Ontario College of Teachers v. Reid, 2017 ONOCT 53

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Reid 2017 ONOCT 53

Date: 2017-04-20

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

Jeffrey Alan Reid, OCT, a member of the Ontario College of Teachers.

PANEL: Ravi Vethamany, OCT, Chair

Jean-Luc Bernard, OCT

Sara Nouini, OCT

BETWEEN: ) Eli Mogil and Vladimira Ivanov,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers

ONTARIO COLLEGE OF TEACHERS )

– and – ) Richard Evenson and Eric Bundgard,

) Evenson Bundgard LLP,

) for the Member

Jeffrey Alan Reid )

(CERTIFICATE # 587324) )

) Stuart Zacharias, Lerners LLP, ) for the third parties, ) Drs. Madeline Dayot-Venida and

) Richard Alan White )

) Robin McKechney,

) Steinecke Maciura LeBlanc,

) Independent Legal Counsel )

) Heard: January 16, 2017

DECISION AND REASONS FOR DECISION ON MOTION for Third Party Production of Records

This motion was heard before a panel of the Discipline Committee (the “Committee”) on January 16, 2017 at the Ontario College of Teachers (the “College”) at Toronto. A Notice of Hearing dated May 25, 2016 (Exhibit 1) was served on Jeffrey Alan Reid (the “Member”), requesting his presence on June 13, 2016 to set a date for hearing, and specifying the allegations against him.

The Member was not in attendance for the motion and was represented.

The motion was originally scheduled to be heard on December 7, 2016. However, at the commencement of the hearing, an issue was raised regarding notice given to third parties. In particular, a question was raised as to whether the Member had complied with Rule 5.01(2) of the College’s Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee. That provision states:

5.01(2) Subject to sub-rule 5.05(3), the person bringing the motion shall deliver the Notice of Motion and motion materials by the Tuesday that is at least 10 days before the date specified for the hearing of the motion.

The Member had served Ms. Janette Cleveland and the parents of the child at issue in the hearing (the “Child”) with the motion record via regular mail on November 22, 2016. Under Rule 2.03(2)(a) service was deemed to be effective on November 27, 2016, which was not in compliance with Rule 5.01(2). Rule 5.01(2) would have required service by November 22, 2016.

The Member argued that notwithstanding the non-compliance with the rules, it could be presumed that Ms. Cleveland and the parents of the Child did not wish to participate in the hearing since they had not responded to counsel for the Member nor appeared at the hearing.

The Committee disagreed and found that given the nature of the records at issue proper service was necessary to proceed with the motion.

On consent, the parties agreed to adjourn the hearing and Member’s counsel would contact Ms. Cleveland and the Child’s parents and inform them that the proceedings were adjourned and that they could contact Member’s Counsel or College Counsel with any concerns. Member’s Counsel sent the two parties letters on December 7, 2016 (Exhibits 2 and 3). Neither Ms. Cleveland nor the parents chose to appear at the hearing, which proceeded on January 16, 2017.

THE ALLEGATIONS

IT IS ALLEGED that Jeffrey Alan Reid is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act (the “Act”) in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students verbally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(d) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(e) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(f) 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); and

(g) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Jeffrey Alan Reid is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Kawartha Pine Ridge District School Board (the “Board”).

3. At all material times, the Member was employed as a [XXX]at a community agency (the “Agency”).

4. During 2012, the Member was the [XXX] for a -[XXX]year-old male child[XXX] at the Agency.

5. On or about November 25, 2012, the Member treated the Child inappropriately and/or failed to provide appropriate care for the Child including but not limited to:

(a) antagonized and/or taunted the Child with comments including but not limited to,

(i) “is that all you have big boy”

(ii) “I’m not scared of you”

(b) placed his knees on the chest of the Child;

(c) held a glass of liquid over the Child’s head;

(d) suggested or implied he would tip the glass of liquid onto the Child;

(e) failed to care for and/or refused to assist the Child, such that the Child:

(i) hit himself on the head

(ii) hit the floor with his feet, arms and head

(iii) struck out at the Member and

(iv) inflicted self-harm

(f) touched the shoulder of the Child; and

(g) turned room lights off and left the Child unattended and said “let’s not pay attention to him”.

6. The Member consumed alcohol and/or illegal substances while responsible for the care of children or other vulnerable persons.

THE MOTION

By his motion dated November 22, 2016, the Member brought a motion seeking disclosure of third party records.

Specifically, the Member requested the following:

1. An Order compelling the third parties named herein to produce forthwith to the Member the records as noted below:

(a) With respect to Madeline Dayot-Venida, M.D., her entire medical chart in connection with Janette Cleveland (sometimes referred to as "Jeanette" Cleveland) that is within her possession, control or power, whether such chart is maintained in electronic format or by information stored by any other means, including but not limited to all clinical notes, medical or psychological or other reports, correspondence, memoranda, opinions/statements, assessments and laboratory or other test results, and pertaining to the period commencing on or about January 1, 2011 to date;

(b) With respect to [XXX], their entire file in connection with services provided to or on behalf of [the Child] that is within their possession, control or power, whether such file is maintained in electronic format or by information stored by any other means, including but not limited to all case worker notes, medical or psychological or other reports, correspondence, memoranda, opinions/statements, assessments and laboratory or other test results, and pertaining to the period commencing on or about January 1, 2008 to date;

(c) With respect to [XXX], their entire file in connection with services provided to or on behalf of [the Child] that is within their possession, control or power, whether such file is maintained in electronic format or by information stored by any other means, including but not limited to all case worker notes, medical or psychological or other reports, correspondence, memoranda, opinions/statements, assessments and laboratory or other test results, and pertaining to the period commencing on or about January 1, 2008 to date;

(d) With respect to [XXX], as follows:

(i) their complete employment or otherwise engagement services file respecting the Member, in connection with his care services provided at or respecting [XXX] over the years 2011 to 2014, inclusive, that is within their possession, control or power, whether such file is maintained in electronic format or by information stored by any other means. The sought material shall include but not [sic] limited to a log of his dates worked, work performance evaluations and assessments (formal or otherwise), records of complaints made against him by Janette Cleveland (sometimes referred to as "Jeanette" Cleveland) or others, either to [XXX] administrative staff or to Board of Directors members, or to both, and the termination of his employment;

(ii) their complete investigative file(s) respecting reports of complaint made by Janette Cleveland (sometimes referred to as "Jeanette" Cleveland) and/or other staff members or community members of [XXX] at [XXX] in connection with the alleged abusive treatment by the Member of [the Child], and/or with the Member's purported use of alcohol or illicit drugs while engaged in care services respecting [XXX] clients, whether such file(s) is maintained in electronic format or by information stored by any other means. Sought materials shall include but not be limited to any such received complaints, investigative notes, the names and contact particulars of all persons that may have been interviewed in any related investigative process, related correspondence, and all interim and/or concluding investigation reports provided to the Board of Directors;

(iii) all log book entries, work incident reports, violence incident reports, and assessment or evaluation reports made by or received by [XXX] workers or administrative staff in connection with the delivery of services to [the Child] pertaining to the period commencing on or about January 1, 2011 and ending September 1, 2014;

(e) With respect to [XXX], their complete investigative file made in respect of allegations of suspected child abuse by the Member of [the Child] or of other vulnerable persons in connection with [XXX], that is within their possession, control or power, whether such file is maintained in electronic format or by information stored by any other means. The sought material shall include but not be limited to all associated log book entries, investigation notes, reports or summaries, written witness statements, witness video-recordings or audio-recordings, names and contact particulars of witnesses, and correspondence, generated in the period from about January 1, 2011 to date;

(f) With respect to [XXX] Police Service (including its named predecessor, [XXX] Community Police Service), their complete investigative file made in respect of allegations of suspected child abuse by the Member of [the Child] and/or of other persons in connection with [XXX], that is within their possession, control or power, whether such file is maintained in electronic format or by information stored by any other means. The sought material shall include but not be limited to all associated log book entries, incident reports, police office investigation notes, reports or summaries, written witness statements, witness video-recordings or audio-recordings, names and contact particulars of witnesses, and related correspondence respecting [the Child] and/or other client of [XXX], generated in the period from about January 1, 2011 to date.

Although it is not set out in the Member’s Notice of Motion, the Member also sought the records of Dr. Richard White, which pertain to the Child. Although this request was not set out in the Notice of Motion, Dr. White was served with the Member’s materials and had counsel present for the motion.

THE TEST FOR PRODUCTION OF THIRD PARTY RECORDS

The parties agreed that the test for production of third party records is the two-part test set out in R. v. O’Connor, 1995 CanLII 51 (SCC) (“O’Connor”).

At the first stage, the Member has the onus to satisfy the Committee that the information is likely to be relevant. If the “likely relevance” threshold is met, the records are produced to the Committee for review.

At the second stage, the Panel “must examine and weigh the salutary and deleterious effects of a production order and determine whether a non-production order would constitute a reasonable limit on the ability of the accused to make full answer and defence.” (O’Connor, supra at para 30). In making this determination, the Committee is entitled to consider the following:

1. The extent to which the record is necessary for the accused to make full answer and defence.

2. The probative value of the record in question.

3. The nature and extent of the reasonable expectation of privacy vested in that record.

4. Whether production of the record would be premised upon any discriminatory belief or bias.

5. The potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question. (O’Connor, supra at para 31).

SUBMISSIONS OF MEMBER’S COUNSEL

The Member argued that the records sought were relevant to the matter at issue and that the production of the records was necessary in the interests of justice. The Member submitted that under a balancing of interests test, the salutary effects of pre-hearing production of the records on the Member’s right to make full answer and defence outweighed any deleterious impact on any affected parties’ rights to privacy and equality.

Specifically, the Member made the following arguments:

• The records of Dr. Dayot-Venida: The Member argued that the medical chart of Janette Cleveland was relevant and should be disclosed because Ms. Cleveland was the only witness to the alleged event of professional misconduct, and there was evidence presented in Ms. Cleveland’s own statement to the Children’s Aid Society and police that she had suffered from medical issues at the same time the allegations were made. The Member argued that Ms. Cleveland put her medical health at issue in her report to [XXX] and police investigators when interviewed on October 14, 2014, therefore he should be entitled to obtain these medical records. The Member submitted that her medical issues may have affected her recall and credibility as a witness, and therefore her medical records should be disclosed in order that the Member be able to cross-examine her fully and fairly.

• The records of Dr. White: The Member argued that these records were necessary in order to contextualize the events at issue. The Member stated that the medical records of the Child could contain evidence of the abuse which the Member was accused of. As well, the medical records would explain the medical conditions affecting the Child, what behaviours are characteristic of his condition, what his needs were, and how a caregiver should adequately respond to his condition. The Member argued that these issues were relevant to whether he committed professional misconduct.

• The records of [XXX]: The Member argued that these records would disclose any signs of abuse the Child may have suffered, as well as his medical condition and needs.

• The records of [XXX]: The Member acknowledged that he had already received records from this third party on December 7, 2016. The [XXX] attended the motion on December 7, 2016 and provided the documents that it viewed as responsive to the application to the Member prior to the commencement of the motion. The records, however, were not as comprehensive as the Member expected, and he was seeking further records for missing correspondences and reports. The Member sought these records in relation to the Member’s employment records, as well as Ms. Cleveland’s work at [XXX]and her complaint and the investigation of the complaint for the purpose of determining whether Ms. Cleveland had any ulterior motive in making a complaint against the Member.

• The records of the [XXX] and the [XXX] Police Service (including its predecessor, [XXX] Community Police Service): The Member argued that these records were prima facie relevant, as they dealt with the same events and same complaint by Ms. Cleveland against the Member. The Member noted that he had received summaries of these records and so he already had confirmation that these records were relevant.

The Member submitted that the balance of interests was in favour of the production of these records. He stated that, to protect the privacy interests of other parties, the Committee could apply a variety of protective mechanisms such as redacting portions of the records, or requiring an undertaking so that access to or use of the documents would be limited. The Member argued that, even though the records contained complaints about individuals other than the Member, the unredacted version should be made available to the Member because if College Counsel decided to call any of these individuals as part of its case, the Member would need this information about them. As well, the Member argued that if other allegations had been made by Ms. Cleveland, this could shed light on the reliability of the allegations against the Member and therefore would be probative.

SUBMISSIONS OF COLLEGE COUNSEL

College Counsel did not take a position on the Member’s motion.

SUBMISSIONS OF COUNSEL FOR DR. DAYOT-VENIDA AND DR. WHITE

Counsel for the two doctors relied on ss. 278.1 to 278.19 of the Criminal Code, which codify the principles from the O’Connor decision. Counsel submitted that these provisions provide detailed guidance as to how an application for disclosure of medical records should be handled by the Committee.

In terms of the records of Dr. Dayot-Venida, counsel argued that Ms. Cleveland would have a high reasonable expectation of privacy in her records in Dr. Dayot-Venida’s possession. Counsel argued that the Member’s reasons for seeking the records included the suggestion that Ms. Cleveland’s conditions may have adversely impacted her ability to recall and reliably characterize past events, and that this was a discriminatory belief or bias – i.e., that a person seeing a psychiatrist would have credibility issues. Counsel argued that producing records on the basis of a discriminatory belief had a serious risk of prejudicing the personal dignity and right to privacy of Ms. Cleveland. As well, counsel argued that the fact that Ms. Cleveland talked to someone else about her medical history was not enough to make these records relevant. Dr. Dayot-Venida was not the subject of the proceeding, and counsel argued it would not be appropriate for the Committee to get into the issue of what, if anything, Dr. Dayot-Venida was required to do based on information given to her by Ms. Cleveland.

In terms of the records of Dr. White, counsel argued that the essential ground upon which production was being sought also appeared to be based on a discriminatory belief or bias – i.e., that the alleged conduct in relation to a disabled person was not inappropriate if that person already had health problems.

In the alternative, counsel argued that if the Committee determined that production of the records was appropriate, conditions should be imposed to protect the privacy interest of the affected individuals, as follows:

• The records should be edited as directed by the Committee

• The records should not be available for review by the Member but only by his counsel

• The records be viewed only in the offices of the Committee and no copies should be made

• Any information regarding any person named in the records, such as their address, telephone number, or place of employment, should be redacted

• The records should not be used in any other proceedings, and

• The Committee’s decision and reason in regards to production should be sealed and not form part of the public file.

DECISION ON MOTION

Having considered the oral and written submissions made by the parties, the Committee makes the following order as to disclosure:

1. The [XXX] investigative file made in respect of allegations of suspected child abuse by the Member in connection with [XXX] will be disclosed to the parties, as it was produced by [XXX] to the Committee, subject to limited redactions to remove third party address and contact information only.

2. The unredacted [XXX] Police Services’ investigative file made in respect of allegations of suspected child abuse by the Member in connection with [XXX] will be disclosed to the parties, subject to redactions which have been made in order to remove police coding and third party address and contact information only.

REASONS FOR DECISION

The Committee has determined that, applying the O’Connor test, the records of Dr. Dayot-Venida are not likely relevant to an issue at the hearing or Ms. Cleveland’s competency to testify. There has not been sufficient evidence led to establish that Ms. Cleveland’s medical issues would have had a material effect on her credibility or recall of the alleged event of professional misconduct, or are otherwise relevant. The claims that her mental health would have affected her recall or credibility are speculative. The Member is seeking to engage in a fishing expedition in the hopes that there will be some information in the records relevant to his defence. This does not meet the likely relevant test.

As well, even if the records were likely relevant, the Committee finds that the Member’s reasons for seeking the records of Dr. Dayot-Venida are at least partially based on the discriminatory premise that a person with mental health issues would be less credible. Psychiatric medical records are a particularly sensitive form of medical evidence and are afforded a high degree of privacy protection. Ms. Cleveland has a very strong privacy interest in the non-disclosure of these records. The Committee finds that disclosure would have a significant negative effect on Ms. Cleveland’s dignity and privacy rights which is not outweighed by the Member’s ability to make full answer and defence.

In terms of Dr. White’s records as well as the records of [XXX], the Committee determines that documents relating to the Child’s overall medical condition are not likely relevant. Such records are not necessary in order for the Member to make full answer and defence to the allegations that on November 25, 2012, the Member treated the Child inappropriately when providing care. The Child’s overall medical conditions are outside the scope of the issue before the Committee, as the Committee will be examining the Member’s conduct on the day at issue and whether this conduct amounts to professional misconduct. Further, to the extent the Child’s medical condition is necessary to make full answer and defence, there is significant evidence available to the Member without production of the Child’s patient records from Dr. White. As well, the Committee notes that Dr. White had an independent obligation to report issues of child abuse to the appropriate authorities, and evidence in Dr. White’s records that the Child had been abused by the Member would have been disclosed to police or [XXX] in this manner.

As well, the Committee determines that the records of [XXX] already produced to the Member relate to the relevant issue of the alleged misconduct by the Member and the investigation of that misconduct. The further information sought by the Member about the Member’s and Ms. Cleveland’s work records in general are not relevant to the specific issue of misconduct.

The Committee determines that the records of the [XXX] and the [XXX] Police Service (including its predecessor, [XXX] Community Police Service) are relevant, in that they deal with the investigation of the incident at issue. The Committee further finds that in balancing the salutary and deleterious effects of a production order, that the records should be produced. The details of the investigations by the police and the Children’s Aid Society into the Member’s conduct on November 25, 2012 may be necessary for the Member to prepare his defence and do not impact the privacy interests of any third parties to the same degree as the medical records discussed above.

The Committee finds that it is appropriate for the Member to be provided with a version of these documents which has been redacted to remove police coding and third party address and contact information only. If there is information about third parties which is not relevant to the proceedings, this can be dealt with when the Committee is required to consider the admissibility and/or weight of these documents as potential exhibits at the hearing.

At the conclusion of this hearing, after the decision was orally released, counsel for the Member expressed concern that, according to the covering letter of the [XXX] Police Service dated January 11, 2017 which accompanied the police records, there was a Chair/President’s Report of the [XXX] and emails between Ms. Cleveland and Board Members at the Association which had not been provided to the Member. Counsel for the Member requested that the Committee make an order requiring the [XXX] to provide those additional materials. The Committee is of the view that, given that it had already rendered its decision and given that the Member’s counsel had not yet approached [XXX] with a request for those specific materials, an order was not appropriate, particularly in light of the fact that the Association had voluntarily produced materials to the Member on December 7, 2016. In the event the Member can obtain those materials on consent or by subpoena, no further order of the Committee will be necessary. If the Member cannot obtain the materials on consent, he can return before the Committee for a further motion.

Date: April 20, 2017

______________________________ Ravi Vethamany, OCT

Chair, Discipline Panel

Jean-Luc Bernard, OCT

Member, Discipline Panel

_________ _____________________ Sara Nouini, OCT

Member, Discipline Panel