Procedural Rules for an Appeal
Approved by the Ad Hoc Committee to Develop Procedures for Non-Academic Discipline, February 21, 1996. Provided to the Board of Governors for information on February 27, 1996.
PROCEDURAL RULES FOR AN APPEAL
- The Code of Conduct recognizes that disciplinary action shall be reasonable and commensurate with the seriousness of the violation and in accordance with the principals of the Code and natural justice. With regard to appeals, natural justice requires that a party whose rights are to be affected by the decision has a right to be heard before the appeal decision is taken and by an unbiased decision maker.
- Because natural justice provides fundamental rules, rather than a detailed set of procedures for the conduct of appeals, persons or committees hearing appeals have discretion to establish the actual manner in which the appeal will be conducted and to waive the strict requirements of these procedures. However, all appeals shall generally follow the procedures detailed below.
- The Code of Conduct allows appeals to the President or the Executive and Governance Committee of the Board of Governors, as the case may be, hereafter called the "Tribunal".
- The Tribunal has the authority to make ad hoc rules as required by the circumstances of each appeal and to control the hearing.Parties to a Hearing
- Parties to an appeal shall include:
a. the person or persons against whom the discipline decision has been made, who normally shall be the Appellant; and,
b. the Dean or Vice-President or, in appropriate cases, a person appointed to represent the disciplining committee, who normally shall be the Respondent.
- In appropriate cases, the Tribunal may name other parties to the appeal.
- The Appellant has the right to appeal and bears the onus of proving to the Tribunal that the appeal has merit.
- Appeals shall be commenced by the Appellant hand delivering to the Office of the President a written Notice of Appeal in the form attached, which shall set out the reasons for the appeal and the relief requested. The Notice of Appeal shall be delivered within 15 working days of the date of the decision being appealed and forwarded in a timely manner to the Respondent and any other Parties.
- The Respondent and other parties shall deliver to the Office of the President responding materials in a timely manner.
- Hearings are normally open to the public, but any party to the Hearing may request a closed Hearing. The possible disclosure of certain matters may indicate the need for a closed Hearing, such as matters of public security, intimate financial or personal details, or other matters that may have a substantially adverse effect on the interest of any person, the University or the public interest.
- An attempt shall be made to schedule the Hearing at a time and place convenient for the Tribunal and for the parties to the Hearing. However, any party whose reasons for absence are not considered valid by the Tribunal or whose absence is unexplained or may cause unreasonable delay, is hereby notified that the Tribunal may proceed in the party's absence.
- Each party to the Hearing shall be sent a Notice of Hearing. In the case of the Appellant the notice shall be sent to the address on the Notice of Appeal. In the case of the Respondent the notice shall be sent to their University address.
- Prior to the Hearing, members of the Tribunal shall be provided with:
- Parties to the Hearing shall be given the opportunity to submit written or other documentary evidence prior to the Hearing and any such evidence shall be made available or be accessible to the members of the Tribunal and to all parties prior to the Hearing.
- The Tribunal must not hear evidence or receive representations regarding the substance of the case other than through the procedures described in these Rules.
- The Tribunal's opening statement shall:
i. identify the parties;
ii. identify the nature of the case, and
iii. list the evidence already before the Tribunal.
- The Appellant is the first party heard.
- The Respondent then presents his/her case.
i. The opening statement, which is optional, of the Respondent shall contain a brief reply to the first party's appeal, including the main arguments of his/her response.
ii. The Respondent will then present his/her evidence to support his/her response, which may include any or all of the following:
(1) his/her/their oral testimony;iii. Questioning of the Respondent and his/her witnesses by the Appellant or by the Tribunal occurs at the close of each person's testimony.
(2) oral testimony of his/her/their witnesses; and
(3) documents or other written evidence in support of the response.
- The Appellant has the right to offer testimony and call witnesses or other evidence in reply to the issues raised in the case of the Respondent. Only arguments or evidence related to the evidence of the Respondent can be introduced at this time by the Appellant.
- If there are other parties to the appeal, they shall present their case after the Respondent in like manner to that of the Respondent.
After this point in the Hearing, no new arguments or evidence may be introduced.
- The parties are entitled to make closing arguments, and to summarize briefly the main points of their cases, in the following order:
(3) Other Parties.
- The Tribunal may alter the order described in sections 16 to 20 above in the interest of fairness to any or all of the parties.
- Parties to the Hearing have the right to present evidence in support of their case to the Tribunal and to see any written or documentary evidence presented to the Tribunal.
- The Tribunal has the power to require production of written or documentary evidence by the parties or by other sources.
- A person appearing before the Tribunal may be required to give evidence under affirmation or oath.
- Parties to the Hearing and the Tribunal have the right to call, question and cross-examine witnesses.
- The Tribunal has discretion to limit testimony, questioning, cross-examinations or witnesses to those matters it considers relevant to the disposition of the case.
- The Parties are responsible for producing their own witnesses and for paying the costs associated with their appearance before the Tribunal.
- The Tribunal has the power to compel a witness who is a member of the University community to attend and parties may request the Tribunal's aid in this regard.
- Witnesses normally are present in the Hearing room only during the time they are testifying.
Deliberations by the Tribunal
- Following the Hearing, the Tribunal shall deliberate in closed session. The Tribunal shall decide whether the Appellant has committed a violation of the Code of Conduct and, if so, whether the discipline imposed is reasonable and commensurate with the seriousness of the violations.
- In appropriate cases, the Tribunal may deliberate and decide on whether the Appellant has committed a violation of the Code of Conduct before hearing submissions on whether the discipline imposed is reasonable and commensurate with the seriousness of the violations.
- In deciding the appeal, the Tribunal shall have the authority to lessen or increase the discipline imposed.
- The decision of the Tribunal shall be in writing with reasons and it is final.
If a request by a party or the parties to the Hearing to close the Hearings is made prior to or during the hearing of the case, the Tribunal shall close the Hearing for the purpose of discussing the request. After listening to the arguments for closing, the Tribunal shall decide whether sufficient cause for closing exists. If not, the Hearing will be re-opened.
a. the written allegation of misconduct;
b. all written materials before the committee, Dean or Vice-President, whether submitted by the Appellant or others;
c. the Notice of Appeal; and,
d. all responding materials.
The Order of the Hearing
i. This party's opening statement, which is optional, should contain a brief description of his/her appeal, including what he/she believes is the substance of the appeal.
ii. This party will then present his/her evidence relating to the alleged misconduct, which may include any or all of the following:(1) his/her oral testimony;iii. Questioning of this party and his/her witnesses by the Respondent or by the Tribunal occurs at the close of each person's testimony.
(2) oral testimony of his/her witnesses; and
(3) documents or other written evidence in support of the appeal.