Akpan v The University of Saskatchewan Council, 2021 SKCA 129

Court of Appeal for Saskatchewan Docket: CACV3771 Citation: Akpan v The University of Saskatchewan Council , 2021 SKCA 129 Date: 2021-09-29 Between: Sifon Sylvanus Akpan Appellant (Applicant) And The University of Saskatchewan Council and The University of Saskatchewan Respondents (Respondents) Before: Whitmore, Schwann and Barrington-Foote JJ.A. Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr.

Justice Whitmore The Honourable Madam Justice Schwann On appeal from: 2021 SKQB 21 , Prince Albert Appeal heard: June 3, 2021 Counsel: Peter A. Abrametz for the Appellant Robert J. Affleck for the Respondents Barrington-Foote J.A. I. INTRODUCTION [ 1 ] On March 20, 2020, the College of Nursing Academic Integrity Committee [Committee] decided that Sifon Sylvanus Akpan, who was then a student at the College of Nursing [College] at the University of Saskatchewan, should be expelled for plagiarism [Committee decision]. Ms.

Akpan appealed to the University of Saskatchewan Appeal Board [Appeal Board], which upheld the Committee decision on June 23, 2020 [Appeal decision]. [ 2 ] Ms. Akpan applied to the Court of Queen’s Bench for judicial review of both the Committee decision and the Appeal decision, alleging a number of procedural and substantive deficiencies. In her January 21, 2021, decision [QB decision], the Chambers judge found there was no basis to interfere. [ 3 ] Ms. Akpan has appealed the QB decision.

For the reasons that follow, I would allow the appeal and remit the matter to the Appeal Board to reconsider the sanction imposed on Ms. Akpan. II. BACKGROUND A. The Regulations on Student Academic Misconduct [ 4 ] Matters relating to student academic discipline at the University of Saskatchewan are governed by the Regulations on Student Academic Misconduct .

The Regulations were approved by the University Council pursuant to The University of Saskatchewan Act, 1995 , SS 1995, c U-6.1 , which provides as follows: 60 The council is responsible for overseeing and directing the university’s academic affairs. 61(1) The council may: … (

h) discipline students for academic dishonesty, including admonishing, dismissing, suspending or expelling students or imposing fines; … (

j) hear appeals by students or former students concerning academic decisions affecting them; … (

p) subject to subsection (2), establish any committees that it considers necessary; (

q) subject to subsection (2), delegate any of its powers to any committee of the council; … (

v) do any other thing that the council considers necessary, incidental or conducive to exercising its powers, to promoting the best interests of the university or to meeting the purposes of this Act .

[ 5 ] The

preamble to the Regulations describes the authority of the University Council in relation to academic misconduct, and Council’s expectation that hearing boards will comply with them: The University of Saskatchewan Act 1995 (“the Act ”) provides Council with the responsibility for student discipline in matters of academic dishonesty, which is referred to throughout this document as “academic misconduct”.

All hearing boards, whether at the college, school or university level, are expected to carry out their responsibilities in accordance with approved counsel regulations and processes. … [ 6 ] The Regulations both define “academic misconduct” and contain a comprehensive procedural code. They contemplate the informal resolution in certain circumstances where the student concedes having committed academic misconduct, and the initiation of proceedings through formal written allegations where the issue cannot be resolved informally.

There is provision for an initial screening of duplicative and frivolous or vexatious claims; for formal hearings before a department, school or college-level board which makes the initial decision; for the imposition of specified sanctions by the hearing board if a finding of academic misconduct is made; and for an appeal to a University-level appeal board on the grounds specified in the Regulations. [ 7 ] There are procedural rules relating to hearings and appeals, including, for example, as to the application of the rules of evidence and the acceptability of proposed witnesses.

The failure to comply with a procedural rule in the Regulations is central to this decision. B. The Committee decision and the Appeal decision [ 8 ] The events which resulted in Ms. Akpan’s expulsion occurred in early 2020, when she was in the fourth and final year of her studies at the College. On January 30, 2020, she submitted a critical reflection paper describing a clinical learning experience. The faculty member who reviewed the paper concluded there were ten instances of plagiarism. She reported those infractions to the program coordinator, Dr. Maposa. At a February 11, 2020, meeting with Dr. Maposa, Ms.

Akpan acknowledged that she had failed to properly cite works referred to in her paper. [ 9 ] As a result, a formal allegation was filed on February 14, 2020, alleging that Ms. Akpan had violated s. II.B.l of the Regulations:

l) Plagiarism: the presentation of the work or idea of another in such a way as to give others the impression that it is the work or idea of the presenter. Adequate attribution is required. What is essential is that another person have no doubt which words or research results are the student’s and which are drawn from other sources. Full explicit acknowledgement of the source of the material is required. … [ 10 ] The formal allegation of academic misconduct by plagiarism proceeded to a hearing before the Committee, which was the college-level hearing board appointed pursuant to s. VII.A.1 of the Regulations.

In the Committee decision, the Committee summarized its conclusion as to sanctions as follows (at 2): Considering the seriousness of the allegation, Ms. Akpan’s admission that she did commit plagiarism, and the fact that she was previously found guilty on four (4) charges of academic misconduct (related to a single incident), resulting in significant sanctions (i.e., a formal reprimand, a two-month suspension from the BSN program, and a reflective paper), the Committee ruled that the following sanction be imposed: • That Ms.

Akpan will be expelled permanently from the College of Nursing effective immediately. [ 11 ] The previous incident of academic misconduct referred to in this passage was also one of plagiarism. [ 12 ] Ms. Akpan appealed the Committee decision to the Appeal Board pursuant to

Part IX of the Regulations. Ms. Akpan identified three issues. She submitted that the Committee had erred by admitting evidence of the February 11, 2020, meeting with Dr. Maposa, where she had acknowledged having committed plagiarism, and by failing to give her an opportunity to make submissions on sanctions. She also alleged that there was a reasonable apprehension of bias on the part of a member of the Committee. [ 13 ] The Appeal Board heard the appeal on June 12, 2020.

In the Appeal decision, it found that the Committee had made procedural errors, but nonetheless denied the appeal, reasoning as follows: As none of the above-noted issues have caused this Appeal Board to conclude that the Appellant did not receive a fair hearing, the Appeal Board dismisses Ms. Akpan’s appeal. C. The QB decision [ 14 ] Ms. Akpan then applied for judicial review of both the Committee decision and the Appeal decision. The grounds listed in her application for judicial review were as follows: 1.

THAT the College of Nursing Academic Integrity Committee misapprehended the Appellant’s impugned essay and failed to consider the Appellant’s explanation, thereby offending principles of natural justice and procedural fairness; 2. THAT the College of Nursing Academic Integrity Committee failed to abide by the Regulations on Student Academic Misconduct approved by the University Council. Specifically, the College of Nursing Academic Integrity Committee imposed the sentence of permanent expulsion without adhering to the procedure in

Part VIII,

section 3 of the Regulations , which states that the University

Secretary will provide the Hearing Board of a record of any sanctions imposed by other University Hearing Boards or Appeal Boards for similar academic misconduct matters; 3. THAT the Appeal Board erred in failing to set aside the decision of the Academic Integrity Committee after concluding that the Academic Integrity Committee had made procedural errors that undermined the high standards that should be required to permanently expel a student; 4.

THAT the decision of the Academic Integrity Committee was incorrect and unreasonable as a result of the failure to adhere to the procedures set out in the Regulations on Student Academic Misconduct of the University of Saskatchewan. [ 15 ] In the QB decision, the Chambers judge dismissed the appeal, for reasons that may be summarized as follows: (

a) The Committee’s conclusion that Ms. Akpan had committed plagiarism was a reasonable finding of fact. The Committee did not misapprehend Ms. Akpan’s paper. Plagiarism was not only admitted by Ms. Akpan but was carefully documented and correlated to the definition of plagiarism in the Regulations. (

b) There was a failure to comply with s. VIII.3 of the Regulations, as the Committee did not request or receive the records referred to in that section, which is as follows: The University Secretary will provide the hearing board of a record (if any) of any sanctions imposed by other University hearing boards or appeal boards for similar academic misconduct matters. However, by doing so the Committee did not make “a fundamental procedural error that seriously affected the outcome” (at para 38). Nor did it make a material error, as expulsion was a reasonable sanction. (

c) The Committee’s admission of the evidence relating to the February 11, 2020, meeting with Dr. Maposa breached s. III.A.6 of the Regulations. However, Ms. Akpan had an oral hearing and an opportunity to respond to the allegations, which were fully investigated by the Committee. There was ample evidence of plagiarism without taking account of the evidence that Ms. Akpan acknowledged at that meeting that she had committed plagiarism. For that reason, the admission of the evidence of the meeting was not a fundamental procedural error and did not affect the Committee’s decision. III.

STANDARD OF REVIEW AND GROUNDS OF APPEAL [ 16 ] In Kupsar v Regina Provincial Correctional Centre , 2020 SKCA 142 [ Kupsar ], the Court summarized the standard of review applicable on an appeal of a judicial review decision: [36] …This Court’s role is to decide whether the Chambers judge selected the correct standard of review and correctly applied that standard to his review of the Appeal decision: Kawula v Institute of Chartered Accountants of Saskatchewan , 2017 SKCA 70 at para 116 , 24 Admin LR (6th) 112; Dr.

Q. v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at paras 43–44 , [2003] 1 SCR 226. In practice, this means that once the appellate court has identified the correct standard of review, it “steps into the shoes” of the lower court, and applies that standard to the decision of the administrative tribunal: Merck Frosst Canada Ltd. v Canada (Health) , 2012 SCC 3 at para 247 , [2012] 1 SCR 23; Harvey v Saskatchewan Legal Aid Commission , 2020 SKCA 110 at para 42 . [ 17 ] Ms.

Akpan alleges that the Chambers judge committed several errors, which I will restate in the form of the following questions: (

a) Did the Chambers judge err by failing to find that non-compliance with s. VIII.3 of the Regulations was a breach of the duty of fairness which justified appellate intervention? (

b) Did the Chambers judge err in law by relying on inadmissible evidence submitted in argument by counsel for the respondents? (

c) Did the Chambers judge err by failing to find that the Appeal Board and the Committee misapprehended Ms. Akpan’s paper, failed to consider the seriousness of her misconduct, and failed to justify their decisions? [ 18 ] These questions raise both issues that require the application of the correctness standard and issues that require the application of the reasonableness standard. The applicable standard in relation to each issue is identified below. IV. ANALYSIS A. Did the Chambers judge err by failing to find that non-compliance with s.

VIII.3 of the Regulations was a breach of the duty of fairness which justified appellate intervention? [ 19 ] There is no question but that there was a failure to comply with s. VIII.3, both in form and in substance. The University Secretary did not provide a record of sanctions imposed in relation to similar academic misconduct to the Appeal Board. There is no evidence that the Appeal Board had such a record or otherwise knew of or took account of sanctions imposed in similar circumstances.

[20] I would first note that both parties proceeded on the basis that this issue turned on the answer to the following question: did thefailure to comply with s. VIII.3 constitute a material breach of the duty of fairness? That being so, the issue for this Court is whether theChambers judge erred in finding that the Appeal Board did not err when it concluded that Ms. Akpan had received a fair hearingregardless of that non-compliance.

The Court summarized the standard of review that applies when the alleged error relates to a breach ofprocedural fairness in Kupsar: [37] …The standard of review relating to an alleged error of that kind is described in Saskatchewan as correctness: Mercredi vSaskatoon Provincial Correctional Centre, 2019 SKCA 86 at para 26, [2020] 4 WWR 212 [Mercredi]; Risseeuw v Saskatchewan Collegeof Psychologists, 2019 SKCA 9 at paras 63–64, [2019] 2 WWR 452; Eagle’s Nest Youth Ranch Inc. v Corman Park (Rural Municipality),2016 SKCA 20 at paras 21–26, [2016] 7 WWR 35; Saskatoon (City) v Amalgamated Transit Union, Local 615, 2017 SKCA 96 at paras24–32, [2018] 4 WWR 822; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR 339.

In substance,that means an appeal court must determine whether the procedure at issue was fair in the circumstances. [21] Mercredi v Saskatoon Provincial Correctional Centre, 2019 SKCA 86 at paras 26–29, [2020] 4 WWR 212 [Mercredi]; andFeng v Saskatchewan (Economy), 2020 SKCA 6 at paras 43–46, 70 Admin LR (6th) 237 [Feng], also discuss this standard. Both alsoemphasize that in deciding what is fair in the circumstances, “[t]he ultimate issue is always whether the process accords with theunderlying values reflected by the duty of fairness” (Mercredi at para 29; Feng at para 45).

Further, Kupsar, Feng and Mercredi all affirmthat determining the content of the duty calls for a contextual analysis. As the Court said in Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 at para 77, 441 DLR (4th) 1 [Vavilov], “the duty of procedural fairness in administrative law is‘eminently variable’, inherently flexible and context-specific”. In Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at paras 21–28, the Supreme Court listed five non-exhaustive factors that inform the content of the duty.

InPhillips Legal Professional Corporation v Vo, 2017 SKCA 58 at para 122, [2017] 12 WWR 779 [Vo], Ottenbreit J.A. summarized thosefactors as follows: …(

i) the nature of the decision being made and the process by which it is made; (ii) the nature of the statutory scheme and the role of theparticular decision within it; (iii) the importance of the decision to those affected; (iv) the legitimate expectations of the personchallenging the decision; and (

v) the choices of procedure made by the agency itself. [22] Here, there was a failure to comply with a prescribed procedural rule. However, such a failure – even if the rule is prescribedby statute – is not always fatal: Potter v Halifax Regional School Board, 2002 NSCA 88 at paras 116–121, leave to appeal to SCC refused[2003] 1 SCR xv; Oates v Royal Newfoundland Constabulary Public Complaints Commissioner, 2003 NLCA 40, 231 DLR (4th) 648;Canadian Tire Corporation Ltd. v Regina (City) Board of Revision, 2001 SKQB 496, 212 Sask R 142; Robertson v Edmonton (City), (AB KB), [1990] 4 WWR 232 at 242–245.

The decision as to the effect of non-compliance has often been made bydistinguishing provisions that are mandatory from provisions that are directory. In M & D Farm Ltd. v Manitoba Agricultural CreditCorp., (SCC), [1999] 2 SCR 961, Binnie J. explained this distinction: [44] The distinction is well established between legislative provisions that are mandatory (in the sense that non-compliance results ininvalidity) and directory (where non-compliance may in certain circumstances be relieved against): Reference re Manitoba LanguageRights, (SCC), [1985] 1 S.C.R. 721, at p. 737.

In determining whether a statutory directive is mandatory or directory, thisCourt must be guided by the object of the statute and the effects of ruling one way or the other: British Columbia (Attorney General) v.Canada (Attorney General);

An Act respecting the Vancouver Island Railway (Re), (SCC), [1994] 2 S.C.R. 41 at pp. 123-24. Indeed, these are the most important considerations: Blueberry River Indian Band v. Canada (Department of Indian Affairs andNorthern Development), (SCC), [1995] 4 S.C.R. 344, per McLachlin J., at para. 42. [23] See, to the same effect, Merchant v Law Society of Saskatchewan, 2014 SKCA 56 at paras 110–112, [2014] 6 WWR 643;Canada v South Yukon Forest Corporation, 2012 FCA 165 at para 63, 431 NR 286; and United Food and Commercial Workers, Local1400 v Affinity Credit Union, 2019 SKQB 236 at paras 13–20, 310 LAC (4th) 49.

Sara Blake, Administrative Law in Canada, 6th ed(Toronto: LexisNexis, 2017) at 10, offers the following helpful comments on this issue: ¶2.16 Some prescribed procedures must be followed strictly while others are flexible. Which procedural rules are mandatory? A rule maybe prescribed as something that “shall” be done or “may” be done.

Interpretation Acts state that “may” is to be construed as permissivewhile “shall” must be construed as imperative.

However, the courts sometimes construe “shall” or “must” as being not mandatory andsome doubt the usefulness of the traditional distinction between rules that are mandatory, which must be followed, and those which aredirectory and may be waived. ¶2.17 The procedural choices in a specific case should reflect the statutory purposes of the proceeding and of the procedural requirementand should ensure that each party has a fair opportunity to be heard consistent with the significance of the effect of the decision on thatparty.

If non-compliance with a procedural rule is likely to cause prejudice to a party’s right to be heard and if important interests of theparty are at stake, compliance with the rule may be mandatory. Prejudice must be proven with evidence as it cannot be assumed simplyfrom proof of non-compliance with the rule. Conversely, the public interest and statutory purposes should not be defeated by overly strictadherence to procedural rules. Common sense should be applied. (Footnotes omitted) [24] In the QB decision, the Chambers judge did not refer to the case law relating to the mandatory/directory distinction.

However,she effectively dealt with the substance of that issue. She noted that Ms. Akpan had argued that s. VIII.3 of the Regulations wasimperative. She characterized the verb “will” in s. VIII.3 as a “conundrum”, finding as follows: [32] There is no rule of

interpretation for “will”. However, the verb is often synonymous with “should”. In other words, the verb “will”is not an imperative, but it is more than merely permissive. [25] The Chambers judge then noted that s. VIII.3 appears in

Part VIII of the Regulations, which is titled “Determination ofSanctions”, and that s. VIII.2 states that a copy of the student’s record of prior violations and transcript will be provided by the Registraror the University Secretary to members of the hearing board “to assist them in determining one or more appropriate sanctions” (at para

35). She also emphasized the non-binding effect of prior academic misconduct decisions: [36] As reiterated in Vavilov at para 129, administrative “decision makers are not bound by their previous decisions in the same sensecourts are bound by stare decisis”. Thus, even if it had received records of other sanctions, the Committee would not have been bound bydecisions of other hearing boards of the University. That too gives credence to the University’s submission that the information providedas stated in

Section VIII.3 of the Regulations is merely an assistive tool. [37] As the Supreme Court of Canada reminded the reviewing courts in Canada (Attorney General) v Mavi, 2011 SCC 30 at para 41,[2011] 2 SCR 504: 41 Once the duty of procedural fairness has been found to exist, the particular legislative and administrative context is crucial todetermining its content. … (Emphasis in QB decision) [26] Taking all of this into account, the Chambers judge concluded that the record referred to in s. VIII.3 is “merely informative”. Inthe result, and as noted above, it was her view that the failure to comply with that

section was not “a fundamental procedural error thatseriously affected the outcome” (at para 38). This language echoed s. IX.2 of the Regulations, which limits the grounds for an appeal fromthe decision of a college-level board to the University-level appeal board. As she put the matter, “[i]n making its decision, the Board wasacting upon its mandate as provided by

Section IX.2.c of the Regulations” (at para 16). That

section provides as follows: 2. An appeal will be considered only on one or more of the following grounds:

a) That the original hearing board had no authority or jurisdiction to reach the decision or impose the sanction(

s) it did;

b) That there was a reasonable apprehension of bias on the part of a member or members of the original hearing board;

c) That the original hearing board made a fundamental procedural error that seriously affected the outcome;

d) That new evidence has arisen that could not reasonably have been presented at the initial hearing and that would likely have affected thedecision of the original hearing board. (Emphasis added) [27] The Chambers judge also relied on an alternative ground that she did not explicitly relate to the limited scope of a s. IX.2appeal.

She cited Genex Communications Inc. v Canada (Attorney General), 2005 FCA 283, [2006] 2 FCR 199, for the followingproposition: [40] As the courts are reminded in Genex Communications v Canada (Attorney General), 2005 FCA 283 at para 42, [2006] 2 FCR 199: 42 A third limit should also be noted: the CRTC’s decision will not necessarily be set aside because one or more errors of law may havebeen committed by it in its exercise of the powers given to it under the Act. Those errors must, at a minimum, be material, that is theymust have had an impact on the making of the decision and on the decision that was made.

An error is material if the decision that wasmade would probably have differed absent that error or, in the context of applying the reasonableness standard, if those errors affect thedecision as a whole: see Law Society of New Brunswick v. Ryan, 2003 SCC 20 , [2003] 1 S.C.R. 247, at page 270. Otherwise, thedecision must be upheld.

I will have the occasion to return to this question later when I discuss the standard of review that is applicable toa review on appeal of a decision of the CRTC. (Emphasis added in QB decision) [28] In the result, she found that the error was not material here, as “[i]t was reasonable for the Committee to impose the next severesanction on [Ms.] Akpan, that being expulsion” (at para 41). [29] With respect, and for the following reasons, I am of a different opinion than the Chambers judge as to the significance of s.VIII.3 and as to the effect of non-compliance. The issue is the proper

interpretation of that section. [30] Although the Regulations are not legislation, they should be interpreted in essentially the same fashion; that is, cast in terms ofthe modern principle codified in s. 2-10 of The Legislation Act, SS 2019, c L-10.2, “[t]he words of [the Regulations] are to be read in theirentire context, and in their grammatical and ordinary sense, harmoniously with the scheme of the [Regulations], the object of the[Regulations] and the intention of the [University Council]”. [31] I do not agree that “will” cannot be imperative.

Oxford University Press, “definition of shall” (9 September 2021), online:Lexico.com, confirms that “will” and “shall” are now generally used interchangeably, and that “shall” can express an instruction,command or obligation. The ordinary and grammatical sense of the phrase “will provide” is that the University Secretary is obliged togive the hearing board a record that is adequate to serve the purpose for which it is given. I note that “will” is frequently used in this wayin the Regulations.

Section IX.3 is one of many examples: 3. Upon receipt of a notice of appeal, the University Secretary will review the record of the original hearing and the written statement ofappeal and determine whether or not the grounds for appeal are valid. If the Secretary determines that there are no valid grounds underthese Regulations for an appeal, then the appeal will be dismissed without a hearing. … (Emphasis added) [32] There is no doubt but that these obligations are imperative. It would be unreasonable to find that this provision means that theUniversity Secretary would have the discretion to proceed with an appeal that is not based on valid grounds.

[ 33 ] What, then, is the object of s. VIII.3 and the intention of University Council? That

section is meant to ensure that a hearing board shall receive a record of decisions that has been made in relation to similar academic misconduct. The purpose of this provision is self-evident; that is, to ensure the hearing board is aware of those decisions before imposing sanctions. [ 34 ] The significance of this requirement is readily understandable. As the Chambers judge correctly noted, Vavilov confirmed that an administrative decision-maker is not bound by decisions made by other hearing boards.

However, that does not mean that a decision- maker such as the hearing board is not required to consider prior decisions. Vavilov instructs that a decision that is subject to a reasonableness review – such as the decision to impose sanctions on Ms. Akpan – is limited by “the constraints imposed by the legal and factual context of the particular decision under review” (at para 90). Those constraints must be taken into account.

Further, the decision must be transparent, intelligible and “justified in relation to the relevant factual and legal constraints that bear on the decision” (at para 99). [ 35 ] Past practices and decisions of the decision-maker are one such constraint.

In Vavilov , the Supreme Court explained the reason for and effect of this principle: [129] Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis . …Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions.

Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge. … [131] Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable.

Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons.

If the decision maker does not satisfy this burden, the decision will be unreasonable. …[A] decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole. (Emphasis in original) [ 36 ] The Chambers judge concluded that the fact administrative decision-makers are not bound by previous decisions in the same sense as courts supported the conclusion that the provision of information about those decisions is “merely an assistive tool” (at para 36).

With respect, that reasoning does not accord with the requirement that the Committee consider this constraint and justify any departure from an established practice. It could not do so because of the non-compliance with s. VIII.3. Further, and as a result, it was not possible for the Chambers judge to determine if the sanction imposed on Ms. Akpan was reasonable. [ 37 ] There is no evidence that the information specified in s. VIII.3 can be obtained by a hearing board or by someone accused of academic misconduct in any other way.

Given that any record that does exist is essential for purposes of the sanctions process, I conclude that the obligation imposed by s. VIII.3 is mandatory, as a failure to comply with that provision results in prejudice to the right to a fair hearing, in circumstances where important interests are at stake. That non-compliance constituted a material breach of the duty of fairness. [ 38 ] For these reasons, I would allow the appeal on the basis of the first ground. To be clear, that does not mean that expulsion is not a sanction that could be imposed in this instance.

That is a matter to be considered by the Appeal Board when it reconsiders the issue of sanctions. B. Did the Chambers judge err in law by relying on inadmissible evidence submitted in argument by counsel for the respondents? [ 39 ] In the QB decision, the Chambers judge made the following comment: [39] Furthermore, counsel for the University submits that this procedural error did not affect the decision made by the Committee. Expulsion was the only remaining sanction available to it. [ 40 ] Ms. Akpan submitted that the Chambers judge blindly accepted these submissions as evidence. With respect, I do not agree.

The Chambers judge did not find that expulsion was “the only remaining sanction”. She found only that a more serious sanction than the one last imposed on Ms. Akpan was justifiable: [ 41 ] …It was reasonable for the Committee to impose the next severe sanction on [Ms.] Akpan, that being expulsion. The lesser sanction of suspension, which had previously been imposed on [Ms.] Akpan, had been insufficient for her to assimilate what the academic misconduct of plagiarism means. … [43] …Given the evidence of Dr.

Bilinski that honesty and integrity are essential to the nursing profession – and understandably so – expulsion was a reasonable sanction imposed by the Committee. [41] Further, the Chambers judge, by considering this submission, did nothing more than what all manner of courts and other decision-makers do as a matter of course. The submissions referred to in paragraph 39 of the QB decision were not evidence. They were an argument made by the University based on the evidence of the prior academic misconduct by and sentence imposed on Ms. Akpan. The Chambers judge was entitled to consider that argument.

Indeed, the assistance provided by parties and their counsel to decision-makers is an important element of the adversarial model. [ 42 ] In the result, this ground of appeal is without merit.

C. Did the Chambers judge err by failing to find that the Appeal Board and the Committee misapprehended Ms. Akpan’s paper, failed to consider the seriousness of her misconduct, and failed to justify their decisions? [ 43 ] Ms. Akpan submits that the Committee did not consider her explanation as to why she committed plagiarism when determining the sanction to be imposed. She claimed that her misconduct was not deliberate, but the result of stress arising from her personal circumstances, including her father’s serious illness.

She takes particular issue with the following passage in the Committee decision, which in her view did not constitute a reasonable justification for concluding that she was dishonest: Ms. Akpan’s claim that the academic misconduct “was an honest mistake” was poorly substantiated, given the fact that a time extension had been given for the assignment and not utilized. [at 2] [ 44 ] She also submits that the Committee misapprehended her paper, because the complainant incorrectly alleged that she had fabricated an interaction with the family members of a patient that died.

As a result of all of this, she argues that the Committee decision and the Appeal decision were unreasonable. [ 45 ] As noted above, this is an appeal of the QB decision, which related to the judicial review of a decision made by the Appeal Board as a result of an appeal brought pursuant to s. IX.2.c of the Regulations.

Section IX.2.c provides a right to appeal on the ground that the original hearing board made a fundamental procedural error that seriously affected the outcome. This ground of appeal does not relate to such a procedural error. Rather, it seeks a remedy on the ground that the decisions of the Committee and the Appeal Board failed to meet the reasonableness standard specified in Vavilov . Nor does it fall within any of the other grounds of appeal specified in s. IX.2. [ 46 ] However, the University did not object to the determination of either the second or third ground of appeal on this basis.

It engaged with these grounds on the merits, as did the Chambers judge. Accordingly, I have dealt with the second ground and will deal with the third ground on the same basis. [ 47 ] In my opinion, there was ample evidence to justify the Committee’s conclusion that Ms. Akpan had committed plagiarism, and that she did not commit an honest mistake. Further, it was not irrational for the Committee to reason that there was a connection between the question of whether the plagiarism was the result of an honest mistake and the fact that Ms. Akpan had been given a time extension and did not use it. As noted above, Ms.

Akpan claimed that her misconduct was the result of stress. Extending time could better enable her to deal with that stress, which included the demands of her program at the College. [ 48 ] The suggestion that the Committee did not consider Ms. Akpan’s explanation when determining the sanction is not borne out by the record. The Committee decision confirms that the Committee took account of Ms.

Akpan’s personal situation and the seriousness of this second incident of plagiarism, commenting as follows in the penultimate paragraph: The Committee recognizes that [Ms.] Akpan is and has been experiencing a great deal of personal stress and we encourage her to seek out counseling supports as needed. However, we also see a pattern of unprofessional behaviour that has continued despite earlier serious sanctions. [at 3] [ 49 ] I also note the following comments in the Appeal decision, which confirm that the Appeal Board considered this issue: The Appeal Board accepts that Ms.

Akpan was not explicitly asked by the Hearing Board to provide submissions on an appropriate sanction. However, Ms. Akpan did make submissions that went directly to sanctions, including the stress in her personal life and her father’s illness. There is no reason to think that the Hearing Board did not accept the truth of those circumstances and no reason to think that further details or evidence were required in order to support those assertions more fully. Ms.

Akpan had the opportunity to offer explanations for the misconduct and requested leniency. … [ 50 ] In the result, I find no error in the QB decision, the Appeal decision or the Committee decision of the kind identified by Ms. Akpan under this ground of appeal. But for the failure to consider the record of similar decisions referred to in s.

VIII.3, the Appeal decision and the Committee decision are reasonable; that is, they bear “the hallmarks of reasonableness —justification, transparency and intelligibility” and are “justified in relation to the relevant factual and legal constraints that bear on the decision” ( Vavilov at para 99 ). [ 51 ] For these reasons, the appeal on the third ground is dismissed. V. CONCLUSION [ 52 ] Ms. Akpan has requested that the QB decision be set aside and remitted to a newly constituted hearing board.

Given that I have concluded that the only reviewable error in the QB decision relates to the lack of compliance with s. VIII.3 – which is relevant only to the determination of the sanction – there is no basis to overturn any aspect of the decision relating to the finding of academic misconduct by plagiarism. [ 53 ] In the result, the decision that Ms. Akpan be expelled is quashed, and the question of the appropriate sanction to be imposed is remitted to the Committee in accordance with this decision.

The Committee should ensure that it obtains the record, if any, referred to in s VIII.3; provides a copy of that record, if any, to Ms. Akpan and the University; and provides an opportunity for the parties to make further submissions before determining the sanction to be imposed. [ 54 ] Ms. Akpan shall have one set of costs in this appeal in the usual way. “Barrington-Foote J.A.”

Barrington-Foote J.A. I concur. “Whitmore J.A.” Whitmore J.A. I concur. “Schwann J.A.” Schwann J.A.