DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
IN THE MATTER OF the Ontario College of Teachers Act, 1996, and Ontario Regulation 437/97 thereunder;
AND IN THE MATTER OF a discipline proceeding against Nadia Charland, a member of the Ontario College of Teachers.
PANEL: Robert Gagné, Chair Jean-Luc Bernard, OCT Sara Nouini, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Christine Lonsdale, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Law Clerk
– and –
NADIA CHARLAND (CERTIFICATE #258021) Lise Leduc, Goldblatt Partners LLP, for Nadia Charland
Renée Kopp, Jones Litigation Counsel LLP, Independent Legal Counsel
Heard: April 13, 2017
DECISION ON MOTION AND REASONS FOR DECISION
On April 13, 2017, the Ontario College of Teachers (“the College”) submitted a motion through its counsel to a panel of the Discipline Committee (the “Committee”).
THE PURPOSE OF THE MOTION IS TO OBTAIN:
An order scheduling the dates for a hearing into this matter; or, alternatively,
An order prohibiting the Member, Nadia Charland (“the Member”), from teaching, or from filling, or attempting to fill, any position requiring her to hold a Certificate of Qualification and Registration, until the College has disposed of the complaint against her.
POSITION OF THE COLLEGE
According to the College’s Notice of Motion dated March 28, 2017:
A Notice of Hearing setting out the allegations against the Member was issued on April 23, 2015.
The College has been attempting to schedule dates for a hearing of the Member’s case before the Committee since September 2016.
The Member refuses to schedule any hearing dates.
The Member is suffering from [an illness] for which she is currently being treated. The Member’s position is that she cannot attend a hearing. She has produced a medical certificate from Dr. Goddard stating that she is receiving treatment for [her illness] and is unable to attend a hearing before the Discipline Committee.
The allegations against the Member are extremely serious. The College is alleging that the Member engaged in a sexual relationship with a student under the age of 18 years.
In November 2011, the Member faced criminal charges. In February 2014, the Crown ordered a stay of proceedings against the Member on humanitarian grounds.
The College is prepared to agree not to schedule hearing dates for an unspecified period of time, provided the Member undertakes not to teach, or to fill or attempt to fill any position requiring her to hold a Certificate of Qualification and Registration, until the College has disposed of the complaint against her.
The public requires reassurance that a hearing is to be held into this matter, or that the Member will not hold any teaching position until the College has disposed of the complaint against her.
Any other reasons which the College may put forward and the Committee will allow.
In her oral submission, Counsel for the College argued that the Committee is empowered to grant the motion under sections 21 and 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and Rule 14 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee. Additionally, College Counsel reiterated that the allegations set out in the Notice of Hearing dated April 23, 2015 are extremely serious, and noted that, although the criminal proceedings did not go ahead, the Committee must recognize that the standard of proof in criminal proceedings is higher than the standard of proof in civil proceedings that applies in discipline hearings.
In addition, College Counsel produced the medical reports in respect of the Member dated October 29, 2015, September 29, 2016 and March 9, 2017, and argued that the recent reports contain less medical information and are less serious than the earlier ones. In view of the foregoing, apart from the fact that the allegations in this matter are serious and must be disposed of without additional delay, and the need to provide the public with assurance that the Member shall not return to the classroom until the College has disposed of the complaint against her, the College maintained that the Committee ought to grant the motion.
In support of her claims, College Counsel cited three previous decisions by the College and two previous decisions by the College of Physicians and Surgeons of Ontario, namely, Ontario College of Teachers v. De Albuquerque (July 28, 2014); Ontario College of Teachers v. Nault, 2014 LNONECD 105; Ontario College of Teachers v. Corson (March 1, 2016); Hill (Re), [1994] O.C.P.S.D. No. 4; and Ontario (College of Physicians and Surgeons of Ontario) v. Lowe, 2015 ONCPSD 21.
POSITION OF THE MEMBER
According to the Member’s submissions dated April 10, 2017:
The Member is in agreement with the facts as set out by the College [in the Notice of Motion dated March 28, 2017], subject to the following clarifications.
The Notice of Hearing issued on April 23, 2015 refers to allegations dating to the period between November 1, 2009 and November 1, 2011.
The Member had two sets of criminal charges brought against her.
The first charges, which included allegations of sexual assault and a sexual relationship with a student under the age of 18 years, were stayed by the Crown before the Court granted the stay of the other charges in February 2014 on humanitarian grounds (see the College’s motion record, page 180).
It should also be noted that the application by the Crown for a stay of proceedings in February 2014 was motivated in part by humanitarian considerations relating to the Member’s medical condition, but also because the case against the Member, as regards the second set of charges, was “weak” (see the College’s motion record, page 181).
The Member is not refusing to schedule hearing dates; she is asking that the proceedings against her be suspended or adjourned until her medical condition enables her to participate fully in the hearing before the College’s Discipline Committee.
The Member’s current medical condition precludes her from taking part in the hearing before the Discipline Committee.
According to the medical reports provided by the Member:
she has had [an illness] since her diagnosis in 2014;
the survival expectancy for such [a diagnosis] is five years;
she has undergone continual treatments since her diagnosis;
she also suffers from [psychological conditions];
she has physical and cognitive limitations such as memory loss, difficulty concentrating, hot flashes, fatigue, joint pain, difficulty remaining seated for long periods and standing up;
her participation in stressful situations is medically contraindicated.
- The Discipline Committee, in deciding whether to grant a request for adjournment, may consider the following factors, pursuant to sub-rule 14.01(2) of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee:
(a) the sufficiency of the reasons advanced for the request to adjourn;
(b) the timelines of the request;
(c) the resources of the Committee;
(d) any prejudice to the parties;
(e) whether any adjournments have been granted previously;
(f) the consent of the parties; or
(g) any other relevant factor.
Members have the right to participate in the hearing, defend themselves against the allegations against them, review the evidence and testify at the hearing. The Member’s medical condition precludes her participation in the hearing. Refusal by the College to adjourn the hearing would constitute a miscarriage of justice because the Member would be unable to participate in the proceedings before the Discipline Committee.
In the circumstances, the Member maintains that her medical condition justifies the request for adjournment. The medical reports submitted by the Member clearly establish the link between her medical condition and her inability to participate in the proceedings.
The Member is prepared to undertake not to teach, or to fill or attempt to fill any position requiring her to hold a Certificate of Qualification and Registration until she has agreed to set a date for the hearing and this undertaking has been recorded in the public register. As with the medical reports she has already produced for the College, the Member would also agree to provide the College with updates on her condition according to a reasonable predetermined schedule. The Member maintains that an adjournment under these conditions is reasonable in the circumstances and serves the public interest as regards the transparency of proceedings before the Discipline Committee.
The undertaking proposed by the College in paragraph 7 of its Notice of Motion is too burdensome and unwarranted. The College’s proposal amounts to an interim suspension of the Member’s Certificate of Qualification and Registration. Under section 29 of the Ontario College of Teachers Act, 1996, the College is expressly empowered to submit a request to suspend the Member’s Certificate of Qualification and Registration under certain specific conditions, namely, if a) an allegation respecting the member has been referred to the Discipline Committee and b) the Council or the Executive Committee is of the opinion that the actions or conduct of the member expose or are likely to expose students to harm or injury.
According to the case law, interim suspensions and conditions are extraordinary measures (see Scott v. College of Massage Therapists of British Columbia, 2016 B.C.J. No. 814, at para. 41; Larre v. College of Psychologists of British Columbia, 2007 BCSC 416, at para. 20; and Aris v. Ontario College of Teachers, 2011 O.J. No. 1400 (ONSC), at para. 36).
The fact that the College is not making such a request in this matter would indicate that the College does not consider it warranted in the circumstances. The Member argues that the College cannot use indirect methods for what it could not obtain directly.
In similar circumstances, the College accepted the undertaking as proposed above by the Member as a reasonable condition to impose on adjournment (see the College’s motion record, Tabs 4 and 5).
For all these reasons, the Member maintains that the Discipline Committee ought to grant her an adjournment with the following condition: provided she does not undertake any teaching-related employment until a hearing date has been scheduled.
In her oral submissions, Counsel for the Member responded to the College’s claims that the medical reports had become increasingly less detailed, among other considerations. Member’s Counsel contended that the College could have requested clarifications if needed. She also noted that the Member had always been willing to be transparent and had provided all the documents requested by the College.
Member’s Counsel reminded the Committee that the Member had the right to participate in her hearing, but was unable to do so because of her medical condition. Counsel argued that it was inappropriate to compel her to attend at the hearing, in the circumstances.
Member’s Counsel further maintained that granting an interim suspension (as was basically the ancillary intent of the College’s motion) was not warranted in the circumstances. The Member would agree to the scheduling of a hearing date as soon as she was ready to resume work (if her medical condition improved), but not before.
DECISION
The Committee makes the following order as to the motion by the College:
The parties shall agree on a hearing date. The hearing shall take place by September 29, 2017.
The Member shall provide the College with a detailed medical report concerning her current state of health at least one month prior to the date referred to in paragraph 1 above. The report shall refer specifically to the Member’s current treatment, prognosis and ability to attend at the hearing, either in person at the College’s offices at 101 Bloor Street West, Toronto, Ontario, or by videoconference.
REASONS FOR DECISION
The Committee has carefully considered the interests of the parties and the public interest. The Committee has the power to determine its own procedures and to make the aforementioned order under section 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
The parties shall agree on a date for a hearing, to take place by September 29, 2017. The Committee is aware that the allegations set out in the Notice of Hearing were brought on April 23, 2015 and concern incidents that allegedly occurred between November 1, 2009 and November 1, 2011. The College alleges that the Member engaged in an inappropriate sexual and personal relationship with a student under the age of 18 years. The allegations against the Member are extremely serious. Regardless of the manner in which the aforementioned criminal proceeding unfolded, these allegations must be addressed by the College in a discipline hearing in which the standard of proof (on a balance of probabilities) is much lower than the standard of proof in criminal proceedings. The strength or weakness of the College’s evidence will be assessed at the hearing on the facts of the matter, and is irrelevant for the purposes of this motion.
The Committee considers it important to provide the public with assurance that a hearing on this matter is proceeding without additional delay, and finds it reasonable that the hearing take place by late September 2017, which is more than six months after the most recent medical report concerning the Member and nearly two and one-half years after the issuance of the Notice of Hearing. The Committee orders the deadline of late September 2017 to coincide with the start of the next school year, in order to protect the public in view of the serious nature of the allegations. It is important that the hearing proceed without further delay if the Member is able to resume teaching.
The Member shall provide the College with a detailed medical report concerning her current state of health, at least one month prior to the date scheduled for her hearing. Although the Committee acknowledges the Member’s medical condition, and the fact that the medical reports produced for the Committee in the motion records of the College and the Member indicate that the Member has a serious illness, the most recent medical report submitted on March 9, 2017 does not appear to rule out the Member’s attendance at the hearing. The Committee agrees with College Counsel that the most recent medical report (dated March 2017) contains less information and no longer refers to the poor prognosis in the earlier reports (dated October 2015 and September 2016). For this reason, the Committee finds it necessary to obtain another medical report concerning the Member’s current state of health. The report is to refer specifically to the Member’s current treatment, prognosis and ability to attend at the hearing, either in person at the College’s offices or by videoconference, and to a possible date for her return to work, if any.
If the next medical report states that the Member is unable to attend at the hearing, she may make a request for adjournment at that time. The Committee agrees with the advice of the independent legal counsel that the request for adjournment by Member’s Counsel is premature because no dates have even been scheduled for the hearing. The Committee notes that the decisions produced by the parties in which adjournment was requested addressed the issue of adjournment only after a hearing date had already been scheduled.
If the Member’s medical condition clearly precludes her attendance at the scheduled hearing, the Committee encourages the parties to attempt to reach agreement concerning the conduct of the hearing or its adjournment with or without conditions. The Committee has given the parties a schedule for timely review of the matter prior to the commencement of the hearing.
Concerning the College’s ancillary request (that is, an order prohibiting the Member from teaching, or from filling, or attempting to fill, any position requiring her to hold a Certificate of Qualification and Registration, until the College has disposed of the complaint against her), the Committee does not believe it is empowered to make such an order. Although the Member could undertake to observe such conditions and such undertaking would be a significant factor for any committee disposing of a request for adjournment in the context of a hearing that has already been scheduled, the Committee does not believe it can impose such conditions on the Member’s Certificate of Registration in the current matter.
The Committee agrees with Member’s Counsel that the College’s proposal amounts to interim suspension of the Member’s Certificate of Qualification and Registration. College Counsel had the option of submitting a request to the College Council or Executive Committee to suspend the Member’s Certificate of Qualification and Registration pursuant to section 29(3) of the Ontario College of Teachers Act, 1996, but did not do so. A preliminary motion before the Discipline Committee is not the proper place for such a request.
The Committee notes that this motion was needlessly difficult. Although contested discipline hearings are by nature contradictory, improved cooperation between the parties would have facilitated the process. The Committee points out that the parties’ positions were not all that far apart, and believes that the parties could have come to a reasonable agreement without the need for a contested motion, which results in significant use of limited resources. Although opposing parties are not always obliged to agree, the Committee expects them to adopt reasonable positions and make an effort to avoid becoming unreasonably entrenched in their respective positions.
The Committee finds that the aforementioned order is reasonable and appropriate in the circumstances and serves and protects the public interest.
Date: April 24, 2017
Robert Gagné Chair, Discipline Committee
Jean-Luc Bernard, OCT, Member, Discipline Committee
Sara Nouini, OCT, Member, Discipline Committee