DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
IN THE MATTER OF the Ontario College of Teachers Act and Ontario Regulation 437/97
AND IN THE MATTER OF a discipline proceeding against Yves Joly, a member of the Ontario College of Teachers.
PANEL: Marie-Claude Yaacov, Chair
Irene Cheung, OCT
Stéphane Vallée, OCT
BETWEEN: )
) Christine Lonsdale and Alexandre Blanchard,
) McCarthy Tétrault LLP,
ONTARIO COLLEGE OF TEACHERS ) for the Ontario College of Teachers
– and – )
) Yves Joly
YVES JOLY ) was not present or represented
(CERTIFICATE #417765) )
) Renée Kopp,
) Jones Litigation Counsel LLP,
) Independent Legal Counsel ) )
) Heard: April 12, 2016
DECISION AND ORDER
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) of the Ontario College of Teachers (the “College”) on April 12, 2016 at Toronto.
A Notice of Hearing dated August 20, 2014 (Exhibit 1) was served on Yves Joly (“the Member”) requesting his attendance before the College’s Discipline Committee on September 29, 2014 to set a date for a hearing. The hearing was subsequently set for April 12, 2016.
The Member was not in attendance at the hearing and was not represented by legal counsel.
Counsel for the College submitted an Affidavit of Annie Lacroix sworn April 6, 2016 (Exhibit 2), to prove that the Member had been informed of the allegations against him, the date and time of the hearing and the penalty that could be sought by the Committee. In the affidavit, Ms. Lacroix, a law clerk with McCarthy Tétrault LLP, describes in detail her communication with the Member and provides proof of service of all required documents. On the basis of the affidavit, the Committee is satisfied that the Member was served with the Notice of Hearing and all disclosure documents, was aware of the date and time of the hearing and the penalty that could be sought by the Committee, and declined to attend at the hearing. The Committee therefore heard this matter in his absence.
SUMMARY
The Member was found guilty of professional misconduct on October 21, 2008, and again on March 25, 2013. On March 25, 2013, a panel of the Discipline Committee directed that the Member appear before the Committee by September 25, 2013 to receive a verbal reprimand. The Member failed to do so.
For the following reasons, the Committee finds that the Member is guilty of professional misconduct in that he contravened sections 1(18), 1(19) and 1(21) of Ontario Regulation 437/97.
ALLEGATIONS
The allegations against Yves Joly in the Notice of Hearing, dated August 20, 2014, are as follows:
IT IS ALLEGED that Yves Joly is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act (the “Act”) in that:
(a) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);
(b) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); and
(c) he failed to abide by a written undertaking given by the member to the College or by an agreement entered into by the member with the College, contrary to Ontario Regulation 437/97, subsection 1(21).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Yves Joly is a member of the Ontario College of Teachers.
On March 25, 2013, the College’s Discipline Committee directed that the Member appear before the Committee by September 25, 2013 to receive a verbal reprimand.
The Member failed to appear before the Committee to receive his verbal reprimand.
MEMBER’S PLEA
Because the Member was not in attendance at the hearing nor was he represented by legal counsel, the Committee proceeded on the assumption that he denied the allegations set out in the Notice of Hearing.
EVIDENCE
At the hearing, the College called two witnesses: Serge Brideau (“Mr. Brideau”) and Nadine Carpenter (“Ms. Carpenter”). The Committee found that the testimony of both witnesses was credible. Mr. Brideau and Ms. Carpenter had clear recollections of the events, their testimony was plausible and reasonable, and their evidence was internally and externally consistent. Furthermore, their testimony was supported by documentary evidence (refer to Exhibit 4). The relevant portions of the witnesses’ evidence will be described in greater detail, where required, in the Reasons for Decision, below.
Mr. Brideau
Mr. Brideau has worked at the College since 2007. At all material times, he was a Hearings Officer at the College. In this capacity, he provided the Committee with administrative support, particularly in the preparation of reprimands. Mr. Brideau testified concerning the steps taken by the Hearings team to ensure that the Member’s reprimand could be administered to him within the time limit provided. According to Mr. Brideau, the Member was scheduled to attend at the College on July 23, 2013 to receive his reprimand, but he failed to appear. Mr. Brideau conveyed this information to Ms. Carpenter, Manager of the Intakes and Hearings Unit, who was his supervisor.
Ms. Carpenter
Ms. Carpenter has worked at the College for almost 17 years. She is currently Manager of the College’s Intakes and Hearings Unit, and held this position at all material times. Her responsibilities include supervision of the hearings held at the College. She testified concerning her involvement in the Member’s case in 2013. On July 23, 2013, Mr. Brideau informed her that the Member had failed to appear to receive his reprimand. Ms. Carpenter also testified that the Member had six months, as of March 25, 2013, to attend at the College to receive his reprimand, but failed to do so despite numerous warning notices.
SUBMISSIONS BY THE COLLEGE WITH RESPECT TO FINDING
College Counsel submitted that the evidence produced supported the case for professional misconduct, and that the Committee ought to find the Member guilty of professional misconduct as defined in subsection 30(2) of the Act. According to College Counsel, the evidence shows that the Member did not appear to receive his reprimand as directed by the Committee, thereby indicating his lack of respect for the College’s authority and the discipline process.
Counsel for the College produced two decisions of the Discipline Committee in support of the finding of professional misconduct, that is, Ontario College of Teachers v. Primeau, 2010 LNONECD 6 (“Primeau”) and Ontario College of Teachers v. Gusita, 2015 LNONECD 66 (“Gusita”). Counsel maintained that the members in these two cases had been found guilty of professional misconduct for failure to comply with an order of the Committee, and urged the Committee to base its decision on these cases.
DECISION
Onus and Standard of Proof
The College is required to prove the allegations in accordance with the standard of proof set out in F.H. v. McDougall, [2008] SCR 53, that is, the balance of probabilities, which consists in determining the likelihood of the occurrence of the alleged events. The Committee relies on clear and convincing evidence.
Finding
Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that the Member was guilty of professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(18), 1(19) and 1(21), as set out in the Notice of Hearing.
REASONS FOR DECISION
The Committee carefully reviewed the submissions by Counsel for the College and the evidence submitted. In the reasons that follow, it gives an opinion solely on those portions of the evidence that most closely correspond to the allegations set out in the Notice of Hearing.
The Facts Produced Support the Case for Professional Misconduct
The Committee finds that the Member is guilty of professional misconduct in that he contravened subsections 1(18), 1(19) and 1(21) of Ontario Regulation 437/97.
The Committee heard evidence that on March 25, 2013, a panel of the College’s Discipline Committee directed that the Member appear before the Committee by September 25, 2013 to receive a verbal reprimand (refer to Exhibit 4, Tab 1). Mr. Brideau and Ms. Carpenter testified that the Member, through his legal counsel, had agreed to attend at the College’s offices on July 23, 2013 at 10:00 a.m. to receive his reprimand (refer to Exhibit 4, Tab 3).
The Member failed to appear before the College’s Discipline Committee to receive his reprimand, despite the warning notices from the College (refer to Exhibit 4, Tab 3). Mr. Brideau testified that he waited for the Member to arrive for one half-hour (with the Chair of the Committee, who was to administer the reprimand), and then called the Member’s counsel to find out where the Member was. On July 23, 2013, at approximately 11:45 a.m., the Member’s counsel let him know that the Member’s union had informed her that the College should no longer expect the Member to arrive (refer to Exhibit 4, Tab 2).
In addition to the College’s attempts to contact the Member on July 23, 2013, Ms. Carpenter testified that a member of her staff had subsequently contacted the Member’s counsel to find out if he was intending to appear to receive his reprimand and was told that the Member had no intention of doing so.
On September 10, 2013, Ms. Carpenter wrote to the Member’s counsel to notify her that if the Member had not complied with the Committee’s order by September 25, 2013, the College would file another complaint on the grounds of contravention of Ontario Regulation 437/97 (refer to Exhibit 4, Tab 4). Nonetheless, the Member failed to appear to receive his reprimand.
Finding as to Professional Misconduct
The Committee finds that the aforementioned facts demonstrate that the Member is guilty of professional misconduct in that he contravened sections 1(18) and 1(19) of Ontario Regulation 437/97. The College is the self-regulating body of the teaching profession. It acts in the public interest. Self-regulation is a privilege which speaks to the maturity of a profession. It recognizes that the members of a profession are competent to govern themselves. Accordingly, the members of the College must respect the College and abide by the discipline process. The Member demonstrated a refusal to cooperate or participate in his discipline proceeding, despite the significant efforts made by the College. He failed to take responsibility for his actions. By flouting the College’s discipline process, the Member was in breach of his duties to the profession, and the Committee finds that he engaged in conduct unbecoming a member.
The Committee further finds that the aforementioned facts demonstrate that the Member is guilty of professional misconduct in that he contravened section 1(21) of Ontario Regulation 437/97. By failing to appear before the College’s Discipline Committee to receive his verbal reprimand, as directed on March 25, 2013, the Member showed contempt for the College, the governing body of his profession. A reprimand enables the Committee to directly express its concerns with regard to a member’s conduct, thereby serving the public interest. By preventing the Committee from being able to express its concerns to him, the Member contravened the public interest.
SUBMISSIONS ON PENALTY BY THE COLLEGE
According to College Counsel, the purposes of penalty include specific deterrence, general deterrence, rehabilitation of the member, transparency of the discipline process and protection of the public. It is also intended to maintain the high standards of the teaching profession.
According to College Counsel, the appropriate penalty in the Member’s case would consist of the following:
a reprimand;
a three-month suspension; and
publication in summary form of the findings and orders of the Committee in the College’s official publication, Professionally Speaking/Pour parler profession, including the Member’s name.
Counsel maintained that the decisions in Primeau and Gusita support the proposed penalties. They noted that this matter is the third for the Member before the College’s Discipline Committee.
PENALTY DECISION
The Committee makes the following penalty order:
Prior to accepting any teaching position requiring a Certificate of Qualification and Registration, the Member must appear before the Discipline Committee at the College’s offices at 101 Bloor Street West in Toronto, Ontario, to receive a verbal reprimand. This decision is to be published in the College’s public register;
The Committee directs the Registrar to suspend the Member’s Certificate of Qualification and Registration for a period of three months from the date of the Committee’s order and to publish this decision immediately in the College’s public register; and
The findings and orders of the Committee are to be published in summary form in Professionally Speaking/Pour parler profession, including the Member’s name.
REASONS FOR PENALTY DECISION
The Committee carefully weighed the arguments put forward by Counsel for the College and took into consideration that the purpose of the penalty is to serve and protect the public interest, uphold the standards of the teaching profession and promote public trust in the teaching profession. The Committee was concerned by the Member’s failure to comply with the Committee’s order after the previous discipline proceeding. Because of this failure, the Committee finds it necessary to impose a more severe penalty. It therefore directs that he is not to resume teaching or accept any position requiring a Certificate of Qualification and Registration until he has appeared before the Committee to receive his reprimand. The Committee also directs the Registrar to suspend the Member’s Certificate of Qualification and Registration for a period of three months.
In the Committee’s estimation, a reprimand is a penalty proportionate to the misconduct, which will serve as a specific deterrent for the Member and will impress upon him the seriousness of his misconduct. The reprimand will enable the Committee to express directly to him its concerns regarding his flouting of the discipline process. In addition, the fact that the reprimand will be published in the College’s public register will serve as a general deterrent, conveying to the teaching profession that the College will not tolerate any failure to comply with the penalties it imposes.
In the Committee’s estimation, a three-month suspension is appropriate, given that the Member has previously flouted the Committee’s authority. The Committee finds the Member’s failure to comply with the previous order reprehensible. In its view, by failing to abide by the terms and conditions of this order, he has shown contempt for the College, the governing body of his profession. Furthermore, this case marks the Member’s third appearance before the College’s Discipline Committee. A more severe penalty is therefore warranted. The Committee expects the members of the teaching profession to be respectful of the College’s discipline process.
The Committee finds that publishing a summary of its findings and orders with the Member’s name in the College’s official publication, Professionally Speaking/Pour parler profession, is warranted. Publication with name is required in this instance to convey to the members of the profession that they must take the discipline process very seriously, rather than dismissing it. Publication acts as a specific deterrent to the Member, as it holds him accountable for his actions. It also serves as a general deterrent by reminding the profession that failure to comply with the Committee’s orders is not tolerated. Lastly, publishing the Member’s name ensures the transparency of the discipline process and reassures the public that the profession acts decisively and does not shield its members when matters of this nature are brought to its attention.
The Committee finds that the penalty is appropriate in the circumstances and that it serves and protects the public interest.
Date: April 21, 2016
Marie-Claude Yaacov
Chair, Discipline Committee
Irene Cheung, OCT
Member, Discipline Committee
Stéphane Vallée, OCT
Member, Discipline Committee