DIVISIONAL COURT FILE NO.: 541/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, SACHS AND HARVISON YOUNG JJ.
BETWEEN:
ALI LALANI Applicant
– and –
THE UNIVERSITY OF TORONTO Respondent
Glenroy K. Bastien, for the Applicant
Lily Harmer, for the Respondent
HEARD at Toronto: January 27, 2014
HARVISON YOUNG J. (ORALLY)
1The applicant, Ali Lalani, applies for judicial review of a decision of the University of Toronto Appeal Division overturning the trial division’s recommendation on penalty for Mr. Lalani’s academic offences. The Appeal Division recommended expulsion instead of a five year suspension to the University’s Governing Council, which subsequently expelled Mr. Lalani.
2Mr. Lalani seeks an order quashing the Appeal Division’s recommendation or alternatively, an order quashing the Governing Council’s decision to expel him. He also seeks an order permitting him to graduate after the conclusion of the five year suspension since he has accrued the necessary number of credits to do so.
Standard of Review
3The applicant submits that, although deference usually applies to a University’s internal governance decisions, this application raises questions of law and therefore the standard of review is correctness. We disagree.
4The issue of the proper sanction for the applicant’s offences goes to the core of the academic function and internal governance of the University. A high level of deference is owed to an administrative tribunal’s decisions with respect to penalty. The questions raised on this application are not questions of law, but rather questions of mixed fact and law and the standard of review for such questions is that of reasonableness.
5The applicant makes a number of submissions that we will address in turn.
Did the Appeal Division Accord Sufficent Weight to the Evidence on the Question of Remorse?
6The applicant argues that there was clear evidence from Dr. Murphy indicating his remorse. He further submits that his guilty plea as well as his co-operation in the preparation of an Agreed Statement of Facts was also evidence of remorse. Finally, he argues that his own failure to testify at the Penalty Hearing did not preclude a finding of remorse. He was present during both hearings and the panel members had the opportunity to observe his demeanor and body language throughout.
7We reject the submission that mere presence at a hearing constitutes evidence.
8A guilty plea, while a mitigating factor, may or may not indicate remorse. Guilty pleas are motivated by many considerations, including a person’s recognition of the strength of the evidence and a realistic assessment of the likelihood of successfully contesting the case.
9With respect to Dr. Murphy’s report, the Appeal Division gave reasons why they found it “difficult to place much weight on Dr. Murphy’s opinions about Mr. Lalani’s state of mind in the absence of any direct evidence from Mr. Lalani himself.” (para. 66 of the Appeal Division’s decision).
10The Appeal Division found that Dr. Murphy’s opinion, “was based upon assumptions about the facts which were simply not accurate but which had come directly from Mr. Lalani.” (para. 66 of its Reasons). These findings were supported by the evidence and were reasonable. Essentially, the applicant is asking this Court to re-weigh the evidence before the Appeal Division on the question of remorse. That is not the function of this Court.
Did the Appeal Division Err in Failing to Treat the Applicant as a First Offender?
11The Appeal Division acknowledged at para. 61 of its Decision that “the issue of prior offences is a factor that should be taken into account in sentencing.” They recognize that Mr. Lalani was a first offender, but found that there were specific aggravating factors that detracted from the weight normally accorded to the treatment of a first offence as a mitigating factor.
12As put by the Appeal Division at paras. 62 and 63 of its Reasons:
We also think it significant that, although this was a first offence in that this is the first time Mr. Lalani was caught out, nonetheless he engaged in deliberate and escalating fraudulent conduct on at least three separate occasions over a two year period, and of particular importance to us, after Ms. Choi first recognized errors and anomalies in his application and brought these to his attention, thus providing him with fair warning and a chance to do the right thing, he ignored the opportunity to step back and police his own conduct. Instead, he proceeded to expand and disseminate widely additional false records, not just on one more occasion but on two, until finally exposed after a major investigation.
To us this is a more significant feature of the matter than is the fact that the University’s investigation eventually resulted in charges, all wrapped into one series, after denials and cover-ups in which Mr. Lalani engaged.
13In our view, the Appeal Division’s treatment of this issue was amply supported by the record and was reasonable.
Did the Appeal Division Err in Failing to Treat the Offences as a Single Continuous Act?
14The applicant submits that the Trial Division Panel was correct in finding that his actions constituted one continuous series of acts. According to the applicant, the same mental state persisted throughout the period during which the offences occurred.
15In our view, the Appeal Division was entitled to reject the Trial Division’s characterization of the applicant’s conduct as one single continuous act. Over a two year period, there were three separate occasions when the applicant deliberately sent false records to perspective employers. The applications he submitted contained at least 56 alterations to his transcript in the form of vastly improved marks, the omission of two full terms, misrepresentation of the timing of courses taken and credits earned, with the effect of raising his cumulative grade point average from C+ to –A.
Did the Appeal Division Err in Failing to Give Sufficient Weight to Relevant Mitigating Circumstances?
16The applicant points to a number of factors that he alleges were mitigating and submits that the Appeal Division did not give any or sufficient weight to these factors. These factors included: his plea of guilty, his lack of a prior record, his presence during the hearing and Dr. Murphy’s evidence about the emotional stress he had been under during the time he committed the offences and Dr. Murphy’s opinion that the applicant had received a “wake-up call” and had learned his lesson. We have already reviewed these arguments, which again seek to have this Court re-weigh the evidence before the Appeal Division.
Did the Appeal Division Fail to Accord Sufficient Weight to Past Decisions Including the Chelin Principles?
17The applicant submits that the Appeal Division only considered two of the six factors set out in the University of Toronto v. Chelin decision. We disagree.
18The Appeal Division was alive to all of the six factors throughout its reasons and made reasonable findings with respect to these factors on the basis of the evidence or lack of evidence before it.
19With respect to the applicant’s argument that the Appeal Division ignored past decisions where a five year suspension was imposed, each of the cases referenced by the applicant can be distinguished factually from this case. In the vast majority of cases since 1979 involving forged transcripts, academic histories or resumés, the recommendation of the Hearings Tribunals has been expulsion.
20We agree with the applicant’s submission that no individual case should be used to create a policy which is applied without regard to individual facts and circumstances. We do not agree with the applicant’s submission that the Appeal Division simply applied a predetermined policy of expulsion for reasons of deterrence at the expense of consideration of the particular circumstances and submissions of this applicant.
21In our view, and as we have already reviewed, the Appeal Division carefully reviewed all the circumstances and submissions now relied on by the applicant.
Were the Appeal Division’s Reasons Adequate?
22In our view, there is no merit to the applicant’s suggestion that the reasons of the Appeal Division were inadequate or unclear.
Was the Applicant Entitled to a Higher Standard of Justice than was Accorded to Him?
23The applicant submits that he is entitled to a “higher standard of justice” because of the significant consequences to his career that an expulsion could have. According to the applicant, given the gravity of the likely consequences to him, the Appeal Division was obligated to rely only upon “clear, convincing, and cogent evidence.” The applicant argues that instead of relying on clear, convincing, and cogent evidence, the panel ignored the clear, convincing, and cogent evidence of remorse and mitigating factors and prior authorities.
24We have already addressed these arguments. As indicated at the beginning of these reasons, the decision under review is a penalty decision. As such, absent an error in principle it is entitled to considerable deference and we find no basis for interfering in this case.
25In conclusion, to use the language of Dunsmuir, para. 47, the Appeal Division’s reasons were justified, transparent and intelligible and their decision fell within the range of possible acceptable outcomes that are defensible in respect of the fact and the law.
26The application is therefore dismissed.
KENT J.
COSTS
27I have endorsed the Application Record, “This application is dismissed for reasons delivered orally by Harvison Young J. on behalf of the Court. Costs awarded to the respondent fixed in the amount of $3,500 inclusive of disbursements and tax, payable within 120 days.”
HARVISON YOUNG J.
KENT J.
SACHS J.
Date of Reasons for Judgment: January 27, 2014
Date of Release: January 31, 2014
CITATION: Lalani v. University of Toronto, 2014 ONSC 644
DIVISIONAL COURT FILE NO.: 541/12
DATE: 20140127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, SACHS AND HARVISON YOUNG JJ.
BETWEEN:
ALI LALANI Applicant
– and –
THE UNIVERSITY OF TORONTO Respondent
ORAL REASONS FOR JUDGMENT
KENT J.
Date of Reasons for Judgment: January 27, 2014
Date of Release: January 31, 2014