CITATION: Zeng v. The Governing Council of the University of Toronto, 2018 ONSC 5080
DIVISIONAL COURT FILE NO.: 652/17 DATE: 20180827
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THEN, LOW and MYERS JJ.
BETWEEN:
FANXUN PETER ZENG
Fanxun Peter Zeng, acting in person
Applicant
– and –
THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO
Robert A. Centa, for the Respondent
Respondent
HEARD at Toronto: August 27, 2018
BY THE COURT (Orally)
[1] This is an application for judicial review of the decision by the Academic Appeals Committee of The University of Toronto. The applicant challenges the Committee’s decision not to reweight his grade for the missed test in Methods of Data Analysis STA 302.
Factual Background
[2] On Tuesdays, the applicant was enrolled in Stochastic Processes, STA 62 from 8:10 a.m. to 9:00 a.m. at University of Toronto Scarborough campus and Methods of Data Analysis, STA 302 from 10:10 a.m. to 12:00 noon at University of Toronto St. George campus.
[3] There was evidence before the Committee that normally 75 minutes by public transit is required to travel the Scarborough campus to the St. George campus provided there are no disruptions. Mr. Zeng submits that with luck, the trip can be done in one hour.
[4] On Tuesday, October 23, 2012, the student attended Stochastic Processes to hand in an assignment. The applicant arrived at the St. George campus at 10:40 a.m. for a 10:00 a.m. Method of Data Analysis mid-term. The applicant did not attempt to write the mid-term that day.
[5] On October 30, 2012, the applicant met with the Methods of Data Analysis instructor, Professor Moshonov to request that the 25% of the course mark assigned to the mid-term be reassigned to the final exam in accordance with the course syllabus.
[6] The applicant wrote a deferred exam for Methods of Data Analysis on June 24, 2013. The applicant followed up about his exam mark in July 2013 and the weighting of his exam in March 2014. The student elevated his petition to Acting Associate Dean Hood in January 2015.
[7] The Academic Appeals Committee heard the applicant’s appeal on March 28 and gave reasons rejecting the appeal on May 8.
[8] The applicant submits that Ms. Faherty’s presence on the Academic Appeals Committee created a reasonable apprehension of bias. In this regard, Ms. Faherty had found in favour of the applicant in another proceeding where the applicant had missed an exam because of difficulties with transportation to the exam location. This was due to what was found to be unavoidable delay on the part of the TTC.
[9] In our view, the fact that an adjudicator has found in favour of the applicant does not constitute a reasonable apprehension of bias when viewed from the perspective of a reasonable person cognizant of all of the relevant facts nor in our views is there anything in the conduct of the hearing by Ms. Faherty which meets this test. Moreover, the applicant on the advice of his representative decided not to ask Ms. Faherty to recuse herself and is thereby barred from raising the issue before us.
[10] The applicant has not shown a denial of procedural fairness. The applicant was represented at the hearing and received legal advice throughout. Where there is legal representation, there is no requirement that the applicant be given permission to make his own oral submissions in addition to those made on his behalf by his legal representative.
[11] The applicant has not shown that objection by the Governing Council’s lawyer to the scope of the reply submissions made by applicant’s representative imposed on the Committee an obligation to give a right of surrebuttal. In any case, it is apparent in the decision that the Committee was alive to the existence of the applicant’s disability issues and gave consideration to whether they should impact on the result. We find that this ground for the application is not substantiated.
[12] Finally we would add that the standard of review is reasonableness. We are not persuaded that there is any error of fact or law which would render the decision of the Committee unreasonable.
[13] The appeal is accordingly dismissed.
THEN J.
[14] I have endorsed the Record of Proceedings as follows: “Appeal is dismissed for oral reasons given this date. Costs of $4,000 all-inclusive with respect to both appearances before this Court.”
___________________________ THEN J.
I agree
LOW J.
I agree
MYERS J.
Date of Reasons for Judgment: August 27, 2018
Date of Release: August 29, 2018
CITATION: Zeng v. The Governing Council of the University of Toronto, 2018 ONSC 5080
DIVISIONAL COURT FILE NO.: 652/17 DATE: 20180827
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THEN, LOW and MYERS JJ.
BETWEEN:
FANXUN PETER ZENG Applicant
– and –
THE GOVERNING COUNCIL OF THE UNIVERSITY OF TORONTO Respondent
ORAL REASONS FOR JUDGMENT
THEN J.
Date of Reasons for Judgment: August 27, 2018
Date of Release: August 29, 2018