Spence v. University of Toronto, 2019 ONSC 1085

Citation and Court Information

CITATION: Spence v. University of Toronto, 2019 ONSC 1085

DIVISIONAL COURT FILE NO.: 244/18

DATE: 20190221

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, D.L. CORBETT and DOYLE JJ.

B E T W E E N:

CHRISTOPHER SPENCE

Applicant

• and -

UNIVERSITY OF TORONTO

Respondent

Darryl Singer, for the Applicant

Robert Centa, for the Respondent

Heard at Toronto: January 15, 2019

DECISION

D.L. Corbett J.

1Christopher Spence applies for judicial review of the decision of the Discipline Appeals Board of the University of Toronto dated February 2, 2018, dismissing an appeal from the decision of the University Tribunal dated June 20, 2017. The Tribunal rejected an adjournment requested by Mr Spence, and then held a discipline hearing in his absence, and in the absence of his counsel.

2The Tribunal found Mr Spence guilty of academic dishonesty in connection with his doctoral thesis. It found 67 examples of plagiarised content: some as short as a few sentences and some several pages long, the longest of which was nine pages. It found that the plagiarised sections had been tailored to fit Mr Spence’s thesis, with, for example, American spellings replaced with Canadian spellings and phrases such as “African American” replaced with “Black”, to conform to Canadian usage. The Tribunal found that the secondary sources which had been plagiarised were not listed as references in footnotes or in the bibliography.

3Based on the magnitude of the copying, the ways the sources were altered (apparently to hide original sources), and the failure to cite the plagiarised secondary sources anywhere in the thesis, the Tribunal inferred that impermissible use of the work of others was made intentionally and with the intent to hide improper use. Therefore the Tribunal concluded that Mr Spence knowingly committed plagiarism. The Tribunal found:

… short of purchasing an essay from an essay service – it is difficult to envisage plagiarism more blatant or extensive… given the sheer volume [and] the extent to which unattributed portions were clearly tailored to fit the narrative of Mr Spence’s thesis.

In respect to penalty, the Tribunal accepted the University’s submissions that Mr Spence should be given a final grade of zero in his thesis course and recommended to the President that his degree should be cancelled and recalled and that he should be expelled from the university.

4In dismissing Mr Spence’s appeal from the Tribunal decision, the Board found that it was not unfair for the Tribunal to have denied Mr Spence’s adjournment request, given the history of the matter and the circumstances in which the request was made. The Board found that it was also not unfair for the Tribunal to have proceeded immediately to the penalty phase of the hearing, since this was the Tribunal’s usual practice, of which Mr Spence had been given prior notice. On the merits, the Board upheld the Tribunal’s decisions on both liability and penalty.

5In this court, Mr Spence argues that he was denied procedural fairness when the Tribunal denied his request for an adjournment, and again denied procedural fairness when the Tribunal proceeded immediately to the penalty phase of the hearing without further notice. He argues that the Board’s decision to the contrary was unreasonable. He asks us to quash the decision below and to remit the case for a fresh hearing.

Jurisdiction

6Both sides correctly agree that this court has jurisdiction to review the decision of the Board pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act.¹ Although the Board was not exercising a statutory power of decision, the University concedes, correctly, that the Board exercises a sufficiently public responsibility that its decisions are subject to judicial review.

Standard of Review in this Court

7Both sides agreed that this court does not conduct an appeal de novo. The decision on review before us is the Board’s decision to deny the appeal, not the Tribunal’s procedural rulings. The Board found that Mr Spence was not denied procedural fairness. The question for this court is whether the Board’s appeal decision was reasonable.²

The Decision to Uphold the Denial of the Request for an Adjournment

8The Board reviewed the lengthy history of proceedings in great detail. It considered Mr Spence’s adjournment requests on the basis of his medical condition, the evidence produced by both sides about whether Mr Spence’s condition rendered him unable to participate in the proceedings, and the circumstances under which the impugned decision of the Tribunal was made. The Board noted that the Tribunal was entitled to control its own process, and that Mr Spence’s request was made on the basis and in circumstances that Mr Spence would not participate in the proceedings if his request for an adjournment was denied: Mr Spence had not come to Toronto from Chicago (where he then lived) for the hearing, and Mr Spence’s counsel withdrew from the Tribunal proceedings after the adjournment was denied on the basis that she did not have instructions that would enable her to continue.

9Before us, Mr Spence relied upon a Divisional Court decision in discipline proceedings taken against him by the Ontario College of Teachers.³ That decision does not assist Mr Spence. A brief explanation sufficiently distinguishes the two cases and explains the procedural fairness accorded to Mr Spence in the case before us.

10Mr Spence held a senior position, as Director of Education, first with the Hamilton School Board, and then the Toronto School Board. Evidence came to light that Mr Spence had published and orally delivered plagiarised presentations between 2002 and 2013. These allegations led to a discipline hearing before the College of Teachers.

11The allegations of plagiarism in connection with Mr Spence’s doctoral thesis – the subject-matter of the case before us – came to light after the allegations concerning Mr Spence’s professional presentations while he was a Director of Education. Mr Spence’s doctoral thesis was submitted in 1996 and was part of Mr Spence’s degree program towards an earned doctoral degree awarded by the University in 1996. Charges of academic misconduct were filed by the Provost in March 2013.

12By the late summer of 2016, both sets of allegations were moving towards hearings – the former set of allegations before the Discipline Committee of the Ontario College of Teachers, and the latter before the University Tribunal. Mr Spence sought adjournments in both on the basis that he was suffering from debilitating stress and depression and was unable to participate in the proceedings as a result.

13The Discipline Committee of the College of Teachers did not accept Mr Spence’s position, denied his adjournment request, and proceeded with its hearing against him on November 11, 2016. Mr Spence did not participate. He was found guilty of professional misconduct and his membership in the College of Teachers was revoked.

14The Divisional Court quashed the decision of the College of Teachers and remitted the case for a fresh hearing for three principal reasons:

(a) Prosecuting counsel conducted an internet search that showed that Mr Spence was employed and working in Chicago. This information was not disclosed to Mr Spence in advance, but it was used before the Discipline Committee to argue against Mr Spence’s request for an adjournment. The Divisional Court found that the Discipline Committee proceeded unfairly by failing to disclose this information in advance and then in relying on the information to refuse the adjournment request.

(b) The Discipline Committee did not consider a note from Mr Spence’s family physician, Dr Zizzo, which described Mr Spence’s current state of mental health (as of May 2016) as “precarious”, and advised him not to participate in any discipline hearings at that time.

(c) The Discipline Committee concluded that there was no evidence of illness justifying an adjournment when, in fact, there was such evidence: the note from Dr Zizzo and a psychiatric report from Dr Illyas that opined that Mr Spence’s depression significantly impacted his functioning. The medical evidence was undisputed, but the Discipline Committee concluded, without any other evidence, that it did not provide a basis for the adjournment request.

The Divisional Court concluded that the Discipline Committee did not respond appropriately to the request for an adjournment. It should have disclosed the internet search so that Mr Spence would have a fair opportunity to provide evidence explaining why his claimed medical condition was not inconsistent with his work in Chicago. It should have placed some weight on the medical evidence that Mr Spence did provide. Instead, the Discipline Committee discounted the medical evidence in light of Mr Spence’s work in Chicago and unreasonably concluded that Mr Spence was able to participate in the discipline process: “… it was procedurally unfair for the Discipline Committee to proceed in the appellant’s absence, given the undisputed serious mental health diagnosis that impaired the appellant’s ability to function.”⁴

15What must be emphasized here is that the court did not conclude that Mr Spence was unable to participate in the discipline proceedings. Rather, the court decided that it was unreasonable to deny the adjournment request in the face of the “undisputed” diagnosis respecting Mr Spence’s condition.

16The circumstances in the case before us are very different, even though they involve the same person, much the same medical evidence, and an overlapping time period. In the case before us, as I shall describe, the University Tribunal fairly adjudicated the question of Mr Spence’s capability to participate in the proceedings.

17First, the University Tribunal did not rely on any information that had not been disclosed to Mr Spence. Second, in October 2016, when Mr Spence sought an adjournment on the basis of incapability, the adjournment was granted, in order to give the University an opportunity to deliver responding evidence. All of this was done, and the matter then came back before the Tribunal in December 2016. Then the Tribunal considered all the evidence respecting Mr Spence’s mental health, including opinion evidence obtained by the University that Mr Spence was able to proceed with the hearing, the note from Dr Zizzo and the assessment from Dr Illyas. The Tribunal ruled that Mr Spence was able to participate in the proceedings (a decision that was not appealed).

18After this process, and after the Tribunal’s decision, the case then did proceed. Preliminary issues were raised before the Board and adjudicated, including two motions brought by Mr Spence. Mr Spence participated in these steps. Adjournments were granted to enable new counsel for Mr Spence, Ms Shirtliff-Hinds, to prepare for and conduct the case on behalf of her client. Notice was given for the hearing scheduled for June 20, 2017, and it was clear on its face that this date was peremptory for Mr Spence, and that the hearing would proceed “with or without counsel”. The fairness of these terms was not raised before us, and for good reason: the case had an extraordinary history of delay, at the instance of Mr Spence, and the Tribunal showed great patience, to the point of leniency, in acceding to Mr Spence’s adjournment requests (some 17 in all over the protracted history of the matter).

19It was after all of these events that Ms Shirtliff-Hinds appeared before the Tribunal on June 20, 2017, and asked that the hearing be adjourned because her client was suffering from a panic attack. She had no medical evidence of this panic attack to support this request. Mr Spence was in Chicago, not Toronto, and so could not appear if the Tribunal rejected the adjournment request. The Tribunal asked Ms Shirtliff-Hinds when she could provide medical evidence to substantiate the request. The hearing broke briefly so that she could speak with her client by telephone. She reported back that she hoped to be able to provide such evidence in a week’s time.

20It was in this context that the Tribunal rejected the adjournment request. There was no fresh medical evidence. None would be forthcoming within a timeframe that would permit the hearing to proceed as scheduled. It appeared that Mr Spence had decided that he would not appear, regardless of the Tribunal’s decision, as he was not in Toronto. In addition, Ms Shirtliff-Hinds advised the Tribunal that, if the adjournment was denied, she would have to ask the Tribunal for permission to withdraw from the case, because she had “conflicting instructions” from her client. Thus it was apparent to the Tribunal that Mr Spence would not be present, and his lawyer would leave, if the adjournment request was denied.

21Given the history of delay in the case, the notice Mr Spence was given that the hearing dates were peremptory and that the case would proceed “with or without counsel”, the absence of any current medical evidence to support the adjournment request, the prior finding that incapability had not been established on the evidence provided previously, and counsel’s information that new medical information could not be available for a week, it was well within the Tribunal’s discretion to deny the adjournment.

22It can happen, of course, that an emergent medical circumstance can arise such that medical evidence is not immediately available, and yet a person is truly unable to attend. A tribunal has broad discretion in these circumstances, as must be the case, and it is always possible to re-evaluate in light of medical information provided subsequently. Mr Spence never provided medical evidence to establish his incapability in June 2017. He did not provide it to the Tribunal after the hearing. He did not provide it to the Board as fresh evidence. He did not seek to provide it to this court as fresh evidence. There was no medical evidence to support the adjournment request at the time it was made, and there is no such evidence now.

23The Board reviewed all of these circumstances in its thorough reasons. It found no denial of procedural fairness, and this conclusion is reasonable. Mr Spence’s first argument fails.

Deciding Penalty Without Further Notice

24There is but one proceeding before the Tribunal, which encompasses both liability and penalty. This is clear in the Tribunal’s rules, a copy of which were provided to Mr Spence. The hearing in June 2017 was scheduled over more than one day with a view to disposing of all issues within the time reserved.

25The Board concluded that the Tribunal’s decision to proceed immediately to decide penalty was consistent with the Tribunal’s rules and practices, was consistent with the information that had been given in the notices of hearing provided to Mr Spence, and took into account the manner in which Mr Spence raised his adjournment request and then responded to the Tribunal’s decision denying the adjournment. The Board concluded that the Tribunal’s decision to proceed immediately to determine penalty did not deny Mr Spence procedural fairness for these reasons.

26While it would have been possible for the Tribunal to give Mr Spence notice of its decision against him on the merits, and some further opportunity to be heard on penalty, the following day, for example, its failure to accord Mr Spence this further opportunity to be heard was not essential to procedural fairness in all the circumstances of this case. The Board’s conclusion to this effect is certainly reasonable.

27Counsel for Mr. Spence argued that it would not have prejudiced the process to provide a brief delay between the liability and penalty phases. “What was the rush?” he asked rhetorically. That, of course, is not the question: nothing about the history of the case could possibly be described as “rushed”. For the reasons I have already given, the Tribunal was entitled to proceed immediately to penalty. In addition, in all the circumstances, it seems clear that Mr Spence had decided to abandon the proceedings if his adjournment request was denied, as shown by his decision not to travel to Toronto for the hearing, and Ms Shirtliff-Hinds leaving the hearing without requesting an opportunity to return later on the question of penalty. This abandonment should also be seen within the context of the merits of the case, which had been disclosed fully to Mr Spence. It was overwhelming: in the absence of any defence being offered, a finding of liability was inevitable.

28Counsel also relied upon the decision of the Court of Appeal in Law Society of Upper Canada v. Igbinosun.⁵ That case does not assist Mr Spence. In Igbinosun, prosecuting counsel did not expect the penalty phase of the proceedings to take place immediately after the finding of liability. She had not made necessary disclosure to Mr Igbinosun for the penalty phase. The tribunal directed her to give Mr Igbinosun disclosure as fast as possible, which turned out to be about a day before the penalty hearing. This breached the Law Society’s own disclosure rules, which required that disclosure be made at least ten days in advance.⁶ The Law Society did not give notice of the jeopardy Mr Igbinosun faced in the event of a finding of misconduct. The Law Society had not given notice that the penalty phase would proceed immediately after the finding of liability: “even counsel for the Law Society was surprised that the penalty phase began so quickly”.⁷ In all of the circumstances, “it was not reasonable for Igbinosun to expect that the penalty phase of the hearing would begin immediately after the liability phase.”⁸

29In Mr Spence’s case, he was given notice that penalty would follow immediately after a finding of academic dishonesty. He was told of the potential penalties that could be applied. He was not given any late disclosure. It was reasonable for Mr Spence to understand that the Tribunal would decide penalty without further notice to him. And the Board’s conclusions to this effect are reasonable.

The Justice of the Case

30It is no answer to a denial of procedural fairness that the result would have been the same in any event. Mr Spence was entitled to an opportunity to be heard, both on the question of liability, and as to penalty. However, even where procedural fairness has been accorded, as it has been in this case, but in all of the circumstances of the case it is apparent than an injustice has resulted, then it is possible for an appellate body to intervene.

31The Board declined to do this. It agreed with the Tribunal’s assessment of the gravity of the academic dishonesty, and its conclusion that the academic dishonesty was calculated, advertent and sustained. It also agreed with the Tribunal’s conclusion that Mr Spence’s academic dishonesty took place in the culminating project of an advanced graduate degree, a doctoral thesis. In this context, the penalty – though the most severe one available – was appropriate. The Board’s conclusions in this regard are manifestly reasonable.

The Overall Procedural History

32I do not doubt that Mr Spence has found the proceedings brought against him to be extremely painful. I do not doubt that Mr Spence was suffering as was described by Dr Zizzo and Dr Illyas, and that his suffering was by no means trivial. However, the history of this proceeding discloses extraordinary delay – 17 adjournments in a period between March 2013 and June 2017, four different counsel, unfounded allegations of bias against the Tribunal, and meritless motions to remove counsel for the University. The overall picture is of a respondent who is doing everything he can to avoid the evil day when he must face judgment. But these proceedings must take place eventually, and the results of this application are a direct result of Mr Spence’s unwillingness to face that reality.

Disposition and Costs

33The application for judicial review is dismissed. As agreed by the parties, Mr Spence shall pay the University’s costs of the application fixed at $10,000, inclusive, payable within thirty days.

D.L. Corbett J.

I agree Swinton J.

I agree Doyle J.

Footnotes

1. 1RSO 1990, c. J.1, ss. 2 and 6(1). See also Rule 68 of the Rules of Civil Procedure.
2. 2Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190; Ottawa Police Services v. Diafwila, 2016 ONCA 627.
3. 3Spence v. Ontario College of Teachers, 2018 ONSC 3335 (Div. Ct.)
4. 4Spence v. Ontario College of Teachers, 2018 ONSC 3335, para. 81.
5. 5Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484.
6. 6Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, paras. 62-64.
7. 7Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, para. 61.
8. 8Law Society of Upper Canada v. Igbinosun, 2009 ONCA 484, para. 61.