Tsimidis v. Certified General Accountants of Ontario

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Then, Matlow and Lederer JJ.

July 16, 2014

120 O.R. (3d) 545 | 2014 ONSC 4236

Case Summary

Administrative law — Duty to act fairly — Respondent ordering applicant's withdrawal from program of professional studies because he had unauthorized material in his possession during examination — Appeals committee dismissing applicant's appeal — Applicant's application for judicial review allowed — Respondent committing serious [page546] breaches of procedural fairness by failing to inform applicant that investigation was being conducted until after review was completed and by failing to provide him with opportunity to appear in person to show cause why penalty of withdrawal should not be imposed — Respondent's decision unreasonable — Procedural flaws not cured by appeal to appeals committee — Appeals committee breaching duty of procedural fairness by failing to give applicant opportunity to make submissions in person and by failing to give reasons for dismissing appeal.

The applicant was enrolled in the Certified General Accountants of Ontario program of professional studies. Despite being warned that possession of unauthorized material was prohibited during examinations, he had his study notes on his desk, face down and with his pens, reading glasses and car keys on top, while writing an exam. An invigilator saw the notes and prepared a report of unauthorized materials used. The applicant signed the report after being told that it was prepared only in case another student complained about the situation. The respondent did not inform the applicant that an investigation was being conducted. He was advised by letter that the penalty of withdrawal was being imposed. He appealed to the respondent's appeals committee. He was permitted to make written submissions, limited to two pages in length, but was not asked to show cause why he should not be withdrawn from the program. The appeals committee dismissed his appeal without giving reasons. The applicant brought an application for judicial review of that decision.

Held, the application should be granted.

The respondent committed serious breaches of the duty of procedural fairness by failing to notify the applicant that an investigation was being conducted and by failing to give him an opportunity to appear in person to show cause why the penalty of withdrawal should not be imposed. The respondent's decision was not only unfair, it was also unreasonable. The procedural flaws were not cured by the appeal to the appeals committee. It was impossible to determine the process the appeals committee used to reach its decision. The appeals committee breached the duty of procedural fairness by making its decision without affording the applicant an opportunity to make submissions in person as to the appropriate penalty and by failing to give reasons for dismissing the appeal. The matter should be remitted to the appeals committee for rehearing in order for the applicant to show cause why the penalty of withdrawal should not be imposed.

Cases referred to

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22, J.E. 99-1412, REJB 1999-13279, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 89 A.C.W.S. (3d) 777; Daneshvar v. National Dental Examining Board of Canada, [2002] O.J. No. 2487, 161 O.A.C. 342, 43 Admin. L.R. (3d) 256, 118 A.C.W.S. (3d) 906 (Div. Ct.); Figueiras v. York (Regional Municipality) Police Services Board, [2013] O.J. No. 5911, 2013 ONSC 7419, 317 O.A.C. 179 (Div. Ct.); Forestall v. Toronto Police Services Board, [2007] O.J. No. 3059, 228 O.A.C. 202, 72 Admin. L.R. (4th) 299, 159 A.C.W.S. (3d) 774 (Div. Ct.); Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105, [1980] S.C.J. No. 32, 110 D.L.R. (3d) 311, 31 N.R. 214, [1980] 3 W.W.R. 125, J.E. 80-181, 18 B.C.L.R. 124, 2 A.C.W.S. (2d) 117; Khan v. University of Ottawa (1997), 34 O.R. (3d) 535, [1997] O.J. No. 2650, 148 D.L.R. (4th) 577, 101 O.A.C. 241, 2 Admin. L.R. (3d) 298, 72 A.C.W.S. (3d) 3 (C.A.); King v. University of Saskatchewan, [1969] S.C.R. 678, [1969] S.C.J. No. 38, 6 D.L.R. (3d) 120, 68 W.W.R. 745; Lerew v. St. Lawrence College of Applied Arts and Technology, [2005] O.J. No. 1436, 31 Admin. L.R. (4th) 94, 196 O.A.C. 363, 138 A.C.W.S. (3d) 591 (Div. Ct.); [page547] London (City) v. Ayerswood Development Corp., [2002] O.J. No. 4859, 167 O.A.C. 120, 34 M.P.L.R. (3d) 1, 119 A.C.W.S. (3d) 664 (C.A.); Megens v. Ontario Racing Commission (2003), 64 O.R. (3d) 142, [2003] O.J. No. 1459, 225 D.L.R. (4th) 757, 170 O.A.C. 155, 10 Admin. L.R. (4th) 83, 122 A.C.W.S. (3d) 2 (Div. Ct.); Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, EYB 2011-199662, 2012EXP-65, 2012EXPT-54, J.E. 2012-46, D.T.E. 2012T-7, 424 N.R. 220, 340 D.L.R. (4th) 17, 317 Nfld. & P.E.I.R. 340, 38 Admin. L.R. (5th) 255, 97 C.C.E.L. (3d) 199, [2012] CLLC Â220-008, 213 L.A.C. (4th) 95, 208 A.C.W.S. (3d) 435

Statutes referred to

Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2(1), 6(1)

APPLICATION for judicial review of a decision dismissing an appeal from an imposition of an academic penalty.

Mitchell Worsoff, for applicant.

Karen E. Jolley, for respondent.

The judgment of the court was delivered by

THEN J.: —

Introduction

[1] The applicant, Frank Tsimidis, seeks judicial review of the decision of the respondent, Certified General Accountants of Ontario ("CGA Ontario"), dated June 27, 2013, to withdraw the applicant from the CGA Ontario program of professional studies because he had in his possession study notes during an examination on June 12, 2013, contrary to the respondent's rules on academic integrity.

[2] On September 5, 2013, the applicant was informed that the appeals committee of CGA Ontario had denied his appeal. This decision, made without reasons, constituted the final decision to withdraw the applicant from the program. The applicant also seeks judicial review of this decision.

[3] Essentially, the applicant's position is that the respondent denied him procedural fairness and natural justice in arriving at its decision to withdraw the applicant from the program and that in any event the decision was unreasonable and cannot stand.

[4] For the reasons that follow, I conclude that the application for judicial review must be granted.

Background

[5] The applicant enrolled in the CGA Ontario program in 2011, with the goal of becoming a certified general accountant by 2014. [page548]

[6] On June 12, 2013, the applicant wrote the management and information systems examination. Before commencing the examination, he put his own handwritten study notes face down on the corner of his desk. The notes consisted of course content. He placed extra pens, his reading glasses and his car keys on top of the notes. He also placed his CGA Ontario identification card at the top of his desk in accordance with the exam invigilator's instructions.

[7] The invigilators announced the following warning as is customary before each examination:

Students are hereby informed that those found having in their possession or using material, notes, publications or any other means of assistance during an examination which have not been specifically authorized to be used for the examination will automatically receive a zero grade for that paper and will be required to appear before the vice-president, student services to show cause why they should be retained in the program of professional studies.

This warning is also publicly available on the CGA Ontario website.

[8] During the examination, one of the invigilators verified his identification and toward the end of the examination another invigilator approached the applicant and inquired about the items on his desk. She confiscated the notes and prepared a report of unauthorized materials used.

[9] After completing the examination, the invigilator presented the report to the applicant and the applicant was asked to sign it. The applicant alleges that he signed it after being told that the report was prepared only in case another student complained about the situation. The applicant also prepared and signed a handwritten statement in which he confirmed that the notes were face down on the corner of his desk underneath his glasses case, extra pens and car keys. He also wrote that for most of the exam no invigilator complained about the notes. This statement was attached to the report.

[10] The applicant received no further communication from CGA Ontario until June 27, 2013, when J.D. Clark, senior vice-president of operations of CGA Ontario advised him by letter that he was withdrawn from the CGA Ontario program effective immediately as a result of the examination incident.

[11] The letter stated as follows:

[t]he Association has a zero-tolerance policy for students who resort to plagiarism, which includes having in their possession material, notes, publications or any other assistance during an exam. The material that was found in your possession contravenes this policy. [page549]

[12] The letter then noted that he could apply for re-entry into the program after July 2015. The letter also informed him that he could appeal the decision without any further guidance or information.

[13] CGA Ontario alleges that it reviewed the matter before deciding to withdraw the applicant from the program.

[14] The applicant was subsequently informed by the student advisement coordinator, Ms. Nelson, that he was entitled to an appeal to the appeals committee in writing and that his written submissions were limited to two pages in length. He was provided with appeal guidelines that instructed him to "explain the incident in the exam clearly and concisely". He was not asked to show cause why he should not be withdrawn from the program.

[15] On July 3, 2013, the applicant sent written submissions to the appeals committee in regard to the appeal of his removal from the program. The applicant explained that he did not cheat and that the incident was an innocent mistake, but took full responsibility for his actions. He stated as follows:

I may have missed or did not hear the invigilator's announcement to remove everything from any table. However, I am well aware of the exam procedures and what is required of me as a C.G.A. student and inadvertently failed to act accordingly.

[16] On September 5, 2013, the student advisement coordinator advised the applicant by e-mail that the appeals committee had denied his appeal. No reasons were given for the decision.

Issues

(1) Whether CGA Ontario breached the rules of natural justice and the duty of procedural fairness;

(2) whether the decision of CGA Ontario was reasonable;

(3) whether the appeal to the appeals committee cured the procedural flaws in the proceedings before CGA Ontario;

(4) whether the appeals committee breached the rules of natural justice and the duty of procedural fairness.

Jurisdiction

[17] The Divisional Court's jurisdiction flows from ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Under those provisions, the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in the following proceedings: (1) proceedings by way of an application for an order in the nature of mandamus, prohibition, certiorari; [page550] or (2) proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise or refusal to exercise a statutory power.

Standard of Review

[18] There is no need to assess the appropriate standard of review when considering whether a breach of natural justice and procedural fairness has occurred: see Forestall v. Toronto Police Services Board, [2007] O.J. No. 3059, 72 Admin. L.R. (4th) 299 (Div. Ct.), at para. 38. The reviewing court must assess the procedures and safeguards required in the circumstances and determine whether the decision-maker complied with those requirements: see London (City) v. Ayerswood Development Corp., [2002] O.J. No. 4859, 167 O.A.C. 120 (C.A.), at para. 10.

[19] With respect to the merits of the decision, the parties agree that the standard of review is reasonableness.

Position of the Parties

[20] The applicant submits that he was denied procedural fairness. He argues he was given no notice of which rule, regulation or academic by-law he was alleged to have violated. He also argues that he was not given an opportunity to explain his position in-person, notwithstanding the serious jeopardy to his career and the existence of serious credibility issues that were engaged in both the CGA Ontario decision made on June 27, 2013 and the appeals committee decision of September 5, 2013. The applicant further submits that the decision by CGA Ontario as well as the decision of the appeals committee are both unreasonable; the former because the issue of withdrawal from the program was improperly addressed and/or not at all, and the latter because in the absence of any reasons it is impossible to determine why the appeal was denied.

[21] The respondent submits that there was no denial of procedural fairness. First, a formal notice of the alleged offence was not required as the applicant was given advance warning of the consequences of possessing unauthorized material during an examination in the materials provided by CGA Ontario and on their website. Secondly, it is contended that the applicant took advantage of two opportunities to explain his position. He gave a written statement in response to the report of unauthorized material prepared by the invigilator and he sent written submissions to the appeals committee. An in-person hearing was not required as the applicant could re-apply for re-admission to the program and accordingly his potential career was not seriously jeopardized, but merely interrupted. [page551] Thirdly, it is submitted that the decisions of CGA Ontario and the appeals committee are reasonable. It is clear from the reasons of CGA Ontario that the applicant admitted possession of unauthorized materials during the examination and that withdrawal from the program was the appropriate consequence. While the appeals committee gave no reasons for its decision, the respondent submits that its reasons can be supplemented by the record that was before the appeals committee. The appeals committee decision is reasonable for the same reasons as the CGA Ontario decision. The respondent submits that whatever deficits of natural justice that occurred during the proceedings before CGA Ontario were cured by the appeal to the appeal committee.

Analysis

Whether CGA Ontario breached the rules of natural justice and the duty of procedural fairness

[22] In the leading case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, the Supreme Court of Canada held that the content of procedural fairness is variable as follows, at para. 22:

[T]he duty of procedural fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected . . . the purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

[23] The Supreme Court in Baker emphasized that the content of procedural fairness will depend on several factors, including (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself. This list is not exhaustive.

[24] To assess whether the respondent discharged its duty of fairness to the applicant, it is necessary to examine the respondent's procedures for determining whether a violation of academic integrity occurred, the respondent's process for determining a penalty if a violation is found to have occurred, and finally the respondent's appeals process that is available. [page552]

[25] The student handbook for the academic year 2013-2014 has a section on "Academic Integrity" that sets out the procedure for determining whether a violation of the academic integrity policy occurred and for assessing the appropriate penalty for established violations. That procedure is as follows:

Academic Integrity Process and Procedures

1. An academic integrity case is reported to CGA Ontario by a marker, invigilator, student, or another credible source.

2. The manager of program delivery investigates the alleged accusation to determine if it is a valid complaint. If so, CGA Ontario contacts the student(s) involved and notifies them of the alleged accusation under review.

3. Students have an opportunity to provide any facts regarding the alleged violation of policy.

4. The manager of program delivery decides if applying a consequence is required, and the nature of the consequence, based on the severity of the violation.

5. Students have the right to appeal the decision.

There is no time limit on the retroactive nature of these consequences.

Please note:

-- A student will be withdrawn from the program when the appeals committee denies his or her final appeal.

-- Students withdrawn due to academic integrity must submit a request for re-admission with their application for re-entry.

[26] Of relevance to the first three steps of the procedure outlined above is the section in the handbook entitled "Exam Violations" that sets out violations. One violation is "using material that is not identified as 'allowable' exam room material". Study notes are not allowable exam room material.

[27] It is important to note that no reference is made in the handbook to a violation involving the possession of material that may be of assistance during the examination. However, before any examination, the invigilator is required to inform students taking the examination that any students found in possession of unauthorized material that may be of assistance during the examination will "automatically receive a zero grade for that paper and will be required to appear before the vice-president, student services to show cause why they should be retained in the program of professional studies".

[28] In my view, this routine warning given to students before examinations makes it clear that for the purposes of the five steps outlined in the academic integrity process and procedures, possession of unauthorized material that may be of [page553] assistance during an examination is a violation of academic integrity. More importantly, for the purposes of procedural fairness, a student found in possession of such material must be offered an opportunity to appear before the vice-president of student services to show cause why he or she should not be withdrawn from the program. This would give the student a chance to make submissions on the appropriate penalty in the circumstances.

[29] The handbook outlines the possible consequences of a violation as follows:

• An official reprimand letter of warning from the Association, placed in your permanent file.

• Zero marks on the exam and an official reprimand letter from the Association, placed in your permanent file.

• Zero marks on the exam including an official reprimand letter from the Association, placed in your permanent file and immediate suspension from the CGA program. Applying to be re-admitted into the CGA program would be allowed after the suspension period has lapsed and, if re-admitted, you would be required to complete the CGA program in effect at the date of re-admission.

[30] Accordingly, it appears clear that while there is a spectrum of consequences depending on the nature of the violation, a reprimand alone is not available for possessing unauthorized material. This is because the mandated examination warning indicates that possession of such material automatically results in a zero mark. Therefore, the appropriate penalty for possession of unauthorized material is either (1) a zero mark and a reprimand placed in the student's permanent file or (2) a zero mark, a reprimand placed in the student's permanent file and suspension from the program with a right to re-apply. In this case, the latter penalty was imposed that included a two-year withdrawal from the program.

[31] Given the respondent's established procedures for addressing a violation and the sufficient seriousness of the decision to the applicant in that it interfered with his ability to become a certified general accountant in Ontario, I conclude that the content of procedural fairness in this case requires the respondent to follow its procedures, including an in-person show cause hearing before the vice-president of student services. The jurisprudence is clear that if fact-finding and credibility are central issues, fairness requires those issues to be examined at an oral hearing even if the procedure before the administrative decision-maker does not specifically require an oral hearing: see Khan v. University of Ottawa (1997), 34 O.R. (3d) 535, [1997] O.J. No. 2650 (C.A.), at pp. 541-44 O.R. [page554]

[32] On the facts of the instant case, it would appear that the invigilator reported the applicant's breach of academic integrity to CGA Ontario. However, the record does not disclose or substantiate what, if any, investigation into the matter was conducted by CGA Ontario, apart from CGA Ontario's receipt of the invigilator's report of unauthorized materials used and the written statement of the applicant obtained shortly after the examination.

[33] Nevertheless, assuming that the manager of program delivery conducted an appropriate investigation to determine the validity of the alleged accusation, CGA Ontario failed to notify the applicant of the accusation under review as required by step 2 of the academic integrity process and procedures. The applicant was only notified of the accusation after the review was completed. This constitutes a serious breach of procedural fairness. Without knowing the alleged accusation, any opportunity to explain or to provide facts is meaningless. The applicant's written statement taken by the invigilator shortly after the examination and before the applicant was given notice of any accusation does not adequately comply with step 3 of the academic integrity process and procedures.

[34] Far more serious is the failure of CGA Ontario to provide the applicant with an opportunity to appear in-person before the vice-president of student services to show cause why the penalty of withdrawal should not be imposed; a fortiori where technical possession is admitted. The vice-president, in turn, was required to make a finding of fact and finding of credibility before a penalty of withdrawal was imposed. The failure to do so constitutes a serious breach of step 4 of the academic integrity process and procedures and a denial of natural justice and procedural fairness.

[35] Based on the above analysis, I would quash the CGA Ontario decision subject to a consideration of whether the appeal to the appeals committee cured the serious procedural flaws and denial of natural justice in the proceedings before CGA Ontario.

Whether the decision of CGA Ontario was reasonable

[36] The argument advanced by the applicant is that the CGA Ontario decision of June 27 is unreasonable because the issue of withdrawal was improperly addressed. The applicant contends that CGA Ontario erred in ordering the applicant's withdrawal from the program on the basis of a "zero-tolerance" policy. [page555]

[37] As outlined above, once possession of unauthorized material was found, CGA Ontario had two options with respect to penalty: (1) a zero mark and a permanent reprimand on record; or (2) a zero mark, a permanent reprimand and suspension from the program with a right to re-apply for re-admission. It appears clear that CGA Ontario established a spectrum of punishment. Presumably, the maximum punishment will be imposed in circumstances where actual cheating is established or where the intention to cheat is manifest from the nature of the possession. For example, there would be a strong inference of an intention to cheat if the notes were concealed on the student's person. On the other hand, the lesser penalty might be imposed for more benign circumstances of possession where actual cheating or the intention to cheat is not established. It will of course be for CGA Ontario to determine the appropriate penalty to impose given the myriad circumstances in which possession of unauthorized material may occur.

[38] The point is, however, that when a violation is found, CGA Ontario should consider the two penalty options in light of the circumstances and in light of the applicant's right to show cause why the maximum penalty should not be imposed. This did not occur in this case. There is no evidence on the record that CGA Ontario considered these options. Moreover, the reference to "zero-tolerance" strongly implies that only the maximum penalty was considered. Most significantly in the absence of an opportunity for the applicant to give submissions on the appropriate penalty to be imposed, the decision of CGA Ontario was not only unfair, but also unreasonable.

Whether the appeal to the appeals committee cured the procedural flaws in the proceedings before CGA Ontario

[39] There is clear authority that the denial of natural justice before CGA Ontario could have been cured by the appeal to the appeals committee. In King v. University of Saskatchewan, [1969] S.C.R. 678, [1969] S.C.J. No. 38, Spence J. stated as follows, at p. 689 S.C.R.:

Any possible failure of natural justice before the special appeal committee, the executive committee, or the full faculty council, is quite unimportant when the senate, the appeal body under the provisions of The University Act, and also the body in control of the granting of degrees, has exercised its function with no failure to accord natural justice. If there were any absence of natural justice in the inferior tribunals, it was cured by the presence of such natural justice before the senate appeal committee.

(See, also, Khan, at p. 548 O.R.) [page556]

[40] However, I adopt the views of Laskin J.A. expressed in Khan as to the relevance of the nature of the appeal in curing errors made at first instance, where he stated the following, at pp. 548-49 O.R.:

Curing errors made at first instance depends on the seriousness of the initial error, the procedures followed by the appellate body, the powers of the appellate body, the way these powers were exercised and the weight the appellate body attributes to the initial decision. The closer the appeal is to a complete reconsideration, with fair procedures, by a body that does not attribute significance to the initial decision, the more likely the defects will be cured: see Mullan, supra, at para. 240. If the appeal is not a hearing de novo then the person affected is confronted by adverse findings made in a procedurally unfair proceeding, which nonetheless an appeal body would find hard to ignore.

[41] The respondent's handbook outlines the applicant's right to appeal a CGA Ontario decision as follows:

Appeals

The appeals process provides an appeal function for withdrawals from the CGA program. This process is designed to ensure equality, fairness, consistency flexibility, transparency, and timeliness. The decision of the appeals committee is final and binding.

The following withdrawals can be considered for appeal:

Academic Integrity -- Plagiarism and Cheating

If a student is officially notified that they have breached the National Academic Integrity Policy through either plagiarism or cheating and are subject to consequence, withdrawal from the program, as determined by the manager of program delivery, the student has the right to make one academic appeal to the appeals committee within 10 business days of being notified of the Association's decision of compulsory withdrawal due to breach of the National Academic Integrity Policy.

[42] However, neither the respondent's handbook nor the respondent's website discusses the nature of the appeals procedure. The student advisement coordinator for CGA Ontario informed the applicant that he could not present his appeal in-person, but that he could prepare a two-page written submission that would be considered by the appeals committee. As to the nature of the appeal, there is nothing in the record to indicate whether the appeal was a reconsideration of the matter by means of an appeal de novo or a review of the CGA Ontario decision. Unfortunately, in this case it is impossible to determine the process the appeals committee used to reach its decision. [page557]

Whether the appeals committee breached the rules of natural justice and the duty of procedural fairness

[43] In my opinion, it is clear that the appeals committee made its decision without affording the applicant an opportunity to make submissions in-person as to the penalty and without giving any reasons whatsoever for denying the appeal. Therefore, the appeal committee breached procedural fairness.

[44] As a result of CGA Ontario's decision, the applicant faced withdrawal from the CGA program for two years subject to a right to re-apply, which of course could be refused; a permanent reprimand on his record for a serious violation of academic integrity; and a zero grade.

[45] There is a long line of authority holding that where an individual's livelihood is at stake, a high standard of justice, including an oral hearing, is required. In Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105, [1980] S.C.J. No. 32, where a university professor was facing disciplinary suspension, the Supreme Court stated as follows, at p. 1113 S.C.R.:

A high standard of justice is required when the right to continue in one's profession or employment is at stake. A disciplinary suspension can have grave and permanent consequences upon a professional career.

(Citations omitted)

[46] In Khan, Laskin J.A. held that a university student who was given a failing mark should have been granted an oral hearing because the credibility of her explanation was a critical issue and the consequences of giving a failing mark were serious. He stated as follows, at p. 541 O.R.:

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: see C.L. Chewter, "Justice in the University: Legal Avenues for Students" (1994) 3 Dalhousie J. Leg. Studies 105 at p. 113.

[47] In my view, the consequences to the applicant were similarly threatening to his career, especially in view of the allegation of breach of academic integrity.

[48] However, the respondent argues that the applicant admitted in writing to the appeals committee that he was in possession of unauthorized material, accepted full responsibility for knowledge of the rules, and explained that what occurred was not an attempt to cheat, but a mistake made through [page558] inadvertence. The respondent contends that unlike in Khan, in these circumstances there is no serious issue as to credibility, and accordingly an oral hearing was not necessary.

[49] In my view, the respondent's submission does not address the critical issue that was before the appeals committee, which was whether the maximum penalty of withdrawal should be allowed to stand in circumstances where a lesser penalty was available. Before CGA Ontario, there was evidence to support technical possession of unauthorized material. However, a serious breach of procedural fairness occurred when the applicant was given no opportunity to appear in-person to show cause why he should not be withdrawn from the program.

[50] In my opinion, if procedural fairness demanded that the applicant have an opportunity to appear in-person before CGA Ontario to show cause, the same opportunity to show cause in-person should have been offered to him on appeal. It is important to note that the "Appeal Guidelines on Academic Integrity" provided to the applicant in order to assist him in preparing his written submissions for the appeals committee only invited him to "explain the incident clearly and concisely". The guidelines did not invite him to give submissions on what the appropriate penalty should be.

[51] I have no doubt that the applicant's explanation for possessing unauthorized material would have formed part of any show cause procedure, if that procedure had been offered. However, there can also be no doubt that the explanation he was directed to give would be better received orally than in written form to determine his credibility and effectiveness, especially in view of the allegation of dishonesty and the consequences of the penalty: see Khan, at pp. 543-44 O.R. More importantly, the applicant also had the right to address the factors that would render the lesser penalty preferable to the maximum penalty. I conclude that the applicant was not directed to address those factors because the appeals committee deemed them irrelevant to the decision it had to make. Accordingly, the appeals committee disregarded the penalty options available to the applicant.

[52] The applicant also argued that it was denied procedural fairness because the appeals committee gave no reasons for its decision to deny the appeal.

[53] In Figueiras v. York (Regional Municipality) Police Services Board, [2013] O.J. No. 5911, 2013 ONSC 7419 (Div. Ct.), this court elaborated on the arguments in favour of giving reasons in administrative regimes as follows, at para. 60:

Reasons can foster better decision-making by ensuring that the decision-maker is forced to articulate and, therefore, think through the basis for the [page559] decision that he or she is making. Reasons provide transparency and are invaluable if a decision is being questioned, appealed, or considered on judicial review. Those affected by decisions are more likely to feel they have been heard and treated fairly if reasons are given for the decisions that affect their rights.

[54] In this case, the decision at issue significantly impacts the applicant's interest in becoming a certified general accountant and was given in the context of a self-proclaimed appeals process designed, according to the respondent's handbook, to ensure "equality, fairness and transparency". The decision is also subject to judicial review. These factors indicate that procedural fairness would require the appeal committee to provide some reasons for its decision: see Figueras, at para. 62; Daneshvar v. National Dental Examining Board of Canada, [2002] O.J. No. 2487, 43 Admin. L.R. (3d) 256 (Div. Ct.), at paras. 11-12, 16-17; Lerew v. St. Lawrence College of Applied Arts and Technology, [2005] O.J. No. 1436, 31 Admin. L.R. (4th) 94 (Div. Ct.), at paras. 15-16; and Megens v. Ontario Racing Commission (2003), 64 O.R. (3d) 142, [2003] O.J. No. 1459 (Div. Ct.), at paras. 13, 15-17.

[55] In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, at para. 12, a reviewing court is directed to "first seek to supplement [the reasons] before it seeks to subvert them" by reference to the record as a whole when assessing the "adequacy" of reasons. In this regard, the court stated as follows, at para. 16:

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

(Citations omitted)

[56] However, this is not a case of inadequate reasons. No reasons were given.

[57] Nevertheless, the respondent argues that it is reasonable to glean from the record that the appeals committee denied the appeal because the applicant had his study notes in his possession during the examination, which he admitted, and such possession contravened the CGA Ontario policy of allowable exam materials. Accordingly, it follows that the applicant was, on his [page560] own admission, found in contravention of the respondent's rules and assessed the appropriate penalty.

[58] In my view, the flaw in this submission and in the approach of CGA Ontario and the appeals committee is the failure to realize that even if a contravention of the integrity policy is proved or admitted it is still incumbent upon both CGA Ontario and the appeals committee to determine whether the violation attracts the maximum penalty of a reprimand, a zero mark, and suspension from the program or the lesser penalty of a reprimand and zero mark. That determination depends on the applicant's explanation, if any, of the violation that would be given as part of the show cause hearing. In utterly failing to consider this issue specifically, the appeals committee breached its duty of procedural fairness and thus erred in law. Furthermore, this failure rendered the result of its decision unreasonable. The court in Newfoundland and Labrador Nurses' Union, stated as follows, at para. 22:

It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis.

Remedy

[59] For these reasons, I would quash both the order of CGA Ontario as well as the order of the appeals committee and remit the matter to the appeals committee for rehearing in accordance with these reasons in order for the applicant to show cause in-person why the penalty of withdrawal from the program should not be imposed. No useful purpose would be served by beginning this process afresh.

[60] If the parties cannot agree on the issue of costs, the parties may make brief written submissions as to costs. The applicant's submissions shall be served on the respondent within 15 days of the release of these reasons and thereafter filed with the Divisional Court Office. The respondent's submissions shall be served on the applicant within ten days thereafter and filed with the Divisional Court Office.

Application granted.

End of Document