DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION AND REASONS ON MOTION
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
Andrew Alexander Weglarz, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
ANDREW ALEXANDER WEGLARZ (REGISTRATION #647896)
PANEL: Jean-Luc Bernard, OCT, Chair Godwin Ifedi Alicia Nunn, OCT
HEARD: April 25, 2019
COUNSEL: Stephanie Sugar and Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers Andrew Alexander Weglarz, self-represented Julie Maciura of Steinecke Maciura LeBlanc, Independent Legal Counsel
This motion came on for hearing before a panel of the Discipline Committee (the “Committee”) on April 25, 2019 at the Ontario College of Teachers (the “College”) at Toronto.
Andrew Alexander Weglarz (the “Member”) is alleged to have committed professional misconduct as set out in a Notice of Hearing dated December 21, 2018. The Member brought this motion in advance of the hearing on the merits, seeking an order dismissing the matter or staying the proceedings.
SUBMISSIONS OF THE MEMBER
Before commencing his arguments on the merits of the motion, the Member complained that the College had served materials after the deadline set by the Presiding Officer at the Pre-Hearing Conference in this matter on March 7, 2019.
The Member’s submissions on the merits were lengthy and mostly concerned irrelevant matters. One of the main themes of the Member’s submissions was that the allegations contained in the Notice of Hearing happened three years ago, he was never charged with any offence, and (implicitly) there is therefore no basis for the College to prosecute him.
The Member maintained that the College was alleging that he was a “gay pedophile”. The Member took issue with this perceived allegation and offered explanations for why it could not be true. He maintained that it would be impossible for one person to do all of the things that he was alleged to have done – without particularizing what allegations he was actually talking about.
The Member asserted that he was the victim of a prosecution where there was no complainant. The prosecution, according to the Member, is therefore vexatious and predatory. The Member said that he would have willingly “handed over” his teaching license if the College had asked.
The Member said that the College’s witnesses had been repeatedly caught lying and were “angry women” fighting for the “Canadian feminist cartel”. He argued that he was the victim of anti-male discrimination. The Member said that the allegations against him had been fabricated to protect “big [XXX] business”, because the [XXX] School (the “School”), his former employer, catered to [XXX] students [XXX] to attend classes in Canada. Amongst other things, the Member also complained that he had been victimized by Bell Canada and by CP24.
The Member referred to litigation he commenced separately against individuals involved with the School and maintained that a default judgment had been entered, resulting in certain deemed admissions arising from his Statement of Claim in that litigation.
The Member acknowledged sending certain emails which were filed by the College in this motion and which it points to as the foundation for the allegations against the Member in this prosecution.
The Member argued that the proceedings should be dismissed.
The Member advised the panel that he had been informed the College would seek its costs of this motion if successful. The Member submitted that the panel had no grounds or authority to order costs, since the Committee was not a court of law and the hearing was taking place in a conference room in an office building rather than a court room. The Member stated that he would not pay any costs ordered by the panel.
SUBMISSIONS OF COLLEGE COUNSEL
In response to the Member’s claim that the College had filed material on the motion after a deadline, College Counsel filed the Report of the Presiding Officer from the Pre-Hearing Conference in this matter on March 7, 2019 (Exhibit 2). The Presiding Officer ordered that mutual “disclosure” [i.e., of the material to be relied upon by the parties in the hearing on the merits] in this matter was to be served by the end of the day on March 8, 2019. Contrary to the Member’s submission, College Counsel pointed out that no timelines were set for the filing of this, the Member’s motion, and the College responded in accordance with the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”).
College Counsel methodically reviewed the complaint giving rise to this proceeding and its progression through the investigation and discipline processes. The College’s investigation of the Member only began after the Member himself complained to the College about individuals who appear to be his former colleagues at the School. The College learned that the Member’s employment had been terminated with cause but the College had not been notified of that fact in accordance with the Ontario College of Teachers Act, 1996 (the “Act”). Upon being informed of its obligations under the Act, the School responded and provided documentation to the College. The Registrar of the College, not any member of the School, any witness, or as asserted by the Member “no one”, initiated the complaint against the Member.
The College investigated the complaint. The investigation was referred to the Investigations Committee, which decided to refer the matter to the Discipline Committee. College Counsel argued that this factual background demonstrated that the matter was properly investigated and referred to discipline. The Committee therefore had jurisdiction over the allegations that had been referred to it by the Investigations Committee and the statutory requirements for such a referral to discipline had been met.
College Counsel argued that the panel of the Committee did not have the jurisdiction to grant the Member’s motion under s. 4.6 of the Statutory Powers Procedure Act (“SPPA”), cited by the Member in his Amended Notice of Motion. Section 4.6(1) provides:
4.6 (1) Subject to subsections (5) and (6), a tribunal may dismiss a proceeding without a hearing if,
(a) the proceeding is frivolous, vexatious or is commenced in bad faith;
(b) the proceeding relates to matters that are outside the jurisdiction of the tribunal; or
(c) some aspect of the statutory requirements for bringing the proceeding has not been met.
College Counsel referred the Committee to s. 4.6(6), which provides:
(6) A tribunal shall not dismiss a proceeding under this section unless it has made rules under section 25.1 respecting the early dismissal of proceedings and those rules shall include,
(a) any of the grounds referred to in subsection (1) upon which a proceeding may be dismissed;
(b) the right of the parties who are entitled to receive notice under subsection (2) to make submissions with respect to the dismissal; and
(c) the time within which the submissions must be made.
College Counsel submitted that the Rules do not provide for any rules contemplated by s. 4.6(6) of the SPPA. Accordingly, in her submission, the Committee did not have the jurisdiction to grant the relief sought by the Member in this motion and it should be dismissed. In support of this argument, College Counsel filed two decisions of the Human Rights Tribunal of Ontario, in which adjudicators reached the conclusion advanced by College Counsel in this case: Hadley v. J.A.C.S. Cartage, 2010 HRTO 226, at para. 7; Belanger v. Residence Inn by Marriott, 2016 HRTO 662, at para. 3. In Hadley, the adjudicator decided as follows, at para. 7:
[7] Section 4.6(1)(a) of the SPPA does allow Tribunals to dismiss applications on the basis that they are frivolous, vexatious or have been commenced in bad faith, but only if the Tribunal has made a Rule to that effect pursuant to section 25.1 of the SPPA. The Tribunal has not made such a Rule. Accordingly, I find that the Tribunal does not currently have the power to dismiss an Application as “frivolous, vexatious or [as having been] commenced in bad faith” pursuant to s. 4.6(1)(a) of the SPPA.
In the alternative, if the Committee concluded that it has jurisdiction under s. 4.6(1) of the SPPA despite the absence of rules in accordance s. 4.6(6), College Counsel argued that the standard set out by s. 4.6(1) had otherwise not been met. As articulated above, the College submitted that the Committee had jurisdiction over the allegations referred to it by the Investigations Committee and the statutory requirements for such a referral had been met. The only other basis for dismissal of the allegations under s. 4.6(1) – that the proceeding is frivolous, vexatious or commenced in bad faith – creates a very high bar that the Member has not met.
College Counsel also acknowledged that s. 23 of the SPPA authorizes the Committee to control its own process to prevent abuses of process, including by ordering that the matter be dismissed or stayed. However, College Counsel argued that access to such an order was similar to dismissing a proceeding as frivolous, vexatious or commenced in bad faith – a very high bar must be met.
College Counsel referred to two cases in relation to the terms “frivolous and vexatious”. In 7868073 Ontario Ltd. v. 1841978 Ontario Inc., 2017 ONSC 92, at para. 12, and 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. (1997), 1997 CanLII 12196 (ON CTGD), 37 O.R. (3d) 70 (Gen. Div.), it was established that demonstrating an action is “frivolous and vexatious” requires showing that it is one that “on its face, is so unreal that no reasonable or sensible person could bring it”.
In relation to abuses of process, College Counsel referred to Eastside Apartments Limited v. Aird Berlis, 2015 ONSC 1379, which in turn cites the Supreme Court of Canada’s decision in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77. In those cases, the doctrine of abuse of process is acknowledged as capturing a number of categories. It includes “the notion that parties ought to be precluded from relitigating claims that have, in essence, already be adjudicated upon”. It is also meant to protect litigants from “oppressive” proceedings or ones that “violate the fundamental principles of justice underlying the community's sense of fair play and decency”. The doctrine engages “the inherent power of the [tribunal] to prevent the misuse of its procedure, in a way that would ... bring the administration of justice into disrepute”.
College Counsel argued that the Member could not meet any of these standards on the materials he filed or on the submissions he made. She therefore argued that the Member’s motion ought to be dismissed.
College Counsel argued that if the Member’s motion was dismissed, the College should be awarded costs pursuant to Rule 16.04 of the Rules, which provides that “The Committee may at any stage of the proceeding order a party to pay costs where the conduct of the party has been unreasonable, frivolous or vexatious or a party has acted in bad faith.” College Counsel argued that this was the same high bar that she identified with respect to the Member’s motion to dismiss or stay the proceedings, but maintained that the Member’s conduct in bringing the motion, when the College has repeatedly explained to him that there are no allegations of sexual abuse against him nor is he being accused of being a “gay pedophile”, met that high bar.
ADVICE OF INDEPENDENT LEGAL COUNSEL
Independent Legal Counsel gave advice to the Committee that, irrespective of College Counsel’s arguments about the unavailability of recourse under s. 4.6(1) of the SPPA, the Committee likely did retain the residual authority under s. 23 of the SPPA to grant a stay of proceedings, as was sought by the Member. Independent Legal Counsel advised the Committee that the Supreme Court of Canada has defined an abuse of process in the administrative law setting. To find an abuse of process, the Committee must conclude that “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted”.1 Independent Legal Counsel highlighted that such circumstances could include unfairness to the Member such that he could not properly defend himself on the merits. Independent Legal Counsel noted that there must be some evidence upon which to make such a decision and the onus is on the Member to satisfy the Committee that the standard has been met.
DECISION
After considering the submissions of the Member and College Counsel and the evidence filed, the panel decided that the Member has not met his burden. The Committee therefore denied the Member’s motion. The hearing will proceed. This panel is not seized of the matter. Costs of the Member’s April 25, 2019 motion can be addressed at the conclusion of the hearing on the merits.
REASONS FOR DECISION
The Member’s Complaint about Late Service
Before commencing his arguments on the merits of the motion, the Member complained that the College had served materials after a deadline imposed by the Presiding Officer at the Pre-Hearing Conference. The Report of the Presiding Officer was filed as Exhibit 2. The Presiding Officer ordered that mutual disclosure be served by the end of the day on March 8, 2019.
Responding material consisting of a motion record, written submissions and authorities, filed in response to the Member’s motion, is not disclosure. Disclosure consists of the material that the parties intend to rely on for the purposes of the hearing itself. The Member’s Amended Notice of Motion itself is dated March 18, 2019. The timelines for the filing of material on the motion is governed by Rule 5 of the Rules. There is no merit to the Member’s submission in this regard.
The Merits of the Motion
This is the Member’s motion. He bears the onus to discharge the burden of proof that the proceeding ought to be dismissed or stayed. He has not done so.
In his submissions, the Member largely failed to address the substantive issues presented in his motion. His submissions addressed irrelevant matters and mostly consisted of his opinions about the teaching profession, feminism and other issues that are not the subject of this prosecution. The Member maintained that it was egregious that the College was alleging he was a “gay pedophile” and many of his submissions related to this issue. As pointed out by College Counsel, the Notice of Hearing contains no such allegation. The Member is alleged to have sent inappropriate emails to colleagues and to have contacted a student after being told not to.
The Amended Notice of Motion framed the motion under s. 4.6(1) of the SPPA. The Committee accepts College Counsel’s submission that since the Committee does not currently have a Rule of Procedure contemplated by s. 4.6(6), the Committee does not currently have the power to dismiss an application under s. 4.6(1) of the SPPA.2
However, the Committee accepts the advice of Independent Legal Counsel, concurred with by College Counsel, that under s. 23 of the SPPA the Committee retains the authority to control proceedings to prevent an abuse of process. That section provides that “[a] tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” While the Member did not identify this provision in his written or oral submissions, the Committee considered whether, on the basis of the Member’s submission, this matter should be dismissed or stayed in order to prevent an abuse of process.
The Committee concluded that there is no basis upon which to conclude that the matter should be stayed or dismissed to prevent an abuse of process. The Member failed to discharge his significant onus to establish that allowing the matter to continue would result in an abuse of process.
At their highest, the Member’s submissions alleged that the witnesses that would testify against him conspired to lie or present false claims against him. He presented no evidence to support these accusations. It is open to him to test the evidence of those witnesses during the hearing on the merits.
The College’s main evidence against the Member consists of allegedly inappropriate emails sent by the Member to his former colleagues. The Member does not dispute that he sent these emails. The only issue, therefore, is whether or not they were inappropriate. That is a matter to be determined at a hearing on the merits. The Member has failed to identify how such a hearing on that issue would amount to an abuse of process.
The College also alleges that the Member communicated with a student after he had been instructed by his employer not to. The Member asserted that his previous employer and colleagues were liars and the matter could not proceed. He pointed to no evidence to support his submission. Although the Member asserted that an actor of his former employer had been found to make certain deemed admissions in an unrelated civil proceeding, he filed only a motion record and draft order from those proceedings. There was no formal order or other evidence to support his claims.
The Member’s motion has no merit. The Committee denies it. The hearing on the merits of the allegations in the Notice of Hearing will proceed.
College Counsel asked that, if the Member’s motion was denied, the Committee order costs against the Member payable to the College. In accordance with s. 30(5) of the Act, costs are typically only ordered against a member after a finding of professional misconduct. However, Rule 16.04 provides that “The Committee may at any stage of the proceeding order a party to pay costs where the conduct of the party has been unreasonable, frivolous or vexatious or a party has acted in bad faith.” College Counsel submitted that the Member’s motion was unreasonable, frivolous or vexatious and had been brought in bad faith. She acknowledged there is a high bar before such a finding can be made.
The Committee is not satisfied that the high threshold for an interlocutory costs order has been met. However, the costs of this motion may be addressed at the conclusion of this proceeding if a finding of professional misconduct is made, or as is otherwise determined appropriate by the presiding Committee at the conclusion of this proceeding in accordance with the applicable law.
This panel is not seized of this matter for the purposes of the hearing on the merits of the allegations contained in the Notice of Hearing.
Date: May 14, 2019
Jean-Luc Bernard, OCT Chair, Discipline Panel
Godwin Ifedi Member, Discipline Panel
Alicia Nunn, OCT Member, Discipline Panel
Footnotes
- See Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 120.
- See Hadley v. J.A.C.S. Cartage, 2010 HRTO 226, at para. 7.