Nice Try but No Dice: Academic Misconduct Hearing Proceeds Despite Delay

An academic misconduct hearing at the University of Saskatchewan was delayed by several months largely due to the Covid-19 pandemic. The students affected argued the University’s board had no jurisdiction because of a provision in the University’s regulations requiring hearings to be heard “not later” than 60 days after receipt of the allegation. The board found that that provision in the regulations did not create a procedural barrier to proceeding. The decision was upheld by an appeal board, on judicial review and by the Court of Appeal.

Administrative law – Decisions reviewed – University Appeal Board – Jurisdiction; Judicial review – Appeals – Procedural requirements and fairness – Decisions reviewed – Boards and tribunals – Standard of review – Correctness – Reasonableness; Universities – Student discipline

Sran v. University of Saskatchewan Academic Misconduct Appeal Board, [2024] S.J. No. 68, Saskatchewan Court of Appeal, March 20, 2024, R. Leurer C.J.S., J.A. Tholl and J.M. Drennan JJ.A.

Two students (the appellants) at the University of Saskatchewan were accused of several counts of academic misconduct arising out of an incident that occurred in January 2020. The appellants were initially advised the hearing would take place in March 2020. That date was adjourned to allow various parties to obtain legal counsel. On March 18, 2020, a provincial state of emergency was declared due to the Covid-19 pandemic. After several additional adjournments, the misconduct hearing was held, and decision rendered in August 2020.

The appellants argued, initially before the University of Saskatchewan College of Medicine Hearing Board (the “Hearing Board”), and later the University of Saskatchewan Academic Misconduct Appeal Board (the “Appeal Board”) that the Hearing Board had lost their jurisdiction to inquire into the alleged misconduct based upon a provision in the University’s Regulations on Student Academic Misconduct (the “Regulations”) that required the hearing to take place within 60 days of receipt of the complaint. Specifically, the regulation states: “Hearings will be held as soon as practicable, and not later than 60 days from receipt of the allegation by the Academic Administrator.”

Before the Hearing Board, the appellants argued that the provision in the Regulations was mandatory, not directory, and that failure to comply was fatal to the hearing process, and in the alternative that a stay should be ordered. The Hearing Board disagreed, finding that the intent of the Regulations is not to create a procedural barrier where cases are automatically dismissed after 60 days, and the words “will be” and “not later than” are intended to be directory rather than mandatory. In respect of the stay argument, the Hearing Board determined that a stay would not be appropriate because the delay was not extensive enough to warrant a stay, no prejudice had been identified and the circumstances were largely outside the control of the parties. The Appeal Board upheld that decision.

The Appellants judicially reviewed the decision seeking an order quashing the Appeal Board’s decision. The parties invited the Chambers judge to apply a correctness standard in his review of the Appeal Board decision. The Chambers judge concluded that this was an issue related to procedural fairness to which a correctness standard applied. The Chambers judge found that there had been “substantial compliance” with the Regulations by the University given the pandemic interceding and there had been no “undue delay”. The judge also found that the appellants had suffered limited prejudice. The judicial review was dismissed.

The appellants appealed the Chambers judge decision. Upon appeal, the court found that the Chambers judge had applied the wrong standard of review. Instead, a standard of reasonableness review should have applied to the Appeal Board’s decision because there was no apparent reason in the case to trigger the exception to reasonableness in Vavilov for a question of central importance to the legal system as a whole, or any other exception to the presumptive rule that a reasonableness standard should apply.

The court, however, found ultimately that the appellants had failed to show that the Appeal Board decision was unreasonable. The court found that the Appeal Board demonstrated its awareness and reliance on instructive authorities, considered the larger mandate of the university and significance of misconduct allegations to the individual students and the institution and the impact of a nullification of proceedings. The court also found that the Appeal Board did not err in finding there had been no breach of procedural fairness in the matter proceeding on its merits to a hearing before the Hearing Board.

This case was digested by Roshni Veerapen of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact her directly at [email protected]