Ontario College of Teachers v. Fernandes, 2017 ONOCT 83

Discipline Committee of the Ontario College of Teachers

Citation: Ontario College of Teachers v Fernandes 2017 ONOCT 83

Date: 2017-11-03

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, 2017

DECISION AND REASONS ON MOTION TO DISMISS FOR DELAY AND MOTION FOR ADJOURNMENT

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on August 30, 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 Member was not in attendance at the hearing but was represented by her spouse, Austin Fernandes (the “Member’s Representative”).

MOTION TO DISMISS FOR DELAY

At the outset of this hearing, the Member’s Representative brought a motion seeking an order to dismiss the proceedings for delay. Neither the Member nor the Member’s Representative filed any materials with respect to this motion in advance of, or during, the hearing. The Committee sought assistance from Independent Legal Counsel on this issue. The Committee decided to permit the parties to make submissions on this motion.

SUBMISSIONS OF THE PARTIES

Member’s Representative

The Member’s Representative submitted that the Committee ought to dismiss the case against the Member because it was not heard in a timely manner. According to him, seven years have passed since the Member’s alleged misconduct occurred in 2010, which is an unreasonable delay.

In support of the Member’s position, the Member’s Representative referenced an unidentified newspaper article reporting on the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27 (“Jordan”). He did not submit any affidavit evidence or present the Committee with the Jordan decision or the newspaper article.

In addition, the Member’s Representative quoted the following two passages contained in the College’s information brochure titled Steps to Take if a Complaint is Filed Against You: 1) “[d]uring an investigation of allegations against a member, the College takes steps to protect a member’s rights” and 2) “[i]nvestigations will be conducted in a timely and impartial manner.” The Member’s Representative submitted that the Member has been prejudiced because of the unreasonable delay in these proceedings.

The Member’s Representative also questioned the fairness of these proceedings by submitting, among other things, that the Member had received a 400-page document or binder from College Counsel on August 23, 2017, one week before the start of the hearing. The timing of this disclosure was not fair according to the Member’s Representative.

College Counsel

College Counsel opposed the motion brought forward by the Member’s Representative and submitted that the Committee should not grant the motion. College Counsel echoed the advice of Independent Legal Counsel that Jordan was a criminal law case and was therefore not directly applicable in the administrative law context. According to College Counsel, the leading case on dismissal for delay in an administrative law context is Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (“Blencoe”), which is referred to in Ontario College of Teachers v. Blew (2 August 2016)¹ (“Blew”).

College Counsel summarized the two-part Blencoe test as follows: 1) the Committee must first determine whether there was an inordinate delay caused by the College; and 2) the Committee must then determine whether the inordinate delay caused significant prejudice to the Member’s ability to have a fair hearing or caused significant personal prejudice to the Member. Both parts of the test must be established in order for the Member to bring a successful motion for dismissal due to inordinate delay.

In order to provide the Committee with additional context about the procedural history of these proceedings and to demonstrate that there was no inordinate delay in this case, College Counsel relied on the Affidavit of Daniela Spano, sworn August 28, 2017 (Exhibit 2).

In this affidavit, Ms. Spano, a law clerk at McCarthy Tétrault LLP, outlines her communications with the Member and sets out the procedural history of the Member’s case. In January 2012, Member’s Counsel (at the time) responded to the allegations against the Member and informed College Counsel that she was counsel of record for the Member. The Notice of Hearing in this matter was subsequently issued in March 2013 and served on Member’s Counsel. In June 2014, College Counsel served the Member with a disclosure brief through her counsel at the time. In May 2016, a pre-hearing conference was held and Member’s Counsel attended on behalf of the Member. The parties then agreed that this matter should be scheduled for a hearing, which would proceed on August 30 and 31, 2017. In July 2017, Member’s Counsel advised College Counsel that she was no longer counsel of record for the Member. That same day, College Counsel wrote to the Member indicating the College’s intentions to proceed with this matter and asking if the Member had retained new counsel. In August 2017, College Counsel served the Member with supplementary disclosure briefs and other hearing-related materials. College Counsel, however, received no further communications from the Member (see Exhibit 2).

While College Counsel acknowledged that this matter has not proceeded as quickly as “we would like”, she submitted that there was no inordinate delay in this case. College Counsel submitted that the affidavit entered as Exhibit 2 demonstrates that there were several attempts to resolve this matter, there was active engagement by the parties, and any delay is not solely attributable to the College. With respect to the second part of the Blencoe test, College Counsel submitted that the Member’s Representative has not provided any evidence to prove that the delay prejudiced the Member. College Counsel therefore urged the Committee to dismiss the Member’s motion.

Reply Submissions of the Member’s Representative

In his reply submissions, the Member’s Representative expressed his dissatisfaction with Member’s Counsel (who is no longer counsel of record), and he reiterated that the Member was being prejudiced by this hearing, that witnesses they might want to call were not available, and that the timing of these proceedings was inappropriate. He did not, however, provide the Committee with any evidence.

DECISION ON MOTION TO DISMISS FOR DELAY

Having considered the affidavit evidence presented by College Counsel, the submissions of the parties, and the case law presented by College Counsel, the Committee denied the Member’s motion to dismiss these proceedings for delay.

REASONS FOR DECISION

In arriving at its decision, the Committee carefully considered the evidence, submissions and case law presented by College Counsel and the submissions of the Member’s Representative. The Committee does not find that there was any inordinate delay in this case that would satisfy the first part of the Blencoe test. The Committee accepts the College’s evidence, presented through the affidavit entered as Exhibit 2, that the parties actively sought to resolve this matter and that the delay was not solely attributable to the College. While this matter has taken considerable time to get to the hearing stage, the Committee does not find that the delay was inordinate given the circumstances of this case and the fact that the parties continued to engage in the process from 2012 to 2017.

With respect to the second part of the Blencoe test, the Member has not established that the delay prejudiced her. The Member’s Representative did not properly introduce any evidence to prove prejudice to the Member as a result of a delay in these proceedings. Accordingly, the Committee dismisses the Member’s motion to dismiss these proceedings for delay.

MOTION FOR ADJOURNMENT

Following its dismissal of the Member’s motion to dismiss for the delay, the Committee asked the Member’s Representative if he was in fact seeking a dismissal or if he was seeking an adjournment. This inquiry was made in order to ensure the fairness of the process and because the Member’s Representative was not a lawyer.

Submissions of the Member’s Representative

The Member’s Representative initially told the Committee that he was in fact seeking a dismissal for delay. In response to the Committee’s query, he then revised his position and submitted that the Member was unable to reach all of the witnesses that might have been called in her defence, and that he was therefore seeking an adjournment. The Member’s Representative noted, however, that he was also prepared to proceed without the Member’s witnesses.

Submissions of College Counsel

College Counsel opposed the motion for adjournment sought by the Member’s Representative. As evidenced in Exhibit 2, the hearing dates for this matter were confirmed in April 2017, and when Member’s Counsel (at the time) informed College Counsel that she was no longer counsel of record in July 2017, she specifically confirmed that the Member was aware of the scheduled hearing dates. College Counsel therefore submitted that the Member was in a position to secure the attendance of any witnesses that she intended to call. The Member also elected not to attend her hearing. She could have attended and given evidence in her defence. Moreover, given that the College had three witnesses present and ready to testify, College Counsel submitted that it would not be appropriate to adjourn these proceedings.

Reply Submissions of the Member’s Representative

The Member’s Representative submitted that it was not practical to call witnesses in this matter because it was scheduled during the summer holiday period when people are away on vacation. He reiterated that the Member was not given a reasonable amount of time to respond to some of the College’s disclosure materials that were only received during the week before the hearing.

Additional Submissions of College Counsel

College Counsel was given the opportunity to respond to the reply submissions of the Member’s Representative. According to College Counsel, it was proper to schedule the hearing in August 2017 and it is abundantly clear that the hearing dates were canvassed with and agreed to by Member’s Counsel (at the time), and that the Member was aware of the hearing dates well in advance. The Member did not oppose the hearing dates until her representative brought this motion forward during the hearing.

With respect to the submission of the Member’s Representative that the College delivered materials during the week before the hearing, College Counsel responded that those materials had only come into the College’s possession days before that, and that the College was not relying on these materials in this hearing but had an obligation to disclose them once they were received.

DECISION ON MOTION FOR ADJOURNMENT

Having considered the affidavit evidence filed by College Counsel, the submissions made by the parties, and rule 14 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), the Committee denied the Member’s motion for adjournment.

REASONS FOR DECISIONS

The Committee carefully considered the submissions of the Member’s Representative and College Counsel. The Committee has the authority to adjourn a hearing, pursuant to Rule 14 of the Rules. Furthermore, pursuant to sub-rule 14.01(2) of the Rules and in accordance with section 21 of the Statutory Powers Procedure Act, the Committee may consider one or more of the following factors when deciding whether or not to grant an adjournment:

1. the sufficiency of the reasons advanced for the request to adjourn;

2. the timeliness of the request;

3. the resources of the Committee, including scheduling related issues;

4. any prejudice to the parties;

5. whether any adjournments had been granted previously;

6. the consent of the parties; or

7. any other relevant factor.

In arriving at its decision not to grant the Member’s request for an adjournment, the Committee applied the relevant factors set out above and found firstly that the reasons advanced by the Member’s Representative in support of his request for adjournment were insufficient. The Member had ample time to secure the attendance of any witnesses that she intended to call, and she could have attended the hearing and given evidence on her own behalf.

Secondly, the request was not timely. The motion for adjournment was brought for the first time once the hearing had already begun. The Member had not previously indicated any concerns with proceeding on the scheduled hearing dates.

Thirdly, the College would be prejudiced if the adjournment were granted. The College had three witnesses in attendance, who were prepared to testify. It would lead to unnecessary costs and inconvenience for these witnesses to have to return at a later date to testify.

Fourthly, the College did not consent to the request for adjournment.

Accordingly, the Committee denied the request for adjournment sought by 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

Footnotes

1. 1This unreported decision on motion was appealed to the Ontario Divisional Court, where the Court in Blew v. Ontario College of Teachers, 2016 ONSC 8053 dismissed Mr. Blew’s motion. The Divisional Court affirmed that only final orders of a tribunal may be appealed and declined Mr. Blew’s invitation to convert his matter to an application for judicial review.