Endorsed March 1, 1984
The matter of the method by which Faculty Boards deal with non-academic offences was first raised in Senate in September 1982. At that meeting, a recommendation "that Senate clarify the form and procedures a Faculty Board will use to investigate alleged offences" was referred by the Senate to this Committee.
At a later meeting of Senate, Dean Sinclair, the former Chairman of this Committee, made a commitment to draw up and present for approval of Senate a list of general considerations which Faculty Boards should bear in mind when handling non-academic discipline matters which fall within their jurisdiction.
In presenting these guidelines the Committee wishes to acknowledge its gratitude to Mr. Peter Schell and especially Professor David Mullan to whose work in the field of administrative law the proposed guidelines are greatly indebted.
According to "Guidelines for the System for Handling Non-Academic Discipline at Queen's", endorsed by Senate in April, 1983, Faculty Boards and Schools
"have jurisdiction over non-academic discipline of students when unacceptable behaviour occurs in the context of a specific component of the academic program in which the student is registered (i.e. field trips, laboratories, survey school,clinical settings) or in an academic or academic-related setting. In cases of discipline or behaviour not related to the academic work or program of the student, Faculty Boards will expect the Judicial Committees of the A.M.S. and G.S.S. to serve as the initial disciplinary mechanism and must regard them as such."
If a non-academic offence were to occur in an academic setting as described above and if the Faculty Board and the aggrieved party were both willing, the matter could still be pursued by either the A.M.S. or the G.S.S. Judicial Committee.
A hearing must be conducted in accordance with the rules of natural justice. These rules are divided into two separate parts:
The duty to give persons affected by the decision a reasonable opportunity for presenting their case.
The duty to listen fairly to both sides and to reach a decision untainted by bias.
While rule 1) prescribes an adequate opportunity for each side presenting proofs and arguments, it does not require in all cases that the hearing be conducted along the lines of a trial. The content of the rule varies from situation to situation. In disciplinary situations involving allegations of misconduct where the parties are the equivalent of prosecutor and defendant, the resemblance to an ordinary trial will normally be greater.
The hearing process must give to the parties affected a fair opportunity for correcting or contradicting any relevant statement prejudicial to their situation. This includes the giving of sufficient notice of the hearing and the scope of that hearing as will allow affected persons to take full advantage of their right to be heard. This is also said to involve a duty to give persons affected such knowledge of the arguments and evidence presented against their interest as will make their participation in the decision-making process meaningful.
The emphasis of the hearing can be informal, as long as rules 1) and 2) are satisfied. As the severity of the situation increases, then the formality of the procedure increases.
The requirement of adequate notice means that the chairman should supply affected persons with sufficient information as to the nature of the proceedings and sufficient warning of his intention to make a decision as will enable them: (a) to prepare their proofs and arguments for presentation and to respond to the proofs and arguments anticipated from those maintaining a contrary position; (b) to appear at oral hearings that are being conducted.
There is no absolute right to legal representation at oral hearings. However, the complexity of issues, and the seriousness of allegations and consequences may suggest that denial of a right to representation results in an inadequate opportunity for being heard. Hence Faculty Boards should allow representation if the person appearing before the Board so desires.
Just as the ordinary courts of the land are under no absolute duty to give reasoned judgments, the Faculty Boards are not obliged to provide affected parties with reasons for their decisions. However, there would be an abuse of discretion if the record of the hearing did not reveal any reasons for the decision that has been reached.
It is not a requirement of the rules of natural justice that hearings be open to the public. Use of closed or in camera hearings may be one way of protecting the confidentiality of information or sources of information where that is a legitimate concern. At the same time it is assumed that the affected person or persons will be present or have an opportunity to be present at such hearings, after due notice has been given.
While persons affected in almost all cases are entitled to know at least the gist of the proofs and arguments of the contrary side, there is no obligation on tribunals generally to allow cross-examination of witnesses in oral hearings. There have been occasions, however, where failure to allow cross-examination when requested has given rise to a successful complaint of breach of the rules of natural justice. This is most likely in disputed fact situations where credibility is an important factor in assessment of the evidence presented.
In addition to the right to know the gist of the contrary arguments, the right to a hearing also necessarily involves the right to present proofs and arguments in support of the position being maintained. This is, however, limited to evidence and submissions that are relevant and cannot be interminable.
No one ought to be a judge in his own cause. The law already imposes a duty on anyone called upon to decide anything under a statute to act in good faith and with an open mind not foreclosed to argument.
The facts that may give rise to a reasonable apprehension of bias are many and varied. They include kinship, personal friendship or business relationship with one of the parties to the proceedings, a history of animosity towards one of the parties to the proceedings or his family, sitting on appeals from one's own decisions, acting as complainant, investigator or prosecutor as well as adjudicator in the same proceedings, making statements in the course of the proceedings which indicate an unreasonable hostility towards one of the parties, counsel or the case being presented. On the other hand, expertise in an area or familiarity with the relevant issues is not of itself a disqualification, nor is the holding of tentative views on some issues before the hearing. A reasonable apprehension of bias in one member of a tribunal is sufficient to disqualify the whole tribunal, even though that member merely sat at the hearing without taking an active role in either it or subsequent deliberations.
If a party to proceedings, with full knowledge of all the facts, consents nevertheless to the continued presence of an adjudicator in whom there is a reasonable apprehension of bias, that person is precluded from subsequently complaining about the particular adjudicator's presence and participation in the decision-making process.
The principles of natural justice are sometimes breached when a tribunal goes back on an undertaking to follow a certain procedure, where an excessive penalty is imposed, where a tribunal acts inconsistently with its past practices for no discernible reason or where a tribunal abuses the statutory process in which it is involved.
A complete failure to give notice of proceedings against a party will invalidate a decision. However, minor deviations from procedural provisions as to notice do not normally nullify a decision provided they do not result in the person entitled to notice not being fully and fairly informed of the proceedings in issue.
In the absence of an express power of delegation, the lack of a statutorily-prescribed quorum will result in an invalid decision. In the case where more than one hearing has been held, only those persons who have attended all meetings may vote.
Discretion exists every time a tribunal has a choice between two or more courses of action. First, it is necessary that there be an absence of bad faith in the sense of self-interest or undue favour or animosity in the tribunal making the decision. In addition there must be a genuine as opposed to a purported use of discretionary power. Additionally, the discretion should be exercised in relation to each individual matter coming before the tribunal and should not be automatically determined or even fettered by reason of a rigid policy laid down in advance.
Tribunals have not been seen as bound by their own previous decisions or past policies. The most that can be made of these allegations is either that an unexplained or inexplicable inconsistency or failure to follow a policy may in some cases be evidence of bad faith or gross unreasonableness.
The tribunal must keep within the proper scope of the constitution and by-laws while performing its functions. In the case of a Faculty Board, for instance, it would be expected to pass judgment on the basis of the University Code of Conduct. Extraneous factors or irrelevant considerations must not be taken into account. Conversely, all relevant factors must be taken into account.
Even if the tribunal takes into account all relevant factors and does not take into account any extraneous considerations, it may still be subject to review on the basis that the decision or conclusion ultimately reached was so unreasonable that no reasonable authority could ever have come to it.
In a paper entitled "Students, Universities and the Law" recently delivered at Queen's, Professor D. Mullan pointed out a growing tendency within the university system for senior university governing bodies to delegate the authority to make a final decision to committees specially formed to hear cases. To quote Professor Mullan,
[in one particular instance,] the final appeal within the University of Saskatchewan system was conducted by the Senate Appeal Committee, not the Senate itself. To my way of thinking, this is a far more satisfactory way of proceeding in the interests of both the student and the university and also, perhaps most importantly, in the interests of a fair hearing. Senates and Governing Councils are generally larger bodies quite unsuited to the conducting of formal hearings in student matters. The larger the body, the greater the chance for procedural unfairness and the more intractable the logistics of setting up a fair hearing. It also consumes an incredible amount of very valuable time quite unnecessarily.
In view of recent history, we all realize that Professor Mullan is speaking on the basis of common experience. If a Faculty Board were to subscribe to the above logic and invest the power of the Faculty Board's final decision (i.e. any Faculty Board decision can still be appealed to the Grievance Board) with a committee formed to hear a case, then the Faculty Board would have to seek permission from Senate to perform this delegation. Where an express power of delegation is granted in an empowering statute i.e. a motion passed by Senate, then no issue can be made that a defendant was not heard by the Faculty Board itself. (Likewise the Senate, if it so desired, could also delegate the final appeal to the Grievance Board.)
A more modest scheme would involve the setting up, by Faculty Boards of fact-finding committees which could then report back to the Faculty Board the results of its investigations along with a recommended course of action. In this instance, the final decision would still rest with the Faculty Board but the adopted procedure could save considerable time and go a long way to avoiding procedural unfairness.
The Committee strongly commends to Faculty Boards the suggestion involving the setting up of a committee empowered to make the decision on behalf of the Faculty Board. It believes that a smaller group, applying their minds and energies to the problem, are going to feel a responsibility for the quality of the decision, in a way which would be difficult for a larger body.