DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Sadaka 2019 ONOCT 60

Date: 2019-06-10

DECISION, REASONS FOR DECISION AND ORDER

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

Ghada Sadaka, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

GHADA SADAKA (REGISTRATION #206624)

PANEL: Tom Potter, Chair

Nicola Powadiuk, OCT

Vicki Shannon, OCT

HEARD: December 17, 2018

Ava Arbuck of McCarthy Tétrault LLP, for Ontario College of Teachers

Michelle Sun of the Ontario Principals’ Council, for Ghada Sadaka

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 December 17, 2018 at the Ontario College of Teachers (the “College”) at Toronto.

A Notice of Hearing dated June 26, 2018 (Exhibit 1) was served on Ghada Sadaka (the “Member”), inviting her to participate in the scheduling of the hearing and specifying the allegations.

The Member was in attendance for the hearing and had legal representation. The Committee was advised at the outset of the hearing that the parties had entered into an agreement with respect to the hearing.

THE ALLEGATIONS

The allegations against the Member in the Notice of Hearing are as follows:

IT IS ALLEGED that Ghada Sadaka is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) she failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);¹

(c) she failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(d) she committed an act or acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and

(e) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

AGREED STATEMENT OF FACTS

College Counsel presented the Committee with the parties’ Agreed Statement of Facts and Guilty Plea (Exhibit 2), which provides the following:

Ghada Sadaka is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information with respect to the Member.
At all material times, the Member was employed by the York Region District School Board (the “Board”).
The Member was promoted to the position of principal with the Board in 2013. During the 2014-2015 school year, the Member was principal at the Edward T. Crowle Public School in Markham, Ontario.
During the 2015-2016 school year, the Member went on a sabbatical. She returned to work as principal at Sir Wilfrid Laurier Public School (the “School”) in Markham, Ontario, in September 2016.
Between December 2014 and August 2016, the Member liked, shared, re-posted and commented on anti-Muslim and anti-refugee articles and videos on her personal Facebook page, which included her name and position as “Principal (school) at York Region District School Board”, including:

(a) a link to an article and related video entitled, “‘Who Cares about The Canadian Laws,’ Says Muslim Refugee IN CANADA”…, with her comment, “Very interesting conversation on the streets of Canada!!!!! Gold [sic] help us [emoji of hands clasped in prayer]. Apparently slapping someone is no act of shame according to this guy”;

(b) a link to a video and comments from Member of Parliament N. Grewal relating to how political correctness is under-valuing Christmas, with her comment, “I totally agree and appreciate her honest and courageous approach. Good job Mrs. MP.”

(c) a link to a video of a speech by the brother of a police officer killed during the attach [sic] against Charlie Hebdo in Paris, with her comment, “Un Bon debut, mais ou est la voix des musulmans qui ne sont pas extremistes et dont ils condamnent ces actes de terrorismes. C’est Le temps de vocaliser ‘where you stand’!!!” A good start, but where is the voice of Muslims who are not extremists and of which they condemn these acts of terrorism. This is the time of vocalizing ‘where you stand’!!!”;

(d) photos of women in bikinis and burqas with the caption, “If bikinis are banned in Muslim countries. Then burqas should be banned in Europe… SHARE if you AGREE!”;

(e) a video entitled, “SPREADING ISLAM IN BRITAIN: Group of young Muslims want an Islamic state in Britain”, with her comment, “This has to go viral… Share and post!!! Oh Lord!!!!”;

(f) a link to an article and related video entitled, “The Truth About Refugees: Facts every Canadian needs to know”, with her comment, “As Canadian [sic] we have to be compassionate but yet let’s be very vigilant. An interesting read about Syrian refugees, worth reading”;

(g) a link to an article and related video entitled, “When Someone Said ‘Not Al Muslims are Bad’, This Woman Delivers An Amazing Response”, with her comment, “This women [sic] answered with insight and reason. I Liked what she said: ‘the majority were irrelevant’ please watch!!!”;

(h) a link to an article and related video entitled, “Liberals to build refugee camps on seven Canadian military bases – Taxpayers will fund mosques, Korans”.

(i) a link to a video posted by the “Assyrian Forever” Facebook group, with her comment, “Speechless!!!”.

Attached hereto and marked as Exhibit “B” is a copy of the Facebook postings.

On August 25, 2016, a member of the community sent the Board an email with the following subject line: “Islamophobic case with YRDSB Principal”. In the email, the community member advised that she came across the above posts on the Member’s Facebook page, and expressed her concerns, including, “To have a Principal of a school have these sentiments and also lead a school of hundreds of students and dozens of staff is incredibly unsettling”. Attached hereto and marked as Exhibit “C” is a copy of the community member’s email dated August 25, 2016.

Board Investigation:

On August 30, 2016, the superintendent met with the Member to review the email received from the community member. The Member was horrified and apologetic. She indicated that most of the posts were made during her time on sabbatical. She had set her Facebook account settings so that only her “Facebook friends” could access her account content, but the community member who sent the email to the Board was not her Facebook friend. She had not understood that her Facebook activity could nevertheless be viewed by someone who was not a Facebook friend. Together with her superintendent, she deleted her posts. She offered to delete her entire Facebook account, but the superintendent said this was unnecessary. She also offered to issue a letter of apology to the public and to work with the Board and the community member to resolve any issues and concerns.
The Board issued the Member a Letter of Expectation dated September 15, 2016, citing the fact that her posts were “inflammatory and demonstrated poor judgment” and, as principal, she was “responsible for instilling public confidence” and was “required to create and maintain a positive school culture, foster an open, fair and equitable culture, and communicate effectively with a diverse range of people, including the public.” The Board’s expectation, going forward, was that the Member work to instill public confidence and be cognizant of [her] role as a representative of the Board”. Attached hereto and marked as Exhibit “D” is a copy of the Board’s letter to the Member dated September 15, 2016.

Autumn 2016:

The community member’s August 25, 2016 complaint to the Board, and the content of the Member’s unprotected Facebook account, were subsequently reported in the media, both print and radio.
On November 10, 2016, at the Member’s request the Board posted an apology written by the Member on its webpage. Attached hereto and marked as Exhibit “E” is a copy of the Member’s apology to the community.
In late November 2016, the Member announced that she was going on a medical leave from her position as principal at the School. The Member remained on leave from November 2016 until May 2017, at which time she returned to an interim central assignment with the Board. She has not returned to a school setting.

Member’s Acknowledgments:

The Member acknowledges that she posted inappropriate links, videos and comments containing anti-Muslim and anti-refugee content on her private Facebook account, and that by doing so she failed to maintain the standards of the profession. Attached hereto and marked as Exhibit “F” is a copy of the College’s Standards of Practice and Ethical Standards for the Teaching Profession.
The Member acknowledges that her posts were hurtful to members of the public. She expressed remorse immediately once she learned of the complaint and made a public apology for the impact of her conduct on others in the community. She has voluntarily completed a nine-hour equity course, Culturally Effective Leadership Strategies, to help expand her knowledge and understanding of equity issues, and to achieve greater insight into the impact of her Facebook posts. Attached hereto and marked as Exhibit “G” is a copy of the course outline and the course provider’s letter dated March 10, 2017, confirming the Member’s participation.

Guilty Plea

By this document,² the Member admits the truth of the facts and exhibits referred to in the paragraphs above (the “Admitted Facts”).
The Member hereby acknowledges that the Admitted Facts constitute conduct which is professional misconduct and pleads guilty to the allegations of professional misconduct against her, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18 – unprofessional) and 1(19).
By this document the Member states that:

(a) she understands fully the nature of the allegations against her;

(b) she understands that by signing this document she is consenting to the evidence as set out in the Admitted Facts being presented to the Discipline Committee;

(c) she understands that by pleading guilty to the allegations, she is waiving the right to require the College to otherwise prove the case against her and the right to have a hearing;

(d) she understands that the Discipline Committee’s decision and reasons shall be published on the College’s website, and that a summary of the Discipline Committee’s decision and reasons, including her name, shall be published in the official publication of the College;

(e) she understands that any agreement between her and counsel for the College with respect to the penalty proposed does not bind the Discipline Committee;

(f) she understands and acknowledges that she is executing the Agreed Statement of Facts and Guilty Plea voluntarily, unequivocally, and with the advice of legal counsel.

In light of the Admitted Facts and circumstances and the plea of guilt, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

DECISION

Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (b) of the Notice of Hearing, namely that the Member contravened subsection 1(14) of Ontario Regulation 437/97, be withdrawn. With respect to subsection 1(18) of Ontario Regulation 437/97, College Counsel requested that the Committee find that the Member’s conduct was unprofessional only (and not disgraceful or dishonourable). The Committee granted these requests.

Having considered the Agreed Statement of Facts and Guilty Plea and the submissions of the parties, the Committee finds that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18 – unprofessional) and 1(19).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 13 of the Agreed Statement of Facts and Guilty Plea and admitted the allegations of professional misconduct against her. She acknowledged and the Committee accepts that the Admitted Facts constitute conduct which is professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18 – unprofessional) and 1(19).

Paragraphs 3, 5-8, and 12-13 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5).

Paragraphs 3, 5-8, and 12-13 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15).

Paragraphs 3, 5-8, and 12-13 of the Agreed Statement of Facts and Guilty Plea demonstrates that the Member committed an act or acts that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

Paragraphs 3, 5-8, and 12-13 of the Agreed Statement of Facts and Guilty Plea demonstrate that the Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

JOINT SUBMISSION ON PENALTY

Through a Joint Submission on Penalty (Exhibit 3), the parties jointly submitted that the appropriate penalty to be imposed in this matter would be that the Committee direct that the Member appear before the Committee immediately following the hearing of this matter to receive a reprimand in person, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers.

FIRST REQUEST FOR ADDITIONAL SUBMISSIONS

The Committee had great reluctance in accepting the penalty jointly proposed by the parties and twice requested additional submissions. First, during the penalty phase of the oral hearing on December 17, 2018, the Committee invited further oral submissions from both counsel on how the proposed penalty – a reprimand – satisfied two issues in the discipline process: (1) general deterrence; (2) public confidence in the ability of the Discipline Committee to regulate members of the profession.

College Counsel submitted that the parties put considerable thought into what would be the appropriate penalty in this case. In comparing this case to the penalties imposed in other cases, the Member here presented a number of mitigating factors that were not found in other cases.

First, the Member made a number of realisations from the outset – when confronted with her online activity, she acknowledged the impropriety of her posts and immediately removed them. She offered to delete her Facebook account. She insisted that the Board post her public apology on its website. She cooperated with the College and pled guilty at an early stage in the proceedings – six months after the Notice of Hearing was issued. This was unlike the situation that arose in Ontario College of Teachers v. Ubertelli, 2015 ONOCT 81, where the Member held on to his discriminatory beliefs and advanced them in a meeting about his online activity with his principal.

Second, the College would have recommended that coursework form part of the penalty had the Member not voluntarily undertaken the nine-hour equity course of her own volition. The course was directly tied to the situation which brought the Member before the Discipline Committee. College Counsel candidly acknowledged that the course the Member completed was beyond that which would have been imposed in the penalty process (via terms, conditions or limitations) in the typical course.

Third, the Member was subjected to significant public scrutiny and criticism in the media which took a toll on her personally and professionally. This was not a case where, having been subjected to such scrutiny, the Member clung to her beliefs and defended them. She acknowledged that she was wrong and wanted to right her wrong because she wanted to return to involvement with her students. College Counsel submitted that in discipline cases, the Committee does not often see that kind of growth.

College Counsel submitted that the reprimand would serve a deterrent effect because the fact of it would become public. The Committee’s decision, reasons and order will be published online and anyone can go and see why the Committee decided to make the order that it did.

Counsel for the Member agreed with the submissions made by College Counsel. She emphasised that every case before the Committee is unique and the Committee must consider all of the facts in this particular case. The Member took full responsibility for her actions and took actions to move to a higher standard of behaviour for herself. Counsel stressed that the extensive media coverage was a particularly mitigating factor in this case, and that the Member suffered a great deal as a result of it.

SECOND REQUEST FOR ADDITIONAL SUBMISSIONS

In the course of deliberations in this matter, the Committee requested further written submissions from the parties by letter dated April 12, 2019, to be filed by May 10, 2019. The Committee communicated that it was considering rejecting the Joint Submission on Penalty and that it remained concerned that the penalty may not adequately address general deterrence and public confidence. The Committee requested additional submissions responding to three issues:

a. How the penalty adequately addresses the principal’s responsibility to maintain a positive school culture;

b. How the penalty adequately addresses general deterrence; and

c. How the penalty adequately addresses public confidence.

Both parties filed additional written submissions by May 10, 2019 and provided the Committee with additional case law.

The College reiterated the high bar to rejection of a joint submission on sentence, citing the decision of the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204. Namely, the Committee “should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest” (at para. 32). The College articulated the reasons why there needs to be a high degree of certainty that a joint submission will be accepted, citing the Law Society Tribunal’s decision in Law Society of Upper Canada v. Archambault, 2017 ONLSTH 86 (see paras. 14-16).

In support of its argument that the proposed penalty addresses a principal's responsibility to maintain a positive school culture, the College pointed to the Member’s public apology and her voluntary participation in coursework designed "to enhance personal awareness and assumptions about self and others, specific to issues on race, ethnicity, gender and social class". The College argued that “[t]he combination of the Member's insight into her misconduct, her desire to work with her community to repair and rebuild the damage she caused, and her successful completion of coursework designed to assist her in this regard, demonstrates that she is committed to building and maintaining a positive school culture.” Moreover, the imposition of a reprimand will serve to reinforce the importance of a principal’s role to maintain a positive school culture.

In relation to general deterrence, the College argued that the entire discipline process, combined with the ultimate penalty, will act as a general deterrent to members to refrain from making public statements that are racist. The College submitted that a suspension or additional coursework (beyond the course already completed by the Member) would disproportionately emphasize general deterrence.

Finally, in relation to public confidence in the discipline process, the College submitted that the Member’s remorse, successful completion of individualized coursework and attempts to reconnect with her community demonstrate that the Member has emerged as someone well-positioned to be a positive role model capable of providing compassion, empathy, and understanding to students and her community going-forward.

The Member, through her counsel, submitted that the joint submission on penalty is proportionate to her misconduct and is reasonable given the circumstances of her case. She also submitted that the proposed penalty adequately addresses the principal’s responsibility to maintain a positive school culture, general deterrence and public confidence.

The Member reiterated the Committee’s deferential role when considering a joint submission, highlighting that they ought to only be rejected when accepting them would bring the administration of justice or the discipline process into disrepute.

The Member distinguished this case from Ubertelli. In Ubertelli, the member did not retract his comments. The Member emphasized that she does not seek to excuse her conduct and she submitted that a key factor in this situation was her naïveté. She argued she “was unsophisticated and ignorant about social media” and “an inadvertent consumer of ‘fake news’”. The Member also underlined the fact that she had no intention of bringing her personal fears and concerns into a public forum and that she misunderstood the nature of Facebook. She now admits that Facebook is always a public forum.

The Member submitted that her public apology and immediate deletion of her Facebook posts evidence her remorse. She suffered significant personal consequences, including a number of ailments necessitating her medical leave as a direct result of her conduct in this case. She voluntarily undertook an equity course and has gained insight through that process. The Member, who loves her work as an educator, has deeply missed her role while assigned to other duties at the Board since the time of the conduct at issue.

PENALTY DECISION

The Committee accepts the Joint Submission on Penalty presented by the parties and makes the following order:

The Committee directs that the Member appear before the Committee within 90 days of the release of the Decision, Reasons for Decision and Order to receive a reprimand, which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”).

REASONS FOR PENALTY DECISION

The Committee’s Concerns

As noted above, the Committee was deeply concerned with the Joint Submission on Penalty and engaged in thorough deliberations. The additional submissions of the parties were vital in the deliberative process.

The Committee’s core concerns with the joint submission in this case were twofold. First, the Committee was concerned that a penalty consisting of only a reprimand after the Member committed professional misconduct by posting Islamophobic and xenophobic comments and links on her social media would undermine public confidence in the ability of the Discipline Committee to regulate the profession in the public interest.

Second, the Committee was concerned that the joint submission did not adequately address the Member’s heightened responsibility as a principal in her educational community. Principals must model respect for diversity in their educational communities. When a principal does not demonstrate respect for diversity and inclusion, it is very hard if not impossible to sustain inclusive and respectful behaviour amongst the rest of the school community. The principal is the lead role model. Her example is followed by teachers, students, staff and other members of the educational community. That the Member engaged in the misconduct she did while holding the special responsibilities of a principal is, in the Committee’s view, an aggravating factor in this case.

Given this heightened responsibility of a principal, one of the Member’s explanations or justifications in this case – that she did not think her Facebook account could be publicly viewed – rings hollow. The Member ought to have known that there is very little in terms of a zone of privacy to be expected in posting messages and links to social media, and she ought to have known that other people – Facebook friends or not – would be able to see her expressed views, articulated from her special role in the community as a school principal. To be clear, the Member is entitled to freedom of thought, but when she engages in public political expression while identifying herself as a school principal (as she did on her Facebook page), she represents the educational community and the profession as a whole. Her Facebook posts fell short of her responsibilities as an educator to maintain a learning environment free of bias.

The Aggravating and Mitigating Factors

Having identified these two core concerns, the Committee carefully weighed the aggravating and mitigating circumstances of this case, as these factors inform the appropriate penalty and, ultimately, the public interest test for accepting or rejecting a joint submission.

There were several aggravating features in this case. As noted above, the Member betrayed her special role as a school principal by engaging in the misconduct that she did. Her inappropriate Facebook posts were not an isolated incident. The posts started in December 2014 and carried on until August 2016, approximately one and a half years. The Member did not just post links or articles containing racist material, she added her own commentary that was interpreted as Islamophobic and xenophobic.

Conversely, there are powerful mitigating circumstances in this case. In particular, the Committee is satisfied with the course undertaken voluntarily by the Member while she was on medical leave. The course contained robust content and the course provider wrote an evaluation of the Member’s progress. The Committee does not often get to see real contextual progress by the Member from the start to end of the discipline process. The Member has demonstrated a real desire to reform her practice and learn from her mistakes.

The Member has also been removed from her leadership position for more than two years while this proceeding has been ongoing. By all indications, this has been devastating for her. The Committee gives significant weight to this factor and treats it as mitigating. The Member has suffered a significant and sustained consequence that arose directly as a result of her misconduct.

The Case Law

At the oral hearing and subsequently in written submissions, the parties provided numerous other cases for the Committee’s consideration. In its second request for additional submission, the Committee requested cases involving a member in a position of leadership, as the Member was here. In large measure, the cases that were provided by the parties were not of great assistance to the Committee in reaching its conclusion. The facts of the cases provided shared some similarities with the case before this Committee, but most differed in important respects, leaving this case a relatively unique one.

The Committee closely considered the cases presented by the parties at the oral hearing: Ontario College of Teachers v. Kalarus, 2017 ONOCT 17 and Ubertelli, cited above. In Kalarus, the member made an inappropriate comment about a colleague and made a racist comment to a student. The member was a teacher, not a principal. The Committee imposed a reprimand. In Ubertelli, the member, a teacher, posted racist comments about the former President of the United States on a blog. He also made derogatory comments about homosexuality to a student. The member maintained and advanced his views to his principal when he was called in for a meeting about his misconduct. The Committee ordered a reprimand, a one-month suspension, and coursework on appropriate boundaries.

The cases provided by the parties with their additional written submissions provide examples of circumstances where other vice-principals and principals have been disciplined by the Committee,³ but they do not elucidate a unifying principle that members holding these positions should expect harsher penalties when they commit professional misconduct. This Committee is of the view that this principle ought to animate the imposition of penalty for members in leadership positions. While teachers and principals are generally subject to the same standards when determining whether or not they have committed professional misconduct, principals ought to be held to a higher standard in the penalty phase because of their special responsibilities and role as leaders of learning communities. This is especially so when their misconduct impacts the core of their duties as a principal.

Deference to Joint Positions

As emphasised by all counsel, the Committee must give joint submissions a high degree of deference. The Committee recognizes that, once it ensures that it has jurisdiction to make the order requested, the law confines the Committee’s role to determining whether the proposed penalty is so unreasonable that accepting it would bring the administration of the discipline process into disrepute or be otherwise contrary to the public interest. In Anthony-Cook, at para. 34, the Supreme Court of Canada explained the test in the following manner:

…Rejection [of a joint submission] denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold — and for good reason ….

There are several reasons why this principle finds application. In Archambault, the Law Society Tribunal adapted the reasons of the Supreme Court of Canada to the professional discipline context, highlighting the following reasons why there needs to be a high degree of certainty that a joint submission will be accepted (at para 15). They apply equally to the College discipline process and are repeated here, with some modification:

Joint submissions are a proper and necessary part of the system, and benefit the administration of justice and all participants including the member, complainants, witnesses, and counsel. They play an essential role in saving the justice system time, resources and expenses.
A joint submission helps the College as prosecutor and the public interest, since an admission makes a finding of misconduct certain. The prosecution avoids the risk that flaws in its case, such as weaknesses in witness testimony, the unwillingness of a witness to testify, or evidence that is not admissible will affect whether a finding is made.
Witnesses and complainants may prefer to avoid the stress of testifying, and may appreciate the acknowledgment of responsibility that comes from an admission.
The member likely obtains a penalty that is more lenient than he or she might expect after a contested finding and/or penalty hearing. The member is thus encouraged to resolve matters and plead guilty, minimizing the costs and stress associated with contested hearings and maximizing certainty.
College and member representatives are highly knowledgeable about the circumstances and the strengths and weaknesses of their respective positions. College representatives put forward the public interest and member representatives focus on their clients’ interests. They are together well-placed and can be relied upon to arrive at a joint submission that reflects both interests.

The Committee Accepts the Joint Position

The Committee’s initial concerns that the imposition of only a reprimand might undermine public confidence in the ability of the Committee to regulate the profession were allayed after close consideration of Anthony-Cook. In addition to the high threshold to be applied, that case emphasizes the public interest and the maintenance of the repute of the administration of justice. The Committee is satisfied that, in the full context of this proceeding, the public interest is satisfied. The Member has demonstrated genuine remorse and, after completing the equity course, is ready and able to carry out her duties as a principal in an inclusive manner. To this extent, the discipline process has served its function and the penalty will serve the public interest and will not be brought into disrepute. The Committee therefore accepts the penalty jointly proposed by the parties.

The Committee is also satisfied that the imposition of a reprimand as the sole penalty in this case is just and appropriate. We emphasize that a reprimand alone would not ordinarily be the appropriate penalty in a case involving misconduct of the nature at issue here in the absence of significant mitigating factors. In other cases, we would expect that coursework, at a minimum, would be imposed in addition to a reprimand. Had the Member’s case not presented with the significant mitigating factors that it did, the Committee would have been inclined to order a suspension of the Member’s Certificate of Qualification and Registration.

The Member’s inappropriate conduct warrants a reprimand by her peers. The reprimand will allow the Committee to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

In these particular and unique circumstances, the Committee finds that the penalty proposed in the Joint Submission on Penalty is proportionate to the misconduct committed by the Member and is reasonable given the facts of this case.

The Committee is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

Date: June 10, 2019

Tom Potter

Chair, Discipline Panel