Provision requiring the submission of past records to a Hearing Board is mandatory: court

Noncompliance with the provision results in a material breach of the duty of fairness

Provision requiring the submission of past records to a Hearing Board is mandatory: court
Providing records of similar cases can help the Hearing Board impose the appropriate penalties

The Court of Appeal for Saskatchewan has ruled that a provision requiring the University Secretary to submit to the Hearing Boards records of any sanctions imposed on similar academic misconduct matters is a mandatory provision, the noncompliance of which will result in a material breach of the duty of fairness and justifies opening the sanction up to appellate intervention.

In Akpan v The University of Saskatchewan Council, 2021 SKCA 129, the appellant was expelled by the College of Nursing Academic Integrity Committee for plagiarism, a violation of the Regulations on Student Academic Misconduct. These Regulations were duly approved by the University Council pursuant to The University of Saskatchewan Act, 1995, SS 1995, c. U-6.1. It also defined “academic misconduct” and contains a comprehensive procedural code relating to hearings and appeals of academic sanctions.

The appellant appealed to the University of Saskatchewan Appeal Board, alleging that the Committee imposed the sanction without adhering to procedure. Specifically, she alleged that the University Secretary should have provided the Hearing Board records of any sanctions imposed by other University Hearing Boards for similar academic misconduct. After the Appeal Board denied her appeal, she applied for judicial review of both decisions to the Court of Queen’s Bench, who also dismissed the appeal, finding no basis to interfere.

On appeal, the appellant claims that the non-compliance with the procedure outlined in the Regulations justified appellate intervention.

The Court agreed with the appellant that the non-compliance of this procedure justified appellate intervention.

Whether failure to comply with procedural rules are fatal ultimately depends on whether these rules are mandatory or directory, said the Court. Contrary to the Chambers judge’ ruling that this was “merely an assistive tool,” the Court found that compliance with this procedural provision ensures that the Hearing Board is aware of those decisions and can therefore evaluate cases before imposing sanctions.

Therefore, the Court concluded that the obligation to provide previous records is mandatory, as the failure to do so results in prejudice to the right to a fair hearing where important interest is at stake. In this case, there was a failure to comply with the prescribed procedure, both in form and substance, and this failure ultimately constituted a material breach of the duty of fairness, said the Court. The Court remitted the question of the appropriate sanction back to the Committee for its decision.

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