DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
Citation: Ontario College of Teachers v Blier, 2016 ONOCT 86
Date: 2016-01-20
IN THE MATTER OF the Ontario College of Teachers Act, 1996, and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against Denis Sinai Blier, a member of the Ontario College of Teachers.
PANEL: Jean-Luc Bernard, Chair, OCT
Stéphane Vallée, OCT
Ravi Vethamany, OCT
BETWEEN: )
) Christine Lonsdale and Alexandre Blanchard,
) McCarthy Tétrault LLP,
ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers,
) assisted by Annie Lacroix, Law Clerk
– and – )
) Denis Sinai Blier
DENIS SINAI BLIER ) was not present or represented
(CERTIFICATE #447741) )
) Renée Kopp,
) Jones Litigation Counsel LLP,
) Independent Legal Counsel ) )
) Heard: January 19, 2016
DECISION ON MOTION AND REASONS FOR DECISION
On January 19, 2016, Counsel for the Ontario College of Teachers (“the College”) submitted a motion before a panel of the Discipline Committee (the “Committee”) for permission to examine and cross-examine four witnesses by electronic means, in a videoconference. The witnesses are Isabelle Ouellet (“Ms. Ouellet”), Parent 1, Student 1 and Student 2. The College requested that Parent 1’s testimony in particular be given from her home, by Skype. In support of the motion, the College referred to Rule 8 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), the Affidavit of Annie Lacroix sworn January 13, 2016 (Exhibit 3), the Supplementary Affidavit of Annie Lacroix sworn January 13, 2016 (Exhibit 5), and a medical note concerning Parent 1 (Exhibit 6).
The Member, Denis Sinai Blier (“the Member”), was not in attendance at the hearing nor was he represented by legal counsel.
FACTS
Ms. Ouellet
Ms. Ouellet lives in [XXX], Ontario, approximately 1,117 km from Toronto and 400 km from Thunder Bay, where the nearest airport is located. She was a teacher at [XXX] (“the School”) during the 2008-2009 school year and was a colleague of the Member. She was in daily contact with the Member and their classrooms were adjacent. Ms. Ouellet is currently the Principal of the School, as well as a teacher there. To testify at the hearing, she would need to be away from the School for several days. She feels that in this remote region of Ontario, it would be difficult to find teachers qualified to replace her during her absence.
Parent 1
Parent 1 was a teacher at the School and her son was a student in the Member’s class during the 2008-2009 school year. Parent 1 lives in [XXX], Ontario. On December 3, 2015, she was diagnosed with cancer. On January 14, 2016, she received her first chemotherapy treatment. Following this treatment, it is essential to remain virus-free. Because of her medical situation, Parent 1 requests that her testimony be given from her home.
Student 1
Student 1 was a Grade [XXX] student in the Member’s class at the School during the 2008-2009 school year. On January 4, 2016, he began an intensive two-month Heavy Equipment Operator training program in Sault Ste. Marie. The program runs from Monday to Thursday, 8:30 a.m. to 4 p.m. The distance between Sault Ste. Marie and Toronto is approximately 700 km.
Student 2
Student 2 was a Grade [XXX] student in the Member’s class at the School during the 2008-2009 school year. She is currently attending secondary school in [XXX], Ontario, approximately 1,100 km from Toronto and 300 km from Thunder Bay, where the nearest airport is located. In addition to missing several days of school, Student 2 would have to travel accompanied by an adult, but her mother needs to look after her two young sisters and her father will be taking a course during the period when this hearing is taking place.
OBSERVATIONS OF THE COLLEGE
Counsel for the College submits that the burden of proving that testimony by videoconference would be unacceptably prejudicial is on the Member. In the absence of such proof, the College contends that the Committee ought to exercise its discretion and give permission for the testimony of the above-mentioned witnesses to be given by videoconference (and specifically by Skype, in the case of Parent 1) in accordance with Rule 8 of the Rules. Counsel argues that the Member had an opportunity to express his position on this motion, but did not do so. The Member has therefore failed to bear his burden of proof.
Counsel for the College also argued that the above-mentioned witnesses are important, that they would have to make a lengthy trip to Toronto for the hearing, and that because of this length, the witnesses are unable to testify in person at the hearing and to fulfil their respective obligations.
In support of his arguments, Counsel for the College referred to one decision by the Ontario Superior Court of Justice and two decisions by the College, that is, Chandra v. CBC, 2015 ONSC 5385, Ontario College of Teachers v. Robitaille (November 4, 2014), and Ontario College of Teachers v. Perron (September 19, 2012). Counsel for the College contended that it was in the public interest to hear the testimony of the above-mentioned witnesses by videoconference (or by Skype) and that the Member would not be unduly adversely affected if the Committee granted the remedy sought in the motion. Furthermore, the aforementioned jurisprudence served as a precedent according to which the Discipline Committee and the Ontario Superior Court of Justice permitted a witness to attend by videoconference and, according to Counsel for the College, supported the motion.
DECISION
On the matter of whether a portion of the hearing, specifically the examination and cross-examination of witnesses Ms. Ouellet, Parent 1, Student 1 and Student 2, could be conducted electronically by videoconference, the Committee examined the arguments put forward by the College and decided to exercise its discretion in the matter and hand down the following order: the Committee gives permission for the testimony of Ms. Ouellet, Parent 1, Student 1 and Student 2 to be given by videoconference. The Committee gives permission for the testimony of Parent 1 in particular to be presented by Skype from her home, in view of her medical situation.
REASONS FOR DECISION
The Committee understands that it must exercise its discretion under Rule 8 in granting or refusing the College’s request as set out in this motion. In exercising this discretion, the Committee must also consider the possible adverse effect on the Member, although the jurisprudence confirms that the burden of proving such adverse effect is on the Member.
The Committee weighed the interests of the parties and considered the public interest but, after hearing the evidence and observations put forward by the College, it is not convinced that the Member would be unduly adversely affected if the Committee were to grant the remedy sought in the motion. The Committee accepts that the Member had an opportunity to express his position on this motion, but did not do so. The Member has therefore failed to bear his burden of proof.
The Committee also accepts that the aforementioned witnesses are from regions at a considerable distance from Toronto. They would have to make a lengthy trip to Toronto to attend the hearing before the Committee and, because of this length, the Committee finds that the witnesses are unable to testify in person at the hearing and to fulfil their respective obligations.
The Committee further found that the testimony of the aforementioned witnesses was material. As teachers or concerned parents, or both, Ms. Ouellet and Parent 1 were in contact with the Member on a number of occasions during the 2008-2009 school year. Similarly, both Student 1 and Student 2 were students of the Member during the 2008-2009 school year and were thus able to observe his performance on a regular basis. Although it is not ideal to have testimony presented by videoconference (or by Skype), it is nonetheless essential that the testimony be given. Accordingly, the Committee has decided to give permission for the testimony of the aforementioned witnesses to be given by videoconference, or by Skype in the case of Parent 1.
January 20, 2016
Jean-Luc Bernard, OCT
Chair, Discipline Committee
Stéphane Vallée, OCT,
Member, Discipline Committee
Ravi Vethamany, OCT,
Member, Discipline Committee