Case Comment Assignment
TSIMIDIS v CERTIFIED GENERAL ACCOUNTANTS (ONTARIO), 2014 ONSC 4236
SUBMITTED BY- Anmol Kataruka
Word Count (excluding footnotes and cover page): 948
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INTRODUCTION
The applicant, Tsimidis was charged with academic dishonesty after his study notes were found
in his possession during an examination and was withdrawn from his program of study by the
respondent, Certified General Accountants of Ontario (CGAO). The applicant then appealed to
the Appeals Committee of CGA Ontario, which was rejected. Neither the oral hearing was
conducted nor the reasons were provided by both the DMs.
Issue
Whether CGAO breached the rules of natural justice and the duty of procedural fairness?
There are three pre dominant procedural fairness issues that has been dealt in the case, namely:
1. Whether the content of procedural fairness demands oral hearing.
2. Whether a proper formal notice is required.
3. Whether reasons or justifications for the withdrawal and denial of appeal were
provided.
In this paper I will specifically deal with “ Oral hearing”
The respondent just relied on the invigilator's report and did not further investigate the
applicant's act. In the process of appeal, the applicant was given an option to submit his
contentions in just two pages. Relying on the precedents, it can be established where fact-finding
and credibility are the main issues; procedural fairness requires those issues to be determined at
an oral hearing. 1 Reliance can also be placed on Singh v Canada and Hundal v. Spt of Motor
Vehicle, for requiring oral hearing to be conducted where there is an issue of credibility involved.
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Khan v University of Ottawa (1997), 34 O.R. (3d) 535 (C.A.)
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Courts’ Decision:
The Court quashed the decisions of CGAO and the Appeal Committee. The Court also remitted
the matter to the Appeals Committee for rehearing with a oral hearing.
The main reasons provided by the Court are:
The respondent failed to act in accordance with its own procedures set out in the Student
Handbook the investigation report was not clear.
The Court in paragraph 31 stated that, “The jurisprudence is clear that if fact finding and
credibility are central issues ………… an oral hearing even if the procedure before the
administrative decision-maker does not specifically require an oral hearing.”
Analysis:
A. Statute / Regulation
The Academic Integrity section in the Student handbook is vague with regards to oral hearing
being a mandate. But it does accord an opportunity to the students to provide facts regarding the
alleged violation. It is also silent regarding the consequences of not adhering the regulation.
B. Common law:
1. Whether the duty of PF is owed by DM:
I am assuming that the duty of PF is owed. A short analysis of Knight Test:
The CGA and Appeal Committee is an administrative body and the decision given is final
and specific in nature.
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The relationship shared by CGA and Applicant is fiduciary/ trustworthiness. Applicant
was doing his Programme under CGA with the expectation that CGA would act fairly.
The decision has a serious impact on the rights, interest and privileges of the applicant.
2. In conclusion, a duty of PF, i.e, right to be heard is owed by DM.
3. Baker Analysis: the Level of PF Owed
1. Nature of the decision:
It is mentioned in Academic Integrity Procedure that the manager of the program investigates
the alleged accusation. It also accords an opportunity to the students to provide for the facts
and finally, the manager of the Program makes the final decision. In my view, the nature of
decision of CGAO resembles a quasi-judicial decision and the manager of the program acts
like an adjudicator. Therefore, the level of PF will be high. Arrow goes up.
2. Nature of the statutory scheme:
The Student Handbook provides a process of Appeal. Therefore, the applicant has a right to
further recourse and the decision of CGA was not determinative. The level of PF will be low.
Arrow goes down.
3. Importance of the decision on the individual:
The decision has a significant impact on the livelihood and career of the applicant. Since the
question of credibility and academic integrity has been reprimanded and the maximum
penalty of withdrawal has been awarded without even considering the lesser option available,
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s a serious prejudice to the applicant’s career, background and reputation is caused. Therefore,
the level of PF will be high. Arrow goes up.
4. Legitimate Expectation:
In my analysis, the legitimate expectations of the applicant would be to have an oral hearing
to show cause maximum penalty not to be applied. The relationship of trustworthiness plays
an important role on his expectation. Moreover, the Student Handbook clearly specifies that
opportunity must be accorded to the students to provide facts regarding the alleged violation.
But since, the procedure of oral hearing per se has not been mandated by the Handbook, I
would conclude the level of PF owed is medium, the arrow goes sideways.
5. Choices of procedure made by agency:
The CGA is a specialized body to deal with such matters. Therefore, the court must give some
deference to its decision making power. The interference of the court should be minimum.
The level PF will be low. Arrow goes down.
Conclusion and the entitled procedural benefit
After conducting the Baker analysis, I am convinced that the level of PF owed by the DM is
high. Since the issue of credibility is at stake, the decision will have an adverse impact on the
livelihood and the career of the Applicant. Therefore, he is entitled to have an oral hearing.
I completely agree with the decision of the Court and the jurisprudence in Khan, Hundal and
Singh that an oral hearing must be granted in cases of credibility. An imposition of maximum
penalty by going against the very basic principle of natural justice is not only unfair but it denies
fundamental justice and abridges the right to be heard of the Applicant.
