DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Ontario College of Teachers v Phillips 2020 ONOCT 224

Date: 2020-12-14

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

Ralph Kenneth Robert Phillips, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

RALPH KENNETH ROBERT PHILLIPS (REGISTRATION #501713)

PANEL: Rebecca Forte, OCT, Chair

Mary Ellen Gucciardi, OCT

Marlène Marwah

HEARD: July 9, 2020

Shane D’Souza and Noam Uri, for the Ontario College of Teachers

Joshua Phillips and Kristen Allen, for Ralph Kenneth Robert Phillips

Julie Maciura, 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.

1This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on July 9, 2020 at the Ontario College of Teachers (the “College”). With the consent of the parties, and in accordance with section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched 3, this matter proceeded by way of an electronic hearing.

2Ralph Kenneth Robert Phillips (the “Member”) is alleged to have committed professional misconduct as set out in the Notice of Hearing dated August 5, 2019 (the “Notice of Hearing”). The Member brought a motion at the outset of the hearing on the merits (the “Motion”), seeking orders to delineate the scope of allegations that form the subject matter of the Registrar’s Complaint (the “Complaint”) referred to the Discipline Committee in the Notice and the scope of evidence relevant to the Complaint as a basis to find professional misconduct. The Member did not attend the hearing but had legal representation.

A. PUBLICATION ban

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. 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.

B. THE ALLEGATIONS

4The allegations against the Member in the Notice of Hearing dated August 5, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Ralph Kenneth Robert Phillips is guilty of professional misconduct as defined in the Act in that:

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

(b) he failed to comply with the Act, or the regulations or the by-laws, and specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(c) he 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) he committed 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. The Member is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Toronto District School Board as a teacher at [XXX] School (the “School”) in Toronto, Ontario.

3. At all material times, Person A was a teacher at the School.

4. On or about November 18, 2016, the Member engaged in inappropriate physical and/or sexual touching of Person A, without consent and/or when he knew or ought to have known the touching was unwelcome, including but not limited to:

(a) he put his hand in the back pocket of Person A’s jeans;

(b) he rubbed Person A’s back when they danced at a pub.

C. THE MOTION

5The Member brought the Motion at the outset of the hearing seeking the following orders:

1. An Order prohibiting the College from relying on and the Discipline Committee from considering any allegations of professional misconduct that are not specified or particularized in the complaint letter dated January 21, 2019 or the Notice of Hearing dated August 5, 2019, including the new allegations contained in the College’s “Response to Demand for Particulars”, dated June 27, 2020.

2. An Order excluding any evidence pertaining to allegations of professional misconduct that were not specified or particularized in the complaint letter dated January 21, 2019 or the Notice of Hearing dated August 5, 2019, including the new allegations contained in the College's "Response to Demand for Particulars", dated June 27, 2020.

3. In the alternative, an Order deferring the proceeding before the Discipline Committee of the College of Teachers ("Discipline Committee") until a final decision is reached by the Human Rights Tribunal of Ontario ("HRTO") in HRTO File No.: 2018-30919-1.

4. An Order under Rule 1.04(3) abridging the time required for serving this Notice of Motion, and for the service and filing of the motion record if required.

5. An Order or Direction under Rule 5.03(2) that this motion ought to be heard by members of the Discipline Committee who will not sit on the Panel hearing the merits of the complaint.

6. An Order that the College pay the legal costs of the Member on this motion on a substantial indemnity scale.

D. SUBMISSIONS OF COUNSEL FOR THE MEMBER

6The Member brought the Motion on the basis that the College is expanding what the hearing is about beyond the scope of the Complaint against the Member commenced on January 21, 2019 under section 26(1) of the Act. The Complaint alleged that on or about “November 18, 2017”¹, the Member:

1. “Touched his colleague [XXX]² in a sexual manner without [XXX]’s consent, including but not limited to:

(a) putting his hand in the back pocket of [XXX]’s jeans; and

(b) rubbing [XXX]’s back when they danced at a pub.” (Member’s Motion Record, Tab 2-1)

The Investigation Committee ultimately referred the complaint to the Discipline Committee, with the same two particulars specified at paragraphs 4(a) and 4(b) of the Notice of Hearing (see section B, above).

7The Member’s position is that only the allegations under the two particulars in the Notice of Hearing are at issue in this case. Member’s Counsel challenged the jurisdictional authority of the Panel to consider or hear evidence regarding allegations not particularized in the Notice of Hearing on the basis that the Member was not afforded due process rights in respect of those allegations, as required under the Act, and in accordance with the principles of procedural fairness. According to Member’s Counsel, allowing the College to advance its case by submitting evidence with respect to allegations not particularized in the Notice of Hearing would cause prejudice to the Member. Accordingly, Member’s Counsel asked that the College not be permitted to put additional (more serious) allegations before the Panel and to reject the College’s evidence that relates to any allegations not specified in the Notice of Hearing.

(1) The Complaint, Investigation and Referral to the Discipline Committee

8On February 14, 2019, the Member provided submissions to the Investigation Committee about the Complaint. The Member responded only to the allegations that were put before him in the Complaint (College Responding Motion Record, Exhibit H). At no point during the investigation process was the Member advised by the College that he had neglected to respond to allegations in the Complaint, or that the College was still considering other particulars. Member’s Counsel stressed that if the College had concerns about additional allegations, the Member should have been informed and given an opportunity to respond to those allegations at the investigation stage.

9Other allegations, including more serious ones relating to the Member’s unwanted sexual touching of [XXX], resurfaced only after the Registrar had completed the investigation of the Complaint and after the Investigation Committee referred the matter to the Discipline Committee on June 12, 2019 (Motion Record of the Member, Tab 5). The Member was concerned that the College intended to rely on evidence relating to other particulars (that were not included in the Complaint or Notice of Hearing) when Member’s Counsel corresponded with College Counsel about the contents of supplementary disclosure briefs provided to Member’s Counsel dated June 17, 2020 and June 23, 2020. Member’s Counsel then raised concerns about the inclusion of these allegations into these proceedings (Motion Record of the Member, Tab 10 and Tab 11). When Member’s Counsel asked the College to specify which allegations it intended to pursue, College Counsel answered by providing further particulars on June 27, 2020 (Motion Record of the Member, Tab 15) pointing to seven additional allegations made by [XXX] against the Member.

10In further correspondence, College Counsel confirmed that the College intended to rely on these further allegations that were not enumerated in the Notice of Hearing, maintaining that the “including but not limited to” language in the Notice of Hearing allowed the Discipline panel to consider additional allegations regarding the occurrence between [XXX] and the Member on November 18, 2016.

(2) The Act and a Right to Notice as an Aspect of Procedural Fairness

11From the outset of the Complaint, the College was made aware of all the allegations made by [XXX] regarding the events of November 18, 2016. They appeared in documents provided to the College by the Toronto District School Board (“TDSB”), including in a Final Investigation Report by the Human Rights Office of the Toronto District School Board (the “TDSB Report”), dated April 7, 2018 (Member’s Motion Record, Tab 2). The TDSB report considered seven additional allegations made by [XXX], of which at least three are more serious, according to Member’s Counsel. The TDSB Investigator concluded that all but two of the allegations against the Member were unsubstantiated. The two substantiated allegations figuring in the TDSB Report were the same ones that the Registrar enumerated in the Complaint against the Member and that were ultimately referred to the Discipline Committee (particularized at paragraphs 4(a) and 4(b) of the Notice of Hearing, above).

12Furthermore, Member’s Counsel submitted that there is no requirement that a member should have to ask, at any point, if the College intends to pursue further unspecified allegations. A member should be entitled to assume that the allegations specified in a Complaint are the allegations to which a member should respond. Given these circumstances, Member’s Counsel submitted that the Member was entitled to infer that any concerns that may have been before the Investigation Committee but were ultimately not set out in the Notice of Hearing would not be addressed at this Discipline Committee hearing.

13Member’s Counsel explained that the Registrar could have pursued these other allegations discussed in the TDSB Report, including the more serious ones, and that they could have been referred to the Discipline Committee. He further argued that the significance to be attached to the enumerated allegations in the Notice of Hearing is that they clearly limit the Complaint against the Member and correspond directly to the allegations substantiated by the Member’s employer. When read against the background of the TDSB Investigator’s conclusions and the College’s Complaint, Member’s Counsel submitted that the College must have made a conscious choice to pursue only the allegations substantiated in the TDSB Report by particularizing those same two allegations in the Notice of Hearing.

(3) The Language Framing the Complaint Cannot be Used to Expand the Jurisdiction of the Discipline Committee

14Member’s Counsel submitted that, according to case law, professional discipline legislation that expresses a member’s right to receive notice and to comment on a complaint brought against a member must be “strictly complied with and strictly construed.”³ Under section 26 of the Act, the Investigation Committee is required to give the Member a meaningful opportunity to reply to all allegations before the Investigation Committee decides what action to take on the Complaint. The Member was not properly notified of the additional allegations that the College now is trying to put forward. According to the process laid out in the Act, the responsibility is squarely on the College to inform the Member through a transparent process, whereby the Member is entitled to participate and know the case against him with sufficient precision to be able to make full answer and defence. Without proper notice regarding the additional allegations that College Counsel now is trying to put forward, the Member was denied the opportunity to provide a full explanation to the Investigation Committee during the Complaint investigation process.

15According to Member’s Counsel, the College has a duty under the principles of procedural fairness and natural justice to provide these opportunities to the Member. The Divisional Court in Katsoulakos v. Association of Professional Engineers of Ontario (“Katsoulakos”) held that “where disciplinary proceedings are brought against a professional, the duty of fairness requires the professional body to disclose with reasonable certainty the particular act or conduct alleged to amount to professional misconduct.”⁴ Accordingly, it is the College’s responsibility to stipulate which allegations will be pursued in a manner that allows the Member to make full answer and defence to any allegations, including at the Investigation Committee stage.

16To allow College Counsel to include all evidence with respect to these additional allegations to this proceeding would offend the College’s duty of fairness to the Member and be contrary to the statutory scheme of the Act. Under section 30(1)(a) of the Act, the Discipline Committee shall hear and determine matters directed or referred to it by the Investigation Committee. This is not a permissive provision, but a mandatory one that must be strictly construed and complied with. Any allegations that are ultimately put before the Discipline Committee must originate with the Complaint referred to the Discipline Committee and be included in the Notice of Hearing.

17Member’s Counsel submitted that the Notice of Hearing defines the scope of this proceeding and what findings of professional misconduct the Discipline Committee may make. A panel cannot find a member guilty in other respects if the concerns are not contained in the Notice of Hearing or “just because the evidence reveals something the tribunal feels is misconduct…”.⁵ The Notice of Hearing must provide the information necessary to ensure that the Member can participate fairly in the hearing.

18Member’s Counsel indicated that the Member would not have been surprised by the allegations that the College is asking to bring forward in this hearing because he knew about them through disclosure. However, the element of surprise is irrelevant in this case. The issue goes to the jurisdiction of the Discipline Committee to hear allegations that College Counsel is unfairly attempting to put to the Panel now as part of the College’s case, in violation of the Member’s right to procedural fairness, which requires that the Member be properly notified of all allegations against him during the investigation phase.

19In this regard, Member’s Counsel referred to legislation and case law which assert that tribunals must articulate complaints clearly and with specificity. Being provided with disclosure is not sufficient notice of the content of the allegations that a member will face at a hearing. Referring to the leading Divisional Court case of Golomb,⁶ the Alberta Court of Appeal in Visconti⁷ affirmed that a member is not required or expected to guess or ferret out the content of the allegations that they are going to face at a hearing. Case law demonstrates that once an allegation is framed in a complaint, no amount of production or particulars that are provided can be used to expand the scope of proceedings beyond what is alleged in the Complaint. Therefore, the Discipline Committee does not have the legal authority to consider allegations beyond what is articulated in the Complaint and subsequently included in the Notice of Hearing.

20Member’s Counsel also argued that during the discipline stage, it is insufficient to provide some examples of the subject matter in the Notice of Hearing and then purport to adduce other, more serious, allegations of professional misconduct that fall under the rubric of unwanted sexual touching later because of the prefacing language “including but not limited to.” This language does not allow the College to bring any allegation against the Member that fits under that general description into this proceeding, or give the Panel a broad, undefined scope to make determinations on allegations not particularized. When the Member did not receive notice of clear and precise allegations regarding his conduct, particulars cannot be used to expand the Discipline Committee’s jurisdiction to hear allegations that are not contained in the Notice of Hearing. To introduce additional allegations in this proceeding after the Member has already lost his opportunity to make fulsome submissions to the Investigation Committee about them is therefore highly prejudicial to the Member.

21Member’s Counsel argued that it is not open to the Panel to consider and hear evidence on additional unenumerated allegations because the Discipline Committee can only hear and determine matters directed or referred to it under section 30(1)(a) of the Act, following the Investigation Committee’s consideration of the Complaint, and in accordance with the process set out in section 26 of the Act. The only allegations that the Panel should hear are those enumerated at paragraphs 4(a) and 4(b) of the Notice of Hearing. Member’s Counsel therefore asked the Panel to find that this hearing is limited to the specific particulars articulated in the Complaint and the Notice of Hearing, and that the College be restricted to adduce evidence relevant to those allegations only.

E. SUBMISSIONS OF COLLEGE COUNSEL

22College Counsel resisted the Member’s position that only two non-exhaustive examples of the Member’s alleged misconduct are at issue in this case and asserted that the Member’s Motion artificially attempts to limit the scope of the Notice of Hearing. College Counsel submitted that the College is not prosecuting new allegations at this hearing. The Member should not be surprised by the College’s allegations against him: that he is accused of sexual misconduct during a night of drinking with a colleague. The Registrar’s complaint letter of January 21, 2019 alleges that the Member “touched his colleague [XXX] in a sexual manner without [XXX]’s consent.” Whereas the Notice of Hearing provides that “the Member engaged in inappropriate physical and/or sexual touching of Person A, without consent and/or when he knew or ought to have known the touching was unwelcome […].” According to College Counsel, the non-exhaustive allegation in the Complaint and Notice of Hearing mirror each other. The Complaint did not qualify or limit what was referred to the Discipline Committee. The entire allegation of sexual misconduct was referred to the Discipline Committee. Both the Complaint and the Notice of Hearing provide two particulars of the incident and expressly note that these examples are not an exhaustive list of what occurred. College Counsel maintained that the language “including but not limited to” appearing before the particulars in the Notice of Hearing signals that additional particulars can be adduced at a future point.

23College Counsel argued that the Motion boils down to the question of whether the Notice of Hearing provided the Member with reasonable notice of what he must defend against and, relatedly, whether he has been taken by surprise by what is being put before the Panel as the alleged conduct. College Counsel insisted that the Member received adequate notice in the entire wording of the Complaint where he was informed that the allegation against him was that he physically and/or sexually touched a colleague.

24According to College Counsel, there are three key principles articulated by the relevant case law:

1. The Court or Discipline Committee should avoid unduly restricting proceedings by the niceties of strict legal pleading by second guessing the Registrar’s drafting of the Complaint;

2. Allegations cannot be moving targets – a member needs to know what they are facing in order to defend themselves (i.e., a member should not be surprised at a hearing); and

3. Production of documents cannot be used to expand allegations.

25If the Investigation Committee wanted to limit the scope of the hearing to the two particulars it would not have expressly prefaced the two particulars with the phrase “including but not limited to.” If the Registrar had something narrower in mind, the Complaint would have stated that the Member touched his colleague in a sexual manner without [XXX]’s consent “by” doing two things: a) putting his hand in the back pocket of [XXX]’s jeans; and b) rubbing [XXX]’s back when they danced at a pub. College Counsel argued that a conscious decision was made to not be restrictive. Moreover, when the Complaint is read as a whole, College Counsel asserts that a reasonable person would recognize that the “including but not limited to” preface was deliberately included in the Notice of Hearing.

26College Counsel indicated that the allegations have been the same since they were initially made by [XXX] and that the Investigation Committee referred the entirety of the allegations to the Discipline Committee on June 12, 2019 (Member’s Motion Record, Tab 2-5). The College provided the Member with documents containing detailed particulars of the allegations of sexual misconduct. These documents, which included the TDSB Report (Responding Motion Record, Exhibit D, Tab 5F) were in the Member’s possession since August 9, 2019 (Responding Motion Record at Exhibits O and P). The TDSB report was appended to the Complaint received by the Member. Based on the contents of documents disclosed to the Member, the Member received notice of the allegations. Thus, the Member would have been fully informed about what would be at issue in the hearing before the Discipline Committee.

27College Counsel insisted that there are no cases that support the Member’s position that he is taken by surprise based on what is included in the Notice of Hearing. College Counsel submitted that the Member’s case should be contrasted with other cases where a respondent is genuinely taken by surprise when new determinations of professional misconduct are made regarding alleged conduct and there is a prejudicial effect. When there is genuine surprise about an allegation or finding, a respondent suffers prejudice because the respondent is not prepared to defend newly alleged misconduct based on the evidence. College Counsel argued that this did not occur in the Member’s case because the Member had fair warning that the allegation the College intends to prove is inappropriate physical and/or sexual touching. The College has confined its prosecution to the sexual misconduct allegations involving the Member and [XXX] on or about November 16, 2018.

28College Counsel refuted that Golomb supports the Member’s position because, unlike in Golomb, the allegations made in the Member’s case are not a moving target. In Golomb, the tribunal made a finding of fraud by concluding that certain evidence showed that a physician deliberately sought to obtain double payment for medical services to patients that he knew he was not entitled to receive. However, neither the complaint against the member nor the allegations in the Notice of Hearing alleged fraud. At the outset of that hearing, Counsel for the Discipline Committee also specifically disclaimed any intention to prove fraud, which requires the proof of willful intent.⁸ The Divisional Court found that it was not open to that Discipline Committee to make a fraud finding – something that was not even alleged. There was no fair warning of a fraud allegation and the physician was completely surprised by the tribunal’s use of the evidence to make this finding. The physician member was clearly prejudiced in that case.⁹ For the Member’s case to be analogous to Golomb and for prejudice to have occurred, College Counsel argued that the College would have to be prosecuting the Member for sexual misconduct against [XXX] at another time or involving a different person altogether. Here, the Member is already well aware of the allegations and the College is not endeavouring to pursue any new allegations.

29If the College had produced something in the documents about an allegation that was extraneous to the Notice of Hearing, then the College could not call that evidence. For instance, if the documents concerned a different person or the same person on a different date, or if the evidence concerned a student instead of a colleague. The serious nature of evidence in itself does not afford the College the automatic privilege to use it in a hearing. What matters is whether the allegation made ties back to the wording of the Notice of Hearing. College Counsel argued that all the particulars that the College intends to put forward in this case tie back directly to the allegation of sexual misconduct articulated in the Notice of Hearing.

30According to College Counsel, the Member’s position that further particulars should have been articulated in the Notice of Hearing, even though they were disclosed to him, is untenable. In effect, the Member is asking to radically alter how notices of hearing are drafted. The Notice of Hearing cannot be a blow-by-blow recounting of the details of the allegation. To provide as many details as there are particulars in documents disclosed to the Member would be impractical, unadvisable and require too much too early in the process.

31Furthermore, College Counsel submitted that this cannot be a “referendum” on the drafting skills of the College or the Investigation Committee’s drafting process and what they intended. The Panel has no evidence regarding what was intended by the Investigation Committee and must use common sense and the documents put before it as best evidence of what was referred to the Discipline Committee. To accept this Motion would hamstring the College’s ability to prosecute members for allegations that are properly described and further particularized in documents already in a member’s possession.

32College Counsel submitted that the Member’s Motion to splice off the most serious allegations made against the Member and limit the hearing to the two non-exhaustive examples in the Notice of Hearing would be an error of law, not supported by any College precedent and contrary to the public interest. College Counsel submitted that there is no merit in the Member’s Motion and that it is an attempt by the Member to delay the hearing of serious allegations against him.

F. ADVICE OF INDEPENDENT LEGAL COUNSEL

33Independent Legal Counsel advised that the Member’s Motion has merit. Her advice was that the only reasonable way to interpret the Complaint together with the Notice of Hearing is that two specific particulars were considered and subsequently referred to the Discipline Committee and that the more serious concerns were not referred to discipline. Because the Member had not received proper notice and the unenumerated particulars have not been properly put before the Discipline Committee, it would be unfair to the Member to expand the particulars of the allegations in the context of this Notice of Hearing.

34First, the TDSB investigator reports put the more serious particulars before the Investigation Committee in conjunction with the Complaint, but these more serious particulars were not raised with the Member by the College when it sought submissions from him at the Investigation Committee stage. Consequently, the Member reasonably believed that the only issues of concern for the Registrar were the two particulars included in the Complaint. Accordingly, he did not respond to the other particulars in his written submissions to the Investigation Committee on February 14, 2019. On that basis, procedural unfairness would occur if the Panel now considered allegations to which the Member was not afforded an opportunity to respond at the Investigation Committee stage. From the Member’s perspective and any reasonable reader’s perspective, only the two particulars enumerated in the Notice of Hearing formed part of the Complaint referred to the Discipline Committee.

35Second, the unfairness to the Member that occurred during the investigation of the Complaint cannot be cured by giving further particulars at the discipline stage. It is not reasonable to suggest that the language “including but not limited to” in the Notice of Hearing solves the lack of notice to the Member, particularly since it is now more serious concerns that the College is trying to pursue. If the more serious particulars had been included in the Notice of Hearing, then the words “including but not limited to” could reasonably be interpreted to be asking the Panel to also consider less serious conduct of the same nature. However, this interpretation does not work in the opposite direction. The included particulars in the Notice of Hearing were less serious than the ones not included. It would not be reasonable to suggest that when less serious particulars are specifically enumerated in the Notice of Hearing that a member and a Discipline panel should assume that more serious ones are included as well, particularly when the underlying investigation report showed that the employer found that those more serious concerns were not substantiated. It still would have been possible for the Investigation Committee to refer those specific, more serious allegations to discipline despite the employer not finding them to be substantiated; but, the Investigations Committee would have had to do so clearly and would have had to allow the Member the opportunity to make submissions about those more serious allegations before referring them to discipline.

36Third, Independent Legal Counsel advised that, if the Panel agrees the more serious concerns cannot properly be considered in the context of the existing Notice of Hearing, this does not mean that the more serious particulars can never be addressed by the College. The College has other procedurally fair options available to it. If the College determines that something that should have been referred was not, the Registrar can issue a new complaint to consider those particulars. There could be two Notices of Hearing dealing with the same incident that could be amalgamated in a procedurally fair way. If a second Notice of Hearing were issued, there is no reasonable res judicata argument to be made by the Member that the unenumerated particulars have already been addressed in this Complaint, since the Member is arguing exactly the opposite – that the Investigation Committee had not considered those particulars as part of the Complaint and had not referred them to the Discipline Committee.

G. DECISION

37Having considered the submissions of the parties as well as the relevant provisions of the Act and case law, the Panel grants the Member’s motion in part, and orders the following:

1. The Panel prohibits the College from relying on, and the Discipline Committee from considering, any allegations of professional misconduct that are not specified or particularized in the complaint letter dated January 21, 2019 or the Notice of Hearing dated August 5, 2019, including the new allegations contained in the College’s “Response to Demand for Particulars”, dated June 27, 2020.

2. The Panel excludes any evidence pertaining to allegations of professional misconduct that were not specified or particularized in the complaint letter dated January 21, 2019 or the Notice of Hearing dated August 5, 2019, including the new allegations contained in the College's "Response to Demand for Particulars", dated June 27, 2020.

3. Having made an order in 1 and 2 above, the Panel makes no ruling on the Member’s alternative proposal for an adjournment of the Discipline Committee proceedings until a final decision is reached at the Human Rights Tribunal of Ontario.

4. The Motion was argued, and College Counsel did not object to the Member arguing the Motion. An order from the Panel under Rule 1.04(3) is moot.

5. The members of the Discipline Committee who heard this Motion will not hear the matter on the merits if the College decides to proceed on the complaint containing only the two particulars enumerated in the Notice of Hearing dated August 5, 2019.

6. The Panel did not make a costs order on this Motion. The parties agreed to discuss costs during the hearing on the merits.

H. REASONS FOR DECISION

(1) The Discipline Committee will not consider particulars or evidence pertaining to allegations of professional misconduct that are not specified in the Complaint or the Notice of Hearing

38The Panel determined that the Member’s express statutory rights under the Act and the procedural fairness rights to notice and to comment on the Complaint made against him were not meaningfully engaged with respect to all the allegations that College Counsel wants to put before the Discipline Committee.¹⁰ The Panel agrees with Member’s Counsel and Independent Legal Counsel that the Member would be denied procedural fairness if this Panel were to hear allegations that the Member was not properly alerted to during the investigation of this Complaint. The Panel also accepts the Member’s submission that without adequate notice and opportunity to exercise his right to provide a reply to all allegations at the Investigation Committee stage, the Member’s ability to prepare evidence for his defence and to potentially come to a resolution and avoid a contested hearing were compromised.

39The College has a mandate to protect the public interest. While fulfilling this mandate, the Discipline Committee must balance the College’s interests of prosecuting and deterring acts of professional misconduct with the member’s interests of being provided with a fair and transparent discipline process. According to the principles of natural justice, whenever a person’s rights, privileges and interests are at stake in a legal proceeding, adjudicators have a duty to act fairly. In Baker v. Canada (Minister of Citizenship and Immigration),¹¹ the Supreme Court of Canada determined that the degree of procedural fairness owed in a professional discipline setting is on the higher end of the spectrum. As subsequently elaborated by the Manitoba Court of Appeal, the fairness required is “closer to the procedural protections in judicial proceedings” because of the “devastating effect” that a professional discipline decision can have on an individual, including the loss of professional standing, financial loss, or the loss of a right to practice the profession.¹²

40Accordingly, in College disciplinary proceedings, the Discipline Committee has a heightened responsibility to ensure a high level of fairness to members. Appropriate notice and a meaningful opportunity to reply to allegations are both critical elements of the procedural fairness owed to the Member. It would be unfair to the Member if the Panel heard evidence regarding allegations beyond the two specified in the Notice of Hearing.

(a) The College’s Responsibilities Under the Act

41The College is a creature of statute. It gets its authority from the Act, as do its committees. The Act has a multi-step process for dealing with allegations of professional misconduct. It establishes the powers of the College to investigate complaints and, where warranted, to adjudicate upon them, consistent with its responsibility to act in the public interest pursuant to subsection 3(2). The provisions under section 26 of the Act describe mandatory steps that the College must take to notify the Member of a Registrar’s complaint and to inform the Member in a clear and transparent manner of the acts or actions that constitute allegations of professional misconduct against the Member.

42The College’s powers to investigate and the steps that the Member is entitled to take to participate in this process are also set out in section 26 of the Act. To draft and frame the initial complaint, the Registrar may invoke investigatory powers to obtain a complete record of information (sections 36 to 39). After a complaint is drafted, a member is entitled to receive a copy or a summary of the complaint (subsection 26(1.1)(b)). During the investigation phase, the College must give a member the opportunity to submit any explanations or representations to a complaint (subsection 26(3)(b)). As there is no process under the Act for the Member to seek clarifications about the Registrar’s complaint or for amending a notice of hearing once issued, a member’s due process right to respond to the allegations made against them is engaged and signals a duty on the College to articulate the allegations against the member fully and clearly so that the member can reply accordingly. Significantly, before the Investigation Committee determines whether to refer a complaint in whole or in part to the Discipline Committee for a public hearing, the Act stipulates that no action shall be taken by the Investigation Committee unless the Committee has examined or has made every reasonable effort to examine all the information and documents that the College has that are relevant to the complaint, including the Member’s response (subsections 26(3)(b) and (c)).

(b) Lack of Notice During the Investigation of the Member’s Complaint

43As provided in the Member’s Motion record, the Member elected to participate in the discipline process by providing submissions to the Investigation Committee regarding the two specified allegations in the Complaint. The Member provided his account of the events and interactions with his colleague, [XXX] on the evening of November 18, 2016, referring within that reply to two particulars alleging inappropriate physical contact with [XXX] – that the Member put his hand in the back pocket of [XXX]’s pants, and that he rubbed her back.

44The Panel accepts that the Member relied on the College’s obligations under the Act and on the particulars of the Registrar’s Complaint to conclude that there were only two allegations before the Investigation Committee, which he specifically addressed in his responding materials. The Panel further accepts the Member’s position that he did not address any other allegations that were not particularized in the Complaint, including the more serious ones that figured in the TDSB documents, because he believed that they were not at issue. The fact that the two allegations specified in the Complaint were the only two that the previous TDSB investigation had substantiated further supports the Member’s position.

45The Panel agrees with the submissions of Member’s Counsel and the advice of Independent Legal Counsel that, from the Member’s perspective, it was reasonable to conclude that the Registrar had chosen to focus and proceed on only two allegations. Members must be reasonably informed about alleged acts of professional misconduct that, if proved, could attract a finding of professional misconduct. In accordance with the Act, and the common law principles that give the College guidance about how it must administer the Act, members rely on the College to notify them that a complaint has been made and to articulate all essential aspects of a complaint brought against them.

46The Member responded to the Investigation Committee addressing only what he understood to be in issue in the Complaint. After he provided his response to the Investigation Committee, there was no indication from the College that the Member’s submissions regarding the Complaint were incomplete. The Member received no further direction from the College regarding his response or any clarification that allegations that he had not yet addressed were still being considered. The Member was only informed through disclosure of particulars before the discipline hearing that other allegations apart from the ones enumerated in the Complaint were still being pursued, and this was after the Member had already lost his opportunity to provide a full explanation to the Investigation Committee about those additional allegations. The trajectory of the Complaint through the discipline process whereby the same two allegations that the TDSB investigator substantiated were then particularized in the Complaint and Notice of Hearing further supports the reasonableness of the Member’s position. The Panel concludes that the Member did not receive adequate notice of the allegations against him during the investigation stage and that the College’s obligation to ensure a fair process to the Member was not met. Given the inadequate notice, the Member could not adequately prepare his evidence and defence.

47In accordance with the College’s statutory obligation under section 26 of the Act, the Member should have been informed by the College of any omissions in his submissions while the Complaint was being investigated and before a referral to the Discipline Committee was made. If the Registrar intended to put forward allegations of professional misconduct other than those enumerated in the Complaint, it should have done so during the investigation of the Complaint. The College did not provide the Member with proper notice about the allegations or uphold the Member’s right to address the merits of those allegations, which is a fundamental aspect of procedural fairness.

(c) The Framing of the Complaint in the Notice of Hearing does not cure Inadequate Notice to the Member

48Given that the Member did not receive notice regarding all the allegations that the College now intends to pursue in this hearing, the Panel must address whether the breach of procedural fairness at the investigation stage can be cured during the discipline stage and whether the Panel may still hear evidence and make determinations on particulars that were more recently articulated by the College. Following the advice of Independent Legal Counsel, the Panel finds that a lack of adequate notice that compromised the Member’s ability to respond to the allegations and know the case against him before the matter was referred to the Discipline Committee is an unfairness that cannot be undone by providing particulars during the discipline stage. The lack of fairness will also not be cured by interpreting the language of the Complaint in the Notice of Hearing as being broad enough (through the words “including but not limited to”) to capture the more serious allegations.

49To arrive at the conclusion that in this case procedural unfairness at the investigation stage cannot be corrected or repaired at the discipline stage, the Panel considered several factors, including: (i) the gravity of the error; (ii) the prejudicial effect of the error; (iii) the seriousness of the consequences for the individual;¹³ and (iv) the effect on the transparency of the College’s discipline process.

(i) The Gravity of the Error

50A member has one opportunity to submit explanations to the Investigation Committee about a Complaint. As submitted by Member’s Counsel, had the Member been given a fair opportunity to address unenumerated allegations earlier, while they were still being investigated, the Investigation Committee might have accepted the Member’s explanations and not referred those allegations to discipline. Furthermore, if a referral to discipline had been made after the Member’s fulsome response, the tone and content of the parties’ negotiations would have been different. The Panel agrees that the Member’s full response could have prevented some, and especially the more serious allegations from being referred to the Discipline Committee, just as the Member’s response had contributed to several of those allegations being dismissed as unsubstantiated during the TDSB investigation. Subsequently, informed by the outcomes at the investigation stage, there is a legitimate possibility that the parties could have arrived at a resolution to this matter at the discipline stage without a contested hearing.

51The Panel finds that the failure to provide adequate notice to the Member during the investigation stage is a serious error. Furthermore, the Panel agrees with Member’s Counsel that when notice is compromised there are serious consequences for a member. No matter how strong a defence the Member is able to bring to allegations of professional misconduct in a hearing on the merits, simply having these matters aired in a public forum is deeply impactful on a member’s personal life, reputation, finances and career. Given the subject matter and serious nature of the allegations, the Panel agrees that the seriousness of the consequences for the Member are considerable.

(ii) The Prejudicial Effect

52College Counsel argued that the Member suffered no prejudice on account of how the complaint was framed because the allegations against him have remained the same since the outset, as discussed in the TDSB Report. College Counsel submitted that the College had provided the Member with this report as well as other documents containing particulars of the allegations regarding the Member’s alleged inappropriate touching of his colleague. Accordingly, the additional allegations being brought at this hearing would not take the Member by surprise such that it would be unfair to him.

53The Panel disagrees with College Counsel’s submission. The unfairness to the Member at the investigation stage continues to have a prejudicial effect at the discipline stage. The provision of particulars to the Member during the discipline stage does not repair the College’s obligation to provide adequate notice through the disclosure of specific concerns against the Member at the investigation stage. It is insufficient for the College to say that it provided the Member with notice of these allegations because they were considered in the TDSB report which was disclosed to him. The Member must be pointed to specific allegations. Following the reasoning of the court in College of Physicians and Surgeons of Ontario v. Kunynetz, the Panel accepts that the Member may not be taken by surprise in the sense that he knows what conduct was discussed in documents that were disclosed to him, but would nevertheless be surprised, and therefore unfairly prejudiced, if discrete acts that did not figure in the Complaint or Notice of Hearing would become the foundation of findings of professional misconduct.¹⁴ The Member cannot be expected to infer what allegations the College will pursue and be expected to prepare a defence on that basis. This is particularly so in this case where the unarticulated allegations are more serious than the allegations that are articulated, and where the underlying information shows that the employer had found those more serious allegations to be unsubstantiated, therefore making it reasonable for the Member to believe that the College was not pursuing them.

54To satisfy the requirement of fairness to the Member, allegations in a complaint must contain sufficient information to provide the member with “reasonable certainty of the particular act or conduct” that, if proved, would attract a finding of professional misconduct and allow the member to prepare a proper defence.¹⁵ It does not suffice that the Member was aware of other allegations in a general sense. The College therefore cannot reconcile its fairness obligation to the Member by providing particulars about more serious conduct after the Notice of Hearing is issued.

55The Panel’s conclusion is also supported by the Visconti decision which, relying on Golomb, affirms that particulars and production cannot replace a professional College’s duty to specify and particularize allegations against a member. The provision of particulars does not substitute notice to a party of allegations.¹⁶ On this principle, College Counsel may not include additional allegations that are not in the Notice of Hearing simply because the Member had a broad awareness of them or because he should infer them from particulars that were provided. Similarly, it is not open to the Panel to infer from particulars provided in documents or through testimony that an allegation about those acts has been advanced and that the Panel is free to make a finding of professional misconduct on that basis. In Novick v. Ontario College of Teachers,¹⁷ among other things, the Divisional Court addressed the jurisdiction of the Discipline Committee of this College to consider and make findings regarding allegations that appeared in investigation documents but that were not specified in the complaint or included in the Notice of Hearing. Those findings were overturned by the court since those particulars did not form an allegation that was referred to the Discipline Committee in the Notice of Hearing. Findings based on those particulars were deemed by the court to be beyond the jurisdiction of the Discipline Committee.

56The College therefore cannot rely on the TDSB investigation report (which in its contents discusses various particulars about the Member’s conduct, including particulars where more serious conduct is alleged), to expand the list of allegations against the Member. While particulars provide key facts or details that are relevant to specific allegations once those allegations are made part of a Notice of Hearing, if the particulars do not address allegations that have already been set out in the Notice of Hearing, they cannot be used during the discipline stage to construct new allegations.

57The Panel agrees with the submission of Member’s Counsel that without proper notice and without these allegations being previously specified in a complaint and undergoing the investigation process required by section 26 of the Act, the College is effectively seeking to add new, and in this case, more serious allegations of unwanted sexual touching. The Panel therefore concludes that the prejudicial effect of the College’s error is not reparable through the mere provision of particulars once the matter has been investigated and a Notice of Hearing has been issued.

(iii) Consequences for the Member

58College Counsel argued that there is no breach of fairness to the Member based on the Notice of Hearing. He submitted that a common sense reading of the “including but not limited to” language in the Notice of Hearing signals clearly that the scope of the hearing is not limited to two particulars and reflects the Registrar’s conscious decision to allow for other particulars to be included. The allegation against the Member is sexual misconduct that occurred on November 18, 2016, which is not overly broad or ambiguous, because it is confined to discussing a particular interaction with a particular person on a particular date. Moreover, it would be impractical for a Notice of Hearing to recount every detail of what [XXX] alleges happened that evening. That level of granularity would also require too much too early in the discipline process.

59The Panel disagrees with College Counsel’s submission. The broad, undefined scope of the “including but not limited to” language would not counter or cure the breach of procedural fairness to the Member. The particulars that are listed in the Notice of Hearing relate only to less serious conduct. While the subject matter is indeed sexual misconduct, the Member must still be clearly pointed to the alleged behaviour that could attract the most serious penalties. The Panel agrees with the court in Katsoulakos that it is “not on the member to discern from the general “subject matter” of the circumstances what they may or may not be alleged to have done wrong.”¹⁸

60It would be unfair to include and consider unspecified but more serious particulars of sexual misconduct allegations against the Member. Relying on the “included but not limited to” language to admit allegations of more serious conduct that have not been properly put before the Member or the Discipline Committee would have serious consequences for the Member. In the leading Divisional Court case Golomb, the court emphasized that “when considering a charge as broad as professional misconduct” there is a wide range of actions of various degrees of seriousness that could constitute professional misconduct. Accordingly, if a finding of professional misconduct is made, the penalties for those actions can differ widely in severity. It is therefore particularly prejudicial for a Member accused of professional misconduct to not know “with reasonable certainty” that unenumerated allegations regarding more serious sexual conduct would be relied upon to make a finding of professional misconduct, that in turn could attract a more serious penalty.¹⁹

61The potential jeopardy to the Member could increase significantly given that he did not anticipate more serious charges and prepared a defence to address particulars about less serious conduct. As a result, the College cannot reasonably interpret the phrase “including but not limited to” which is included as a preface to two particulars about more peripheral conduct, to mean that, as part of its case, the College can introduce and rely on evidence about more serious particulars that were not expressly referred to the Discipline Committee.

(iv) Transparency of the College’s Discipline Process

62Trying to rely on catch-all language to include more serious allegations that could attract more serious penalties is also inconsistent with the College’s commitment to providing a transparent discipline process. This is particularly the case where that catch-all language is then followed by two specific examples. When serious particulars of allegations are not included in public documents that form the basis of public discipline hearings, the transparency of the College’s discipline process is compromised.

63The Panel does not need to comment on the drafting language in the Notice of Hearing or discuss what the Registrar meant or intended by the phrase “including but not limited to” which is not itself the subject of the Member’s Motion. It is not the role of the Discipline Committee to evaluate how complaints are drafted. The role of the Panel in this instance is to determine whether the matter that has been referred to the Discipline Committee proceeded in accordance with the law that governs these proceedings such that it would permit the Panel to consider the more serious concerns that the College wishes to pursue. The Panel finds that it would be improper to rely on broad drafting language to correct procedural unfairness after the fact. When used in this way, ambiguous language in allegations offends the duty of fairness.²⁰

64The College is entitled to pursue the allegations of professional misconduct articulated in the Notice of Hearing. The College is not entitled to adduce evidence and seek findings of professional misconduct in respect of other acts or actions that are not already enumerated as particulars in the Complaint referred to the Discipline Committee.

65The Panel therefore prohibits the College from, in the course of this matter, advancing or relying upon evidence beyond the two allegations of professional misconduct specified and particularized in the Notice of Hearing.

(2) The members of the Discipline Committee who heard this motion will not hear the matter on the merits if the College decides to proceed on the Complaint containing only the two particulars enumerated in the Notice of Hearing

66If this matter is adjudicated on the merits of the allegations with respect to the particulars as specified in the Notice of Hearing, a new panel of the Discipline Committee will preside over that hearing. Given the nature of the Member’s Motion, this Panel was compelled to hear submissions and read evidence about more serious allegations that have not been properly put before the Discipline Committee. Based on the arguments and submissions of the parties, the Panel ruled that these additional particulars could not be adduced with respect to this Notice of Hearing, and that evidence related to those additional particulars is inadmissible due to improper notice to the Member. A panel hearing evidence related to the two particulars must be able to assess the credibility of the Member and witnesses and review allegations in good faith, untainted by exposure to particulars that have been found to be inadmissible.

67However, if the College decides to initiate a second complaint that contains the other allegations, and the second complaint is then referred to the Discipline Committee, members of this Panel could continue to hear this matter on its merits without prejudicial effect. If the Panel is presented with two Notices of Hearing that include all the particulars that the College wishes to pursue, it would not be unfair for this panel to preside. Either way, this panel does not consider itself seized of the matter.

(3) The Panel makes no costs order

68The Panel did not consider the Member’s request for a costs order as the parties agreed during the hearing on the Motion that costs may be addressed as determined appropriate by the panel of the Discipline Committee that hears the matter on the merits.

Date: December 14, 2020

Rebecca Forte, OCT Chair, Discipline Panel

Mary Ellen Gucciardi, OCT Member, Discipline Panel

Marlène Marwah Member, Discipline Panel

Footnotes

1. 1The date was later corrected to November 18, 2016.
2. 2The person referred to as “[XXX]” in the Complaint is “Person A” in the Notice of Hearing dated August 5, 2019.
3. 3Henderson v. College of Physicians and Surgeons of Ontario, 2003 CanLII 10566 (ON CA), [2003] O.J. No. 2213 at para. 26 and Katzman v. Ontario College of Pharmacists, 2002 CanLII 16887 (ON CA), [2002] O.J. No. 4913 at paras. 32-37 [Katzman].
4. 4Katsoulakos v. Association of Professional Engineers of Ontario, 2014 ONSC 5440 (Div. Ct.) at para. 23 [Katsoulakos].
5. 5Nowoselsky v. Alberta College of Social Workers (Appeal Panel), 2011 ABCA 58 at para. 19 [Nowoselsky].
6. 6Re Golomb and College of Physicians and Surgeons of Ontario (1976), 1976 CanLII 752 (ON HCJ), 12 O.R. (2d) 73, [1976] O.J. No. 1707 (Div. Ct.) [Golomb].
7. 7Visconti v. College of Physicians and Surgeons of Alberta, 2010 ABCA 250 at paras. 12-13 [Visconti].
8. 8Golomb, supra note 6 at pages 16-17.
9. 9Golomb, supra note 6 at pages 14-15.
10. 10Katzman, supra note 3, at paras 32-37.
11. 11Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817.
12. 12Mondesir v. Manitoba Assn. of Optometrists, 2001 MBCA 183, at para. 31 [Mondesir].
13. 13Khan v. Canada (Minister of Citizenship and Immigration), [2017] I.A.D.D. No. 689 at para. 23.
14. 14College of Physicians and Surgeons of Ontario v. Kunynetz, 2019 ONSC 4300 (Div. Ct.), at paras. 103-105 [Kunynetz].
15. 15Katsoulakos, supra note 4; see also Mondesir, supra note 12 at para. 21.
16. 16Visconti, supra note 7.
17. 17Novick v. Ontario College of Teachers, 2016 ONSC 508 (Div. Ct.).
18. 18Katsoulakos, supra note 4 at para 24 [Katsoulakos].
19. 19Golomb, supra note 6 at page 8.
20. 20Katsoulakos, supra note 4.