DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION, REASONS FOR DECISION AND ORDER
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
Edwin Earl Bowles, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
EDWIN EARL BOWLES (REGISTRATION #631952)
PANEL: Tom Potter, Chair Lois Figg Jessica Saffran Reimers, OCT
HEARD: October 20, 2021
Jordan Glick and Aly Háji, for the Ontario College of Teachers
No one appearing for Edwin Earl Bowles
Rebecca Durcan, 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.
By order of Justice L. Chester of the Superior Court of Justice, dated October 17, 2018, there is also a publication ban on any information that could identify the victim or a witness in this matter, pursuant to subsection 486.4 of the Criminal Code.
1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on October 20, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.
2Edwin Earl Bowles (the “Member”) did not attend the hearing and did not have legal representation.
3Counsel for the College submitted an Affidavit of Service (Exhibit 2) sworn on October 8, 2021, to show that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty and costs that could be sought by the College. In this affidavit, Christine Le Dressay, office manager and law clerk with Glick Law, outlines the numerous attempts made by her office to communicate with the Member by email, telephone and letter and provides proof of service of all required documents in accordance with section 52 of the Ontario College of Teachers Act (the “Act”) and section 9.09 of the College’s Bylaws. The Member has been completely unresponsive.
4Based on this affidavit, the Panel was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of the time and date of the hearing and the penalty and costs that could be sought by the College. The Panel therefore heard this matter in the absence of the Member.
A. PUBLICATION ban
5The Panel ordered a publication ban pursuant to subsection 32.1(3) of 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.
6Additionally, the Panel received a certified copy of the transcript of the Reasons for Judgment and Ruling from the Member’s criminal proceeding before Justice A. Casullo dated November 4, 2019 (Exhibit 3 at Tab 3B). In these proceedings before the Superior Court of Justice, Justice L. Chester made a prior order, on October 17, 2018, restricting publication pursuant to section 486.4 of the Criminal Code. The Panel is required to uphold this publication ban. Accordingly, any information that could identify the victim or a witness involved in this matter shall not be published in any document or broadcast or transmitted in any way.
B. THE ALLEGATIONS
7The allegations against the Member in the Notice of Hearing dated February 16, 2021 (Exhibit 1) are as follows:
IT IS ALLEGED that Edwin Earl Bowles is guilty of professional misconduct as defined in the Act in that:
(a) he contravened a law, the contravention of which is relevant to the member’s suitability to hold a certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(16);
(b) he committed acts and omissions 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);
(c) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS
Edwin Earl Bowles is, and was at all times relevant to this matter, a member of the Ontario College of Teachers.
From in or about September 2015 to in or about June 2018, the Member was employed by the Near North District School Board as a Long-Term Occasional Teacher.
On or about December 2, 2017, the police arrested the Member and charged him with 10 offences under the Criminal Code, RSC 1985, c. C-46 (the “Code”), each relating to conduct involving the Member’s [XXX] between May 2016 and November 2017.
On or about November 4, 2019, subsequent to a trial before a judge of the Superior Court of Justice, the Member was found guilty of:
(i) assault contrary to s. 266 of the Code;
(ii) unlawful confinement contrary to s. 279(2) of the Code;
(iii) mischief to property under $5,000 contrary to s. 430(4) of the Code;
(iv) criminal harassment contrary to s. 264(1) of the Code; and/or,
(v) uttering threats contrary to s. 264.1(1) of the Code.
- On or about March 2, 2020, the Member was sentenced to a term of imprisonment and probation and was ordered to pay restitution.
C. THE MEMBER’S PLEA
8As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.
D. THE EVIDENCE
(1) Documentary Evidence
9College Counsel entered into evidence a Hearing Brief of the College (Exhibit 3), which contains the following documents:
Registered Member Information;
Certified Copy of Superior Court of Justice Indictment dated July 26, 2021;
Certified Copy of Court Information
Certified Copy of the Transcript of Reasons for Judgment and Ruling before Justice A. Casullo in the Superior Court of Justice, dated November 4, 2019; and
Certified Copies of Ancillary Orders
10The evidence presented in Exhibit 3 establishes that on November 4, 2019, in the Superior Court of Justice, the Member was found guilty on the counts of assault, unlawful confinement and mischief, contrary to the Criminal Code. The Member may also have been found guilty on a fourth count of criminal harassment or uttering threats. College Counsel submitted that there is a conflicting record regarding these latter two counts because the Indictment describes the guilty findings by the number of each count only and there appears to have been a misnumbering. According to the Indictment (see Exhibit 3 at Tab 2), the Member was found guilty on the count of uttering threats but is silent on criminal harassment. Conversely, according to the transcript of Justice Casullo’s ruling, the Member was found guilty on the count of criminal harassment but is silent on the count of uttering threats. College Counsel was unable to rectify this inconsistency in the documents at the Superior Court, despite the fact that it appears in Justice Casullo’s decision that the Court was satisfied beyond a reasonable doubt that the Member committed criminal harassment (see Exhibit 3, Tab 3B at page 50 of the Reasons for Judgment and Ruling).
11Consequently, College Counsel submitted that to mitigate the risk of making a professional misconduct finding based on a criminal count where potentially there was no finding of guilt, the Panel should rely solely on Justice Casullo’s guilty findings on the first three counts of assault, unlawful confinement and mischief. The Panel agreed with the College’s submission and proceeded to consider only the evidence related to the guilty findings on these first three counts.
(2) Oral Testimony
12In addition to the documentary evidence set out above, the College called Dan Martel, Investigator at the College, who investigated the College’s complaint against the Member. Mr. Martel testified that during that investigation, he spoke to the Member twice on the phone. Mr. Martel also testified that on August 4, 2021, he telephoned the Superior Court of Justice in Barrie to confirm whether an appeal of the Member’s conviction had been filed. A court clerk confirmed that no appeal had been filed in the case.
E. SUBMISSIONS ON FINDING
13College Counsel described the Member’s criminal history in detail. The criminal acts committed by the Member against his [XXX] were brutal and involved significant acts of violence that occurred over a time span of nearly a year and a half; between January 20161 and November 2017. These offences were so serious that the Member, following a trial, was sentenced to four months imprisonment and one year of probation, and he was made subject to other ancillary orders.
14Even though the Member’s criminal conduct occurred at [XXX] and in the course of his private life, College Counsel argued that the Member’s conduct is nevertheless relevant to his suitability to teach. While criminal offences may not always be relevant to a teacher’s suitability to practice the profession if they occur outside of the school environment, such was not the case in this matter. College Counsel argued that the Member’s extremely violent tendencies, acts of physical violence, which included confinement and destruction of property, could fairly be seen to amount to a risk for students in the school environment. The fact that [XXX] were at [XXX] during some of these incidents was not a deterrent to the Member. As such, there is a reasonable possibility for the Member to demonstrate similar violent behaviour at school, which would pose a risk to students.
15To further support that the Member’s criminal conduct is relevant to his membership in the teaching profession, College Counsel referred the Panel to Discipline Committee decisions involving the criminal offences of assault or criminal harassment. These offences were deemed relevant to the members’ suitability to practice the profession and resulted in a finding of professional misconduct. College Counsel submitted that, while the Discipline Committee has previously not made findings of professional misconduct on the basis of [XXX] assault offenses, previous panels have made findings of professional misconduct where members were convicted of the offenses of assault and criminal harassment which occurred outside of the school context. College Counsel submitted the following decisions of the Discipline Committee in support of this position: Ontario College of Teachers v. Corry, 2008 ONOCT 13; Ontario College of Teachers v. Hamilton, 2018 ONOCT 70; Ontario College of Teachers v. Oliphant, 2019 ONOCT 72; and Ontario College of Teachers v. Cancari, 2017 ONOCT 4. College Counsel also cited a case from another regulator, the Ontario College of Physicians and Surgeons, which specifically discussed why [XXX] assault which occurs in private life is relevant to the suitability to practice medicine. In Ontario (College of Physicians and Surgeons of Ontario) v. Dr. Neilank Kumar Jha, 2020 ONCPSD 36 (“Jha”), the panel states:
A finding of assault is relevant to the practice of medicine. Physicians must be able to control their anger and emotions. Physicians are expected to maintain calm and be effective in situations of extreme stress. It is unacceptable to resort to violence… Physicians are leaders in the community and must be seen to be leaders. They are held to a high standard, as people in a position of trust and power, to uphold the law and not assault people, especially their [XXX]… Physicians are teachers imparting knowledge to patients at all times, and leading by example. One’s private behaviour may influence the way in which one and the whole profession is perceived by the public.
16In Jha, the physician pleaded guilty to one count of assault and one count of mischief involving his [XXX]. Accepting these convictions into evidence, the panel found that the physician’s offences were relevant to his suitability to practice medicine and made a finding of professional misconduct. College Counsel argued that the discipline committee’s analysis pertaining to a physician is the same analysis that ought to apply to the Panel’s findings in this case. [XXX] assault is relevant to a physician treating patients, much as it is relevant to a teacher teaching students. Therefore, according to College Counsel, the Member’s conduct, as detailed in the record of the criminal proceedings (see Exhibit 3) and the resultant criminal convictions, provided a sufficient basis to justify a finding of professional misconduct under all of the heads of misconduct alleged in the Notice of Hearing.
17Finally, College Counsel submitted that there are specific rules designed to permit the Panel to accept proof of criminal convictions. The Panel is entitled to accept evidence through certified court documents and to rely on their contents to understand the factual nexus that gave rise to the criminal findings made by the judge in order to provide a foundation for findings of professional misconduct. There are two sources for this rule: the Evidence Act, RSO 1990, c. E.23 (the “Evidence Act”) and the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”) which mirror the Evidence Act provisions. In order for the Panel to accept a criminal conviction, section 22.1 of the Evidence Act provides that parties must provide (1) certified documents as proof of a criminal conviction or discharge by a Canadian Court (in this case, a certified copy of the Indictment and other Court Information documents and a certified copy of the transcript of the trial decision entered as Exhibit 3) and (2) evidence that no appeal was taken in the matter and that the time for an appeal has expired.
18To demonstrate that the appeal period has expired, College Counsel referred the Panel to section 4(2) of the Criminal Appeals Rules SI/93-169, a regulation under the Criminal Code, which indicates that a notice of appeal from a conviction and sentence must be served within thirty days of the date of the sentence. College Counsel submitted that this period had expired in the Member’s case. The Member had 30 days following his sentencing date to launch his appeal. To further prove that the Member did not appeal his convictions, College Counsel referred the panel to the evidence of Mr. Martel, who confirmed that no appeal of the Member’s criminal convictions was made and that this information was verified long after the appeal period expired.
F. DECISION ON FINDING
19Having considered the evidence, onus and standard of proof, and the submissions made by College Counsel, the Panel rendered an oral decision on October 20, 2021, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(16), 1(18) and 1(19).
G. REASONS FOR DECISION
(1) Factual Findings
20In accordance with the section 22.1 of the Evidence Act and Rule 13.03 of the Rules, the Panel accepts the certified copy of the Court Information as proof, in this case, that the Member committed the criminal offences outlined therein (though the Panel could not ascertain whether a guilty finding was made on the count of criminal harassment or on the count of uttering threats, based on the inconsistencies discussed in paragraphs 10 and 11 above). The Member was found guilty and convicted of multiple criminal offences before a Canadian Court, no appeal has been taken, and the time for an appeal has expired.
21In addition, pursuant to Rule 13.04 of the Rules, the Panel admits as ancillary to the certified copy of the Court Information, the findings of fact contained in the related trial decision before the Superior Court of Justice involving the Member. The Panel further admits as incidental to the certified copy of the Court Information, transcripts of the proceedings at which the conviction occurred, for the purposes of explaining the finding of guilt.
22Based on the evidence contained within Exhibit 3, the College has proven, on a balance of probabilities, that the Member committed assault, unlawful confinement and mischief against his [XXX] over a period of approximately 20 months. The Panel finds that the Member assaulted his [XXX] on several occasions. In one incident during mid-May or early June 2016, he slammed a door while her arm was in it and told her to “fuck off” to prevent her from entering [XXX]. He also body-checked her against a parked boat in a laneway, causing her to fall to the ground.
23The Court also described that during the assaults, the Member unlawfully confined his [XXX] on three occasions, including two instances where [XXX] were present. In one incident in July 2016 during a fight in the basement of [XXX], the Member pulled her back, muted her screams, and pulled her into a laundry room, where he confined her and then pushed her into a drainpipe where she hurt her foot and started crying. The [XXX] were in the [XXX] at the time. During another verbal fight in September 2016, she retreated to the bathroom after the Member demanded that she give him her cellphone and screamed at her, refusing to let her out of the bathroom. She head-butted him to get him to allow her to leave, to which he responded by picking her up by her shoulders and throwing her against the bathroom vanity where she hit her head. The Court described another assault and unlawful confinement that took place in September 2016 during an argument between the Member and his [XXX]. She went into [XXX], crying, to get away from the Member. The Member came into the room yelling while his [XXX] was also present and crying. After leaving [XXX], the [XXX] told the Member she was leaving [XXX] while walking away from him down the hallway of [XXX]. The Member came after her, pushed her to the ground, dragged her by her feet into [XXX] bedroom, pushed her up onto the bed, pinned her hands under her body while he sat on top of her, and then spat in her face. He then used one of his hands to hold her eye open and continued to spit into her eye, which caused an infection (see Exhibit 3 at Tab 3B).
24The Panel finds that the Member committed criminal mischief on three separate occasions wherein he caused significant damage to property. Specifically, the Member jammed a spike into the driver-side door of his [XXX]’s car, he broke her phone, and he cut the straps on her rollerblades, rendering them unusable.
25The Member was subsequently charged with seven counts: sexual assault, assault, unlawful confinement, mischief, uttering threats, dangerously operating a vehicle and criminal harassment. He was convicted under the Criminal Code of one count of assault, contrary to section 266; one count of unlawful confinement, contrary to section 279(2); one count of mischief, contrary to section 430(4); and one count of uttering threats, contrary to section 264.1(1) or criminal harassment contrary to section 264(1). The Member received a four-month sentence of imprisonment, a one-year probation order, and he was made subject to several ancillary orders.
(2) Legal Conclusions
26The Panel finds that the Member’s conduct was a clear breach of each of the following heads of professional misconduct set out in the Notice of Hearing: subsections 1(16), 1(18) and 1(19) of Ontario Regulation 437/97.
27The Panel finds that the Member’s conduct contravened a law which was relevant to his suitability to hold a certificate of qualification and registration, and that he therefore breached subsection 1(16) of Ontario Regulation 437/97. In his prior criminal proceedings, the Member was found guilty of assault, unlawful confinement and mischief. Though the Member was not engaged in teaching activities and was not at the school at the times that these offences were committed, the Panel agrees with College Counsel’s submission that they are relevant to the Member’s suitability to hold a teaching certificate. The Member engaged in serious acts of physical violence and destruction of property. As submitted by College Counsel, these criminal offences committed against his [XXX] often occurred while [XXX] were present in the [XXX]. The Member erupted into violence on numerous occasions, demonstrating an inability to control his emotions, exercise restraint, or have regard for the safety and well-being of his [XXX] or of the [XXX] who were [XXX]. The Member’s assaults caused his [XXX] injury.
28The serious nature of the Member’s conduct and his demonstrated propensity toward rage and acts of violence demonstrates his inability to control his emotions and reactions. A classroom full of students can be a stressful and unpredictable environment. As part of their role, teachers are often called upon to mediate and resolve conflict in the classroom. To do so effectively requires that teachers are able to control their emotions, remain calm and composed, and communicate skillfully in any challenging or stressful situation that may arise at school. The Member’s demonstrated inability to regulate his anger would pose a risk to students under his professional supervision and care. The Panel therefore agrees with College Counsel’s submissions that criminal acts involving violent [XXX] assault and confinement are relevant to the Member’s suitability to hold a teaching certificate.
29The Panel finds that the Member’s criminal offences involving acts of assault and unlawful confinement of his [XXX] as well as mischief causing damage to her property are acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to subsection 1(18) of Ontario Regulation 437/97. The Member’s fits of rage and repeated acts of violence were committed against his [XXX] over a period of approximately 20 months, with some incidents occurring in the presence of [XXX]. This type of criminal behaviour toward another person and her property demonstrates disgraceful and dishonourable conduct that casts serious doubt on the Member’s ability to fulfill the professional responsibilities of a teacher. The Member knew or ought to have known that the extremely violent acts that he engaged in during arguments with his [XXX], such as slamming a door on her arm, spitting in her face and eye, dragging her by her limbs, body-checking or picking her up and throwing her into objects or pinning her down or otherwise restricting her movement against her will, are completely unacceptable acts and so serious as to have the effect of shaming the Member and, by extension, the profession.
30Finally, the Panel finds that the Member engaged in conduct unbecoming a member, contrary to subsection 1(19) of Ontario Regulation 437/97. Teachers assume a public role in society. They are expected to lead by example and to conduct themselves lawfully, ethically and with integrity in professional and private life. When members break the law by committing physical assault and other acts of violence on any person, it causes the public to lose trust and confidence in teachers and reflects poorly on the teaching profession as a whole.
H. SUBMISSIONS ON PENALTY
31Counsel for the College submitted that revocation of the Member’s certificate of qualification and registration is an appropriate penalty, considering the gravity of the Member’s misconduct. According to College Counsel, this is an egregious case of [XXX] abuse where through his repeated and targeted violence, the Member demonstrated a disregard for the safety and well-being of his [XXX] and the [XXX] that [XXX].
32College Counsel referred the Panel to the following cases involving members of the profession who have committed serious offences of assault or criminal harassment: Ontario College of Teachers v. Corry, 2008 ONOCT 13, Ontario College of Teachers v. Hamilton, 2018 ONOCT 70, Ontario College of Teachers v. Oliphant, 2019 ONOCT 72 and Ontario College of Teachers v. Cancari, 2017 ONOCT 4. College Counsel submitted that these cases are less serious but nevertheless analogous to the Member’s case and that a revocation penalty was ordered in each instance, which indicates that the penalty sought in this matter is within a reasonable range. College Counsel also submitted a case from another regulator, where a member was convicted of similar offences and similarly did not participate in that College’s discipline process. That member was found guilty of professional misconduct in absentia and revocation of his certificate to practice as a pharmacist was ordered: Ontario College of Pharmacists v. Hadi, 2020 ONCPDC 27.
I. PENALTY DECISION
33On October 20, 2021, the Panel made the following order as to penalty:
- The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member.
J. REASONS FOR PENALTY
34In arriving at its decision with respect to penalty, the Panel carefully considered the College’s evidence and submissions. The Panel was also mindful of the guiding principles that penalty orders should address, including specific and general deterrence, remediation (in appropriate cases), and public protection.
35The Panel also considered the Member’s circumstances in comparison to the cases provided. There are several aggravating factors in the Member’s case. The egregious, violent, and repetitive nature of the assaults and acts of confinement which occurred over an approximately 20-month period. The spiteful and cruel nature of the damage that the Member inflicted on his [XXX] property: smashing her phone, cutting her rollerblade straps so that she could no longer use them, and jamming a railroad spike into the driver’s side door of her car. Finally, the Member’s ungovernability, which is evidenced by his unwillingness to engage with the College’s discipline process (he has not responded to any communication from the College, did not engage in the College’s discipline process, and has not demonstrated any remorse for his misconduct).
36In terms of mitigating factors, the Panel acknowledged and considered that the Member has not been the subject of discipline proceedings in the past.
37The Panel finds that revocation is the order that appropriately responds to professional misconduct of this nature and gravity. The Member’s professional misconduct involved assault and other violence perpetrated on [XXX] over an approximately 20-month period. The dynamics of the relationship created a toxic environment in [XXX]. The Member’s behaviour, which was primarily fuelled by his jealousy, escalated during frequent fights between the Member and his [XXX] (see Exhibit 3, Tab 3B, at page 5, Reasons for Judgment and Ruling). The Member’s repeated violent assaults and acts of confinement and the damage to property that occurred, at times in the presence of [XXX], demonstrate the Member’s emotional volatility and complete lack of self-regulation. His repeated and egregious misconduct endangered the physical safety and emotional well-being of his [XXX] and the [XXX]. The Member’s conviction and sentence to a four-month term of imprisonment and one year of probation demonstrates the gravity of the Member’s actions.
38The Member’s misconduct has undermined the reputation of the teaching profession and cannot be tolerated. Revocation of the Member’s certificate will denounce the Member’s behaviour. It will also promote the objectives of general deterrence and public protection, which are of primary concern to the Panel. The revocation penalty will send the message that [XXX] assault perpetrated by a teacher is relevant to the suitability to practice the profession and wholly unacceptable. While the Member had been qualified to teach [XXX], he was not discouraged from violence by the presence of [XXX] in [XXX]. There is no place in the profession for members who perpetrate [XXX] abuse. A teacher who is unable to regulate their emotions and exercise restraint when angry with another person is a risk to students and therefore cannot have charge of students. The Member has accordingly forfeited the privilege of holding a teaching certificate and being a member of the teaching profession in Ontario.
39The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
K. COSTS SUBMISSIONS OF COLLEGE COUNSEL
40The College sought an order for costs payable by the Member to the College pursuant to subsection 30(5) at paragraph 4 of the Act. College Counsel cited Rule 16.05(3) as well as Tariff A of the Rules to illustrate that the College does not have to bring evidence of the incurred costs of a hearing if the request is equal to, or less than $10,000 per hearing day. College Counsel submitted that an order of $10,000 is appropriate given the factors cited in Ontario College of Teachers v. Hall, 2019 ONOCT 20 (“Hall”), and in particular given that the Member did not communicate with the College and disregarded the discipline process entirely.
L. DECISION on COSTS
41On October 20, 2021, the Panel made the following order as to costs:
- The Member shall pay the College costs of the proceeding in the amount of $10,000 within 120 days of the date of this Order.
M. REASONS FOR COST ORDER
42The Panel finds it appropriate to make a costs order in this case, in accordance with the Discipline Committee’s jurisdiction under paragraph 4 of subsection 30(5) of the Act that states that the Panel may make an order fixing costs to be paid, Rule 16.05(3) and the Hall factors. The Panel agrees with College Counsel that the College does not have to provide evidence of costs of a day of hearing if the amount claimed is equal to or less than the amount set by Tariff A (currently set at $10,000).
43The Panel considered the factors outlined in Hall to make its 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
44The Panel finds that it is appropriate to order costs against the Member in the full Tariff A amount of $10,000 for the costs of one hearing day, as requested by College Counsel.
45The Panel finds that four Hall factors are relevant to its determination. First, the Panel recognizes that a costs award is discretionary and compensatory rather than punitive. It is a cost recovery mechanism to ensure that, when members fail to participate in the discipline process, the College’s membership is not held financially responsible for the Member’s failure to cooperate with the College. The Member was notified of the potential for a costs order through the Notice of Hearing. Second, the Member was entirely uncooperative. The College repeatedly sought to contact the Member, but he did not respond to any correspondence from the College on any matter or engage in the discipline process whatsoever. Third, while the College always bears the burden of proof in discipline proceedings, it is possible that had the Member participated in the discipline process, the College could have conserved time and resources in prosecuting this matter. Fourth, the College was entirely successful in proving their case and obtaining findings of professional misconduct. The Panel did not consider the Member’s ability to pay in making its order as it did not receive any evidence in this regard.
46As such, the Panel finds that the cost order payable by the Member to the College is just and appropriate in the circumstances.
Date: November 5, 2021
Tom Potter Chair, Discipline Panel
Lois Figg Member, Discipline Panel
Jessica Saffran Reimers, OCT Member, Discipline Panel