DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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 Motion of the Applicant, Nancy Fernandes, a member of the Ontario College of Teachers at all material times.
PANEL: Marie-Claude Yaacov, Chair Claudia Patenaude-Daniels, OCT Wes Vickers, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Christine Lonsdale, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela Spano, Law Clerk
-and-
NANCY FERNANDES (CERTIFICATE #203966) Austin Fernandes, representing Nancy Fernandes
Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: August 30 & 31, 2017
DECISION AND REASONS ON SECOND MOTION FOR ADJOURNMENT
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on August 30 & 31, 2017 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing (Exhibit 1) dated March 12, 2013, was served on Nancy Fernandes (the “Member”) requesting her presence on March 18, 2013 to set a date for hearing, and specifying the charges. The hearing was subsequently set to, and did, commence on August 30, 2017. The proceedings continued on August 31, 2017.
The Member was not in attendance at the hearing but was represented by her spouse, Austin Fernandes (the “Member’s Representative”).
At the outset of the hearing on August 30, 2017, the Member’s Representative made an oral motion without notice to dismiss the proceedings for delay, which the Committee dismissed. He then made an oral motion for adjournment, which the Committee also dismissed.
Towards the end of the first day of this hearing, the Member’s Representative brought a second motion for adjournment. He submitted that an adjournment would be appropriate because the Member needed time to gather evidence and contact witnesses who he believed could discredit the testimony of one of the College’s witnesses, among other things. The Member’s Representative submitted that an adjournment of approximately one month would allow sufficient time for the Member to produce the necessary evidence and would ensure a fair and impartial hearing.
College Counsel opposed the motion and noted, among other things, that it was unclear what evidence the Member wanted to gather and whether that evidence would even be admissible.
DECISION ON SECOND MOTION FOR ADJOURNMENT
On August 31, 2017, the Committee rendered its decision with respect to the second motion for adjournment sought by the Member’s Representative. The Committee’s decision and reasons is as follows.
The original decision to deny the motion to adjourn was based on the Committee’s belief that the factors set out in Rule 14 had not been met.
When the second motion to adjourn was made, the Committee asked itself whether there had been any change in circumstances since the original decision. The Committee believes there has been a change.
Over the course of the hearing, it has become a concern of the Committee that the Member’s Representative may be unaware of how to effectively represent the Member in this matter. He has indicated that he is “confused.” He has indicated that he has tried to secure the services of legal counsel. This was not made known to the Committee during submissions for the original motion.
The Committee then looked to the factors set out in Rule 14 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”). It concedes that all the factors have not been met. However, the Committee believes that the desire for the Member to attempt to secure legal counsel and possible witnesses or documents is a sufficient reason to adjourn the hearing.
The Committee notes that the Notice of Hearing was issued in 2013. The hearing has been scheduled for some time. However, up until July 2017, the Member was represented by legal counsel. In light of the recent disclosure of the Member’s Representative that he now wishes to obtain legal counsel for the Member, the Committee believes that an adjournment would be appropriate. Further, the Committee notes that the College has called all of its witnesses, therefore an adjournment would not prejudice the College. The Committee is adjourning the matter before the College is closing its case. This further reassures the Committee that the College will not be prejudiced.
The Committee would remind the Member’s Representative that this adjournment is to permit him or legal counsel to better prepare for this case. Independent Legal Counsel has advised the Committee that she has provided the Member’s Representative with an overview of the role of the prosecutor and that this hearing is adversarial in nature. She also advised the Member’s Representative that the only allegations before the Committee are set out in the Notice of Hearing.
The Committee would remind the Member’s Representative that the case against the Member is set out in the Notice of Hearing. All efforts expended during this adjournment should focus on relevant matters as set out in the Notice of Hearing. The Committee will also ask the College’s Hearings Coordinator to provide the Member’s Representative with a copy of the Rules.
The Committee grants the request for adjournment of the Member’s Representative.
Date: November 3, 2017
Marie-Claude Yaacov Chair, Discipline Panel
Claudia Patenaude-Daniels, OCT Member, Discipline Panel
Wes Vickers, OCT Member, Discipline Panel