Procedural Fairness in the Academic Context

In the recent case of Tsimidis v Certified General Accountants of Ontario, 2014 ONSC 4236, the Divisional Court granted Mr. Tsimidis’s application for judicial review of the CGA’s decision to withdraw him from its program of professional studies for having study notes in his possession during an examination. The Divisional Court, per Justice Then, found that the CGA breached the rules of natural justice and the duty of procedural fairness both with regard to its investigation of the applicant and the CGA Appeal Committee’s decision.

Justice Then confirmed that there is no standard of review when considering whether a decision-maker committed a breach of natural justice or procedural fairness; rather, the reviewing court will simply assess whether the decision-maker complied with those requirements. However, with regard to the merits of the CGA Appeal Committee’s decision, the standard of review is reasonableness. (para. 18)

The Court determined that the CGA failed to act in accordance with its own procedures for violations of academic integrity set out in the student handbook: it was not clear if the CGA conducted an investigation into the allegation that the student had contraband notes with him during the examination; the student was not notified that the accusation against him was under review by the CGA; and the CGA did not permit the student an opportunity to appear in person before the Vice-President of Student Services to explain his side of the story or provide his position regarding his penalty. On the third point, Justice Then stated: “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.” (para. 31)

The Court then considered whether the Appeal Committee cured the failings of the first level investigation before the Vice-President, but found that, instead, the Appeal Committee continued the breaches of procedural fairness and natural justice by making its decision without providing the student an opportunity to appear in person to make submissions regarding his penalty, and the Appeal Committee failed to provide any reasons for its decision to deny the student’s appeal. Justice Then stated: “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.” (para. 45)

The Tsimidis decision is a good reminder that although academic integrity is crucial in professional programs of study, so too is a student’s right to procedural fairness and natural justice when confronted with an allegation of academic misconduct.

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