Ontario College of Teachers v. Caine, 2020 ONOCT 121

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Caine 2020 ONOCT 121

Date: 2020-01-04

DECISION AND REASONS ON MOTION FOR ADJOURNMENT

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against Mark Anthony Caine, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

MARK ANTHONY CAINE (REGISTRATION #276494)

PANEL: Vicki Shannon, OCT, Chair Colleen Landers Claudia Patenaude-Daniels, OCT

HEARD: December 16, 2019

Shane D’Souza and Noam Uri, for the Ontario College of Teachers Lucas E. Lung, for Mark Anthony Caine Erica Richler, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) 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 or the person who was allegedly sexually abused or the subject of the sexual misconduct or a prohibited act involving child pornography.

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on December 16, 2019 at the Ontario College of Teachers (the “College”).

2Mark Anthony Caine (the “Member”) did not attend the motion hearing but had legal representation for the purposes of this motion.

3On April 1, 2019, the Panel found that the Member engaged in professional misconduct. The Panel found that the Member contravened subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(7.3), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. The penalty phase of the hearing was scheduled to take place on December 16, 2019. However, on December 16, 2019, the Member instead brought a motion to adjourn the penalty phase of the hearing (the “Member’s Motion”).

A. PUBLICATION ban

4A publication ban had already been ordered pursuant to subsections 32.1(3) 32.1(4) and of the Ontario College of Teachers Act, 1996 (the “Act”). Accordingly, 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, or the person who was allegedly sexually abused or the subject of the sexual misconduct or a prohibited act involving child pornography.

B. SUBMISSIONS OF COUNSEL FOR THE MEMBER

5Member’s Counsel submitted that he had expected to attend on December 16, 2019 to have the penalty portion of this hearing dealt with, but that the Member terminated his retainer on December 15, 2019. Member’s Counsel stated that after the Member terminated his mandate, he immediately alerted College Counsel who in turn notified the Tribunals Office via email.

6Member’s Counsel submitted that since his retainer had been terminated, he was only permitted to ask the Panel for an adjournment on behalf of the Member. Member’s Counsel submitted that an adjournment would give the Member an opportunity to attempt to obtain new counsel.

7Member’s Counsel apologized on behalf of himself and the Member.

C. SUBMISSIONS OF COLLEGE COUNSEL

8College Counsel submitted that given the circumstances, the College was not opposing the Member’s Motion.

9College Counsel asked the Panel to schedule a date in January 2020 during which the parties could come before the panel (via teleconference) to set a date for the penalty phase of the hearing (the “Set Date Hearing”). College Counsel submitted that the Panel should schedule the Set Date Hearing so that the Member or his new counsel would be notified well in advance of the Set Date Hearing and would have the opportunity to participate in the scheduling of the penalty phase of the hearing.

D. DECISION

10Having considered the submissions of the parties as well as the relevant jurisprudence and legislation, the Panel grants the Member’s motion for adjournment and schedules a Set Date Hearing to take place on January 13, 2020, via teleconference.

E. REASONS FOR DECISION

11The Panel carefully considered the submissions of Counsel for the Member and Counsel for the College. Pursuant to Rule 14 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), the Panel has the discretion to adjourn a hearing. Furthermore, pursuant to sub-rule 14.01(2) of the Rules and in accordance with section 21 of the Statutory Powers Procedure Act, the Panel may consider one or more of the following factors when deciding whether or not to grant an adjournment:

1. the sufficiency of the reasons advanced for the request to adjourn;
2. the timeliness of the request;
3. the resources of the Committee, including scheduling related issues;
4. any prejudice to the parties;
5. whether any adjournments had been granted previously;
6. the consent of the parties; or
7. any other relevant factor.

12In arriving at its decision to grant the Member an adjournment, the Panel considered the seven factors set out above. First, the Panel determined that the Member advanced sufficient reasons to support his request for an adjournment. The Panel accepts that the Member terminated his retainer with his counsel, and because the Member was not present at the penalty hearing, Member’s Counsel could only ask for an adjournment on behalf of the Member. The Panel determined that it was appropriate to allow additional time for the Member to attempt to retain new counsel.

13Second, the Panel notes that while the adjournment request was untimely, it would be unfair in the circumstances to proceed with the penalty phase of the hearing in the absence of the Member and without affording him the opportunity to seek new legal counsel.

14Third, the Panel determined that there were no significant scheduling issues that should lead it to deny the request for an adjournment. The Set Date Hearing on January 13, 2020 will give the Member time to attempt to obtain new counsel or to represent himself at the Set Date Hearing and, ultimately, during the penalty phase of the hearing. Member’s Counsel undertook to advise the Member of the date of the Set Date Hearing thereby giving the Member adequate notice. College Counsel advised the Panel that he is available on January 13, 2020 to participate in the Set Date Hearing.

15Fourth, the Panel determined that granting an adjournment would not significantly prejudice either party. A Set Date Hearing has been set for January 13, 2020 in which the parties will reschedule the penalty hearing. The Panel does not believe that a relatively short additional delay will significantly prejudice either party.

16Fifth, the Panel noted that no previous adjournments of the penalty hearing had been requested. It is therefore not unreasonable to grant an adjournment in this case.

17Sixth, the College did not oppose the Member’s Motion. The Panel finds that the College’s position supports granting the Member’s Motion.

18Accordingly, the Panel grants the Member’s request for an adjournment.

19The adjournment of this matter to a Set Date Hearing on January 13, 2020 appropriately accommodates the needs of the Member, while not unduly prejudicing the College’s interests, and it satisfies the public interest. The Panel expects that, on January 13, 2020, the parties will propose dates for the timely completion of the penalty phase of the hearing.