Ontario College of Teachers v. Caine, 2020 ONOCT 150

Discipline Committee of the Ontario College of Teachers

Ontario College of Teachers v Caine 2020 ONOCT 150

Date: 2020-03-24

PENALTY DECISION AND REASONS FOR DECISION

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: February 14, 2020

COUNSEL: Shane D’Souza and Noam Uri, for Ontario College of Teachers No one appearing 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.

1On April 1, 2019, a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) found that Mark Anthony Caine (the “Member”) engaged in professional misconduct.

2The Member was a teacher at [XXX] School (the “School”) during the 2012-2013 academic year. During that year, the Panel found that the Member touched the buttocks of two [XXX]-year-old students on three separate occasions. On another occasion, the Member touched one of the students on the neck. The Panel further found that the Member had made a number of unprofessional and inappropriate comments to these students. In particular, the Member called the students “beautiful” and “babe”. The students found the Member’s comments creepy and were disturbed by them.

3The Member denied all the allegations. However, the Panel rejected the Member’s evidence in favour of the students’.

4Based on this conduct, 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.

5Following the finding of misconduct, the College scheduled a penalty hearing for December 16, 2019. On that date, the Member’s former counsel appeared and requested an adjournment as his mandate to the Member was terminated the day before. The Panel granted the adjournment. The Member was not present on December 16, 2019 and as such, the Panel scheduled a set date hearing for January 13, 2020 to allow the Member to participate in rescheduling the penalty hearing. The Member did not attend the set date hearing and the penalty hearing was scheduled in his absence for February 14, 2020.

6The Panel convened on February 14, 2020 to hear submissions with respect to penalty. The Member was not in attendance and did not have legal representation.

7Counsel for the College submitted the Affidavit of Noam Uri (Exhibit 14) sworn on February 12, 2020 to show that the Member had been informed of the time and date of the set date hearing, the time and date of the rescheduled penalty hearing, and the range of penalty and costs that the College could seek. The Panel was satisfied that the Member had reasonable notice of the penalty hearing and decided to proceed in the Member’s absence.

8Following the penalty hearing, the Panel made an order (1) requiring that the Member be reprimanded by the Panel and (2) directing the Registrar to revoke the Member’s Certificate of Qualification and Registration. Additionally, the College ordered that the Member pay costs of $25,000 to the College. These are the Panel’s reasons for those orders.

A. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

9Counsel for the College submitted that since the Member was found to have engaged in sexual abuse of his students, an order for revocation of the Member’s Certificate of Qualification and Registration and an order that the Member receive a reprimand are mandatory according to section 30.2 of the Ontario College of Teachers Act, 1996 (the “Act”). College Counsel submitted that the Panel has no discretion with respect to reprimand and revocation and did not ask for any other sanctions.

10In response to a question from the Panel, College Counsel submitted that the form of the reprimand should be “general”, meaning that the Panel’s order should not specify whether the reprimand is to be delivered in person or in writing.

B. PENALTY DECISION

11On February 14, 2020, the Panel made the following order as to penalty:

1. The Member is directed to receive a reprimand, which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor St. West, Toronto, Ontario, within three months of the date of this order and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers. If the Member does not attend to receive the reprimand within three months of the date of this order, the Member shall receive a written reprimand instead of the oral reprimand;

2. The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member.

C. REASONS FOR PENALTY DECISION

12The Member’s professional misconduct included the sexual abuse of a student, as described in subsection 30.2(2) of the Act. Given this finding, section 30.2(1) of the Act provides that the Panel must make an order: (1) requiring that the Member be reprimanded by the Panel; and (2) directing the Registrar to revoke the Member’s Certificate of Qualification and Registration. The Panel makes both of these orders and notes that it has no discretion in this regard. The Panel denounces the Member’s misconduct in the strongest terms.

13The Panel disagrees with College Counsel’s submission that the form of the reprimand should not be particularized. Particularizing the form of the reprimand provides certainty to the Member about the penalty imposed and maintains public confidence in the discipline process. The Panel notes that due to the revocation of the Member’s certificate, he is unlikely to attend the College for a reprimand. However, in the absence of submissions from either party as to why a written reprimand would be appropriate, the Panel orders that the reprimand be delivered in person. The Panel also orders that the reprimand be delivered in short order. If the Member does not attend at the offices of the College to receive the reprimand within three months following the date of this order (February 14, 2020), the Member is to receive the reprimand in writing. This will ensure that the reprimand is in fact delivered to the Member in a timely manner.

D. COSTS SUBMISSIONS OF COLLEGE COUNSEL

14The College sought an order for costs payable by the Member to the College pursuant to s. 30(5) at paragraph 4 of the Act. College Counsel submitted that the Panel should be guided by rule 16.05(3) and Tariff A of the Rules in making the costs order. Read together, rule 16.05(3) and Tariff A provide that the College need not provide evidence of the costs of a day of hearing if the amount claimed is equal to or less than $10,000 per day of hearing.

15College counsel requested a total costs order of $44,199.86. College Counsel explained the breakdown of this costs order as follows:

• 50% of the tariff rate for the three days of the hearing on the merits ($15,000);

• 100% of the tariff rate of one day of penalty hearing on December 16, 2019 which was scheduled but which the Member requested to adjourn with 1 day’s notice ($10,000);

• 100% of the tariff rate of the day of penalty hearing on February 14, 2020 ($10,000); and

• Costs incurred by the College during the hearing of the College’s pre-hearing motion to permit its witnesses to testify by video conference (the College submitted a bill of costs outlining costs incurred of $9,199.86).

In the context of any hearing days where the hearing did not last for the entire day, College Counsel submitted that even though the hearing may not take a whole day, it is still appropriate for the Panel to order the full tariff amount.

16College Counsel presented the Panel with the case of Ontario College of Teachers v. Hall, 2019 ONOCT 20 (“Hall”) and argued that the Panel should be guided by the principles outlined therein when determining the appropriate costs order. Hall provides that the goal of costs orders is the fair allocation of costs incurred. Costs are intended to be compensatory in nature and are not intended to be an additional penalty. The possibility of a costs order at the end of a hearing encourages cooperation and engagement during the hearing process by both parties in accordance with the Rules. Therefore, costs orders should discourage litigation conduct which is uncooperative, unreasonable, or undertaken in bad faith.

17College Counsel submitted that the Member engaged in unreasonable, uncooperative, and bad faith conduct in this case. He argued that the Member acted in bad faith by opposing the College’s pre-hearing motion for permission for the College’s witnesses to testify by video conference. College Counsel submitted that the Panel should infer that the Member opposed the College’s motion in bad faith, given that the Member knew that he would be asking for similar relief in presenting his own case. College Counsel also submitted that the Member was unreasonable in only notifying the College the day before the scheduled penalty hearing that the Member would be seeking an adjournment. Furthermore, the Member was uncooperative by not attending the penalty hearing on December 16, 2019 or on February 14, 2020.

E. COSTS ORDER

18On February 14, 2020, the Panel made the following order as to costs:

1. The Member shall pay costs of this proceeding to the College, fixed in the amount of $25,000, within 120 days of the date of the Penalty Decision and Reasons for Decision.

F. REASONS FOR COSTS ORDER

19The Committee is empowered by s. 30(5) at paragraph 4 of the Act to order costs payable by a member to the College where it has found that member guilty of professional misconduct.

20Rule 16 creates the procedure applicable where costs are sought by either party. Pursuant to rule 16.05(3), where the College requests costs, the College is not required to provide evidence of the cost of a day of hearing if the amount claimed is equal to or less than the amount set out in Tariff A. Tariff A is currently set at $10,000.

21Hall provides the panel with guidance as to the factors to be considered when making a costs order:

Apportioning costs of proceeding: Costs orders are compensatory, rather than punitive, in nature. Their purpose is to apportion the financial burden of a discipline proceeding between the parties fairly. The nature or severity of a member’s misconduct is not a factor that should be considered when determining whether costs should be ordered or the quantum of any order.

Uncooperative and vexatious conduct: Uncooperative or obstructionist conduct in the course of the litigation process will be a significant factor in the costs determination. Conduct that unnecessarily lengthens the duration of the proceeding ought to be sanctioned, as should vexatious or improper conduct. Consistent with the principle of apportionment, the College and, through their licensing fees, cooperative members of the teaching profession, ought not bear fully the costs of discipline proceedings against uncooperative members.

Promotion of good conduct: Members of the profession are not required to admit all or part of their professional misconduct because the College always bears the burden of proof. However, participation in the disciplinary process, cooperation and conduct that shortens or reduces the complexity of the proceeding ought to be encouraged. Engagement in efforts to settle all or part of a proceeding should be encouraged when considering whether costs ought to be ordered. Costs orders should not be so large as to discourage members from raising reasonable defences to allegations of professional misconduct.

Success of the parties: The relative success of the parties will be relevant in determining and apportioning costs. For example, if the College is only partially successful in establishing the allegations against a member, this will be relevant in determining whether and what amount of costs should be ordered. If significant hearing time is spent receiving evidence on allegations that are ultimately not established, the member ought not be liable for those costs.

The member’s ability to pay: Evidence or submissions about the member’s ability to pay a costs order may be relevant to the Committee’s decision. This factor may also be relevant to the Committee’s decision about how much time the Member is given to pay the costs order. The impact of other penalties imposed (for example, revocation) may be relevant to this factor: Hall at pp. 12-13.

22After considering the factors in Hall, the Panel finds that it is appropriate to order costs against the Member in the amount of $25,000. In determining the quantum of the costs order, the Panel considered the College’s success in proving its case against the Member, the fact that the Member was put on notice regarding any potential costs order, the length and complexity of the proceeding, and the Member’s conduct throughout the proceedings.

23The College succeeded in establishing all of the allegations against the Member that were not withdrawn at the outset of the hearing. Moreover, the Member was put on notice by the College regarding potential costs consequences. Throughout the prosecution, the College advised the Member and his counsel in correspondence that it would be seeking costs if it was successful in obtaining findings of professional misconduct.

24In considering the quantum of costs, it is appropriate to consider the length and complexity of the proceeding as well as the number of witnesses that testified in the hearing. In this case, the findings stage proceeded over three days. The only issue was credibility of the witnesses and overall, the matter was of limited complexity. However, this matter involved significant time and inconvenience for the College’s witnesses. While one of the student witnesses testified by video conference, the other student witness travelled a long distance to attend the hearing.

25The Panel rejects College Counsel’s submission that the Member acted in bad faith in opposing the College’s motion to have its witnesses testify by teleconference. There was no evidence before the Panel as to the timing of the Member’s choice of defence strategy. The Member was not obligated to consent to the College’s motion and he brought forward reasonable justification for opposing it. As such, the Panel declines to order that the Member pay costs of $9,199.86 which were sought by the College for this motion.

26The Panel finds that the Member’s conduct during the penalty phase of the hearing was unreasonable and uncooperative, but not for all the reasons submitted by College Counsel. Specifically, the Panel rejects the submission that the Member was unreasonable by only notifying College Counsel the day before the hearing that he would be seeking an adjournment on December 16, 2019. Member’s former counsel attended the hearing and advised that his mandate had been terminated the previous day. As such, the reason for adjournment arose the day before the hearing and it would not have been possible for the Member to provide notice prior to that date.

27However, the Panel finds that the Member was otherwise unreasonable throughout the Penalty proceedings and uncooperative with the College. The Member did not appropriately engage with the disciplinary process following the Panel’s finding of misconduct. The Member failed to attend the initial penalty hearing date while knowing that his former counsel could no longer act on his behalf. Despite the fact that he knew that the hearing would have to be adjourned, the Member also failed to provide his former counsel with his availability so that the penalty hearing could be easily rescheduled. Moreover, the Member failed to participate in the set date hearing, he failed to reply to multiple email communications from College Counsel, and he ultimately did not attend the penalty hearing, which proceeded in his absence. Due to the Member’s uncooperative conduct, the length of the penalty phase of the hearing (which should have been one day or less) was stretched to two hearing days and one set date hearing. As such, the Panel believes that it is appropriate for the Member to pay to the College the Tariff amount for one day of hearing, which is the cost of the additional hearing time occasioned by the Member’s uncooperative conduct.

28In the circumstances, the Panel is satisfied that an order $25,000 of costs payable by the Member to the College is just and appropriate. This reflects $15,000 in costs for the findings stage of the hearing (which is half of the Tariff amount as sought by the College) plus $10,000 in costs for the December 16, 2019 hearing date (which is the Tariff amount for one day of hearing).