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 discipline proceeding against
Mark Anthony Caine, a member of the Ontario College of Teachers.
PANEL: Ravi Vethamany, OCT, Chair
Godwin Ifedi
Jane Ishibashi
BETWEEN: ) Shane D’Souza,
) McCarthy Tétrault LLP,
ONTARIO COLLEGE OF TEACHERS ) for Ontario College of Teachers, ) assisted by Daniela Spano,
– and – ) Law Clerk
MARK ANTHONY CAINE )
(CERTIFICATE #276494) ) Lucas Lung,
) Lerners LLP,
) for Mark Anthony Caine
) Erica Richler,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel
) ) Heard: March 8, 2018
DECISION AND REASONS FOR DECISION ON MOTION FOR AN ORDER FOR PRODUCTION
The hearing of this matter was scheduled to commence on March 28 and 29, 2018. Prior to the commencement of the hearing, Counsel for the Ontario College of Teachers (the “College”) brought a motion, on consent, for an Order from a panel of the Discipline Committee (the “Committee’) for production of certain documents (the “motion”). A Notice of Motion (Exhibit 1) dated March 6, 2018 was served on Mark Anthony Caine (the “Member”). The motion came on for hearing before the Committee on March 8, 2018 at the College.
Neither the Member nor his lawyer was in attendance but his written consent was filed.
THE NOTICE OF MOTION
The Notice of Motion provides as follows:
THE MOTION IS FOR an order on consent of the respondent member, Mark Anthony Caine:
- Requiring Mr. Caine to produce the following two documents:
(a) Report of Investigation by Paul Mooney and Elizabeth Qulaut dated March 22, 2013; and
(b) Transcripts of interviews conducted by the Department of Education - Nunavut in March and April, 2013.
- An abridgement of any time required for the service and delivery of materials or other procedural requirements to permit this motion to be heard on an urgent basis.
THE GROUNDS FOR THE MOTION are:
Mr. Caine has a hearing on the merits of certain allegations of professional misconduct scheduled before the Discipline Committee on March 28 and 29, 2018 (the “hearing”). The allegations relate to alleged misconduct from 2012/2013 when Mr. Caine was teaching in Nunavut;
College counsel has recently learned that the College did not receive from the Department of Education, Nunavut and therefore does not have certain material in the possession of Mr. Caine's counsel, including:
(a) Report of Investigation by Paul Mooney and Elizabeth Qulaut dated March 22, 2013; and
(b) Transcripts of interviews conducted by the Department of Education - Nunavut in March and April, 2013 (the “Documents”).
The Documents will assist the College in assessing the merits of this case and with proceeding in the public interest;
College counsel has made many attempts to obtain the Documents directly from the Department of Education Nunavut, including by contacting senior individuals who would reasonably be expected to possess or be able to access the Documents;
College counsel has not received the Documents as of the date of this motion;
In these circumstances, Mr. Caine consents to sharing the Documents (only) with College counsel provided that he is ordered to do so by the Discipline Committee. Mr. Caine requires an Order from the Discipline Committee so that when he is compelled to produce the Documents to College counsel, he remains compliant with certain legal obligations imposed on him from another proceeding;
The College and Mr. Caine both support the relief requested on this motion; and
Rules 5 and 7 of the Ontario College of Teachers Discipline Committee Rules of Procedure.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion:
- The Affidavit of Eleanor Enniss and exhibits therein.
SUBMISSIONS OF COLLEGE COUNSEL
Counsel for the College advised the Committee that the motion was on consent and that the College was seeking an Order from the Committee for production of certain documents that are in the possession of the Member. In support of the motion, College Counsel presented the Committee with the Affidavit of Eleanor Enniss (Exhibit 2), dated March 6, 2018, which outlined the reasons for the motion. College Counsel confirmed that the documents being sought were not subject to privilege.
DECISION ON MOTION
Having considered the Notice of Motion and the supporting Affidavit of Eleanor Enniss, as well as the submissions of College Counsel and the parties’ consent to the motion, the Committee grants the motion and makes the following Order:
- The Member is directed to forthwith produce to College Counsel the Report of Investigation by Paul Mooney and Elizabeth Qulaut dated March 22, 2013, and the Transcripts of interviews conducted by the Department of Education-Nunavut in March and April, 2013.
REASONS FOR DECISION ON MOTION
The Committee carefully considered the Notice of Motion and the supporting Affidavit of Eleanor Enniss, as well as the submissions of College Counsel and the parties’ consent to the motion. Pursuant to Rules 5 and 7 of the Rules, the Committee has the jurisdiction to make an Order for the production of documents.
The Committee grants the motion for the following reasons. First, both parties have consented to the motion and the motion was made in good faith. The stated grounds for the motion are to serve the administration justice and to proceed in the public interest. The Committee finds that granting this motion will promote a fair and effective hearing. Access to the aforementioned documents will assist College Counsel in assessing the merits of the allegations against the Member. The Committee finds that it is also just and expeditious to requiring the exchange of these documents, which are in the possession of the Member, at this stage. Had the Committee not granted the motion, College Counsel would otherwise be entitled to bring a third party production motion at the hearing (to obtain the documents from the Nunavut Department of Education), which would delay the hearing. Finally, the Committee finds that there is no evidence of prejudice in granting the motion. The parties gave notice to the Department of Education-Nunavut and there is no evidence of any objection to the relief sought. College Counsel also confirmed that there was no issue of privilege in the requested documents.
The Committee also notes that the College’s mandate is to serve and protect the public interest and this includes protecting the best interests of students and vulnerable witnesses, including their privacy interests. The Committee is satisfied that granting the College’s motion for an Order from the Committee for production of certain documents from the Member to the College is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
Given that this motion was brought before the opening of the hearing on the merits, the Committee is not seized of this matter and the hearing on the merits may proceed with a newly composed panel, if necessary.
Date: March 12, 2018
Ravi Vethamany, OCT
Chair, Discipline Panel
______________________________ Godwin Ifedi
Member, Discipline Panel
Jane Ishibashi
Member, Discipline Panel