DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Miszkiel 2019 ONOCT 06

Date: 2019-01-31

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

Jolanta Mariola Miszkiel, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JOLANTA MARIOLA MISZKIEL (REGISTRATION # 272213)

PANEL: Irene Dembek, OCT, Chair

HEARD: January 16, 2019

Zirka Jakibchuk and Fiona Wang for Ontario College of Teachers

Jolanta Mariola Miszkiel, self-represented

Rebecca Durcan of Steinecke Maciura LeBlanc, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on May 29, 2018 at the Ontario College of Teachers (the “College”) at Toronto, and continued on May 30, 2018, October 1-2, 2018, and January 16, 2019.

The hearing commenced with three panel members (Ravi Vethamany, OCT, Chair, Irene Dembek, OCT, and Jane Ishibashi). All three panel members heard evidence on May 29-30, 2018 and October 1-2, 2018. Before the panel reconvened on January 16, 2019, two of the three panel members (Ravi Vethamany, OCT, and Jane Ishibashi) became incapable of continuing to sit on the panel. As a result, the hearing convened on January 16, 2019 before Irene Dembek, OCT, (now acting as Chair) alone.

THE MOTION

Prior to the panel reconvening on January 16, 2019, Jolanta Miszkiel (the “Member”), filed a Notice of Motion seeking an adjournment of the proceedings for health related reasons. The remaining panel member convened on January 16, 2019 to consider the motion. The Member appeared by telephone.

Prior to hearing argument on the Member's adjournment motion, she made what can be characterized as an oral motion challenging the jurisdiction and propriety of the panel of the Committee to proceed with only one member.

The panel received advice from Independent Legal Counsel that this preliminary issue ought to be heard and decided before hearing the motion for an adjournment. College Counsel agreed with that advice. Accordingly, the Member and College Counsel made submissions on the jurisdiction and propriety of the panel to continue with only one member. Independent Legal Counsel provided legal advice to the panel.

The Member was present on the telephone for the duration of the submissions on this preliminary motion. However, before the panel retired to deliberate on the motion, the Member advised that she would not be returning to the telephone and asked to be informed of the decision in writing, citing concerns for her health if she remained on the phone any further. As a result, the Member was not present to hear the panel's decision on this motion.

SUBMISSIONS OF THE MEMBER

The Member challenged the authority of the panel of the Discipline Committee to proceed with only one member. She highlighted several concerns.

In relation to section 4.4(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"), which College Counsel and Independent Legal Counsel submitted confers jurisdiction on the panel to proceed with only one member, the Member submitted that the key to the provision is that it says the hearing "may" proceed. In other words, the section is permissive. The Member submitted that the panel may proceed with only one member, but it is not required to. The Member submitted that the panel should decide not to proceed.

The Member raised the concern that on the first day of the hearing in this matter, the former Chair of the panel assured her that he would preside over all of the hearing and the making of the decision. The Member felt that it was unjust and unfair for the former Chair of the panel to make that promise and subsequently have the panel proceed to hear and decide the matter with only one member.

The Member submitted that continuing with only one member would: (1) not be in accordance with her right to a fair trial; (2) not be in accordance with the standards of the teaching profession and College policy; (3) be a travesty of justice; (4) be a violation of her right to be present.

SUBMISSIONS OF COLLEGE COUNSEL

College Counsel resisted the Member's submissions and submitted that the panel had jurisdiction to proceed with the hearing and should do so. College Counsel submitted that section 4.4(1) of the SPPA clearly set out the authority for the panel to proceed with only one member.

College Counsel highlighted that the Member had raised the issue of the panel proceeding with one member for the first time on the morning of the hearing, despite having been advised in advance by the hearings coordinator that two of the panelists had become incapable of proceeding with the hearing.

College Counsel stressed that the public interest strongly favoured continuing with the hearing. There were serious issues to be tried. There were allegations of incompetence, failing to maintain the standards of the profession, failing to comply with the Education Act, and committing acts that would be reasonably be regarded by members as disgraceful, dishonorable or unprofessional. These allegations arose out of the Member receiving three unsatisfactory Teacher Performance Appraisals. College Counsel was clear that these serious issues must be addressed in order to protect the public interest. Moreover, she noted the passage of a significant amount of time, in that the Notice of Hearing was issued two and a half years ago pertaining to conduct that occurred now four and five years ago, and this matter has been adjourned once already on the Member's request for health-related reasons.

College Counsel submitted that significant time and expense have already been invested in this hearing, which buttresses the rationale to complete the hearing with only one panel member. This panel already heard four days of evidence - all of it being the examination-in-chief of the College's first witness. That witness was present to be cross-examined by the Member. If the Member's motion was granted, a new panel would need to be struck to re-hear that same evidence, at significant expense of time and resources. The limited resources of the Committee ought to be considered. College counsel submitted that it would be a waste of time and resources to start over.

College Counsel submitted that there was no good reason why the hearing should not continue. The SPPA allows the hearing to proceed with only one member, and it is in the public interest for that to occur.

College Counsel stated that she was in agreement with the advice of Independent Legal Counsel, which is set out below.

ADVICE OF INDEPENDENT LEGAL COUNSEL

Independent Legal Counsel highlighted, as a starting point, that the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12 ("OCTA"), clearly sets out in s. 17(2) that a panel for a discipline hearing is to consist of three people. The OCTA, in other sections, provides further clarification as to the composition of those three people. However, College Counsel was correct in referring to the SPPA, which applies to this hearing because the panel is a tribunal. Section 4.4(1) of the SPPA permits panels to proceed even where quorum has been lost. Section 4.4(2) creates prohibitions as to when subsection (1) can be used, but those prohibitions do not apply in this case. There is no statutory provision or rule that specifically prohibits the panel from falling below its quorum.

Independent Legal Counsel agreed with the Member's submission that the provision is permissive. Section 4.4(1) of the SPPA uses the word "may". The power to proceed is discretionary and it is not mandated that the panel proceed. However, if the panel chooses to proceed, it has the legal authority to do so.

Independent Legal Counsel submitted that the intent of s. 4.4(1) of the SPPA was to allow hearings to proceed after time had been incurred in hearing a matter. It is based in a belief that a loss of quorum requiring a restart of a hearing is a waste of resources and time. The point of a tribunal process is efficiency. It enables fair, equitable and timely adjudication. In this regard, Independent Legal Counsel drew the panel's attention to s. 2 of the SPPA, which provides:

Liberal construction of Act and rules

2. This Act, and any rule made by a tribunal under subsection 17.1 (4) or section 25.1, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

Independent Legal Counsel submitted this is a signal from the legislature that while tribunals are required to have just hearings, they are entitled to flexibility to secure just, expeditious and cost-effective outcomes.

DECISION ON MOTION

Having considered the submissions of the parties, the Committee rendered an oral decision on January 16, 2019, granting the Member’s motion. The panel decided to exercise its discretion under s. 4.4(1) of the SPPA, to not proceed with the hearing. The panel was satisfied that it would not be just for the hearing to proceed with only one member of the panel. As a result, this hearing cannot continue and a new panel will need to be struck.

REASONS FOR DECISION ON MOTION

Section 17(2) of the OCTA provides that the quorum of a panel of the Discipline Committee "must consist of at least three persons". Sometimes one or more members of the panel become incapable of continuing to sit on a panel of the Committee for various reasons. In those circumstances where the statutory quorum is lost, section 4.4(1) of the SPPA provides that the remaining "member or members" may complete the hearing and give a decision. Section 4.4(2) adds the caveat that, if another act or regulation specifically deals with the procedure to be followed in such circumstances, that other provision takes priority over s. 4.4(1). There is agreement that no such legislative provision applies here. Therefore, section 4.4(1) of the SPPA governs my decision.

The enactment of s. 4.4(1) of the SPPA is consistent with the fundamental spirit of the SPPA, which is defined in s. 2: "This Act, and any rule made by a tribunal …, shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits." College Counsel emphasized these principles in her submissions on the motion.

However, it is also clear that s. 4.4(1) of the SPPA is permissive, not presumptive. The Member highlighted in her submissions that the section uses the term "may" and submitted that the panel should not proceed with one member. There was no dispute that s. 4.4(1) of the SPPA confers discretion and jurisdiction on the panel to decide to proceed or not proceed when one or more of its membership is lost. For ease of reference, the entire provision is set out below:

Incapacity of member

4.4 (1) If a member of a tribunal who has participated in a hearing becomes unable, for any reason, to complete the hearing or to participate in the decision, the remaining member or members may complete the hearing and give a decision.

(Emphasis added.)

The parties set out in their submissions and Independent Legal Counsel set out in her advice the considerations that, in their respective views, should govern my decision on this discretionary issue. I have considered all of them. Six reasons persuade me that I should grant the Member's motion and exercise my discretion to not continue the hearing with only one member of the original three-member panel.

First, there is merit to the Member's submission that the former Chair of this panel made specific comments and explanations at the outset of this hearing about the manner in which it would be conducted. These went beyond the usual explanations about process that are, in my experience, routinely given at the outset of hearings before the Discipline Committee. In particular, the former Chair specifically explained to the Member that the three members of the panel would be present for the hearing, participate in the decision, and that he would preside as Chair. I pause to note that the Member has been self-represented throughout these proceedings and I expect that these additional comments were driven by a desire to promote fairness in the process for the Member and ensure that she understood what was to happen in the proceedings.

It is unlikely that the former Chair could have predicted the current state of affairs at the time he made those comments at the outset of this hearing, and I do not suggest that those comments alone could stand as an absolute bar to the panel proceeding with one member. However, I accept that the Member genuinely believed that the hearing would be conducted on those terms. All of the parties rightly expect at the outset of a hearing that a panel's membership will be constant throughout the proceedings.

In the context of a self-represented litigant in a contested hearing, the former Chair's words were meaningful. The Member was given a clear understanding of what the terms of this proceeding would be. I am satisfied that changing those terms halfway through the hearing may lead to an appearance of unfairness in the discipline process.

It is axiomatic that justice must not just be done, but it must be seen to be done. I am concerned that a well-informed, reasonable member of the public observing the proceedings and considering the whole of the circumstances may conclude that there is an appearance of unfairness if the hearing were to proceed with one panel member.

As a result of the specific comments made by the former Chair, it may reasonably appear to that informed member of the public that the Member was promised or assured that the proceedings would follow a certain process. Through no fault of the parties, that assurance was not followed through. While there is jurisdiction to proceed, the reasonable and objective observer may conclude that it would be unfair to do so.

Second, there are genuine hearing fairness (or trial fairness) concerns that arise from the composition of the panel changing from three members to one member in the middle of a hearing. There are practical and substantive effects of reducing the number of panelists, which may operate to the detriment of one or more parties. In particular, it can reasonably be concluded that the reduction of a three-member panel to one member produces the following, non-exhaustive list of effects:

• Eliminates the possibility of disagreement between panel members or the authorship of dissenting or concurring reasons for decision

• Eliminates the possibility for vigorous and thoughtful discussion of the facts and issues to be decided in the deliberation process following the hearing

• Reduces the collective ability of the panel to observe a witness during their testimony and make collective decisions about a witnesses' credibility

• Reduces the collective ability of the panel to respond to the Member's needs as a self-represented litigant and ensure that she is equipped with the information and understanding of the process to effectively represent herself

There are reasons why OCTA requires that panels of the Discipline Committee commence (and usually conclude) with at least three members. A panel of three brings together the ability to sift through evidence, assess credibility, and make decisions with the benefit of collective experience. Although other adjudicative bodies routinely make decisions with a panel of one, it is the usual standard of this Committee to have three members on a panel. This is not to say that there may be situations where it would be proper to proceed with a panel of two or one, however, I am not satisfied that this is that case.

In the context of a contested hearing with a self-represented member, the absence of the benefits of collective decision-making cannot be ignored in my assessment of whether it would be fair and just to proceed with the hearing. Stated simply, in a case like this, more than one perspective can and often does matter. These factors contribute to my conclusion above that there may be an appearance of unfairness should the hearing proceed with one member and weigh heavily in favour of discontinuing the hearing.

Third, this issue has arisen at a moderately early stage in the proceedings. This motion arose at the beginning of the fifth of ten scheduled hearing days. In the first four days of hearing, the panel only heard from one witness in examination in chief. The Member was on the cusp of commencing her cross-examination of the first witness. While I acknowledge that four days of hearing is no small endeavor and all parties have invested significant time and expense into the hearing so far, this particular hearing is not nearing the finish line. This motion does not come on the eve of final submissions. To this extent, the resources that would have been expended in completing this hearing can be redirected into its recommencement.

Fourth, there is an absence of agreement between the parties about the composition of the panel moving forward. This is perhaps self-evident given the nature of the motion, but it is worthy of mention for the purposes of comparison to other analogous cases where panels of the Committee have proceeded with less than three members. This happens on occasion where, for example, a member of a panel recuses themselves after the hearing has commenced. Where this has occurred, there may be agreement (or no objection) that the panel can proceed with hearing a matter with less than three members. In such a case, concerns about actual or the appearance of unfairness are diminished because the Member agrees or acquiesces in the new state of proceedings. This is particularly true when the Member is represented by counsel.

To this extent, this case is unlike other cases where s. 4.4(1) of the SPPA has been relied on and a reduced member panel has proceeded, including ones where I have been one of the members of the Committee panel.

Fifth, section 2 of the SPPA highlights three factors that drive the interpretation and application of that Act, including s. 4.4(1). The SPPA must be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits. The submissions of the College on this motion fairly focus on the latter two factors - expeditious and cost-effective determination of the proceeding. I recognize that there has been a significant expenditure of time and resources in bringing this matter to hearing and in conducting the proceedings to date. There will be additional time and expenses incurred in setting this matter for rehearing. More time will elapse before this matter, which has been outstanding for some years and deals with allegations dating from four and five years ago, can be concluded.

However, I am satisfied that the first prong of s. 2 outweighs the time and expense considerations in this case. That prong is concerned with "just" determinations of all proceedings on their merits. This prong, in my view, implicates the fairness concerns I have articulated above. For the reasons I articulated in relation to those issues, I am also satisfied that a "just" determination cannot be reached by proceeding with only one member of the three member panel in the particular circumstances of this case.

Sixth, I am satisfied that it is consistent with the public interest to decline to proceed as a one-member hearing. College Counsel submitted that it is important for the public interest that this hearing proceed. I agree. The allegations are serious and it is important that the Discipline Committee serve its function of protecting students where allegations against teachers are substantiated. But the public interest also requires that those adjudications are conducted fairly. Public confidence in the discipline process demands nothing less. It is important that the allegations in this matter are heard and decided, but that must occur at a fair hearing, which must also be seen to be fair. I have concluded that cannot be achieved by continuing this matter with one panel member.

The Member's Other Submissions

I reject the Member's submission that it would be "against the standards of the profession" for the panel to proceed with only one member. The standards of the profession are typically only referred to in proceedings before the Committee where there is an allegation that a Member has committed professional misconduct by breaching those standards. They have no relevance to my decision about whether the hearing should or should not proceed with only one member.

The Member also made a submission that continuing with the hearing would be a "travesty of justice." This submission is a florid extension of her argument that it would be unfair and unjust to continue. I have dealt with the fairness issue above. The alternative framing of that issue warrants no further consideration.

The Member argued continuation of the hearing would violate her right to be present. This issue is moot because the hearing will not continue and I need not address it further.

Concluding Remarks

This outcome is a regrettable one. Significant resources were expended in convening this hearing. Fortunately, it is a rare occasion where two of three panel members cannot proceed. I expect it will also be a rare occasion where the particular circumstances of a given case lead to a conclusion that it would not be appropriate for the remaining member or members to continue a hearing. For example, in cases where the parties consent (or do not object) to a hearing continuing with the remaining member(s) of the original panel, exercising discretion in favour of continuing the hearing is usually an easy and perfunctory decision. The particular circumstances of this case are unique and exceptional. Stated differently, I would not expect the outcome in this case to be mirrored in most cases where there is a loss of a panel member.

Disposition

The Member’s motion is granted. In accordance with s. 4.4(1) of the SPPA, I decline to exercise my discretion to proceed with the hearing with only one member of the original three member hearing panel. The hearing cannot continue and a new panel will need to be struck to hear and consider this matter.

Date: January 31, 2019

Irene Dembek, OCT

Chair, Discipline Panel