Ontario College of Teachers v. Johnston, 2019 ONOCT 89

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Johnston 2019 ONOCT 89

Date: 2019-08-22

DECISION AND REASONS ON MOTIONS

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

John Wilfred Martin Johnston, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JOHN WILFRED MARTIN JOHNSTON (REGISTRATION #168913)

PANEL: Jean-Luc Bernard, OCT, Chair Godwin Ifedi Alicia Nunn, OCT

HEARD: August 15, 2019

Ava Arbuck and Steven Chadwick, for Ontario College of Teachers John Wilfred Martin Johnston, self-represented Julie Maciura, Independent Legal Counsel

1These motions were heard before a panel of the Discipline Committee (the “Panel”) on August 15, 2019 at the Ontario College of Teachers (the “College”).

2John Wilfred Martin Johnston (the “Member”) is alleged to have committed professional misconduct in a Notice of Hearing dated February 7, 2018. A hearing date has not yet been scheduled. The Member brought two motions in advance of the hearing. First, he seeks an order for further disclosure from the College. Second, he seeks an order withdrawing the Notice of Hearing and dismissing the disciplinary proceedings against him.

3The Member attended the motion; he was self-represented.

A. EVIDENCE ON THE MOTIONS

(1) Overview

4The Member submitted a motion record containing various documents, such as unidentified notes, notes of purported meetings and telephone calls, documents from the Simcoe County District School Board (the “Board”), excerpts from a survey of Catholic teachers on workplace violence and harassment and a webquest page about the Salem Witch Trials. None of these materials were supported by affidavit evidence. On August 16, 2019, after the hearing of the motions, the Member sent further materials to the Panel by email, including unidentified notes. Again, these materials were not supported by affidavit evidence. College Counsel was given the opportunity to respond to the Member’s supplementary materials and submitted that none of the materials were relevant to either of the motions. The Panel considered the materials in the Member’s motion record as well as the materials sent on August 16, 2019, College Counsel’s August 19, 2019 response and the Member’s August 19, 2019 reply.

5College Counsel submitted three affidavits, with exhibits: (1) the Affidavit of Brett Pinnell, former Manager of Human Resources for the Board, sworn April 10, 2019; (2) the Affidavit of Sharon Edwards, an Investigator with the College, sworn April 10, 2019; and (3) the Affidavit of Annie Lacroix, a law clerk with McCarthy Tétrault LLP who are solicitors for the College, sworn April 9, 2019. None of the affiants were cross-examined on their evidence.

(2) Preliminary Ruling

6At the outset of the motion, College Counsel advised the Panel that she objected to the Member’s anticipated introduction of the Report of the Presiding Officer (“Report”) from the November 2018 pre-hearing conference. She argued that, pursuant to Rule 6.05 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), the Report was without prejudice and confidential. She also argued that the Report was irrelevant as the Presiding Officer’s views are not binding at the hearing on the merits.

7The Member confirmed that he wished to admit the Report on the motions as he intended to argue that the Report was incomplete, did not follow the Rules and only contained the Presiding Officer’s opinions.

8Independent Legal Counsel advised that it would be inappropriate for the Panel to review the Report as it would contain the Presiding Officer’s opinions and off the record discussions and could, in fact, be prejudicial to the Member.

9The Panel considered the issue and delivered the following oral ruling:

Having heard the submissions of the parties, this Panel denies the Member’s request to admit the report of the Presiding Officer from the November 2018 pre-hearing.

The Panel accepts Independent Legal Counsel’s advice that such reports are privileged, without prejudice and confidential as set out in Rule 6.05 and that the pre-hearing has no bearing whatsoever on the hearing of the merits.

10The Panel accepts College Counsel’s submissions and Independent Legal Counsel’s advice that, given the privileged, confidential, without prejudice and non-binding nature of the Report, it would be inappropriate to review it on the Member’s motion.

(3) Affidavit of Brett Pinnell

11Mr. Pinnell gave evidence about the Board’s investigation into the Member’s March 31, 2015 conduct, his concern about the Member’s [XXX] and the Board’s request for the Member to undergo an [XXX].

12The Board was apprised of concerns about the Member on or about March 31, 2015 by Principal Sonia Kadela, The Member submitted an “Aggressive Incident Reporting Form” to the Board on April 8, 2015.

13On April 16, 2015, Mr. Pinnell attended an investigative meeting with the Member, Principal Kadela and two union representatives. After this meeting, Mr. Pinnell became so concerned about the Member’s [XXX] that he obtained special permission to give the Member access to the Board’s [XXX] and a decision was made to request an [XXX] to determine if it would be appropriate to treat this matter as a discipline matter. On April 21, 2015, the Member submitted a “Safe Schools Incident Reporting Form” to the Board.

14During a second meeting with the Member and others on April 29, 2015, Mr. Pinnell expressed the Board’s concerns about the Member’s [XXX], offered the Member access to the Board’s [XXX] and requested an [XXX]. He also advised the Member that, owing to these concerns, the Board was assigning him home with pay and would defer its investigation pending receipt of the [XXX]. The Board gave the Member until May 4, 2015 to consent to the [XXX]. At paragraph 21 of his affidavit, Mr. Pinnell stated “The Member was assigned home with pay because of concerns relating to his [XXX] and the [XXX] of students, and not for reasons of professional misconduct.”

15The May 4 deadline was extended to May 11 after the Member requested some changes to the consent forms. A third meeting with the Member was scheduled for May 15, 2015 then re-scheduled to May 21, 2015 at the Member’s request. Mr. Pinnell and the Board’s Manager of [XXX] attended the May 21, 2015 meeting. The Member was asked to sign the consents to an [XXX] and refused. Mr. Pinnell then advised the Member that he was being removed permanently from the supply list owing to concerns about his [XXX] and the [XXX]. The Member’s representative asked the Board to give the Member until August 31 to complete an [XXX]. Mr. Pinnell responded that if the Member agreed to an [XXX] prior to August 31, 2015, he would be considered for reinstatement on the supply list, subject to any disciplinary findings depending on the outcome of the [XXX]. The Member did not consent to an [XXX] prior to or since August 31, 2015.

16By letter dated June 10, 2015, Mr. Pinnell advised the College that on May 21, 2015 the Board had permanently removed the Member from its supply list.

(4) Affidavit of Sharon Edwards

17Ms. Edwards gave evidence about the initiation of the Registrar’s complaint, the College’s investigation and the referral to the Discipline Committee.

18Ms. Edwards was the principal investigator assigned to review the Registrar’s complaint about the Member. On March 29, 2017, following receipt of Mr. Pinnell’s June 10, 2015 letter, the Registrar initiated a complaint against the Member and asked the Investigations and Hearings Department to conduct an investigation. The Member was advised of the complaint by letter dated May 3, 2017 and given 45 days to make written submissions. He responded with written submissions and provided the College with various audio recordings, all of which were included in the materials provided by the investigator to the Investigation Committee.

19On September 19, 2017, the Investigation Committee decided to refer the complaint to the Discipline Committee, and the Member was so advised by letter dated October 2, 2017.

(5) Affidavit of Annie Lacroix

20Ms. Lacroix gave evidence about College Counsel’s disclosure to the Member.

21On February 8, 2019, College Counsel received the Member’s motion for disclosure. By letter dated March 6, 2019, College Counsel provided the Member with transcriptions of the four audio recordings he provided, and asked him to advise which specific documents were the subject of his disclosure motion: “In particular, please let us know which transcripts are missing, and please identify which documents from the Disclosure Brief are missing lines of text, are illegible, and/or are missing pages, so that we may track them down and provide you with the information you are seeking where possible.”

B. SUBMISSIONS OF THE MEMBER

(1) Motion for Disclosure

22In his Notice of Motion, the Member alleged that the College’s Disclosure Brief contained documents which were poorly copied, missing lines of text or missing pages. At the hearing of the motion, he acknowledged that College Counsel had provided him with better copies of many documents and said “the book is quite good”, it “doesn’t need improvement” and agreed that the Panel could “move on”. At the same time, he continued to voice complaints about missing pages, without identifying specific documents other than to say some of his notes of a meeting had been left out, and maintained there were still “issues” with disclosure.

23Independent Legal Counsel suggested that the Member determine specifically which pages are missing and, if the document originated with the Member, he should provide the original to College Counsel for better copying. She noted that the Member is not confined to rely on the documents disclosed by College Counsel alone and is free to make his own disclosure of relevant documents for the purposes of both the motion and the hearing on the merits. The Member agreed with Independent Legal Counsel’s suggestion.

(2) Motion for Dismissal

24In his Notice of Motion, the Member requested the Notice of Hearing be withdrawn and the contested hearing be dismissed because, he alleged, the Board contravened the 30 day reporting requirement in section 43.2 of the Act. In particular, he alleged that his duties were totally restricted on April 22, 2015 and the Board’s report was not made until June 10, 2015, thereby invalidating the Registrar’s complaint as a failure of due process, justice and fairness.

25On August 3, 2019, the Member filed a written “Response” for the motion, which advanced further grounds and a much broader argument in favour of dismissal. The Member followed this document quite closely in his oral submissions, described below.

26At the hearing of the motion, the Member argued broadly against the merits of the allegations of misconduct, submitting that his actions on March 31, 2015 were reasonable and rational, he had justifiable safety concerns and his classroom methods were appropriate. He expressed a belief that male teachers are scrutinized more closely than female teachers and a conviction that he was being punished for filing an aggressive incident report. He was critical of the College’s investigation and the decision to proceed with disciplinary proceedings, including the Investigation Committee’s failure to provide him with reasons for its referral to the Discipline Committee. He alleged that the College breached multiple sections of the Act that would justify a withdrawal of all allegations.

C. SUBMISSIONS OF COLLEGE COUNSEL

(1) Motion for Disclosure

27In light of the Member’s agreement with Independent Legal Counsel’s suggestion, College Counsel did not make oral submissions on the issue of disclosure as she considered this matter had been “dealt with”. The Panel notes that, in written submissions filed on the motion, College Counsel acknowledged the College’s ongoing obligation to provide the Member with disclosure and undertook to provide the Member with better copies, on a best efforts basis, of any documents in the Disclosure Brief specifically requested.

(2) Motion for Dismissal

28College Counsel began her oral submissions by stating that the Member will have the opportunity to challenge the College’s evidence of the allegations and the Board’s conduct at the hearing on the merits. She asked that, if the Panel required her to respond to anything in the Member’s August 3, 2019 “Response”, she be given the opportunity to file further evidence, make written submissions or appear at a further attendance, if necessary.

29College Counsel submitted that: (1) the reporting requirement under section 43.2 of the Act does not confer jurisdiction on the College or the Discipline Committee; and (2) in any event, the Simcoe County District School Board did not breach section 43.2 of the Act.

30She argued that the Registrar’s decision to investigate is not limited to complaints that only come to his attention within a specified period of time as the legislative language defies such an interpretation and it would be contrary to the College’s mandate to serve and protect the public interest. The language of section 36(1)(a), section 39 and section 26(1)(c) of the Act does not contain any restrictions or limitations regarding how or when information comes to the Registrar’s attention. Once information comes to light, then the Registrar has the discretion to investigate. It would be “ludicrous” to exclude information from an employer’s report made, for example, 32 days after a restriction of duties, given the College’s mandate to serve and protect the public interest. Similarly, an employer’s complete failure to report would not bar the Registrar from investigating misconduct that came to light through another channel.

31College Counsel submitted that, in any event, the Board complied with Section 43.2 of the Act by reporting the restriction on the member’s duties for reasons of professional misconduct to the Registrar within 30 days of the restriction. The evidence of Mr. Pinnell shows that the Board only considered the matter to be disciplinary on May 21, 2015, after the Member made it clear that he was refusing to consent to an [XXX], and thereafter notified the Registrar by letter dated June 10, 2015.

32Section 26(6) of the Act does not require the Investigation Committee to provide reasons for its decision where it refers the matter to the Discipline Committee because it is not making a finding or decision.

33College Counsel submitted that the Registrar and the Investigation Committee followed the proper procedure set out in the Act and there is no evidence the Member has been deprived of justice, fairness or due process.

34College Counsel requested that the Board set a hearing date to determine the merits on the basis that the date would be vacated if the Member is successful on his dismissal motion.

D. DECISION

35After considering the submissions of the parties and the evidence and material filed, the Panel finds that the Member has not met his burden and dismisses both his motion for disclosure and his motion for dismissal. The hearing on the merits will proceed on January 16, 2020, subject to adding further hearing dates if required. Costs of these motions may be addressed at the conclusion of the hearing on the merits. The Panel remains seized of this matter.

E. REASONS FOR DECISION

(1) Motion for Disclosure

36In light of:

1. the Member’s acknowledgement that College Counsel has provided him with better copies of many documents;

2. College Counsel’s undertaking to provide the Member with better copies, on a best efforts basis, of any documents in the Disclosure Brief specifically requested and identified; and

3. Independent Legal Counsel’s advice that the Member is not limited to relying on the College’s disclosure for the purposes of the hearing on the merits;

the Panel finds it unnecessary to make any order and dismisses the Member’s motion for further disclosure. The Panel is satisfied that there has been no breach of the College’s Rule 7.01(1) disclosure obligations.

(2) Motion for Dismissal

37Independent Legal Counsel advised that the Panel likely has jurisdiction under section 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) to dismiss a disciplinary matter pursuant to a motion and noted that College Counsel had not suggested otherwise. The Panel accepts this advice and notes this approach is consistent with that taken in Ontario College of Teachers v. Weglarz, 2019 ONOCT 34.

38The Member has the onus to satisfy the Panel that the disciplinary proceedings against him ought to be dismissed at this preliminary stage without a hearing on the merits. He has not met that burden. The Panel finds:

(a) the section 43.2 time limit is unrelated to the Registrar’s authority to issue a complaint;

(b) the Board reported the Member’s restriction of duties within the section 43.2 time limit;

(c) the Member has not demonstrated an irregularity in the College’s investigation that would justify dismissal of the allegations; and

(d) the remaining grounds argued by the Member at the motion are more appropriate to determine on a full evidentiary record at the hearing on the merits.

(a) Section 43.2 of the Act is Unrelated to the Registrar’s Authority to Issue a Complaint

39The Member submitted that the 30 day period in section 43.2(1) of the Act limits the Registrar’s jurisdiction and invalidates a complaint made after its expiry as a “failure of due process, justice, and fairness”. Section 43.2(1) states:

An employer of a member of the College who terminates the member’s employment, suspends the member or imposes restrictions on the member’s duties for reasons of professional misconduct shall file with the Registrar within 30 days after the termination, suspension or restriction a written report setting out the reasons.

40The Panel agrees with College Counsel that section 43.2(1) does not serve as a condition or limitation on the Registrar’s power to initiate a complaint. First, there is nothing in the language of section 43.2(1) which supports the Member’s interpretation. Second, such an interpretation would be inconsistent with the College’s mandate to protect the public interest. The Registrar is empowered under section 36 of the Act to initiate an investigation when the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct, regardless of how or when that information comes to the Registrar’s attention. Accordingly, there has been no failure of due process, justice or fairness.

(b) The Board Reported the Member’s Restriction of Duties within the Section 43.2 Time Limit

41In any event, the Panel accepts the evidence of Mr. Pinnell and finds there was no breach of section 43.2 of the Act. The Member’s employment was not restricted or terminated for reasons of professional misconduct until May 21, 2015. The Board reported this termination to the College on June 10, 2015, which was within the prescribed 30 day period.

42Mr. Pinnell testified that the Member was assigned home with pay on April 29, 2015 because of “concerns relating to his [XXX] and the [XXX], and not for reasons of professional misconduct”. Between April 29 and May 21, 2015, multiple attempts were made to obtain further evidence, (that is, an [XXX]), to assess whether the Member’s conduct should be addressed as a [XXX] matter or misconduct. By May 21, 2015, it became apparent to the Board that the Member would not provide the consent required for an [XXX], and hence the decision was made to proceed as a disciplinary matter. Accordingly, the Member’s removal from the supply list on May 21, 2015 was a termination for reasons of professional misconduct that triggered a section 43.2 report.

(c) No Irregularity in the College’s Investigation

43The evidence of Ms. Edwards demonstrates that the College followed the Act in advising the Member of the Registrar’s complaint, giving him an opportunity to make submissions, and considering his response before making a decision to refer this matter to the Discipline Committee. The Panel is entitled to assume that the Investigation Committee acted in a regular manner unless the Member demonstrates otherwise, which he has not done. Section 26(6) of the Act states that the Investigation Committee is not required to give reasons where it directs that a matter be referred to the Discipline Committee.

(d) Contested Allegations are Appropriately Determined on a Full Evidentiary Record

44The Member argued that there was “contradictory evidence” about the allegations in the Notice of Hearing and accordingly the allegations should be withdrawn. Where there is contradictory evidence, the allegations should be determined on a full evidentiary record, with each party given the opportunity to challenge the other’s evidence. The Member will have that opportunity at the hearing on the merits. The Panel encourages him to consider what evidence he wishes to put forward relating to the allegations in the Notice of Hearing and to organize that material so that it may be presented to the Panel in an ordered fashion at the hearing on the merits. The Member has not shown any basis to justify the dismissal of the allegations without a full hearing.

45At the request of College Counsel, and with the Member’s agreement, the Panel set the hearing date for January 16, 2020, subject to adding further hearing dates if required.

46Accordingly, the Member’s motion to dismiss these disciplinary proceedings is dismissed.