Principles of natural justice and procedural fairness
The Principles of Natural Justice and Procedural Fairness must prevail in Judicial Procedures to uphold the principle that justice must not only be done, but be seen to be done. The principles are explained below:
- The resident has the right to be informed of the allegation(s) of offence(s).
- The resident is entitled to an opportunity to respond to allegation(s) of offence(s) at a meeting with residence staff and is also entitled to a reasonable notice of the time, place and nature of the meeting.
- The resident is presumed not to be guilty of the alleged offense(s) until an impartial and unbiased decision-maker has determined the offence(s).
- The resident is entitled to reasonable disclosure of evidence of the Incident Report prior to a decision. Fact-finding occurs at a meeting with the decision-maker.
- At meetings to discuss level three offences, the resident is entitled to call a reasonable number of witnesses to the meeting to discuss alleged offence(s). This must be arranged with the decision-maker prior to the meeting.
- The resident is entitled to be advised in writing of the decision about the alleged offence(s) and the sanction(s) applied, (if any).The decision about guilt or innocence and any associated sanction(s) should be made within a reasonable time.
Standard of Proof
The information necessary to prove that an offense has occurred is referred to as the standard of proof. Outside of a court of law, the model used by Conestoga Colleges is the called the Balance of Probabilities. The standard of proof has been met if at the conclusion of an investigation, based on all credible information, the residence staff believes that the incident reported probably occurred.
This means that the information provided in the Incident Report and in the judicial meeting demonstrated that the violation is more likely than not to have occurred. The standard of proof for criminal cases is beyond a reasonable doubt, which does not apply in Residence Judicial Procedures.
Incident reports and judicial meetings
Residence staff will record behaviours, actions or negligence that may be offences against Residence Community Living Standards in Incident Reports. When necessary, the Incident Report may also include appendices, such as emails, photographs, or Security, Police, or Fire reports. Residence staff will notify the resident(s) of the alleged offence(s) and will notify them of a meeting to discuss the matter.
The purpose of a judicial meeting between a resident and a residence staff member is to investigate allegations of offenses detailed in an Incident Report. This is the opportunity for residents to be heard and explain their behaviour to the residence staff member.
While these meetings must comply with the Principles of Natural Justice and Procedural Fairness and may result in formal sanctions, they are not designed to be highly formal in nature. At the conclusion of the meeting the residence staff member will follow-up with the resident in writing with a decision Letter, which will outline all necessary decisions about offenses, sanctions and any related deadlines. If the resident fails to attend the judicial meeting with the residence staff member, the residence staff member may choose to proceed and make a decision based upon all evidence available.
Communication between resident(s) and residence staff
Residence staff will endeavour to communicate with residents via several methods to discuss Incident Reports, deliver decision letters, and any other important aspects of the judicial process:
(a) a voice mail on the residents phone provided to them in their room, (b) an email to their Conestoga College email account or the account provided in their application, (c) a letter placed in a resident's mailbox or under a resident's room door, or (d) in person. An attempt to contact and communicate with a resident is deemed to be satisfactory when any two of the above methods have been used by residence staff.
Conestoga College Residence Judicial Process
- Incident Report:Alleged violations of the RCLS are documented by Residence Staff in an Incident Report
- Alleged Level 1, 2 & 3 Offences - Judicial Meeting with RLC:resident(s) meet with the RLC to review the Incident Report.
- Alleged violations of Behaviour Contracts and/or serious Level 3 Offences - Judicial Meeting with GM (or designate):Resident(s) meet with the GM (or designate) to review the Incident Report
- Decision Letter:RLC communicates decision about allegations, offences, and sanctions to resident(s) in writing.
- Incident Referred to GM (or designate):In situations where resident(s) have violated Behaviour Contracts or when serious Level 3 offences are assessed, the Incident will be referred to the GM (or designate).
- Decision Letter:GM (or designate) communicates decision about allegations, offences, and sanctions to resident(s) in writing.
Although the three levels of offences and the Judicial Procedures are intended to apply to most situations related to behaviour, there are conditions that warrant a heightened level of concern for safety, security, health and wellbeing. These conditions require special authority and guidelines.
The following definitions and procedures ensure a swift, effective response to conditions to protect residents, guests, staff, the community and Conestoga College. In consultation with Conestoga College and its Emergency and Violence Threat/ Risk Assessment Protocols, the General Manager is granted extraordinary authority to respond to an imminent threat.
Definition of an imminent threat
In consultation with the Conestoga College, the General Manager is authorized to determine if an imminent threat exists, which is defined by any one of the following:
- evidence that a resident, student, or staff has been harmed or appears to be in danger of harm,
- evidence that a resident, student, or staff has harmed or poses a threat to harm another individual or the community,
- evidence that a resident, student, or staff has inflicted self-harm or appears to be in danger of doing so.
Residence threat response procedures
In consultation with the Conestoga College, the General Manager is authorized to:
- suspend other rules in order to effect a swift response to an imminent threat
- turn the matter immediately over to appropriate authorities
- immediately relocate the resident(s) (involved within the residence or off campus, pending a meeting with the resident
- authorize an exclusion, which takes effect immediately and without notice, pending a meeting with the Resident. This means that the individual:
- is prohibited from accessing any service or facility of the residence
- may be escorted from the residence and/or the campus
- determine Sanction(s) at Levels 1, 2, and 3, following a meeting with the resident.
- The Principles of Natural Justice and Procedural Fairness must prevail in Appeal Procedures to ensure compliance with the principle that justice must not only be done, but be seen to be done.
- Any resident found in violation of the Residence Community Living Standards is entitled to submit an appeal.
- A resident has 72 hours from the date they receive their decision letter to start the appeal process. Depending on the original decision rendered, the appeal process proceeds as follows (see Appeal Process Chart):
- The first stage is the informal appeal, where the resident contacts the decision-maker in writing to appeal the decision. The resident may present new information and/or alternate sanctions for the decision-maker to consider. The decision-maker may alter the decision and/or sanctions.
- If the resident determines outcomes of the informal appeal are not satisfactory and they have grounds for a formal appeal they may complete the formal appeal request form and submit it to the residence office.
- In the event of an eviction, there is no informal appeal. If the resident has grounds for an appeal, the resident may complete the formal appeal request form and submit it to the Vice President, Student Affairs.
- The resident requesting an appeal must demonstrate in their appeal request that they have grounds for a formal appeal, which includes providing evidence of one of the following items:
- Procedural Fairness: Alleged substantive failure by the decision-maker to comply with the Principles of Natural Justice and Procedural Fairness, which may have affected the decision.
- New information: Substantive new evidence which could not have been available to the decision-maker when making the decision.
- Sanctions: Sanctions assessed under the Residence Community Living Standards are considered too severe for the offence(s).
- Once an appeal request is received residents will be contacted in writing within 72 hours to either set up their informal appeal meeting or to notify them if their request for a formal appeal will be granted. If the formal appeal is granted, the Vice President, Student Affairs will set-up the Eviction Appeal Committee, which is comprised of a Student, the Director of Residence Life from Campus Living Centres (or designate), and the Vice President, Student Affairs (or designate). Residents appealing an eviction will be provided with additional information about appeal meeting procedures
- The individual or committee considering the formal appeal may, after reviewing the case:
- uphold the findings and/or sanctions;
- reverse the findings;
- reverse or modify the sanctions;
- determine that there was a procedural error and ask the original decision-maker to rehear the case.
- During a formal appeal, all sanctions (minus financial sanctions) remain valid until they are reversed or modified by the individual or committee hearing the appeal.
- All decisions made in a formal appeal are final and are not subject to further appeals.
Appeal Hearing Procedures
In this section, the resident appealing the eviction is referred to as the appellant and the residence staff whose decision is being appealed is referred to as the respondent.
- The hearing will proceed as scheduled, even if the appellant or the respondent does not attend.
- The appellant and respondent may bring witnesses to the appeal hearing. Participation of witnesses shall be limited to providing evidence and responding to questions from the appeal committee. Witnesses may be present at the hearing only when providing evidence or responding to questions from the appeal committee.
- The appellant and respondent may bring one support person to the appeal hearing; however, support persons shall not participate in the appeal unless called on by the Chair to do so.
- Neither the appellant nor the respondent shall have the right to representation by legal counsel during appeal hearings.
- The appeal hearing shall proceed as follows:
- An initial briefing and review of the case by the committee members;
- Presentation of the case by the appellant;
- Presentation of information by the respondent;
- Subsequent re-examination of either party or any witnesses if required.
- Each appeal shall be considered independently and on its own merits.
- The Appeal Committee will carefully consider only:
- The appeal grounds;
- The evidence supporting the grounds presented orally (during the hearing);
- The written evidence presented in the appeal letter, appeal request form and supporting documents;
- The written evidence presented in the respondent’s response submission;
- Any written evidence accepted by the appeal committee from the appellant or respondent during the hearing, providing that the appellant and respondent both had a reasonable opportunity to read, understand and respond to the document.
- At no time should the committee deal with any matter outside the specific concerns set out in the request for appeal.
- The burden of proof in a disciplinary appeal rests with the appellant, who must make a case to convince the appeal committee to decide in the appellant’s favour.
- All information reviewed and discussed during an appeal shall remain confidential.
- In addressing the appellant’s specific concern(s), the appeal committee should feel free to direct the parties to provide and produce additional material or witnesses directly related to the appeal.