Ontario College of Teachers v. Fife, 2021 ONOCT 110

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Fife 2021 ONOCT 110

Date: 2021-10-05

DECISION AND REASONS FOR DECISION 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 Stephen Malcolm Fife, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

STEPHEN MALCOLM FIFE (REGISTRATION #432936)

PANEL: Anne Resnick, Chair Irene Dembek, OCT Azeem Khan

HEARD: September 23, 2021

COUNSEL: Danielle Miller, for the Ontario College of Teachers Naomi Greckol-Herlich and Rebecca Meharchand, for Stephen Malcolm Fife Rebecca Durcan, Independent Legal Counsel

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on September 23, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”).

2Stephen Malcolm Fife (the “Member”) did not attend the proceeding but had legal representation.

A. THE MOTION

3The hearing on the merits of this matter was scheduled to begin on September 23, 2021. On September 17, 2021, the Member filed a Notice of Motion for an adjournment of this matter. The Member also brought a motion for an Order under Rule 1.04(3) of the Rules to abridge the time required for serving the Notice of Motion to adjourn the matter, and for the service and filing of the Member’s motion record.

B. SUBMISSIONS OF COUNSEL FOR THE MEMBER

4Member’s Counsel explained that she became concerned on or around September 2, 2021 about the Member’s ability to instruct her and to participate in the proceedings. Member’s Counsel stated she advised College Counsel of her concerns the next day, on September 3, 2021, and asked for the College’s consent to adjourn the hearing. Member’s Counsel submitted that she arranged for the Member to meet with his physician as soon as possible, and that the Member did so on September 10, 2021. Member’s Counsel also submitted that the physician’s office was advised of the urgency in providing Member’s Counsel with the Member’s medical information, but that she did not receive anything from the physician’s office until September 21, 2021. Member’s Counsel stated she promptly forwarded the physician’s note to the College that same day.

5In the interim, Member’s Counsel had ongoing discussions with the College about the possibility of adjournment, and ultimately filed and served the Notice of Motion and motion record on September 17, 2021. The Member’s motion record was marked as Exhibit 1.

6The note from the Member’s physician, dated September 20, 2021 but received by Member’s Counsel on September 21, 2021, was marked as Exhibit 2. Member’s Counsel submitted that the physician determined that the Member was unable to participate in the proceedings at this time and that the physician was unable to comment on when the Member would be fit to participate in the proceedings. The Member will be reassessed in four to six weeks. Further, while the physician had been asked to assess the Member’s ability to instruct counsel, she did not make any comments about that issue.

7Member’s Counsel submitted that the motion to adjourn was brought in a timely manner and was appropriate in the circumstances. Member’s Counsel explained that proceeding without verification of the Member’s capacity to provide instructions and ability to participate in the hearing would be contrary to her own obligations under the Law Society of Ontario’s Rules of Professional Conduct and would lead to a denial of natural justice and procedural fairness for the Member. Member’s Counsel referred the Committee to several cases in support of this position: Spence v. Ontario College of Teachers, 2018 ONSC 3335; Ontario College of Teachers v. Bujacz, 2021 ONOCT 55; Ontario College of Teachers v. Duncan, 2021 ONOCT 32; Ferreira v. St. Mary’s General Hospital, 2018 ONCA 247; Hrycyna v. Hood, 2018 SKCA 49; and McLeod (Re), 2019 LSBC 33.

8Member’s Counsel further noted that the Member is not currently teaching. Member’s Counsel did not take a position as to whether any adjournment ordered by the Committee should be peremptory on the Member but expressed concerns that a person’s [XXX] health is variable and not necessarily under one’s control.

C. SUBMISSIONS OF COLLEGE COUNSEL

9The College did not take a position on the Member’s motion to adjourn the hearing. However, College Counsel stated that the two Notices of Hearing underlying these proceedings are dated, having been issued on February 15, 2019 and June 18, 2020. College Counsel provided the Panel with a copy of an email dated October 22, 2020 (marked as Exhibit 3), which showed that the parties had been engaged in settlement discussions since at least that time. College Counsel also advised that the proceedings had been originally scheduled for August 16, 2021 and were adjourned on consent to September 23, 2021 due to a scheduling conflict for Member’s Counsel. College Counsel expressed concerns about delaying the resolution of the matter, including the impact that delays may have on witnesses.

10College Counsel urged the Panel to consider the sufficiency of the medical information provided by the Member’s physician and submitted that the physician’s remarks were based on what the Member had reported to her about his condition and ability to participate in the proceedings. Further, while the physician was asked to provide her assessment as to the Member’s ability to instruct Counsel, the medical information provided was silent on that issue, and therefore should not be taken to mean that the Member does not have any capacity to instruct counsel.

11College Counsel asked that any adjournment ordered be made peremptory on the Member.

D. Advice of Independent Legal Counsel

12Independent Legal Counsel advised the Panel that when a party “does not take a position” on an issue, they are neither consenting to nor opposing the issue. Independent Legal Counsel outlined the factors set out in sub-rule 14.01(2) of the Rules that the Committee may consider when deciding whether or not to grant an adjournment and further advised that any adjournment the Panel orders may be on such terms and conditions that the Panel considers just, pursuant to sub-rule 14.01(3). Independent Legal Counsel stated that a peremptory order would require the Member’s hearing to proceed on the new hearing date without further adjournment.

E. DECISION

13On September 23, 2021, having considered the submissions of the parties as well as the relevant jurisprudence and legislation, the Panel granted the Member’s motion for adjournment. The hearing is adjourned to February 1, 2022 with the condition that the adjournment is peremptory on the Member.

F. REASONS FOR DECISION

14The Panel carefully considered the parties’ submissions and the advice of Independent Legal Counsel. Pursuant to Rule 14 of 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 considered several of the factors in sub-rule 14.01(2).

16First, the Panel was satisfied that there were sufficient reasons to support this adjournment request. The Panel accepted that Member’s Counsel had legitimate and serious concerns about the Member’s ability to instruct counsel and participate in the proceedings. While the note from the Member’s physician is silent with respect to whether the Member can properly instruct counsel, the Panel accepts that the Member’s physician does not believe the Member is able to participate in a disciplinary hearing at this time. Although the Panel believes that proceedings should not regularly be adjourned indefinitely, an adjournment in the circumstances of this case is reasonable.

17Second, the Panel believes that the adjournment request was made in a timely manner, given the circumstances. While the Panel appreciates the College’s concerns about delay and the efficient resolution of matters, and understands that delays may impact the availability of witnesses and their ability to recall events, the Member’s motion was brought within a reasonable amount of time. Within a day of becoming concerned about the Member’s capacity, Member’s Counsel advised the College that she would seek an adjournment and she filed the motion approximately two weeks later.

18Third, the Panel does not believe that granting an adjournment in this case will significantly prejudice the parties. The parties have indicated that they are amenable to an adjournment to February 1, 2022, some four and a half months in the future. The Panel does not believe this is an unreasonable delay in the circumstances and believes that this time will sufficiently allow the parties to ascertain the Member’s ability to instruct counsel and participate in the hearing. Discipline proceedings can have serious consequences for the Member in question. It is fair and just to allow for a relatively short adjournment for the parties to make the appropriate determinations about the Member’s ability to participate in the proceedings and to instruct counsel, and how thereafter, to proceed in this matter.

19By making the adjournment to February 1, 2022 peremptory on the Member, the Panel believes the matter will be heard or resolved in a reasonably timely manner. The Panel is satisfied that its decision appropriately accommodates the needs of the Member, while not unduly prejudicing the College’s interests, and it satisfies the public interest, especially as the Member is not currently teaching at this time and therefore does not pose a risk to the school community.

20The Panel orders the hearing be adjourned to February 1, 2022 and that adjournment be peremptory on the Member. As the Notices of Hearing were not entered as exhibits, the Panel is not seized of this matter.