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In my opinion

See you in court: five instructive cases for universities

Taking matters to court is stressful, time-consuming and expensive for all parties. It’s better to avoid legal proceedings if you can.

BY JILL EDMONDSON | AUG 10 2020

There are times when it seems as though some universities are unaware that their procedures for dealing with academic integrity or student misconduct are actually the bottom rung on a legal ladder. The following cases help to illuminate how universities might avoid climbing up that ladder.

Degree revocation

 Perhaps the legal principles are easier to recognize when the academic institution emerges victorious, as happened in 2018 when a plagiarism case, John Measor v General Faculties Council Student Academic Appeals Committee, ended up at the Court of Queen’s Bench of Alberta. Student John Measor earned an MA from the University of Calgary in 2003. Getting that designation was arduous, as Mr. Measor had been accused of plagiarism in 2002. But, after some revisions, he successfully fulfilled the MA requirements.

However, a decade later, new allegations of plagiarism emerged, and these were substantiated. Three levels of review then followed and, in the end, the university rescinded Mr. Measor’s degree. Following the rescission, Mr. Measor took the matter to court for judicial review.

Judicial review is not quite what it sounds like. It applies to decisions made by statutory bodies, such as tribunals, commissions and – yes – to university senates or boards of governors. The act of judicial review is more limited in scope than what the name might seem to indicate; it is not a retrial or a hearing de novo. Rather, judicial review often boils down to an examination of the process followed in making a decision.

A common ground for judicial review is an allegation that the process lacked procedural fairness. Now, procedural fairness is not quite what it sounds like either. In legal circles, a lot of ink has been spilled arguing about what procedural fairness entails, but in a 1999 case, Baker v. Canada, the Supreme Court established a five-stage analysis.

First is an assessment of the nature of the decision: Is it more legislative than judicial, or vice versa? The more judicial its nature, the greater degree of procedural fairness required. Next the court looks at the statutory scheme: Is an appeal available, or is the decision the “end of the road”?  Following that, the court assesses the importance of the decision to the affected individual. Issues that impact on someone’s ability to pursue a career are deemed highly important. The fourth factor concerns legitimate expectations: Was there an indication that a particular process would be followed?  The final factor evaluates how much statutory discretion the body has – the courts are reluctant to step on a decision-maker’s toes.

Circling back to Mr. Measor and the University of Calgary: The student alleged that he had been denied procedural fairness. However, the judicial decision indicates that Mr. Measor was heard by a special committee, and later “availed himself of two subsequent appeal opportunities.” Along the way, he was represented by counsel and had opportunities to cross-examine the other side. The Court determined that he had been afforded ample procedural fairness and upheld the revocation of his degree.

But sometimes things go the other way…

Expulsion from a program

Mark Carson had a number of health issues to contend with while attending law school at the University of Saskatchewan. He was under doctor’s care and took prescription medications. His health problems interfered with his academic performance and, because of his grades, he was involuntarily withdrawn from the program. Thus began a series of reviews, with the issue eventually landing at the Court of Queen’s Bench for Saskatchewan.

In Carson v. University of Saskatchewan, the Court found that at certain stages of the process, Mr. Carson “was denied the opportunity to respond to allegations.” Specifically, he was denied a chance to present his case in person. The Court held that the university had “breached the principles of natural justice and procedural fairness.” As a result, the Court quashed the university’s decision and ordered them to convene a new panel to hear Mr. Carson’s case.

Suspension from a program

Dunne v. Memorial University is another academic misconduct case, only this one resulted in a two-semester suspension, rather than expulsion. The issue climbed up the procedural pyramid, eventually reaching the Senate Committee on Academic Appeals. Interestingly, while the committee could investigate the matter and hear submissions, they were not empowered to render a decision; their authority was limited to making a recommendation to the senate. Their recommendation was in favour of Mr. Dunne, but surprisingly, the senate rejected it and did not give reasons for doing so.

The lack of an explanation proved fatal when things landed in court, with the judge stating: “The Senate requires strong justification when its decision is contrary to the committee’s findings.” Furthermore, the absence of reasons prompted Justice Faour to comment: “The impression is left of a capricious and arbitrary process.” He ruled that the senate’s decision be quashed, and the committee’s recommendation implemented instead.

Disagreement over a grade

Procedural fairness isn’t limited to expulsions or suspensions; a grade appeal requires this as well. Procedural fairness is also context-specific. In the opening paragraph of Khan v. University of Ottawa, Justice Laskin said: “University committees must act fairly when they review student grades.” In this case, Nalini Khan received a failing mark on an exam. Ms. Khan claimed that she had submitted four answer booklets, but according to the professor, there were only three. She appealed the grade, but at no stage of her academic appeal was Ms. Khan given a chance to present her case in person. Rather, her appeal was handled via written submissions to the various committees. The failing grade was upheld, in part because, “the Committee was not convinced that a fourth booklet existed.”

Aye, there’s the rub. How can one prove the existence of something that has disappeared? It comes down to who is more believable, and believability is more effectively assessed in person. Justice Laskin said: “her credibility was the primary issue.” And “the Committee should have given Ms. Khan a hearing in person before the Committee” and an opportunity to “make oral representations.” Not only did the Court of Appeal find in favour of Ms. Khan, they also awarded her costs.

Non-academic misconduct/academic probation

Academic issues are not the only things that can give rise to judicial review. In Pridgen v. University of Calgary, comments posted on Facebook resulted in discipline for non-academic misconduct for twin brothers Keith and Steven Pridgen. The brothers took the matter to the review committee, but they were unsuccessful. The outcome was four months of academic probation for Keith and six months for Steven, which seems harsh, given that their Facebook comments were actually rather benign.

In any case, the brothers then tried to appeal to the board of governors, but they were told in writing that: “an appeal to the Board of Governors is not an avenue open to them.” And so things ended up in court.

The court found fault with the “sparse reasons” given to the brothers in the previous stages of the process. Furthermore, the court noted that the committee did not identify “what exactly constituted the misconduct” and failed to “articulate the basis for its conclusion.” The end result was a victory for the brothers, with all three judges in the Alberta Court of Appeal ruling in their favour.

There appear to be two themes permeating the aforementioned cases. The first is the failure of the institution to fully hear from the student. The second is the failure of the institution to give reasons for their decisions. Each of these is easily fixed. First, let the student say his or her piece, and allow them the opportunity to fully respond to any allegations. Procedural fairness requires this. Secondly, decisions must be accompanied by reasons. Procedural fairness requires this as well. Taking matters to court is stressful, time-consuming and expensive for all parties. It’s better to avoid legal proceedings by being open and transparent in the first place.

Jill Edmondson has an LLB from the University of London and an LLM from Osgoode Hall Law School at York University. She has taught for many years at postsecondary institutions, including University of Toronto and Tecnológico de Monterrey university in Mexico. She is also the author of several mystery novels, including Blood and Groom and Dead Light District.

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  1. Shannon Patrick Sullivan / August 12, 2020 at 13:20

    It is perhaps worth noting that, following the Dunne case, Memorial University overhauled its appeal regulations. The process described here, wherein the Senate Committee on Academic Appeals merely made recommendations to the University Senate, no longer exists. SCAA is now empowered both to investigate a matter brought before it, and render a decision.