottawa, the Court of Appeal indicated that an oral hearing is required when there are issues

of credibility:

23

(1975), 8 O.R. (2d) 749 [Polten]


Page 21

In many academic appeals, procedural fairness will not demand an oral hearing. An

opportunity to make a written submission may suffice. For example, I doubt that

students appealing their grades because they believe they should have received a

higher mark would ordinarily be entitled to an oral hearing. What distinguishes this case

is that the determining issue before the Examinations Committee was Ms. Khan’s

credibility. In denying Ms. Khan relief the Committee judged her credibility adversely. In

my view, the Committee should not have done so without affording her an in-person

hearing and an opportunity to make representations orally.

(vi) Issues Concerning Mental Health

In Carson v. University of Saskatchewan, the Court concluded that consideration of the impact of a

student’s mental illness on his ability to pursue academics was another circumstance where an oral

hearing was required:

I perceive the appropriate state of the law to be that each individual circumstance must

be examined upon its own facts and merits to determine whether special circumstances

arise such as to be considered a reasonable exception to the general principle [that

written submissions are sufficient]

In the matter of Mr. Carson, I find Mr. Carson’s diagnosis of Bi-Polar Disorder to be a

significant issue in assessing his fitness to pursue academic studies at the College of

Law at the University of Saskatchewan. Dr. Singh through his report letter clearly

identifies the existence of Bi-Polar Disorder and in a summary fashion highlights the

impact and potential implications upon Mr. Carson, with an emphasis on the practical

difficulties he would experience as a student with Bi-Polar Disorder. It is indeed this

matter which expands his appeal beyond one requiring solely substantive academic

judgment, and into the broader realm of public interest and concern. Mr. Carson has

demonstrated to my satisfaction an exception to the general rule and I am of the view

that an oral hearing to canvass the relevant issues was required.24

This case also illustrates that evidence regarding illness, mental health issues, and disability are matters

university tribunals should hear when making their decisions.

One issue that this raises is what kind of evidence the panel will require. For example, does it require an

expert (i.e. a psychiatrist) to testify? There are cases where students provided notes and also cases

where doctors testified, but the cases do not contain a discussion of what is actually necessary.

(vii) Accommodation in the Hearing Process

Although it is not discussed in detail in the case law, accommodating students during the hearing process

is clearly something that the University should keep in mind when administering the discipline process.

24

200 SKQB 322 (CanLII)


Page 22

For example, in Williams v. The University of British Columbia25 a student complained that she had not

been accommodated during the hearing process. On the issue of accommodation the Court held that the

duty to accommodate was a shared duty and that it was the student’s responsibility to indicate that she

required further accommodation throughout the process of reviewing her alleged academic misconduct.

Thus, while in this case the University was not required to provide further accommodation, if a student

were to approach the tribunal with his or her needs, it is clear that the tribunal would have a duty under

the Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act to accommodate

them and to provide the reasonably necessary supports to enable the student to participate effectively in

the hearing process.

(viii) Right to Counsel

In certain circumstances the right to present one’s case may include the right to be represented by

counsel.

This is an area where there is some variation in terms of the practices of different universities in Ontario.

At some universities in Ontario the right to counsel is made clear in the policies and procedures, while

others have policies and procedures that explicitly state that lawyers are not permitted. Others permit

lawyers at some stages of the process, such as at the appeal stage. Again, as the proceedings become

more formal greater rights of procedural fairness are provided.

In Ahvazi v. Concordia University26 the Court indicated that while the principles of natural justice applied

to the case, the right to counsel was not necessarily part of this. In that case the Court provided six

reasons why counsel was not necessary in the circumstances:

1) the case did not involve a complex question of law;

2) the hearing was simple and informal;

3) the student could have someone from the university community assist them

and this person would better understand the system than an external lawyer who would

inject formalism into the proceeding;

4) respecting the autonomy of the university;

5) the process was less formal, more expedient and less expensive without

lawyers; and

6) the student had the ability to provide a full defence.

25

2007 BCSC 996 (CanLII) [Williams] 26

1992 CanLII 3119 (QC CA)


Page 23

As this list indicates, there are a few factors to consider when determining whether or not counsel is

required.

In Healey the Court held that the student should have had the benefit of counsel at the Executive

Committee proceedings because the potential consequences of the proceedings were very serious:

If the facts are to be established in a University tribunal, it is necessary to have greater

procedural safeguards, when the accusations are of a criminal nature, with serious

repercussions for a person’s reputation and future employment prospects, than is

provided for less serious discipline cases. In the criminal type case I believe a person

should have the right to counsel as well as the other safeguards already provided by the

University under the Discipline Code.

As is indicated in Ahvazi, some believe that advisors within the university system are preferable to the

use of external legal counsel and are actually in a better position to provide advice to the students

because they are familiar with the system. Further, their involvement is preferable because it is less

likely to formalize the proceedings unnecessarily. However, in Healey the court stated that:

I do not accept the submissions of Counsel for the University that having lawyers

involved before boards or tribunals made up of non-lawyers is prima facie undesirable.

There are public utilities boards, labour relations board, immigration appeal boards,

where this same situation exists. These boards operate in a reasonably efficient fashion

with lawyers making representations to non-lawyers without the process breaking down.

One way of proceeding might be for the University to have its own lawyer available in

certain cases. The presence of lawyers has not been considered an insurmountable

problem at other universities. See, for example, Kane and Y.B., where Counsel was

available.

Another issue related to the right to counsel which arises frequently in the case law is whether or not it

would be unfair to proceed without counsel when the student had notice of the hearing and their right to

counsel, but chose not to exercise that right. There are several cases that indicate that a refusal to

provide an adjournment to allow the student to obtain counsel is not a breach of procedural fairness

when the student has been given notice and had time to obtain counsel and simply chose not to.27

(ix) Right to Cross-Examine Witnesses

Again, the right to cross-examine is part of the individual’s right to respond to the allegations. If the

individual can adequately respond to the allegations, without cross-examining the witnesses then this

does not violate the principles of natural justice. However, in certain circumstances cross-examination of

the witnesses may be necessary. As the case law below will demonstrate, this is particularly the case

where credibility is a significant issue.

27

B and W


Page 24

In Hajee v. York University,28 the Ontario Court of Appeal acknowledged that procedural fairness does

not always require that an individual be allowed to cross-examine witnesses; however, in this case,

where credibility was a significant issue, the Court held that it was:

We are quick to acknowledge that natural justice or the requirements of fairness do not

always require adherence to what has become known as the audi alteram partem

principle or even to an absolute right to cross-examine. Nevertheless, in a case such as

this, not only because of the potential consequences to the student but also because of

the nature of the case against him, depending as it does on the credibility of 2 persons –

Mr. A. Singh and Mr. B. Singh, the former of whom did not appear at the hearing and

whose evidence was given by way of his statutory declaration, the applicant was entitled

to greater consideration than he received. Moreover, the decision, even before the

hearing commenced, that under no circumstances, no matter what the evidence was,

would there be any opportunity to cross-examine the witnesses except through the

Chairman who might or might not exercise his discretion by asking the question sought

to be asked, was a departure from the essential principles of fairness. There can be no

justification for refusing the applicant the opportunity to test the accuracy of the critical,

direct evidence of Mr. B. Singh in the light of the known position of the applicant that he

denied Mr. Singh’s evidence.

Similarly in Healey the court said the following about the right to cross-examine witnesses in a case

where so much of the evidence rests on credibility:

It is clear from Hajee and other cases that a University Student does not always have

the right to be present or to cross-examine a witness. But in the circumstances of the

present case, where so much of the evidence was dependent upon the credibility of the

witnesses, upon their ability to recall or upon whether they were exaggerating or

distorting incidents, I agree with Krever J. in Hajee that there is then no justification for

refusing the accused the opportunity to test the accuracy of the evidence by cross-

examination.

Whereas in other university cases where credibility was not a significant issue, the courts have held that

cross-examination is not required. For example, in B and W, the Court held that not permitting the

student to cross-examine another student who accused him of sexual harassment was appropriate:

There were two allegations relating to natural justice. Firstly, that the applicant should

have been entitled to cross-examine R.W. in order to attack her credibility with regard to

the accusations against him. In my view, the procedure adopted by the provost was

appropriate. The applicant had refused to retain counsel and his confrontation of R.W.

while attacking her credibility by cross-examination would have only aggravated the

obvious emotional strain that she was under as a result of the applicant’s activities.

There was no real issue of credibility.

28

(1985) 11 O.A.C. 72


Page 25

(x) The Decision -- Right to Reasons

Providing reasons for a decision promotes fair and transparent decision-making. Reasons can also

reinforce public confidence in the judgement and fairness of the tribunal. Also, without reasons it is

difficult for a party to decide whether or not there is a basis to challenge the decision.

In the university context, the case law is relatively silent on this aspect of procedural fairness, presumably

because it is taken for granted that reasons must be provided. However, in Healey there is a discussion

regarding the fact that the student was never given access to the reasons for the initial decision and

therefore, was not able to make effective submissions on appeal. In Pridgen the court also provides an

analysis indicating that the duty of fairness requires providing reasons. It also discusses the importance

of reasons for the University community at large and as a deterrent against future misbehaviour.

(b) An Independent Decision Maker

(i) The Person Who Hears Must Decide

Another general principle in administrative law is that the person who hears the case must decide the

case. This does not mean that the decision-makers cannot seek assistance in making their decision.

A tribunal may consult counsel on legal issues that arise during proceedings. However, this lawyer must

not participate in the hearing. In particular the lawyer should not control how the hearing is to be

conducted nor be involved in the decision making process. Communications between the tribunal and its

legal adviser are privileged, however, if a new legal issue is raised, the parties should be told of the issue

and be given an opportunity to make submissions.

(ii) Who Writes the Decision

Along those same lines, legal counsel for the tribunal cannot independently draft the decision of the

tribunal. Counsel may draft a decision following direction from the Chair as to its content and

conclusion, However, the chair must review the draft before signing it to ensure that it reflects his/her

instructions. In other words, it must be clear that the decision is that of the tribunal and not of the judicial

officer. Alternatively, the chair may choose to draft the decision and then ask the judicial officer for

advice on legal issues or to provide advice on the wording of the draft. Again, the decision must be that

of the tribunal.

For example, in Khan v. College of Physicians and Surgeons of Ontario the Ontario Court of Appeal

considered the issue of counsel’s involvement in the preparation of reasons. In that case, the Court of

appeal held that the process followed at the drafting stage was not offensive because the process had

the following features: a committee member prepared the first draft of the reasons; counsel, with the

chairman of the committee, revised and clarified the first draft but did not write independently of that draft;

the committee met to consider and revise the draft as amended by counsel and the chairman and

counsel played no role in this review and revision; and the final product was signed by each member of

the committee. The decision suggests that counsel can be legitimately involved in assisting a tribunal to


Page 26

write a decision; however, counsel’s involvement must not impair the integrity of the proceedings and the

committee must maintain the responsibility of authorship.

6. Penalty

Information regarding illness, mental health issues and disability are matters that internal university

tribunals should also consider when determining what constitutes the appropriate penalty in a case.

As previously indicated, discipline in the university context is considered part of the educational

experience. Further, universities have an obligation under the Ontario Human Rights Code to

accommodate students with disabilities.

In light of these two considerations, there is a recognition in university communities that where the

misconduct is related to the student’s disability – for example in the case of mental illness or substance

abuse -- penalties may not always be appropriate and that alternative consequences, such as

rehabilitation, educational programs, or therapy, may be more appropriate. For example, in Pacheco the

Court discussed the penalties applied and the reasons for those penalties in the following way:

. . . the University addressed the matter in a procedurally fair and compassionate way.

The interim and then long-term suspension were designed to help the student come to

terms with his problems and also to ensure his safety and that of the wider University

Community.

7. Freedom from Bias and Independence of the Decision Maker

One of the rights associated with procedural fairness is the right to be heard by a non-biased decision

maker.

In the university context, there is a general recognition in the case law that people within the university

will know each other and that this alone does not create a reasonable apprehension of bias. For

example, in Mohl v. Senate Committee on Appeals on Academic Standing,29 the student commented on

the likelihood that the members of the Senate Committee knew the Associate Dean, who represented the

faculty of education, and referred to an occasion in the transcript where the chairperson addressed the

Associate Dean by his first name. The Court held that this evidence was incapable of satisfying the test

for a reasonable apprehension of bias. In that case, the Court applied the following test for the

apprehension of bias:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-

minded persons, applying themselves to the question and obtaining thereon the

required information. In the words of the Court of Appeal, that test is “what would an

informed person, viewing the matter realistically and practically…and having thought

the matter through…conclude.

29

2000 BCSC 1849 (CanLII) Appeal to the Court of Appeal was dismissed


Page 27

There are even certain circumstances where the decision-makers having prior knowledge regarding the

applicant is considered part of the process. For example, in Paine the Court recognized that members of

the Tenure Committee are tenured members of the professorial staff of the candidate’s department and

as a matter of course they must all have formed general opinions as to his suitability for tenure, and it

makes little difference whether that opinion was expressed before or at the meetings of the committee.

However, there are times when a panel member’s previous experience with the student may raise a

potential issue of bias. For example, in Morgan the Court held that technically the don of the student’s

residence could sit on the Judicial Board even after filing a complaint against the student in an unrelated

matter. However, the Court indicated that it would give a more favourable appearance of fairness if he

had not done so.

Examples of times when the participation of an individual on panel may give rise to a reasonable

apprehension of bias include if the individual has personal knowledge of the incident or if the individual

has a close personal relationship with one of the parties involved, such as a family member, or a thesis

supervisor. For example, in Pridgen the Court held that involving the spouse of the professor who filed

the initial complaint in the initial meeting was inappropriate and gave rise to a reasonable apprehension

of bias; however, that defect was cured by the Review Committee hearing. Thus, in circumstances where

there is a reasonable apprehension of bias the panel member should be replaced and in cases that do

not quite meet the test, but where the panel member in question can easily be replaced, it will enhance

the appearance of fairness to do so. These types of decisions would be made by the Committee.

There is also a general recognition that the members of the panel will be made up of members of the

university community, such as students, faculty and staff and that their affiliation with the university does

not create a reasonable apprehension of bias.30 For example, in Freeman-Maloy v. York University and

Dr. Marsden,31 the student argued that there was a reasonable apprehension of bias regarding the

members of the panel, how they were appointed and their relationship with President Marsden. The

Court rejected this line of argument stating that “I am not prepared to presume that the members of the

discipline tribunal cannot carry out their duties in a fair and impartial manner.” Similarly, in Rao the

Human Rights Tribunal cited the following passage from the decision of Justice Nordheimer in Strofolino

v. University of Toronto (2001), 55 O.R. (3d) 138, at para. 25, which was made in the context of

addressing a lack of independence by members of a Grievance Review Panel established by the

University and its Faculty Association:

In any event, I do not accept the central contention of the applicants that, because the members

of the Grievance Review Panel are all members of the faculty, or even of the Faculty

Association, they are therefore partial and not independent. As counsel for the Faculty

Association pointed out, faculty members enjoy the protection of academic freedom and are free,

indeed encouraged, to be critical of the University and its members along with all of their

practices and procedures. I assume that this freedom includes the freedom to also criticize their

Faculty Association. The University is a large institution and it has a large faculty. I have no

30

Paine v. University of Toronto (1982), 34 O.R. (2d) 770, 31

2004 CanLII 11663 (ON SCDC)


Page 28

reason to believe that those faculty members, who become members of the Grievance Review

Panel, appointed by the President of the University after consultation with the Faculty

Association, would not consider themselves free to decide whatever matter might come before

them without fear or favour of either side. Further, there seems to me to be very good reason

why the parties would want to have such grievances dealt with [by] members of their own

institution as opposed to outside parties, both for reasons of confidentiality and of sensitivity to

the issues that will be raised and decided. I do not accept, therefore, the applicants’ central

contention that the members of the Grievance Review Panel do not represent proper persons to

act as arbitrators.

The Tribunal found that the same consideration would apply to the Hearing Panel members, which

included an assistant professor, a student and a staff member and went on to determine that there was

no reason to think that, simply because the individuals who made up the panel were appointed by the

University and worked for or attended the University, they would have any material interest in the

outcome of the issue or would feel so beholden to the University as to have that consciously or

unconsciously affect their judgment. It is interesting to note that in this case the student had the ability to

raise concerns of bias prior to the panel being selected.

The case law does not discuss the amount of training panel members should receive. The case law

does recognize that the members will not usually be legally trained, but will be members of the university

community (although in some cases panel members of faculty members from the law school). There is a

recognition that having members of the university community on its tribunals has benefits, such as

expertise when it comes to academic matters and the educational benefits of having peers being on the

panel. To the extent that the members receive training, this decreases the likelihood that they will have

to rely on counsel to assist them when conducting the hearing and deliberating afterwards, which

increases the appearance of impartiality and reduces the likelihood that someone could successfully

judicially review a decision of the committee on the basis that the decision was biased, fettered etc.

However, it is also recognized that training requires a certain amount of time and resources. Therefore, a

balance must be struck between providing training and hearing cases.

8. Internal Appeals

There are two conflicting ideas regarding appeals in the jurisprudence. On the one hand there are

decisions that indicate that an appeal board at a university should not be a de novo hearing and should

focus on whether the investigation and the decision were reasonable.32 On the other hand, there are

many decisions, such as Harelkin, that indicate that the appeal should be a de novo hearing, and by

being a de novo hearing it can cure any procedural defects that existed at the lower level.

9. Judicial Review

As previously indicated, a student may seek judicial review of an internal university decision. Courts will

be reluctant to intervene with the decision, but will do so if there is a breach of procedural fairness.

32

Polten and University of Toronto (1975), 8 O.R. (2d) 749


Page 29

In Polten, the Court indicates that universities have a public function:

Whatever may be the case in respect of disputes over tenure or terms of employment

between members of the teaching staff and the university, which can probably only

resolved in an action for breach of contract, it is my opinion that the prerogative writes of

certiorari and mandamus are available to a student who has been denied natural justice

in respect of his examinations. The university has been entrusted with the higher

education of a large number of the citizens of this Province. This is a public

responsibility that should be subject to some measure of judicial control.

In addition to recognizing that some matters are purely domestic questions for universities, there is also

recognition that the internal disciplinary proceedings of a university are an educational exercise in

themselves and that they are more efficient than court proceedings. In Morgan, the Court stated that:

In my opinion, in some comparatively rare circumstances, where the applicant has

exhausted all relevant appeal provisions within the University disciplinary system, if

there has been an obvious denial of natural justice, then the general supervisory powers

of the Courts should be available for appropriate relief.

However, I feel that the supervisory power should be exercised only in rare occasions.

The internal disciplinary proceedings are in themselves an educational exercise for

students as well as an efficient, inexpensive and fair way of dealing with disciplinary

problems. Discipline is being meted out by the peers of the student.

However, the case law is clear that universities must observe the rules of natural justice.

In Kane, the Supreme Court of Canada considered a case with a university professor facing a disciplinary

suspension. In that decision the Court highlighted some propositions that governed the appeal:

It is the duty of the courts to attribute a large measure of autonomy of decision to a

tribunal, such as a Board of Governors of a University, sitting in appeal, pursuant to

legislative mandate. The Board need not assume the trappings of a court . . .

As a constituent of the autonomy it enjoys, the tribunal must observe natural justice

which, as Harman L.J. said, [Ridge v. Baldwin, at p. 850] is only “fair play in action”. In

any particular case, the requirements of natural justice will depend on “the

circumstances of the case, the nature of the inquiry, the rules under which the tribunal is

acting, the subject-matter which is being dealt with, and so forth”: per Tucker L.J. in

Russell v. Duke of Norfolk, at p. 118. To abrogate the rules of natural justice, express

language or necessary implication must be found in the statutory instrument.

In Healey, the Court said:


Page 30

. . . the courts should respect the intention of the Legislature that internal problems be

resolved by the University itself. The courts should respect the traditional autonomy of

Universities and not impose unnecessary legal formalism and trappings of courts which

might mean that the University’s internal regulation is less effective and more costly.

The cases make it clear that the courts should exercise restraint and be slow to

intervene in University affairs whenever it is still possible for the University to correct its

errors with its own institutional means.

There are, however, certain minimum standards of fairness which officials at the

University must observe in exercising their authority. In this case I must determine

whether these minimum standards of fairness were observed by the University

authorities as they sought to establish that the accusations against Healey were correct

and as they determined the appropriate penalty for any breach by him of University

Regulations. The Faculty of Medicine is only entitled to take facts relating to

professional competence into account when those facts have been proven in

accordance with these minimum standards of fairness.

In Paine:

The Divisional Court found in the present case that there was [at p. 88 O.R.] “that

element of public employment and support by statute that requires us to consider

whether or not essential procedural requirements were observed by the university, its

president and Governing Council in carrying out their respective functions with respect

to the application of Mr. Paine for tenure.” I agree with that conclusion, but note the

admonition of Beetz J. in Harelkin v. University of Regina, [1979] 2 S.C.R. 561 at 594-

95, 96 D.L.R. (3d) 14, [1979] 3 W.W.W.R. 676, where he said that the incorporation of a

university by statute does not alter the traditional nature of such an institution as a

community of scholars and students enjoying substantial internal autonomy. Its

immediate and direct responsibility extends primarily to its present members and, in

practice, its governing bodies function as domestic tribunals when they act in a quasi-

judicial capacity. The courts should use restraint and be slow to intervene in university

affairs by means of discretionary writs whenever it is still possible for the University to

correct its errors with its own institutional means.

However, when the court finds that there has been a breach of procedural fairness in how the university

board handled the case they will intervene, as was done in Khan:

I recognize that courts have at times shown great deference to the academic and

disciplinary decision-making functions of universities. This deference is reflected in a

reluctance to interfere by judicial review and in the application of a standard of “manifest

unfairness” for reviewing procedural challenges…To the extent that this deference

recognizes the application of the adequate alternative remedy principle as in Harelkin,

or the special expertise of university tribunals, it is unobjectionable. But I see no room

for deference and no basis for a more stringent standard of judicial review when all


Page 31

internal university tribunals deny a student procedural fairness. If, as here, the

procedures of the university committees do not conform to the requirements of fairness

they should be reviewable.

It is important to note that the student would not have to show actual prejudice to prove that he or she

had been denied procedural fairness. Rather, he or she need only show that the decision maker’s

breach of its duty of fairness may reasonably have prejudiced him or her (see Khan and Kane).

10. Test of Reasonableness

Quite apart from concerns as to the level of procedural fairness, courts may also intervene if they are

satisfied that the decision which has been reached is not a reasonable one having regard to the nature of

the violation, the policy in question and the evidence before the tribunal. Although courts will grant a

measure of deference to decision makers, they may intervene under certain conditions.

In 2008 the Supreme Court issued the seminal decision of Dunsmuir v. New Brunswick33. In that

decision the Supreme Court of Canada clarified the applicable standard of review in judicial review

proceedings. The test of reasonableness is described as follows in that decision:

A court conducting a review for reasonableness inquiries into the qualities that make a decision

reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial

review, reasonableness is concerned mostly with the existence of justification, transparency and

intelligibility within the decision-making process. But is also concerned with whether the decision

falls within a range of possible acceptable outcomes which are defensible in respect of the facts

and the law.

33

(2008), 291 D.L.R. (4th

) 577 (S.C.C.)


Page 32

CHAPTER 4 – NON ACADEMIC DISCIPLINE

1. Judicial Committee

The Terms of Reference of the Judicial Committee set out its functions, the principal one being “to judge

incidents of student behaviour that are alleged to represent infractions of . . . Student Rights and

Responsibilities and Human Rights at the University of Guelph”. It goes on to provide for membership on

the Committee, quorum, voting, administrative support, penalties of various kinds and appeals.

The Rules of Procedure appear to be modelled on the provisions of the SPPA. They provide for a whole

series of procedural safeguards which we identified in Chapter 3 including the right to adequate notice,

the right to know the case against you and the right to respond, disclosure of evidence, the right to a

hearing and the right to counsel, the right to examine and cross examine witnesses and the right to an

impartial decision-maker.

The Judicial Committee handles a substantial volume of cases. The Number of charges, hearings,

GONs over the past five fiscal years is as follows:

Year Charges Hearings GONs

2006-07 76 44 32

2007-08 139 54 85

2008-09 193 116 77

2009-10 95 55 40

2010-11 162 47 115

The process before the Judicial Committee has been helpfully set out by the Judicial Officer in a web site

entitled “Judicial Committee”. It provides details of disclosure, the conduct of the hearing, beginning with

the reading out of the charge by the campus police, the steps taken in the event that the student pleads

guilty or not guilty, the presentation of evidence by campus police, the right to cross examine the

witnesses, and the right of the student to call witnesses.

In addition, the Judicial Office has produced a number of web sites providing user friendly information on

the working of the Judicial Committee, frequently asked questions, pre hearing and hearing procedures,

the appeal process and hearings before the Hearing Board.

The principal virtue of the process before the Judicial Committee is the demonstrable fairness of its

procedures. Students receive many of the protections which the law requires in such circumstances as

we noted in Chapter 3.

There are however some limitations to the Judicial Committee process model and other aspects of non

academic discipline which should be addressed.


Page 33

2. Making Submissions to the Committee

There is no mention of the right of the parties to make representations to the Committee on the

conclusions it should reach on the basis of the evidence it has heard. The Rules should be amended to

make provision for it. By way of contrast, when the Committee has decided whether the student is to be

found guilty or not guilty, the parties then have the opportunity to make submissions on an appropriate

penalty. If the student is to plead guilty, then campus police provide a summarized version of the

evidence and the student is given an opportunity to speak to the Committee about appropriate penalties

before the Committee reaches a decision.

3. The Composition of the Judicial Committee

The Terms of Reference for the Judicial Committee provide that that there is a quorum of a chair and four

other members. It is not clear why the process requires a Committee of a least five members. We

understand from the Judicial Officer that it has not always been easy to find a quorum of members for

hearing days and that conversely, there are days when there are more than the quorum who actually sit,

at least at the outset of the hearing. We have suggested elsewhere that consideration should be given

to the use of a simpler process, simpler both in its procedures and in its use of human resources.

4. University of Guelph Offence Notice (UGON)

University of Guelph Offence Notice (UGON) tickets are issued by Campus community police for certain

charges under Student Rights and Responsibilities and carry set fines. They include a number of

violations:

• $65 Failure to abide by University In-Line Skates/Roller Blade/Skate Board policy (R.I)

• $65 Fail to abide by posted hours and limits to entry (R.III)

• $120 Fail to confine Smoking only to areas designated for such purposes (R.III)

• $65 Did unlawfully access/remove or possess University property. (R.III)

• $65 Did dispose of broken glass in a public area. (R.III)

• $120 Use or possession of illegal drugs, namely marihuana, inside of University facilities. (R. V[1])

• $75 Use or possession of illegal drugs, namely marihuana, outside of University facilities. (R.V[1])34

We understand that the number of offences which can be resolved on a summary basis with a guilty plea,

“guilty with an explanation” or a not guilty plea, has been increased over the course of the past few years.

This is a welcome development which simplifies the process and economizes on the use of University

34

The Judicial Office: “I have been issued a University of Guelph Offence Notice (UGON)”


Page 34

resources. Consideration should be given to extending, where possible, the scope of the list of included

offences, while recognizing that some issues such as harassment and violence do not lend themselves to

a summary UGON process.

5. Adjournments and Other Interlocutory Matters

Concern was raised on the absence of provisions for the Committee to deal with interlocutory matters

such as adjournments, and requests for disclosure. Rule 5 of the Rules of Procedure does indeed

provide that:

A specific request for action (“motion”) may be heard at the commencement of a

hearing. The motion is to be in writing and delivered to the Judicial Office no later than

7 days before the scheduled hearing date. The motion must state the relief sought . . .

A motion to be heard at the beginning of the hearing may be appropriate, for example a motion which

challenges the jurisdiction of the Committee or the impartiality of a particular member of it. However the

process is too cumbersome and too slow for a request for an adjournment or for further disclosure.

Waiting for the hearing itself to address these issues is a recipe for wasted time and resources. The

Rules should provide that a request can be made to the chair of the Committee – and not to the Judicial

Office as provided in Rule 19 – for an adjournment, with provision for a brief letter setting out the request

or – even simpler - a scheduled telephone call to address the matter.

How should the Committee chair respond to a request for an adjournment? We understand that

Requests by students are now made to the Judicial Officer and the recent pattern has been to respond

fairly indulgently. We believe that the chair should be guided by the need for a expeditious resolution of

the case which should prevail unless the reasons advanced are compelling such as illness and family

bereavement and where the request has been made at the earliest possible moment. Personal

convenience or the competing claims of course assignments are not sufficient reason to grant an

adjournment. Of course there may be times where an adjournment is entirely proper such as where the

student needs additional time to obtain information or where an essential witness is absent through no

fault of the student.

6. Documentation and Disclosure

Rule 6 of the Rules of Procedure of the Judicial Committee provides for Disclosure. The Rule does

provide for the right (and responsibility) of a party to examine the documentation. It, however, does not

provide that it is the obligation of the plaintiff – effectively the University and its representatives – to

supply all the relevant documentation to the student as soon as possible without the necessity of a

request being made for it.

7. Timeliness

One of the concerns which was expressed to us was the slowness in processing complaints to a

conclusion before the Judicial Committee.


Page 35

The Rules of Procedure contains strict time lines for the filing of a Notice of Appeal from a decision of the

Judicial Committee. However, no time limits are provided for the Judicial Committee or the Hearing

Board either to hold their hearings once the process has been initiated or to issue their decisions. In fact,

the reports by the Judicial Officer to the Student Rights and Responsibilities Committee do not contain

any data on the time taken to process and finalize complaints or appeals.

8. The Availability of Precedents

When a student is charged with an offence and the matter is proceeding to the Judicial Committee, the

prudent course of action for the student (or those advising the student) would be to review the precedents

developed by the Committee in previous decisions. It appears however that up to date data is not always

available despite the attempts by the Judicial Officer to keep the material current. This lack of complete

up to date data has the effect of drawing in the Judicial Officer into the role of student advisor, to provide

answers to student questions such as to “what will the Judicial Committee do in my case if I am found

guilty” and the inevitable follow up question “what should I do”?. It also means that the Committee must

rely on the Judicial Officer for information on past decisions.

We believe that the pressure on the resources of the Judicial Officer would be alleviated if efforts were

taken to computerize all the principal aspects of the Judicial Committee process including summons,

disclosure, decisions and precedents. In addition, it would be useful for administrators to have access to

the past record of students in order to obtain up to date information and to provide for consistent decision

making.

9. The Role of the Judicial Officer

The present incumbent of the judicial office has worked extremely hard to make the judicial office and the

student judicial process – both academic and non academic – operate efficiently as possible. However,

we have reservations that his various roles have placed him in a position of conflict.

At various times he:

a) Acts as Registrar, performs various functions including ensuring that records are

kept, precedents maintained, statistical returns filed, Certificates of Offences and Notice

of Hearing served and filed and panels made available for hearings.

b) Provides students with assistance before a hearing both procedural – what form do I

complete, when do I appear for a hearing, and substantive – should I plead guilty, what

evidence should I call. The web site on the Judicial Committee says this;

“Before the Hearing

Before the hearing, it is highly recommended that you talk to the

judicial officer. The judicial office will be able to give you detailed

information about how the hearing will proceed, and what things you


Page 36

can do to effectively deal with the charges against you. The sooner

you talk to the judicial officer, the better. [bold in original]

c) Provides assistance to faculty members and academic administrators who are

involved with the process.

d) Provides legal advice to the Judicial Committee (and the Petitions Committee) on the

conduct of hearings, admissibility of evidence and other issues relating to the hearings.

e) Provides assistance and advice to the Judicial Committee (and the Petitions

Committee) on appropriate decisions and appropriate penalties for infractions.

f) Assists in the drafting – and in some cases completely writes and issues – decisions

on behalf of the Judicial Committee (and the Petitions Committee).

These overlapping responsibilities, particularly the provision of potentially conflicting legal advice to

students, faculty and to the committees as well as assisting in – or writing – decisions – are not in

accordance with the rules of natural justice and invite resort to the courts by a dissatisfied student (or

his/her parents).

We would recommend that the various responsibilities currently handled by the judicial officer be handled

as follows;

(a) Advice to Students.

Both graduate and undergraduate students would be able to obtain advice from student peer

helpers who could be trained to act as “duty counsel” and to provide advice on practice,

procedure and confidentiality by the judicial officer.

(b) Advice to Administrators.

It is imperative that senior administrators, deans and chairs be able to obtain advice on handling

both academic and non academic disciplinary issues, compliance with university policies and

liability issues. We believe that the University Counsel would be the most appropriate person to

provide that advice.

(c) Advice to Tribunals.

It is entirely proper that tribunal chairs be able to obtain legal advice on evidence, procedure and

legal compliance. We have addressed35 the issue of the independence of the decision maker

and the proper role of legal counsel in providing advice and guidance to tribunal chairs. There

will undoubtedly be difficult issues which will arise from time to time which will require legal

assistance. However, we expect that in many cases the issues which arise in the course of a

35

See p. 25 (b) An Independent Decision Maker


Page 37

hearing and the drafting of the decision itself can be capably handled by the chair without

recourse to legal assistance. In fact, we would suggest that for cases which tend to occur

frequently, a template can be developed by the judicial officer to assist in – although not to

replace – the writing of decisions. Again, the judicial officer could provide training for chair and

tribunal members in the drafting of decisions.

(d) Administrative Support .

The judicial officer currently performs the function of registrar of the Judicial Committee and the

Petitions Committee. This function – ensuring the issuance of complaints, hearing notices,

summonses, decisions and other administrative documents could be transferred to a non legal

administrator. If, as we suggest elsewhere, files and precedents are computerized, the

magnitude of this task should be reduced.

10. The Role of Campus Police

The present campus police force has a well deserved reputation for fairness and efficiency. We would

however suggest that, consistent with the recommendations above, the campus police cease to have the

responsibility for prosecuting violators before the Judicial Committee. This role puts them in the

uncomfortable position of being both investigator and prosecutor (which we understand they do not

welcome) and compromises the perception of them as neutrals within the community.

In our view the role of the police is to lay charges (or in other language to lay complaints where students

have offended against community standards), to assist the decision maker with the investigation and to

refer serious matters to the City of Guelph Police where appropriate.

Neither should it be for the police to determine as a matter of discretion whether matters are dealt with

through the residence system or through the Judicial Committee or any modified version of it; matters

which relate to residences should be dealt with under the rules of Student Housing Services. All other

matters would go to the Judicial Committee.

11. The Process is too Legalistic

The process is in our view too legalistic and too wasteful of resources having regard to the nature and

significance of many of the infractions alleged. In the fiscal years, 2006-07 through 2009-10, the number

of cases involving drugs, inside and outside, involved from a third to about half of the cases, a minimum

of 32 to a maximum of 81 cases.36 Without minimizing the significance of the improper use of drugs, it is

36

Year Number of Inside/Outside Drug Charges Percentage of Total Charges

2006-07 37 48.7

2007-08 55 39.6

2008-09 81 41.9

2009-10 32 33.7


Page 38

suggested that a more summary means of addressing such issues may be a better use of police and

Committee resources given the fact that cases required a minimum of a chair and four other members as

well as campus police, the judicial officer, witnesses and advisors as well as the defendant student.37

12. Penalties

Consistent with point 11 above, we would recommend that as much as possible, consideration be given

to community service penalties as opposed to financial penalties. Fining students may be a hardship to

some students but of little consequence to others. Community service treats all students equally and

has the merit of providing potentially useful experience to the affected students, although it may raise

issues of supervision. What is necessary here is to assemble a toolkit of options available including

different forms of community service and restorative justice.

13. The Language Adopted and the Educational Experience

As well as the Judicial Committee process itself, the language used is redolent of criminal law. The

“defendant” student is “charged” with an “offence”. He or she “pleads” and is found “guilty” or “not guilty”.

The evidence is presented by campus police. The model is very much that of a trial in provincial court.

We would suggest that language of the disciplinary process is best seen as a component of the

educational experience for students and not as an adjunct of the criminal law. The Calendar refers to

regulations which are “intended to recognize your rights as a student and the rights of others while also

identifying certain responsibilities of students that are part of the exercise of those rights”. This is the

language of the academy which should inform the language of the discipline process; in other words

actions by students should be seen as contravening the accepted standards of the university community

so that violations can be characterized as a contravention or violation of the standard, not as a “charge”

leading to a finding of “guilt”. As we noted in Chapter 3, the Nova Scotia court in Morgan referred to the

university’s internal disciplinary processes as “an educational exercise for students as well as an efficient,

inexpensive and fair way of dealing with disciplinary problems”.

14. The Nature of the Hearing

We believe consideration should be given to adopting a more informal system under which a

management representative would assume responsibility for dealing with complaints at first instance

instead of the Judicial Committee. Under this model the campus police – or other initiators of a complaint

– would advise the administrator who would decide whether an attempt should be made to mediate the

matter, or to resolve the matter informally with whatever penalty the associate dean thought appropriate.

If such a resolution were to be reached, it would be reduced to writing and signed by the student.

If an informal approach was not successful or was not attempted, then the administrator would conduct a

more formal investigation; the allegations would be given to the student in writing who would be given an

opportunity to respond. The administrator would conduct whatever investigation was necessary, and if

37

Judicial Committee, Terms of Reference section 3.


Page 39

necessary would provide the student with a further opportunity to respond, would reach a decision,

impose the appropriate penalty and advise the student in writing accordingly. Under this model, the

administrator would be responsible for non-academic discipline for both graduate and undergraduate

students across the University and not, as in the case of academic disciplinary matters, with respect to an

individual college.

A model of this kind, which is used by a number of other institutions, has a number of advantages. It

would be quicker, less adversarial -- there would no longer be a prosecutor, more private and would use

overall fewer resources than the current Judicial Committee model.

There may, however, be some issues which are so serious that they do not lend themselves to resolution

by an administrator but require a more formal hearing. In our view, a decision on whether a more formal

process is to be employed should be made by the Associate Vice President, Student Affairs either on

her/his own motion or following a request by the administrator.

15. Appeals to the Hearing Board

If – as we recommend – the format for making original decisions is modified and a new vehicle were to

replace the present Judicial Committee – there will still be a role for an appeal process. The Hearing

Board is the forum for appeals.

There are however some difficulties with respect to the Terms of Reference and Rules of Procedure of

the Hearing Board. The difficulties arise from a lack of clarity as to its role as an appeal body. First, we

believe that the limited grounds for an appeal are appropriate for an appellate body:

(a) that the decision is one which was inappropriate or unreasonable, in light of the

evidence presented at the hearing before the Committee;

(b) that the appellant has obtained new evidence that is credible, could not have been

obtained by the exercise of reasonable diligence prior to the hearing, and will likely be

conclusive of an issue on the appeal, and the Committee is unable or unwilling to

exercise is power to review. (Rule 21 Judicial Rules of Procedure);

(c) there has been an error of law or lack of procedural fairness in the hearing of the

complaint by the Committee.

(d) reasons of compassion.

The terms of reference for the Hearing Board should also provide that the Board has the authority to

dismiss any appeal without a hearing where it is clear that the notice of appeal does not raise a

justiciable issue, in other words an issue which comes within the Hearing Board’s appellate mandate.

There are many reference in the Terms of Reference and Rules of Procedure which seem to suggest that

the Hearing Board is acting as a tribunal of original jurisdiction, in other words, making the original

decision and not hearing appeals. Thus, there are references to decisions being made on the “balance


Page 40

of probabilities” -- which is a test with respect to the evaluation of evidence as opposed to whether the

Hearing Board is satisfied that the appellant has met one of the criteria for an appeal.38 Similarly,

references to summonses39, exclusion of witnesses40, calling and cross-examining witnesses41 and,

admissibility of evidence42 all suggest a first level hearing.

There is one exception to the rule that the Hearing Board should not act as a first level hearing and that is

where it has decided under section 2(b) of the Terms of Reference that there is new evidence which

should be heard. Under these circumstances, the Hearing Board could either hear the evidence itself or

remit the case to the first level decision maker to hear the evidence. In practice, we expect that it will be

more expeditious for the Hearing Board to complete the matter itself. We raise the same issue in

connection with the Senate Committee on Petitions.

In addition, although there is reference made to a Notice of Appeal43, which is required to contain “all

relevant information about the original decision, stating facts and the reasons for the appeal” and a

reference to disclosure there is no clear statement in the rules as to the three principal sets of material

which should be at the heart of any appeal.

First, the Notice of Hearing should contain all grounds on which the appellant is relying. Second, the

appellant (or perhaps the Judicial Officer) should be serving on the respondent and filing with the

Hearing Board a record which should contain all the material which was before the Judicial Committee or

whichever body made the original decision.44 Third, the appellant and the respondent should both serve

and file brief arguments setting out why – on the basis of the material which was before the Judicial

Committee – the decision was in error in accordance with the grounds of appeal.

16. Timeliness of Appeals

There is indeed a provision mandating - properly in our view - that a Notice of Appeal be submitted

within 21 days of the Judicial Committee’s final decision.45 However, as we noted in our discussion of the

Judicial Committee, no mention is made of any deadline for the filing of all materials and argument, nor to

the timing of a hearing or the issuance of a final decision by the Hearing Board. This should be

remedied.

38

Terms of Reference s.2 39

Rules of Procedure s.9 40

Rules of Procedure s. 10 41

Rules of Procedure s.13(5) 42



Rule 6. The material referred to here should be included in the record or appeal book provided to both parties and to the Hearing Board. 45

Rules of Procedure s.3


Page 41

17. Adjournments and Other Interlocutory Matters at the Hearing Board

The Rules of Procedure for the Hearing Board use the same language with respect to adjournments and

motions as the Judicial Committee.46 The comments we made in our discussion of the Judicial

Committee apply with the additional point that provision should be made for a motion by the respondent

to have the appeal dismissed summarily if it does not put in issue any of the grounds for appeal identified

in the Terms of Reference or does not otherwise come with the jurisdiction of the Hearing Board.

18. Violations of the Human Rights Policy

The Terms of Reference of the Judicial Committee provide in section 1 for jurisdiction over Human Rights

at the University of Guelph. No other reference is made to human rights issues in either the Terms of

Reference or the Rules of Procedure. The Human Rights Policy itself provides for coverage to the

various members of the University community including students. It also addresses informal and formal

complaints, fact finding and a fact finding report and for disciplinary action. The applicable senior

administrator – in the case of students the Associate Vice President (Student Affairs) – decides whether

to accept or reject the findings of the fact finding report.

The Policy then goes on as follows:

Complaints upheld by Vice Presidents may result in discipline according to the

established procedures applicable to the employee or student in question.

It then states as follows:

Respondents who dispute disciplinary action proposed by a Vice-President may have

recourse to the established procedures of the tribunal, hearing panel or grievance

procedure which is applicable to their status within the University.47

We would recommend that the human rights policy and the terms of reference of the Hearing Board

provide that a student who is dissatisfied with the discipline imposed by the Associate Vice President

Student Affairs may appeal to the Hearing Board.

19. Student Housing Services

Student Housing Services issues a Residence Student Handbook. This document which is easily

accessible and student friendly sets out three levels of offences:

Level 1 Offence: Actions by an individual(s) that interfere with the rights of another individual(s)

to the peaceful use and enjoyment of his or her space in residence. The level of sanctions is

identified and examples of the kind of conduct included – such as beer bottles, open alcohol,

property damages, and removal of residence property are set out.

46


Human Rights Policy, section 7.14


Page 42

Level 2 Offence: Actions by an individual that create a significant nuisance and/or disturbance to

an individual or community”. Again the possible sanctions are identified and examples of

prohibited conduct such co-operation with staff, disruption and gambling are set out.

Level 3 Offence: Actions by an individual(s) that; endanger the safety and security of

themselves or anther individual(s); and/or compromise personal or university property; and/or

attack the dignity/integrity of an individual; and/or contravene the laws of the land.

Provision is made for an informal process of incident report, investigation, assessment of level, decision

and appeal within Student Housing Services with a variety of sanctions including fines, behaviour bonds,

community/educational sanction, restitution and ultimately suspension and eviction.

In our view, the procedures adopted under the Residence Student Handbook have much to commend

them. They are written in easy to follow language, the sanctions appear to be fair and the procedures

efficient. Moreover, Student Housing Services manages at the same time to process a large volume and

variety of infractions.48

We recommend that either the Residence Student Handbook or the letter offering a student a residence

placement state that the rules governing residence student conduct are issued under the authority of the

University of Guelph.

20. Consistency and Double Jeopardy

Consistency is important not only within the functioning of the Judicial Committee but between the

proceedings of the Committee and those of Student Housing Services. And that consistency would be

enhanced by a greater use of technology.

With respect to the relationship of the two bodies, we make the following suggestions.

We believe that the discipline process in Student Housing Services works well for the reasons we have

already noted. There was a concern raised about “double jeopardy” where a student is expelled from

residence and is also subject to disciplinary procedures before the Judicial Committee. We would expect

that in most disciplinary cases where residence related conduct has led to a decision to evict, no further

action should be warranted (other than the right of the student to appeal the decision). Decisions to evict

48

Year Total Offences

2007-08 2465

2008-09 2082

2009-10 1808


Page 43

should be made by the Director of Housing Services with a right of appeal to the Housing Appeal

Committee. The decision of the Housing Appeal Committee is final.

It is unwise to be categorical: some conduct may require a more stringent response than simply eviction.

Some issues of property damage, offences against the person or theft come to mind. This in our view is

not “double jeopardy”. The response by Student Housing would be a response to the student’s status as

a resident in student housing. The role of the Judicial Committee however is to respond more generally

to campus student conduct.

In cases where the Director of Student Housing Services believes that eviction is not a sufficient

response to the offence, then we believe that she could convey that view to the Associate Vice President,

Student Affairs, who can then decide whether further action should be taken. In such an event, the

student must of course be given the opportunity to make submissions on any further discipline.49

Similarly, there may be circumstances where the City of Guelph Police have taken action where the

circumstances indicate that there is a legitimate interest in the welfare of the University community – and

in further internal University discipline - as well as through the public interest represented by application

of the Criminal Code. Sexual offences would be a prime example. Again, that decision should be taken

by the Associate Vice President, Student Affairs.

21. Repeat Offenders and Penalties

Both the Judicial Committee and Student Housing Services should however have access to data on

previous offences committed by students under both regimes before disciplinary penalties are

determined. This is not an issue of “double jeopardy”. It is a question of information relevant to the

setting of an appropriate penalty. Again, this depends on the availability of up to date data. However,

the decision makers should not be considering any data on a student’s past offences until they have

reached a decision on liability. Otherwise there is a real risk that the student is being “convicted”

because of his past record.

22. The Applicability of External Statutes

In Chapter 3 we addressed the issue of the applicability of a number of external statutes including

Statutory Powers Procedure Act (SPPA), the Canadian Charter of Rights and Freedoms, the Ontario

Human Rights Code, the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) and the Freedom

of information and Protection of Privacy Act (FIPPA).

No further comment is required with respect to SPPA or the Charter. However reference should be made

to the application of the Human Rights Code and AODA.

The current documents make no reference to the availability of accommodation in relation to the

procedures that will by followed by the Judicial Committee. Thus, it may be prudent to build in some

49

This is not an issue to be determined by campus police unless a decision is made that the nature of the offence is so serious that it should be referred to the City of Guelph Police.


Page 44

language which identifies what process the student is to follow if he or she requires accommodation to

participate in the decision making process. However, at the same time, it is also recognized that the duty

to accommodate is a shared duty and therefore, it is the student’s responsibility to request

accommodation and to participate in the accommodation process.50

The current penalty provisions of the Terms of Reference are discretionary, but they do not appear to

expressly contemplate consideration of mitigating factors, human rights considerations being a potentially

relevant mitigating factor. It may be useful to add a discussion of this nature to the current language.

Also, there are some offences that have mandatory penalties (section 6 provides that there is a

mandatory penalty for illegal drug offences which take place in Student Housing). It is understandable

that the University would want to send a strong message to students about drug use; however, mental

disabilities may play a role in substance abuse issues and therefore, a mandatory penalty may not be

appropriate in all cases.

23. Training and Orientation

We understand that the Judicial Officer does provide training and orientation for members of the various

committees. It would be our recommendation that there be a training module developed which would

include not only a discussion of the rules of the committees and – more generally the requirements of the

rules of procedural fairness – but also a viva voce demonstration of a hearing or an appeal and that all

members of the relevant committees including members of committees at the regional campuses (and

perhaps representatives from Student Housing Services) be required to attend a session. One dividend

from greater attention to training would be to lessen the reliance of committees on the assistance of the

Judicial Officer.

50

Williams v. The University of British Columbia, 2007 BCSC 996 (CanLII) [Williams]


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CHAPTER 5 – ACADEMIC MISCONDUCT

1. Jurisdiction

Jurisdiction over student academic misconduct resides in the Senate by virtue of section 13 of the

University of Guelph Act which provides that “the Senate is responsible for academic policy of the

University”:

In order to fulfill these responsibilities, authority has been delegated to the Boards of

Undergraduate and Graduate Studies to formulate policy, subsequently approved by

Senate. Appeals under these policies are administered through the Senate Standing

Committee on Student Petitions, the highest academic appeal body at the University.51

2. Calendars

The Calendars set out extensive provisions governing academic consideration, academic

accommodation of religious obligations, academic accommodation for students with disabilities,

academic load, academic misconduct, academic review sub committee procedures and academic

standing.

3. Academic Consideration

Our attention will be focussed primarily on academic misconduct; however, we do note that the Senate

Committee on Student Petitions acts as an appeal body for the following types of decisions:52

(i) A decision of an Academic Review Sub-Committee (undergraduate) denying a request

for academic consideration;

(ii) A decision of the Admissions and Progress Committee (graduate students) denying a

request for academic consideration or requiring a student to withdraw from the program;

(iii) A decision of academic misconduct made by the appropriate dean(s)/designate(s).

Either the finding or academic misconduct or the penalty may be appealed;

(iv) A final grade on a course based on the methods and criteria used by the instructor; and

(v) A decision of an Admissions Committee on readmission to a program only if the basis of

the appeal is procedural unfairness or bias on the part of the Admissions Committee

51

Memorandum to Members of Senate from Kerry Godfrey, Chair, Boards of Undergraduate Studies dated December 5, 2011 52

Senate Committee on Student Petitions Annual Report, 2010-11, p.1


Page 46

We note that while all of these types of proceedings are adversarial, in the sense that the University has

made and is defending a decision that is at odds with the position that the student is taking, not all of

them concern issues of moral culpability.

In particular, appeals of decisions denying a request for academic consideration are frequently heard by

the Senate Committee on Student Petitions and do not concern issues of moral culpability. Academic

consideration arises when the University considers granting consideration for a course(s) because there

are sufficient extenuating medical, psychological or compassionate circumstances. Compassionate

circumstances are unforeseen circumstances beyond the student’s control in either his/her personal or

family life that may affect academic performance. Academic consideration may take the form of an

extended deadline, a deferred privilege, a late drop of a course(s) with or without failure, withdrawal from

a semester with or without academic failure, or permission to continue on probationary status.

We note that this is an area where human rights issues are likely to arise and would refer you to section

23 in Chapter 4 regarding the Applicability of External Statutes. As is indicated in that section, it may be

prudent to build in language which identifies what process the student is to follow if he or she requires

accommodation to participate in the Academic Review Sub-Committee and/or Senate Committee on

Student Petitions hearing process. Similarly, it may be useful to build in language which clarifies the

relationship between requests for academic consideration and the section in the Calendar regarding

Academic Accommodation for Students with Disabilities.

Further, just as the Calendar indicates that “The Board of Undergraduate Studies recommends that

faculty make every effort to accommodate students representing the University in extracurricular activities

when there is a conflict between those activities and the requirements of the course” we recommend that

faculty make every effort to accommodate students with disability issues and other human rights issues.

Before addressing issues of academic misconduct, we should address the functions and procedures of

the Academic Review Sub-Committee and the Admissions and Progress Committee of the Board of

Graduate Studies.

4. Academic Review Sub-Committee

Each undergraduate program has an Academic Review Sub-Committee which meets three times each

semester and is responsible for hearing requests from undergraduate students for academic

consideration. The Academic Review Sub-Committee decides initial academic consideration requests

made at the end of the semester and those regarding course results and/or requests for probationary

status. The Academic Review Sub-Committee also reconsiders academic consideration decisions made

by course instructors during the semester. The undergraduate calendar sometimes refers to a request

for reconsideration of a course instructor’s decision made during the semester or a request regarding a

student’s continuation of study status, for example an appeal of a required to withdraw decision, as types

of appeals.

Requests to the Academic Review Sub-Committee are made in writing and must be accompanied by

relevant supporting documentation. It is recommended that students meet with the program counsellor


Page 47

for advice on the preparation and submission of requests for academic consideration. The Academic

Review Sub-Committee considers the request and the student is informed of the decision in writing.

The student has 90 days to appeal the decision of the Academic Review Sub-Committee to the Senate

Committee on Student Petitions.

The types of requests that the Academic Review Sub-Committee considers are largely fact based and

decisions can be made on a consideration of the proper documentation. Further, we understand that the

Academic Review Sub-Committee will contact the student if questions arise during the consideration

process. Therefore, the fact that these proceedings are done through written submissions, without the

student present, in most cases will meet the requirements of procedural fairness. In the rare case where

credibility is a factor in the Sub-Committee’s decision (e.g. the Sub-Committee questions the authenticity

of the documentation provided or the accuracy of the student’s submissions, etc.) we recommend that

the Petitions Committee treat the subsequent appeal hearing as a de novo hearing and hear the

evidence itself, including oral evidence.

As indicated later in this chapter in the section on the Petitions Committee in closed session, the fact that

a representative from the registrar’s office is present at the time that the Sub-Committee considers the

request for academic consideration to provide information about the student’s previous academic record,

with the student not present leaves the Sub-Committee open to an attack based on principles of natural

justice. This does not mean that the student needs to be present when the Sub-Committee considers the

request, but it does mean that information from the registrar should be provided to the student prior to the

Academic Review Sub-Committee considering the request, so that they can provide written submissions

if necessary.

The undergraduate calendar sets out the Sub-Committee procedures in detail including clear timelines,

which should continue to be followed by those involved; however, it is not clear whether the same

procedures apply when the Sub-Committee is reconsidering a decision made by a course instructor

during the semester. The undergraduate calendar should be revised to make this clear. In particular, the

undergraduate calendar should be clearer on whether or not decisions of the Academic Review Sub-

Committee characterized in the undergraduate calendar as appeals, such as a reconsideration of a

decision made by a course instructor or an appeal of a required to withdraw decision, can be appealed to

the Senate Committee on Student Petitions.

The Academic Review Sub-Committee does not deal with grade re-assessment requests. A student who

wishes to request a re-assessment of a grade on the basis of methods and criteria must make written

submissions to the chair of the department of the instructor assigning the course grade. If the chair

cannot resolve the matter, the student can make an appeal to the Petitions Committee.

5. The Admissions and Progress Committee of the Board of Graduate Studies

The Admissions and Progress Committee of the Board of Graduate Studies is the equivalent of the

Academic Review Sub-Committee for graduate students. Specifically, the Admissions and Progress

Committee takes action on behalf of the Board of Graduate Studies with respect to unsatisfactory

progress and special requests by graduate students.


Page 48

In terms of unsatisfactory progress, the graduate student’s advisory committee makes a recommendation

to the department of graduate studies committee recommending that the student be required to withdraw

from his/her program of study. The student is informed of the department’s recommendation in a letter

and has the opportunity to make written submissions on appeal. If the student provides written

submissions that contain new information, the department will review the submissions or comment on

them. All of the relevant documentation, including the student’s submissions and the department’s

response, are provided to the Committee. The materials to be considered by the Committee will be

made available to the student prior to the Committee’s consideration of the recommendation. The

Admissions and Progress Committee provides written notification of its decision, which can be appealed

to the Senate Committee on Student Petitions within 90 days. The graduate calendar indicates that a

graduate student may request a reconsideration at any time; the relationship between a reconsideration

and an appeal and when the decision is final should be clarified.

In terms of special requests, such as for extended leaves of absence, removal of course records, or

extensions of incomplete courses, in the event of a negative decision, the graduate student may, within

14 days of notification of the decision, request re-evaluation by the Committee. As above, the student is

able to make submissions and has the opportunity view the relevant documentation before the

Committee makes a decision. The Committee considers all of the material before it and issues a written

decision. Again, this decision can be appealed to the Senate Committee on Student Petitions within 90

days. The decision of the Senate Committee on Student Petitions is final.

The graduate calendar also indicates that disputes about the quality of a student’s work or the

procedures used to assess the work, including the means used to accommodate a student’s disability or

special circumstances, are brought to the attention of the Graduate Coordinator who may also consult the

chair and if the matter cannot be resolved at the departmental level, the case is referred to the

Admissions and Progress Committee. This function of the Committee is described as part of the Dispute

Resolution Mechanism. If the Committee upholds the departmental decision, the student may appeal to

the Senate Committee on Student Petitions within 90 days. It is unclear from the calendar how this

function of the Committee relates to its function to hear special requests; this aspect of the calendar

should be clarified along with which decision maker makes the initial decision regarding special requests

and whether the Committee is re-evaluating its own decision or the decision of a different body.

The Admissions and Progress Committee does not deal with student appeals of grades. A student who

wishes to request a re-assessment of a final grade must make written submissions to the chair of the

department offering the course. The chair’s decision can subsequently be appealed to the Senate

Committee on Student Petitions.

6. Academic Integrity

As we noted above, the Calendar divides consideration of academic misconduct into seven component

parts: education and remediation, offences, penalties, procedures, appeals, record of academic

misconduct and guidelines for penalties for academic misconduct.

Perhaps the starting point should be not on academic misconduct but on academic integrity:


Page 49

The ability of the university to achieve its purposes depends upon the quality and

integrity of the academic work that its faculty, staff, and students perform. Academic

freedom can flourish only in a community of scholars which recognizes that intellectual

integrity, with its accompanying rights and responsibilities, lies at the heart of its

mission. Observing basic honesty in one’s work, words, ideas, and actions is a principle

to which all members of the community are required to subscribe.53

It is abundantly clear from the discussions which we have had with members of the University community

that the University has a deep and abiding commitment to academic integrity and to addressing issues of

academic misconduct. Our comments and recommendations are intended to strengthen an already

sound system.

7. Academic Misconduct

Academic misconduct is defined in the calendar as:

behaviour that erodes the basis of mutual trust on which scholarly exchanges commonly

rest, undermines the University’s exercise of its responsibility to evaluate students’

academic achievements, or restricts the University’s ability to accomplish its learning

objectives.54

8. Education and Remediation

The Calendar describes the issue as follows:

Education and remediation are key to promoting an environment in which academic

integrity will flourish. It should not be possible for a student to claim that he/she was not

warned about the University’s academic misconduct regulations, what constitutes

academic misconduct and the potential consequences of transgressing. The need to

educate students about academic integrity places a particular responsibility on faculty,

especially with respect to discipline-specific issues.

We understand from our discussions that there is no consistent practice with respect to the education of

students, both undergraduate and graduate on academic integrity and academic misconduct. We

suspect that many incoming students will be aware in general terms of the nature of misappropriation, but

ignorant of its scope and lacking an understanding of the significance of academic integrity.

We believe that it would be prudent for the University to require a mandatory session on the meaning and

significance of academic integrity and the nature and scope and consequences of academic misconduct

for all incoming students and that the session be an interactive one to ensure that the participation by

students is more than a formality.

53

“Rights, Rules, Responsibilities”, Princeton University, 1995, quoted in The Fundamental Values of Academic Integrity, The Center for Academic Integrity, October 1999. 54

Undergraduate Calendar, Part VIII, Academic misconduct, p.30


Page 50

We understand that beginning with the Winter 2013 semester, all incoming graduate students will be

required to take an on line course on academic integrity. We recommend that this course be extended,

with appropriate modifications, to all incoming undergraduate students. We understand in addition that

the University requires that all course outlines contain a mandatory provision on academic integrity.

We believe that training should also be required for all new instructors, including teaching assistants, not

merely to address the nature of academic misconduct – we assume familiarity – but to address issues of

the investigation and the gathering of evidence.55 Teaching Assistants will of course now be required to

take the academic integrity module in their capacity as graduate students.

Training of instructors is also necessary because instances of misappropriation may come about through

inattention on the part of instructors: assignments framed in terms so broad as to invite recourse to the

internet or too vague on the scope of permissible collaboration and co-operation on a particular project.

The language of the calendar is understandably one of “offences” and “penalties”. The reasons why

students offend will range all the way from ignorance, laziness, carelessness, indifference, time

pressures and (in a few cases) calculated culpability. The Calendar states that “whether or not a student

intended to commit academic misconduct is not relevant for a finding of guilt” although it may be relevant

to penalty. A special case may be made however for violations by undergraduate students in their first

semester. In these circumstances, it may be more useful to err on the side of treating violations as an

educational issue for the instructor to teach the student as to the nature of academic integrity as opposed

to branding the student at the beginning of their career as a violator.

9. Investigation and Judgment

The Calendar provides a role for the instructor, Department Chair and Associate Dean Academic (“ADA”)

in the investigation and judgment of possible misconduct. The problem is that the response to academic

misconduct requires the exercise of discretion to meet the particular circumstances of each case. But

who should exercise the discretion, the instructor who “suspects that an academic offence has been

committed” and “who, after reviewing the available evidence …believes an offence may have been

committed”, the Chair “who believes there is sufficient evidence to support a charge of academic

misconduct”, or the ADA who “weighs the evidence”?

The answer must be that the person who makes the decision must also be the one who exercises the

discretion. The reason is three fold: first, each college must, as far as possible, respond to academic

misconduct in a consistent way. If decisions are made independently by individual chairs or individual

instructors, consistency is more difficult to achieve. Second, the ADA needs to know the identity of

wrongdoers in order to identify repeat offenders whose past transgressions may be unknown to the

instructor or chair. Third, the ADA needs to be able to aggregate the information to identify trends in

academic misconduct and to devise, where appropriate, remedial action and to provide the Senate with

data. Some say that if all cases of academic misconduct were to be referred to the ADA, the whole

system would collapse. We are not insensitive to the workload already imposed on the ADAs in dealing

55

See Undergraduate Calendar, Part VIII, Academic Misconduct, Investigation and judgment, p.32.


Page 51

with issues of academic misconduct. However, it is important that the University be made fully aware of

the dimensions of the problem.

10. Data

Consistency is important and consistency depends on the availability of data. We know that some

colleges compile an annual report on academic integrity. The Academic Integrity Report of the College of

Management and Economics contains a wealth of information on the number of cases of academic

misconduct, the nature of the offences and the penalties imposed. But it also has other useful data

including the rank of the referring instructor, academic year, sex of the offender, as well as a commentary

on the data and the problem of underreporting:

Reporting incidences: Even though the number of reported cases has increased

significantly, we remain convinced that many remain unreported. When Faculty

reprimand a student in a class for violating the AI policy, Faculty may feel that is

enough. However, if Faculty don’t report the violation, serial violators may not be

identified.56

We believe that it would be highly useful for all the colleges to provide annual reports to Senate using a

common reporting format so that the University would have a full understanding of the nature, scope and

direction of violations so that, where appropriate, remedial action could be taken. Cases which come

before the Senate Committee on Petitions represent a very small fraction of all violations.

11. Making the Decision

The Calendar provides that it is the ADA who makes the decision on whether an offence has been

committed.

In our judgment, the process identified in the Calendar provides the appropriate level of fairness to the

student : the ADA “will invite the student to meet with him/her to discuss the allegation”. At the meeting,

the student is “presented with the evidence” and “other evidence gathered as a result of further

investigations” and “be given an opportunity to respond prior to the ADA’s reaching a decision on the

case”. We would recommend however that when the student is invited to meet with the ADA, he or she

be given information about the nature of the allegations at that time so that they can review the

information and respond to it at the meeting. The procedures also provide for a ten working day timeline

for the ADA to meet with the student after receiving the case from the chair and a further ten working day

timeline after the meeting to issue a decision.

56

College of Management and Economics Academic Integrity Report (May 1, 2010 –April 30, 2011)


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12. The Senate Committee on Student Petitions

(a) General

Annual reports by the Chair of the Senate Committee on Student Petitions (“Committee”) identifies the

disposition of petitions received. In the academic year 2010-11, there were six appeals regarding

findings of academic misconduct, as well as an appeal of a recommendation of expulsion.57

As previously indicated, the Committee also hears appeals regarding academic consideration,

withdrawal, the methods and criteria used by an instructor in assigning a grade and readmission. The

following comments regarding the Committee’s procedures would apply to the Committee regardless of

which type of petition or hearing it is considering,

(b) Composition of the Committee

Section 1 of the By Laws provides that the Committee “shall consist of ten members of Senate (five

students and five faculty) and a Chair”. We understand that it has not always been possible to find a

quorum of three voting members for a hearing particularly during periods when students are absent from

the University. However, section 2 does provide an option for the Chair to co-opt additional members

from current and former members of Senate and from the Judicial Committee particularly during the

summer months when it may be difficult to find sufficient student members.

(c) Review of the Committee’s Operations

We understand that the Committee is in fact both the operational group and the review group for the

Senate. There is no separate oversight body as is the case with the Student Rights and Responsibilities

Committee and the Judicial Committee. It would be prudent to have a similar oversight body for the

Senate Committee on Student Petitions. Therefore, we recommend that the Committee be a sub-

committee of the Joint Boards of Undergraduate and Graduate Studies and that the Joint Boards of

Undergraduate and Graduate Studies review the operations of the Senate Committee on Petitions in a

manner parallel to how the Student Rights and Responsibilities Committee reviews the operations of the

Judicial Committee.

(d) Committee as Appellate Body

What is the function of the Committee with respect to academic misconduct? The By Laws state that:

57

“There was one case over the course of the 2010/2011 year which was an appeal of a Recommendation for Expulsion due to academic misconduct for misappropriation of other people’s work. Recommendations for Expulsion are rare; there have been only 2 over the last 10 years. This case involved over 40 hours’ worth of hearings, and a hearing package in excess of 4000 pages. The student retained legal counsel and the University was represented by outside legal counsel. This case represented a major investment of resources. The end result was that the finding of academic misconduct was confirmed, but the expulsion order was a varied to a lengthy suspension”. Senate Committee on Student Petitions Annual Report, 2010-11, p.1


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The Committee has jurisdiction to:

a) Act as an appeal body for the following decisions: . . .

iii a decision of academic misconduct, made by the appropriate dean(s)/designate(s).

Either the finding of academic misconduct or the penalty may be appealed;58

Consistent with its appellate function, the Committee will hear appeals on the following bases:

(a) the decision was unfair or unreasonable in light of the evidence presented;

(b) new evidence is available that was not available at the time of the original decision;

(c) procedural unfairness or bias.59

And – again consistently – “the Committee will consider appeals based on the same evidence available

to the previous decision maker”.60

However, some other parts of the language of the By Laws (and we understand the practice) are not in

accordance with the wording of hearing as an “appeal”.

Thus, section 13 states that “The Committee shall conduct hearings guided by the Statutory Powers

Procedure Act. The standard of proof shall be that of a balance of probabilities”. However, the SPPA

deals with the conduct of an administrative proceeding. It is not directed to the conduct of an appeal.

Similarly, the resolution of an appeal is not determined by “the balance of probabilities”: that is the test

for making findings of fact at first instance. The test for the appeal is whether the decision was, for the

reasons found by the Committee to be unfair (or not), unreasonable (or not) or tainted with procedural

unfairness or bias (or not).

Thus, decisions made by the Committee under section 16 should not be “based solely on the evidence

presented at the hearing” – that is the ADA’s task – but on whether the Committee is convinced by the

arguments made – possibly in very few cases supplemented with evidence that was not available at the

time of the original decision – that it meets one of the tests for a successful appeal under section 2.

We understand that in many cases evidence is indeed heard by the Committee. This practice will serve

to prolong the hearing, allow the student (or his/her advisors) to treat the appeal instead as a de novo

hearing and gives it an opportunity to refashion a case which has already been determined by the ADA.

58

There is also jurisdiction in b) to “Act as a review body with respect to any academic misconduct decision where the penalty imposed is one of expulsion or revocation/rescinding of a degree and for which no appeal has been initiated.” 59

Senate Committee on Student Petitions, Regulations, Section 2. However, it is important to note that the Committee will only review appeals from Admissions Committee decisions if the basis of the appeal is procedural unfairness or bias on the part of the Admissions Committee. 60

Senate Committee on Student Petitions, Regulations, Section 4.


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The Judicial Officer has developed some very helpful webpages for students including one on Petitions.

However, to advise students that “You will be asked to make your opening arguments, state your case

and present evidence. You may question any witnesses accompanying you at this time” introduces a

lack of clarity into the process. [italics in original].

We would note one exception to the Committee not treating the hearing as a de novo hearing: in the

event that it is determined by the Committee that the decision reached by the ADA was deficient, or that

new evidence may properly be heard, it may then choose to hear itself the evidence which should have

been taken into consideration by the ADA or which was not available. Alternatively, it could remit the

matter back to the ADA to hear the evidence in accordance with the Committee’s determination. We

expect that it would normally be simpler for the Committee to hear the evidence. However, the By-Laws

should address these options.

In the case of an unreasonable decision – and here the Committee should take into consideration the

directions set out by the Supreme Court of Canada in Dunsmuir61

to which we referred in Chapter 3 – or

other appeals where the nature or sufficiency of the evidence is not in question, the appropriate course of

action is for the Committee itself to render the decision.

In sum, we believe that the language of the By Law and the practice before the Committee should be

reviewed and revised to conform with the expectation that the Committee acts solely as an appeal body.

(e) Time Limits

To the extent that there was a common complaint about the operation of the Committee expressed in the

course of our interviews, it was that the process took too long. We expect that hearings have been

protracted by the calling of evidence. There is a provision in the Calendar for an appeal to be made by

the student within 15 days of receipt of the decision,62 described in the By Laws as the “relevant

deadline”, and for the documentation to be submitted by the student within 60 days. However, there is no

provision in the By Law governing (a) time limits for the ADA to submit his/her material, (b) the hearing of

the appeal and (c) for the issuance of decisions by the Committee. This should be remedied.

(f) Preliminary Matters

Neither is there provision made for preliminary matters to be addressed summarily by the Committee or

the chair on its behalf including requests for adjournments or documents or arguments that the appeal

61

(2008) 291 D.L.R. (4th

) 577 (S.C.C.) 62

It is important to note that there are different time limits for the different types of appeal:

• Academic consideration (undergraduate) - 90 days from the Academic Review Subcommittee

decision

• Academic consideration (graduate) – 90 days from the Admissions and Progress Committee decision

• Grade Reassessment (methods and criteria) - 10 days from the Chair’s decision

• Readmission – the deadline from the Admissions Committee decision is unclear in the Calendar


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should be dismissed without an hearing because it does not raise issues which come within the

jurisdiction of the Committee. As we noted in the discussion of non-academic discipline, having

preliminary issues raised before the full committee which is expecting to hear the appeal on its merits

wastes valuable time and resources. Preliminary matters can be dealt with summarily on short notice,

orally, in writing or by conference call with the chair.

(g) Material for the Hearing of the Appeal

Section 4 of the Regulations provides for the student to submit “any and all relevant supporting

documentation”. We repeat the point made with respect to the Hearing Board. The By Law should

provide for three distinct documents prior to the hearing of the appeal and time limits should be provided

for all three. First a notice of appeal should be served and filed setting out the grounds for the appeal in

accordance with the Committee’s appellate jurisdiction. Second there should be a record (or appeal

book) which includes all the material which was relied on by the ADA in reaching a decision. This should

already be in the possession of the student (although it made be more practical for the ADA to file this

material). Finally each party should submit a brief written argument to the Committee based on the

ADA’s decision and the content of the appeal book.

(h) The Committee in Closed Session

Section 16 of the By Law states that the “Committee’s decision will be made in closed session following

the withdrawal of all persons other than Committee members and resource people required by the

Committee”. [italics added]. We will refer to the Judicial Officer in the following paragraph. However, if

the Committee hears from resource people who provide information to the Committee on matters such

as the previous disciplinary record of the student and this information is not provided to the student or his

advisors with an opportunity to make submission on it, the Committee is opening itself to an attack based

on principles of natural justice.63

(i) Communications to Academic Administrators

We understand that in certain instances the Committee, after a decision is issued, may communicate with

the relevant Dean or ADA to advise them of the Committee’s view of aspects of the evidence or the

conduct of the hearing. We realize that these communications are well intentioned, but they are in our

view inconsistent with the Committee’s quasi-judicial status. It may be necessary or desirable to

comment on the evidence or other aspects of the case, but any comments should be made, where

appropriate, in the body of the decision itself and not through separate communication to representatives

of the administration. However, it may be useful to have copies of the decisions circulated more widely to

other members of the administration.

(j) The Judicial Officer

We have commented on the many roles of the Judicial Officer in the section of the review on non

academic discipline. Our comments apply with equal force here. In fact, the By Laws provide that “The

63

See the judgment of the Supreme Court of Canada in Kane v. University of British Columbia


Page 56

Judicial Officer will be a non-voting member of the Committee”. In our view it is not appropriate for the

Judicial Officer to be a member of the Committee. It confuses his role as registrar and adviser with a

judicial role. Moreover, the By Law states in section 17 that “the Judicial Officer shall prepare a written

notice of the Committee’s decision for distribution to the party or parties.” In our judgment, it may be

appropriate for the Judicial Officer (leaving aside his other functions) to advise the Committee on the

drafting of the decision. It is not however appropriate for him to draft it. Our comments on the role of the

Judicial Officer in the drafting of non-academic decisions apply equally here.

(k) Full Hearing

Despite all attempts to streamline the process, there will be some cases where the hearing will be long

and protracted and where the expectations on the application of the rules of procedural fairness will be

more rigorous. Fortunately, they will be few. However, where the nature of the misconduct puts into

question the ability of the student to pursue, or not to pursue, a scholarly career, expectations as to the

level of decision making are properly high.64

(l) Training and Orientation

The recommendations we made with respect to training and orientation for the Judicial Committee apply

similarly to the Committee. 65

13. A Single Body?

Would it be simpler and more efficient to have one body within the University which governed both

academic and non academic misconduct rather than the two separate processes which operate

currently?

In our view the answer is no. First, the University has treated the authority for the two functions as being

separate, academic discipline coming under the purview of the Senate and non academic discipline

under the Board of Governors. Secondly, the procedures which have been developed to address

academic and non academic discipline – although they may be modified – reflect the different problems

involved.

Having said that, there are a number of recommendations which we make which apply to both streams:

preliminary matters, documentation, aspects of procedural fairness, data collection, the role of appellate

bodies, training and the role of the Judicial Officer. Should any of these recommendations be

implemented, a common approach would obviously be valuable.

64

See previous footnoted Chart 65

The sample is of course small but Question 4 in the 2011-12 Committee on Student Petitions Evaluation, “The Committee orientation was helpful for me” elicited two “strongly disagree” responses and only two “strongly agree” responses as well as a comment that “It would be most helpful to have a more thorough orientation, especially with respect to the powers the committee has in making decisions and handing down findings against guilty parties and penalties which are allowed within the by-laws”.


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CHAPTER 6 -- OTHER CAMPUSES

At the three regional University of Guelph campuses – College d’Alfred, Kemptville and Ridgetown, both

academic and non academic discipline is handled in a more informal manner.

Policies and Procedures

College d’Alfred, Kemptville and Ridgetown became part of the University of Guelph in 1997 and in 1998

the Board of Governors approved the establishment of a Judicial Committee and an Appeal Board at

each of the three campuses so as to regularize the non-academic and academic judicial process with

those at the main campus. As part of that process the Board of Governors approved Terms of Reference

and Rules of Procedure for the Judicial Committees, as well as Terms of Reference and Rules of

Procedure for the Appeal Boards. In the mid-2000s changes were proposed to those procedures.

However, it is not clear whether these changes were ever approved by Senate and therefore, it is no

longer clear which policies and procedures the regional campuses ought to be applying.

Below is a brief summary of the processes that are currently being followed at each of the regional

campuses:

1. College d’Alfred

The College d’Alfred has about 120 students. Issues of non academic discipline within residence are

handled by resident staff, but it is not clear what the proper process is for appeals. Issues of non

academic discipline outside residence are handled informally by the student life supervisor and

depending on the severity of the incident, the Director may be involved but this is rare. Some incidents

of break-ins were dealt with by the local police force. There is an appeal to the College d’Alfred Judicial

Committee which runs in parallel to the main campus judicial committee but it has apparently never been

used (and may be impracticable in any event).

Incidents of academic misconduct are dealt with informally by the Associate Director Academic. There is

an appeal to its own six person Appeal Board . However it has not operated within the past five years.

2. Kemptville

On the Kemptville campus, incidents of non academic misconduct inside residence are handled by

residence staff with an appeal to the Director and a subsequent appeal to the Kemptville Judicial

Committee which operates in parallel to the main campus judicial committee. Incidents that occur outside

residence are investigated by an impartial member of management, most likely a senior manager. If the

incident is more serious, the Director may be involved or it may be reported to the local police for

investigation. There is an appeal to the Kemptvile Judicial Committee, but it is very rarely used.

Issues of academic discipline are dealt with informally by the Associate Director Academic in the case of

diploma students and by the Director and the Associate Dean Academic in the case of degree students.


Page 58

There is currently a lack of clarity regarding whether appeals are made the University of Guelph’s

Petitions Committee or to the Kemptville Appeal Board.

There is an academic counsellor on staff who has taken on the role of informing students about the

judicial process. This position is separate from the Judicial Officer position, which was recently created

on Kemptville campus using the same terms of reference as those for the main campus Judicial Officer.

3. Ridgetown

At Ridgetown, issues of academic misconduct are dealt with informally by the Associate Director of

Academics in the case of diploma students and by the Director in the case of degree students. There are

approximately 15 incidents per semester.

In the case of non academic discipline, issues involving residences are handled by residence staff with

an appeal provided to the Ridgetown Judicial Committee which operates in parallel to the main campus

judicial committee. Non residence non academic misconduct is handled on a summary basis by the

Director although there is provision for an appeal to the Dean of OAC.

Summary

The size of the three campuses may suggest a less formal method of handling academic and non-

academic discipline and we recognize that practically it may be necessary to maintain some differences

in terms of the policies and procedures that apply on the main campus as against the regional campuses;

however, the impact those policies and procedures have on the students, particularly in terms of fairness,

ought to be consistent.

In terms of non academic discipline (both inside and outside residence) the current process used by the

regional campuses appears to be similar to the process we are recommending be used on the main

campus. Therefore, we recommend that our comments as they apply to the process to be used at the

main campus also be applied to the regional campuses, as appropriate, and that efforts be made to

increase consistency between the processes used by the different campuses.

In terms of academic discipline, the process used by the regional campuses appears to be similar to what

is currently used on the main campus. Again, our recommendations as they apply to the process to be

used at the main campus should also be applied to the regional campuses, as appropriate, and efforts

should be made to increase consistency between the processes used by the different campuses.

In terms of appeals, we recommend that the University consider whether each campus should have its

own appeal board or whether appeals should be referred to the University’s committees in Guelph. If

each campus is to maintain a separate appeal board, then care should be taken to ensure that its

jurisdiction and procedure is similar and consistent with those of the other regional campuses and with

the tribunals on the main campus.


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4. University of Guelph-Humber

Academic and non academic discipline at the University of Guelph Humber campus is unique in that it

operates on a campus which has students from both the University of Guelph and Humber College of

Applied Arts and Technology. The Code of Student Conduct sets out a detailed and comprehensive

policy covering student rights and responsibilities, identifying levels of prohibited conduct and sanctions

and providing for a comprehensive hearing and appeal process. It is entirely separate from the

processes on the main campus.

The overlap of institutions obviously raises difficult issues as to jurisdiction, culture, political sensitivities

and consistency having regard to the nature, seriousness and location of the alleged infraction .

However, the guiding principle should be that as we are operating on the campus of Humber College,

non-academic discipline should in general be handled in accordance with Humber College rules and

procedures and that as degrees are awarded by the University of Guelph, academic discipline should be

handled in accordance with University of Guelph rules and procedures. Professor John Walsh believes

that on the 10th anniversary of the operation of Guelph-Humber it would be sensible to strike a committee

which would review and make recommendations on the operation of academic and non academic

discipline at Guelph Humber and report to the Provost. We agree.

All of which is respectfully submitted,

_________________________________

Christopher G. Riggs, Q.C.

_________________________________

Hilary Jarvis

July 20, 2012


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Appendix

Sharon Anthony, Associate Registrar, Academic Review Sub-Committee

Robin Begin, Director, Campus Community Police

Dr. Renée Bergeron, Director, Alfred Regional Campus

Jessica Carter, Academic Commissioner, Central Student Association

Mary Childs, University Legal Counsel

Dr. Anthony Clarke, Associate Vice President Graduate Studies and Program Quality Assurance

Dr. Serge Desmarais, Associate Vice President Academic

Dr. Ann Hahnel Meidinger, Chair of Senate Committee on Student Petitions

Vicki Hodgkinson, University Secretary

Dr. Maureen Mancuso, Provost and Vice President Academic

Pat Martin, Manager of Operations, Campus Community Police

Ken McEwan, Interim Director, Ridgetown Campus

Irene Moore, Associate Director of Academics, Ridgetown Campus

Amir Mostaghim, President, Graduate Students’ Association

Dr. Claude Naud, Director, Kemptville Campus

Dr. Cecilia Paine, Associate Dean Graduate Studies

Brian Pettigrew, Assistant Vice President (Institutional Research & Planning) and Registrar

Kate Revington, Associate University Secretary

Pauline Sinclair, Director, Office of Graduate Studies

Irene Thompson, Director, Student Housing

Dr. John Walsh, Vice-Provost, Guelph-Humber Campus


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Brenda Whiteside, Associate Vice President, Student Affairs and Acting Director, Human Rights and

Equity Office

Jordan Willcox, Member Board of Governors, Graduate Student Senator, Chair Senate Honours &

Awards Committee, Member Senate Committee on Student Petitions

Dr. Ann Wilson, Acting Dean/Associate Dean Academic, College of Arts

Philip Zachariah, Judicial Officer

___________________________

Council of Associate Deans Academic (CADA)

Vice-President’s Academic Council (VPAC)

Members of Judicial Committee

Members of Senate Committee on Student Petitions

Members of Student Rights and Responsibilities Committee

Documents

REVIEW OF ACADEMIC AND NON-ACADEMIC … of Academi… · Violations of the Human Rights Policy ... 23. Training and Orientation ... CHAPTER 1 -- INTRODUCTION AND CONCLUSION