Counsel:

      The following judgment was delivered by

¶ 1      THE COURT:— The applicant is a law student who, in December 2000, had just completed her first term in the Faculty of Law at the University of Toronto (the "University").  In seeking summer employment, the applicant submitted to prospective employers her December course results, some of which did not accord with the results recorded by the University.  This came to the attention of the respondents and the applicant was accused of committing an academic offence.

¶ 2      The applicant seeks judicial review of a decision by the Dean of the Faculty of Law, the respondent Ronald Joel Daniels (the "Dean"), that the applicant had committed an academic offence under the University of Toronto Code of Behavior on Academic Matters (the "Code") and the penalty of a one-year suspension effective June 1, 2001, with a notation to remain on her record until three months after graduation.  The applicant submits that the Dean erred in assuming jurisdiction on the facts of this case, in the manner in which he reached his decision and in the penalty imposed.

¶ 3      Pursuant to the Order of Madam Justice MacFarland dated August 10, 2001, intervenor status was granted to the Students Administrative Council of the University of Toronto (the "Intervenor") and the Court heard from Mr. Banack on its behalf.

¶ 4      The respondents submit that the decision and penalty of the University are not unreasonable, at least not patently unreasonable, and therefore should not be interfered with.  The following issues arise from the positions of the parties:

Issues

¶ 5      Did the allegations against the applicant constitute an "offence" under the Code?

¶ 6      Did the Dean have the jurisdiction under the Code to find that the applicant had committed an academic offence?

Background Facts

¶ 7      The first year program at the University's Faculty of Law (the "Faculty") consists of seven required year-long courses.  In December, first-year students write graded tests in six of these courses (the seventh course is essay-based). The status of these tests is described in the "2000-2001 First Year Syllabus and Academic Handbook" as follows:

¶ 8      It would appear that the records office at the University collects these results and enters them into the Faculty's computer system which contains all data on academic performance at the Faculty.  While the computer system is used to produce a report for the use of the staff, prior to February, 2001, the Faculty did not issue a transcript to first-year students corroborating their first term course results.  This policy decision affirmed the Faculty's view that the December exam results serve primarily pedagogical purposes and that these purposes ought to be protected.

¶ 9      Early in each calendar year, first year students apply for summer jobs in government, legal aid clinics and law firms.  Each year prospective employers ask to see applicants' first term course results.  The Faculty did not produce transcripts of the results and trusted students to self-report accurately to prospective employers.  The Faculty further took the position that it would not verify students' results to third parties.

¶ 10      The applicant attested, and this does not seem to have been contradicted, that certain Toronto law firms which participated in a seminar on January 17, 2001, as part of an interview and hiring process, took the position that first year students' summer job applications would be "incomplete" unless and until the December test results were submitted. The applicant sent applications for summer jobs to Toronto firms participating in the seminar.  The application package consisted of a cover letter, resume and transcripts of under-graduate and graduate degrees along with a list of December test results on a plain sheet of paper.

¶ 11      The applicant wrote to the firms as follows:

¶ 12      The applicant reported a C+ grade on each of her Torts and Contracts practice tests, although she received only a C on the practice tests in those courses.  It is those errors that are at issue in this proceeding.  The applicant did not receive an offer of interview by any of the firms to which she applied and as a result was not given any offers of summer employment by those firms.

¶ 13      On February 19, 2001, the applicant received a letter from the Dean, as follows:

¶ 14      The Code in its preamble stresses the following principles:

¶ 15      Part B of the Code, which deals with Offences, states as follows:

¶ 16      "Academic record" for the purposes of the Code, is defined in section 2(c) as follows:

¶ 17      The "official student academic record" is defined in the University's policy on Access to Student Academic Records and is as follows:

      "The "official student academic record" shall contain:

¶ 18      The Code provides the following procedure when the University believes that a student may have committed an academic offence:

¶ 19      The applicant responded to the Dean's letter by letter dated February 20, 2001 which reads as follows:

¶ 20      Pursuant to the procedures set out in section C.1(a)2 of the Code, the applicant met with Professor Bruce Chapman who had been appointed by the Dean to investigate the matter on behalf of the Faculty.  At this meeting on March 1, 2001, the applicant was not accompanied by counsel.  She was advised that nothing she said during the meeting could be "used or receivable in evidence against her."  There does not seem to be any serious dispute with what transpired at that meeting as seen from the applicant's affidavit, the contemporaneous notes of Professor Chapman and his written report of March 16, 2001, delivered to the Dean.

¶ 21      Up to this time, there had been some problem with the reporting by the applicant of a B in the Property course, which was accurate insofar as an assignment was concerned, but not as to the test result, which was a C.  Professor Chapman recommended, as was followed, that no further action be taken concerning the Property grade.

¶ 22      With respect to the reporting of C+s on the Torts and Contracts courses, the applicant described the discrepancies as "careless errors".  The transcription errors she described as being made out of haste and tiredness, while putting together her application packages.  The applicant denied any intention to deceive anyone to get a job.

¶ 23      Professor Chapman reported to the Dean in part as follows:

¶ 24      The Dean sent a letter to the applicant dated March 21, 2001, the operative part of which reads as follows:

¶ 25      Enclosed with the letter was a copy of Professor Chapman's report as well as a copy of the Code.

¶ 26      The Dean met with the applicant on April 2, 2001. It is what transpired at this meeting that is in issue on this Application.  The contemporaneous notes taken by Miss Hilton of the Dean's office confirm that the applicant was content to proceed without being accompanied by or consulting counsel. Asked whether she understood or had read the divisional sanction, she indicated that "nothing was really sinking in at that point."

¶ 27      Counsel summarized in the factum on behalf of the University what took place at that meeting from the notes of Miss Hilton, her affidavit and that of Professor Chapman and the cross-examinations on those affidavits as well as that of Ms Shank, as follows:

¶ 28      The notes taken by Miss Hilton at the meeting record that following a statement by the Dean that the applicant "knew or ought to have known", and her response that "ought to have known - I typed one wrong, I screwed up, it should have [been] checked", Professor Chapman asked, "Do you have a sense in your mind that some of the Cs were not C+s?" Ms Shank responded, "I can't explain why I screwed up - not something I can afford to be careless about - was oblivious to all correspondence until I got the email."  The applicant later stated that she had been very careless, had no intention to cheat, and was guilty of being very careless in something she should have taken care of."  She admitted the discrepancy between the actual marks and her report of them in the letter.

¶ 29      The applicant met with Dean Daniels again on May 1, 2001, for the purpose of the imposition of a sanction based on her admission of an academic offence, at which time Miss Hilton also attended.  From the notes of Miss Hilton, it would appear that the Dean stated that he had wanted to take some time to deal with the matter and had struggled as he sought a lot of counsel, but had decided that the applicant would be suspended for a year to have an automatic admission within a year's time with full credit for this academic year, stating that that was the penalty for students who had "intentionally misrepresented their grades."  The following is a transcription of the notes dealing with the exchange between the applicant and the Dean:

¶ 30      Consistent with her earliest explanations, the applicant gave much the same story when she was cross-examined on her affidavit filed in these proceedings.  The following is the relevant portion of that cross-examination, beginning at Q. 240:

¶ 31      By letter dated May 1, 2001, the Dean advised the applicant as follows:

Analysis and Law

1.  Did the allegations against the Applicant constitute an "offence" under the Code?

¶ 32      The offence alleged against the applicant is that she provided prospective employers with information that inaccurately reported her first term results in a manner that violated sections B.1.3(a) and (b) of the Code.  Was her act the falsification of an academic record?  Her act consisted of sending a letter representing that her marks were as set out in the letter when, in part, they were not.  She did not purport to send a copy of any official University document. Two main submissions were made on whether sending the letter in question could constitute an offence under this definition.

¶ 33      Mr. Ruby, for the applicant and Mr. Banack for the Intervenor, each submitted that the reach of the Code did not extend to communications between students and the business world, such as the letter in question.  In their submission, it was not the intention of the Code to establish a higher standard of conduct for students generally in their off-campus activities, but only in their relations with the University. Mr. Banack conceded in answer to a question, that if there was a falsification of a University record in a communication to someone outside the University, that could not be regarded as "off-campus" in the sense of unconnected to the writer's status as a member of the University.  Mr. Ruby did not make that concession but in our view the concession was correct. It is surely of fundamental importance that students not misrepresent their achievements.  Other students, the business community and the University alike have a stake in the integrity of the record of achievement and the University's Code of Conduct can properly extend to such communications by students to the outside world.  There is nothing in the language of Section B.1.3(a) to confine its scope to communications within the University.

¶ 34      The second submission was that there was no falsification of a University record.  Mr. Ruby pointed out that the applicant made no overt representation that she was presenting a copy of an official University record to her prospective employers.  That is true, but by stating that these were her marks, she represented that reference to the University's official records would produce the same information.

¶ 35      Section 3 of the University policy on Access to Academic Records reads:

¶ 36      In our view, it is the information in the official record, and not merely the integrity of an official piece of paper certifying as to that information, that is protected by the Code in this section.  If tampering with such a certificate were the only way to commit the offence, it would be entirely covered by the word 'forge', but the Code goes on to use the language `or in any other way alter or falsify' any academic record.  Unquestionably, the applicant's letter constituted the circulation or making use of a false statement of the contents of the University's records.

¶ 37      We therefore conclude that the Code extends to the act complained of.

2.  Did the Dean have jurisdiction under the Code to find that the Applicant had committed an academic offence and to sanction her?

¶ 38      It is appropriate here to recall that the Dean's jurisdiction to impose a sanction depends upon the student admitting the commission of an offence.  He believed that he had received such an admission and acted upon it.  By what standard is that decision to be reviewed?

Standard of Review:

¶ 39      The position on behalf of the applicant is that the Dean had to be correct in his understanding of the applicant's admission of an academic offence before he had any jurisdiction to invoke the procedure by which she was sanctioned.

¶ 40      The respondent University, on the other hand, submits that the applicant admitted that she was responsible for the false grades and that she ought to have known that she was presenting false information to the law firms.  On the basis of that admission, the University submits the Dean was entitled to disbelieve the explanation and therefore his decision cannot be considered patently unreasonable, which it submits is the appropriate standard.

¶ 41      All the parties point to the case of Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982 as the appropriate guide for determination of the standard of review in a case such as this.  In Pushpanathan, what was at issue was the standard of review of a decision of the Immigration & Refugee Board with respect to a "convention refugee".  Bastarache J., for himself, McLachlin J. (as she then was), Gonthier J. and L'Heureux-Dubé J. concluded on the particular facts that the appropriate standard of review was correctness, as did Justices Cory and Major, who dissented in the result (the latter disagreeing with the majority as the question was characterised as one of law).

¶ 42      Bastarache J. for the majority commenced his discussion of the standard of review at para. 26 as follows:

and continued at para. 28:

¶ 43      Bastarache J. then went on to set out four factors that should be taken into account in determining the standard of review and to elaborate the importance of each to the analysis.  These factors are as follows:

¶ 44      In support of a deferential standard, the University and the Dean submit that an analysis of each of the above factors supports a high degree of deference to the Dean's decision.  They point to the broad purpose contained in the University of Toronto Act, both in its 1947 version as well as the 1971 Act [see Note 1 below] which articulate the primary purpose of establishing and maintaining the necessary structures for the University to effectively govern its own affairs, including disciplinary matters, in order that "academic achievement is not obscured or undermined by ... misrepresentation."

   Note 1:  1947 Act, 11 Geo.VI, C.112 s. 33, 48(c), 79-83; 1971 Act, S.O. s. 2(14), 9 (While counsel for the University did not concede that the Dean's decision was subject to review pursuant to the Statutory Powers Review Act, R.S.O. 1990 c.S2.22, she did concede that it was subject to review by Certiorari which could give rise to the same result.)

¶ 45      The respondents also urge that, pursuant to sections 79 and 81 of the 1947 Act, decisions of the Caput (the University disciplinary organ under the 1947 Act) in exercising its broad jurisdiction over disciplinary matters are stated to be "final and not open to review", and that these powers and the privative clause relating to them are continued pursuant to section 9 of the 1971 Act.  The respondents urge that while the privative clause does not pertain specifically to the Dean, its presence in the 1947 Act and the carry-forward into the 1971 Act, together with the broad jurisdiction accorded the University in respect of discipline support maximum deference for the Dean's decision.

¶ 46      The respondents also point to the expertise of the Dean in his responsibility as a matter of policy for sustaining the environment in which the policy goals and objectives of the University and the Code may be fostered. They also note that he is legally trained and, therefore, able to address legal issues.

¶ 47      The respondents also submitted that the question of whether an academic offence has been committed requires both consideration of the particular conduct in issue and its effect upon and interplay with the University's policy objectives underlying the Code.  Since the Dean participated in the policy process, he was in a better position than the Court to assess whether or not particular conduct amounted to an academic offence and his decision should attract judicial deference.  The respondents submitted that the Dean's decision, given all of the factual background, cannot be considered patently unreasonable.

¶ 48      The applicant and the Intervenor urged that the appropriate standard is one of correctness.  On behalf of the applicant, it is urged that that no deference was due to an administrator in the position of the Dean when dealing with his own jurisdiction.  Thus, in order to be in a position to consider and impose a sanction, the Dean must correctly find that the applicant had admitted committing an academic offence.

¶ 49      Assuming, without deciding, that the language of section 9 of the 1971 Act is effective to carry forward the privative clause, it does not, as was conceded, directly protect the Dean and his decision cannot be supported by reference to it.  The Dean's acknowledged expertise in administering academic policy, in understanding the objectives of the Code and the place of academic honesty in student-faculty relations is simply not engaged by the task of determining the factual issue of whether the student has made the necessary admission.  The purpose of the Act and the Code is to regulate conduct and rights and hence these enactments fall into the category for which Court supervision is most appropriate, as is discussed in Pushpanathan  at paragraph 36. The purpose of the Code is not advanced by permitting the Dean to assume jurisdiction in the absence of a genuine admission.

¶ 50      While the question of admission of an offence or no admission is one of fact which would ordinarily attract deference due to the "signal advantage" enjoyed by the primary finder of fact, as discussed at paragraph 37 of Pushpanathan, it must be recalled that the Dean is not exercising a jurisdiction to inquire into and find the facts.  His entire jurisdiction depends upon one fact:  that the student has admitted the offence.  The scheme of the Code does not permit him to judge the truthfulness of the student's statements to him.  He can act only if he has an admission.

¶ 51      In our view, taking all of the Pushpanathan criteria into account, the Dean must be held to a standard of correctness in making the jurisdictional decision that he has received the necessary admission.

Was the Dean correct to find that an admission of the offence had been made?

¶ 52      Counsel for the University submitted that the applicant admitted to an academic offence when she conceded that the marks submitted to prospective employers were not those found in the University data bank.  In that sense, the University submits, the applicant admitted that she ought to have known, given her conduct, that the marks were not correct.  Given that admission, the Dean, it was submitted, was entitled for the purpose of determining the appropriate sanction to decide whether or not he believed and accepted her explanation.

¶ 53      There are two ways in which the offence can be committed.  The basic offence is "knowingly" falsifying an academic record.  While that word was not included in the description of the offence in the Dean's letter, no point was made of this.  As noted above, the Code also provides that where an offence requires "knowing", it is also committed if the person ought to have known.  Thus, in determining whether the act complained of constituted an offence the trier of fact must consider the applicant's state of mind.  Since the applicant consistently denied acting knowingly, we turn to consider this alternative.

¶ 54      Black's Law Dictionary [6th ed., 1990, West Publishing Co.] defines "false" as being "not true ... counterfeit; assumed or designed to deceive ..."  The text goes on to state:

¶ 55      Thus the word "false" is capable of applying both to deliberate and to accidental untruth, although "falsify" in common parlance carries an unmistakable sense of deliberateness.  The word "alter", also used in the Code, is more neutral.  What does it mean when we say that the applicant `ought to have known' that the marks she was reporting were false in part?  What is there about her conduct that makes it just to punish her for an unknowing act as if it had been a knowing one?  The extent of necessary knowledge and the degree of moral turpitude required where an offence is alleged that one "ought to have known" can be complex in analysis both in fact and in law.  The concepts of "knowing" and of "ought to have known" have been the subject of judicial consideration and academic discussion both in criminal law and in the law of negligence.

¶ 56     In a criminal law context "knowing" or "knowingly" involves the subjective mental element that an individual acts with awareness of the nature of his or her conduct.  The proof of a mental element or mens rea is an essential ingredient of an offence that requires knowledge. In criminal law the requirement of knowledge of a fact may also be met by proof of willful blindness as to the fact:  see R. v. Pappajohn, [1980] 2 S.C.R. 120.  There is no basis in this record for a finding of willful blindness.

¶ 57      In the law of negligence at the other end of the spectrum, the concept of "ought to have known" invokes objectivity by utilizing the concept of the reasonable person: see Gaudet v. Levy (1984), 47 O.R. (2d) 577.  The concept clearly implies the existence of a standard of care against which the conduct is measured to see if a reasonable person ought to have known something.  In the present case the question must be what the reasonable person sending information to prospective employers about her credentials would have done to ensure accuracy.

¶ 58      In our view an appropriate criminal law analogy to the present case is that of criminal negligence.  Here the evidence shows, if one excludes deliberate conduct, what can at worst be described as negligent conduct.  In order to have criminal consequences, negligent conduct must be, not merely a departure from the standard of care which has civil consequences, but a "marked and significant departure", or a "grave departure" from the standard of an ordinary prudent person:  R. v. Anderson (1990), 53 C.C.C. 481, 485-6, (S.C.C.); R. v. Tutton (1989), 48 C.C.C. (3d) 129, 140, 152, (S.C.C.).

¶ 59      The evidence of the applicant, in summary, was that she did the work at night under stress and fatigue; that she knew not all her C marks were C+ but she placed a "+" beside each intending to go back and check; that she did go back and check and the result seemed OK to her, but it was in fact in error as to the two courses in question.  She did at one point say, yes, `ought to have known' would describe her position, but when all of her evidence is read fairly, we do not find any admission by her of a `marked' or `grave' departure from the standard to be expected.  Unless perfection is the standard, doing the work and checking it would surely meet it.  Given the complexity of the law surrounding the concept of `ought to have known', it would be unfair to hold the applicant to her one reference to `ought to have known' and ignore the totality of her evidence.  This is particularly the case since the Dean, a lawyer dealing with a student, did not articulate, for the purpose of obtaining an admission, what was the requisite state of mind involved in the concept of "ought to have known".

¶ 60      We conclude that the applicant did not admit to the Dean that she ought to have known that she was committing an academic offence when she put the letters in the mail.

¶ 61      It is not necessary to go more deeply into the jurisprudence surrounding the concept of `ought to have known' in this case because it is clear that the Dean did not, in the end, proceed upon this basis.  He disbelieved the applicant and proceeded upon the basis that she had sent the false information deliberately.

¶ 62      In our view, the evidence shows that the applicant consistently denied intent.  Further, the applicant was not understood by the Dean to have admitted an offence involving intent, otherwise he would not have found it necessary to state expressly that he disbelieved her explanation in which she denied intent.

¶ 63      What the Dean did here was to listen to the explanation of the applicant, which, if accepted would exculpate her, disbelieve it and find her guilty.

¶ 64      In our view, the scheme of the Code does not permit the Dean to judge the truthfulness of the student. That task is the function of the Tribunal under section 10 of the Code.  The Dean must take whatever admission is made, complete with all its limitations, as the sole basis for his action.  If he disbelieves the student, he can refer the matter to the Provost for possible referral to the Tribunal. What the Dean cannot do is, by disbelieving the student, turn an admission of error by accident or carelessness into an admission of intent.

¶ 65      The foundation of the jurisdiction of the Dean to impose a sanction was the admission by the Applicant of an academic offence.  The Dean was incorrect in making findings beyond what was being admitted and therefore was without jurisdiction to sanction the applicant.

¶ 66      Even if the standard were to be one of patent unreasonableness, we believe that the applicant should succeed.  The evidence does not objectively support the Dean's conclusion as to the admission of the offence for which the applicant was disciplined and the conclusion therefore may be considered patently unreasonable.  One thing appears to be clear on this record.  The applicant recognized her responsibility but at all times denied the essential ingredient to an offence that involved a "knowing" or intention to deceive, the very thing the Dean found against her.  It is patently unreasonable to conclude that a denial is an admission.

¶ 67      We therefore conclude that by any applicable standard of review, the Dean was without jurisdiction to sanction the applicant.

Conclusion

¶ 68      In the result the application is granted and an Order will issue quashing the decision of the Dean and setting aside the finding of guilt and the imposition of the sanction. The matter is remitted to the University should any further action be deemed appropriate.

¶ 69      If the parties cannot agree on the issue of costs, they make written submissions within 30 days of the release of these reasons dealing with both disposition and quantum.

LANE J.
MATLOW J.
C. CAMPBELL J.

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