Ontario College of Teachers v. Baldwin, 2021 ONOCT 102

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Baldwin 2021 ONOCT 102

Date: 2021-09-24

DECISION AND REASONS FOR DECISION 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 Kenneth Grant Baldwin, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KENNETH GRANT BALDWIN (REGISTRATION #251388)

PANEL: Stéphane Vallée, OCT, Chair Jessica Saffran Reimers, OCT Pauline Smart

HEARD: September 20, 2021

COUNSEL: Jordan Glick and Aly Háji, for the Ontario College of Teachers Kenneth Grant Baldwin, self-represented Julie Maciura, Independent Legal Counsel

1These motions were heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on September 20, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Kenneth Grant Baldwin (the “Member”) attended the proceeding and was self-represented.

3The hearing on the merits of this matter was scheduled to begin on September 20, 2021. On September 9, 2021, the Member filed a notice of motion for an indefinite adjournment of this matter. On September 17, 2021, the Member filed a further notice of motion for production of third party records. The Member requested that both motions be dealt with on the same day.

4After considering the evidence and the parties’ submissions on both motions, the Panel granted an adjournment in this matter, with certain conditions, and denied the Member’s motion for production of third party records. What follows are the Panel’s reasons for these decisions.

A. THE ADJOURNMENT MOTION

5On September 9, 2021, the Member wrote to the Tribunals Office at the College, requesting an adjournment of the hearing. The Member requested that the adjournment be made indefinitely, without a return date.

B. SUBMISSIONS OF THE MEMBER – ADJOURNMENT MOTION

6The Member made lengthy submissions as to the reason for his adjournment request. His submissions can be distilled to three main points.

7First, the Member requested an indefinite adjournment to allow for the conclusion of other ongoing matters that, in his submission, relate to his discipline hearing. These matters are a union arbitration for an outstanding grievance regarding his dismissal, an action at the Ontario Superior Court for wrongful dismissal, and an action before the Human Rights Tribunal of Ontario. The Member did not provide any information as to when he believes these matters will be concluded. Since it is unknown when these matters will be concluded, the Member requested that the adjournment be granted without a return date.

8Second, the Member submitted that he intends to retain counsel to represent him for the hearing on the merits. The Member submitted that he has made efforts to retain counsel, but he has not yet been successful. According to the Member, many of the lawyers that he has approached for assistance have very busy schedules and are sometimes unavailable for years. This further supports the Member’s request for the adjournment to be indefinite.

9Third, the Member requested additional time to obtain medical evidence that he intends to submit in his defence during the hearing.

C. SUBMISSIONS OF COLLEGE COUNSEL – ADJOURNMENT MOTION

10College Counsel consented to the adjournment request and submitted that it would be appropriate to adjourn this hearing to provide the Member with the opportunity to retain counsel and to obtain relevant medical evidence. However, College Counsel opposed an indefinite adjournment.

11According to College Counsel, the conclusion of the Member’s other proceedings will not assist the Panel in their determination of this matter and there will be no benefit to the Panel of adjourning this hearing until those proceedings are concluded. College Counsel submitted that there is a public interest in proceeding with this hearing expeditiously and that it should not be adjourned indefinitely without compelling reasons.

12College Counsel requested that the Panel adjourn this hearing with four conditions:

1. That the Panel seizes itself of this matter;
2. That new hearing dates are set today (i.e., September 20, 2021), and that the dates are within six months of today’s date;
3. That the new dates are marked peremptory on the Member; and
4. That the Panel set a schedule for the filing of potential expert evidence.

D. DECISION ON ADJOURNMENT MOTION

13On September 20, 2021, having considered the evidence and submissions of the parties, the Panel granted the Member’s request for an adjournment, but declined to make the adjournment indefinite. The Panel further ordered that the adjournment is made subject to the following conditions:

1. Within 45 days of today (i.e., September 20, 2021), the Tribunals Office will schedule two consecutive days for the hearing of this matter. The parties will make best efforts for these days to be scheduled within six months of today’s date;
2. This Panel is seized of this matter; and
3. If the Member wishes to file an expert report in this hearing, he is required to serve and file this report and any associated documents 60 days before the first-scheduled hearing date. The College is required to serve and file any responding material 30 days before the first-scheduled hearing date.

E. REASONS FOR DECISION – ADJOURNMENT MOTION

14The Panel carefully considered the evidence and submissions of the parties. 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.

15In arriving at its decision to grant the Member an adjournment, the Panel applied the 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 would benefit from having counsel in this matter, and it is reasonable for the Member to request some additional time to retain counsel. Second, the Panel finds that the Member’s request for an adjournment was sufficiently timely. The Member gave notice to College Counsel that he would be seeking and adjournment of the hearing three weeks in advance of this hearing. As the Member and the College could not agree on the terms of the adjournment, the Member filed a Notice of Motion with the Tribunals Office 10 days in advance of the hearing dates, in compliance with Rule 5 of the Rules. Third, the Panel determined that there were no significant scheduling issues that should lead it to deny the request for an adjournment. Fourth, College Counsel did not make submissions as to the prejudice that it would experience as a result of the adjournment. In the absence of submissions on this point, the Panel finds that granting an adjournment would not significantly prejudice either party. Fifth, the Panel noted that no previous adjournments had been requested. It is therefore not unreasonable to grant an adjournment in this case. Sixth, the College consented to the adjournment and, as such, it is appropriate to grant an adjournment in this case. Accordingly, the Panel grants the Member’s request for an adjournment.

16The Panel finds that it is not appropriate for the adjournment to be indefinite. There is a public interest in limiting the amount of delay in hearing the merits of the allegations against the Member. Further, the Panel does not agree with the Member’s submission that a conclusion of his other ongoing proceedings is necessary before this hearing can proceed. Even if this matter were adjourned until the other proceedings are concluded, the Panel would not be able to rely on an arbitration decision, a decision of the Ontario Human Rights Tribunal, or any decision about wrongful dismissal in making its decision as to whether the Member committed professional misconduct. The issues in those proceedings are different than the issues to be determined before this Panel. Regardless of the outcome of those proceedings, the Panel will still have to hear evidence and submissions as to whether the Member committed professional misconduct. Therefore, the Panel finds that the Member has not brought forward a compelling reason to wait for his other matters to conclude before proceeding with his College discipline hearing.

17The Panel finds that it is appropriate to place conditions on the adjournment to reduce additional delay in this hearing. First, the Panel grants College Counsel’s request that it be seized of this matter and that it will preside over the eventual hearing on the merits. The Panel has received some evidence regarding the merits of the case against the Member during this adjournment motion. Being seized of this matter will provide continuity and will assist in streamlining the issues and the evidence during the hearing on the merits. Second, the Panel agrees with College Counsel that the hearing on the merits should be scheduled to be begin within six months. The Panel believes that six months is sufficient time for the Member to retain counsel and obtain medical reports. For greater flexibility, the Panel has not set hearing dates today but has provided the Member with 45 days in which to retain counsel, who will be able to contact the Tribunals Office and set new hearing dates based on their schedule.

18The Panel denies College Counsel’s request to make any new hearing dates peremptory on the Member. This is the first adjournment request in this matter and there is no evidence that the Member has unduly delayed the hearing of this matter such that a peremptory order is required at this time.

F. THE PRODUCTION MOTION

19On September 17, 2021, the Member filed a motion for production of third party records. In this motion, the Member requested that the Panel make an order requiring Dr. J. McMillan to author a medical report which offers his opinion regarding the issue of whether misuse of sick leave occurred in this case.

G. SUBMISSIONS OF THE MEMBER - PRODUCTION MOTION

20The Member submitted that such an order from the Panel would compel Dr. McMillan to provide an expert report to assist the Member in his case. The Member further submitted that this report was essential to his defence and to provide him a fair hearing.

H. SUBMISSIONS OF COLLEGE COUNSEL - PRODUCTION MOTION

21College Counsel made two submissions in response to the Member’s production motion. First, the College submitted that the Member’s motion should be denied as it was not brought in compliance with the timeline required by the Rules. Second, College Counsel submitted that a motion for production of third party records is not the appropriate mechanism through which to obtain this report. College Counsel submitted that the Member is entitled to provide expert evidence from Dr. McMillan without an order from the Panel, which will be considered by the Panel if it meets the requirements for the admission of evidence.

I. DECISION ON PRODUCTION MOTION

22On September 20, 2021, having considered the parties’ evidence and submissions on the production of third party records motion, the Panel denied the Member’s motion.

J. REASONS FOR DECISION – PRODUCTION MOTION

23A production motion is a motion to the Panel to obtain an existing document which is not in the possession of the College or the Member. What the Member has requested in his motion is for the Panel to order Dr. McMillan to create an expert report to be used in the Member’s defence at his disciplinary hearing. A production motion is not the appropriate mechanism with which to request such an order, and the Member has not cited any other authority by which the Panel would have jurisdiction to make such an order. As such, the Panel denies the Member’s production motion.

24The Panel notes that the Member is free to retain Dr. McMillan, or any other medical expert, to create an expert report. During the hearing on the merits, and provided that the Member has complied with Rule 7.04, the Member can seek to have this expert report admitted in evidence in his hearing.

25The Panel finds that these orders are appropriate in the circumstances and meet the principle of serving and protecting the public interest.

Date: September 24, 2021

Stéphane Vallée, OCT Chair, Discipline Panel

Jessica Saffran Reimers, OCT Member, Discipline Panel

Pauline Smart Member, Discipline Panel