Citation: Ontario College of Teachers v Fox 2021 ONOCT 34

Date: 2021-04-29

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

Paul Daniel Fox, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

PAUL DANIEL FOX (REGISTRATION #380365)

PANEL: Rebecca Forte, OCT, Chair

Diane Ballantyne, OCT

Wanda Percival

HEARD: January 11 and February 8, 2021

Shane D’Souza and Vincent DeMarco, for the Ontario College of Teachers

No one appearing for Paul Daniel Fox

Erica Richler, 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 proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on January 11, 2021 and February 8, 2021, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Paul Daniel Fox (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted an Affidavit of Vincent DeMarco (Exhibit 2) sworn on February 5, 2021, to show the efforts taken by the College to inform the Member of the allegations against him, the time and date of the hearing, as well as the range of penalty and costs being sought by the College. In this affidavit, Mr. DeMarco, an associate with McCarthy Tétrault LLP, outlines his communications with the Member and provides proof of service of all required documents.

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 being sought by the College. The Member did not appear at the hearing and the Panel heard this matter in the absence of the Member.

5Following the hearing, the Panel found that the Member engaged in professional misconduct contrary to subsections 1(7.1), 1(7.2), 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. Following submissions by College Counsel, the Panel made further orders as to penalty and costs. The following are the Panel’s reasons for the finding of misconduct, the penalty order, and the costs order.

A. PUBLICATION ban

6The 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

7The allegations against the Member in the Notice of Hearing dated June 25, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that the Paul Daniel Fox 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);¹

(b) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) he failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(e) 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);

(f) 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

Paul Daniel Fox is a member of the Ontario College of Teachers.
At all material times, the Member was employed by the [XXX] First Nation as a teacher at [XXX] School at the [XXX] First Nation Reserve in [XXX], Ontario.
In the academic year 2015-2016, Student 1 was a male Grade [XXX] student in the Member’s class.
During the period December 1, 2015 to January 5, 2016, the Member had inappropriate physical contact with Student 1, including but not limited to:

(a) pulling Student 1’s arm behind Student 1’s back and/or applying pressure to Student 1’s arm;

(b) applying pressure to Student 1’s neck and/or head and/or preventing Student 1 from moving his neck and/or head;

(d) placing Student 1 on his lap and/or moving and/or waving Student 1’s arms and/or imitating Student 1’s voice.

In the academic year 2015-2016, Student 2 was a male Grade [XXX] student in the Member’s class.
During the period December 1, 2015 to January 5, 2016, the Member had inappropriate physical contact with Student 2, including but not limited to pulling Student 2’s arm behind his back and/or applying pressure to Student 2’s arm.
In the academic year 2015-2016, Student 3 was a male Grade [XXX] student in the Member’s class.
During the period December 1, 2015 to January 5, 2016, the Member had inappropriate physical contact with Student 3, including but not limited to placing his hands on Student 3’s shoulders and/or applying pressure to Student 3’s shoulders and/or squeezing Student 3’s shoulders.
In the academic year 2015-2016, Student 4 was a male Grade [XXX] student in the Member’s class.
During the period December 1, 2015 to January 5, 2016, the Member had inappropriate physical contact with Student 4, including but not limited to grabbing Student 4’s hands and/or applying pressure to Student 4’s hands.
In the academic year 2015-2016, Student 5 was a male Grade [XXX] student in the Member’s class.
During the period December 1, 2015 to January 5, 2016, the Member had inappropriate physical contact with Student 5, including but not limited to grabbing and/or pulling Student 5’s arm.

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

9The College called four witnesses – Student 2, Student 3, Student 4, and Student 5 – to provide evidence to prove the allegations set out in the Notice of Hearing. The witnesses were students at [XXX] School (the “School”) at the time of the events in question and were taught by the Member. Student 2, Student 4, and Student 5 are [XXX]. The students testified that they either witnessed the Member physically abuse students in their class or they experienced abuse by the Member. A summary of the evidence is set out below and relevant portions will be set out in greater detail, as needed, in the Panel’s reasons for decision.

10Student 2 was [XXX] years old at the time of the hearing. At the time of the allegations, Student 2 was in grade [XXX] and had [XXX] class with the Member daily. Student 2 testified to the Member physically abusing him on one occasion during class.

11Student 3 was [XXX] years old at the time of the hearing. In the 2015/2016 academic year he was a grade [XXX] student at the School and a student in the Member’s [XXX] class. Student 3 testified to the Member picking on him and physically abusing him on several occasions. Student 3 also testified to seeing the Member pick on Student 1, who was the smallest kid in the class at the time.

12Student 4 was [XXX] years old at the time of the hearing. At the time of the allegations, he was a grade [XXX] student and was in the same class as Student 3. Student 4 testified to seeing the Member physically pick on Student 3 and Student 1 and testified to the Member routinely squeezing his hand very hard and making him feel uncomfortable.

13Student 5 was [XXX] years old at the time of the hearing. At the time of the allegations, he was in grade [XXX] and in the Member’s [XXX] class. Student 5 testified that the Member never made inappropriate physical contact with him but that he witnessed the Member grabbing students, including his [XXX] (who is not an alleged victim in this proceeding) on several occasions. Student 5 testified that this physical contact would occur approximately every couple of weeks. Student 5 testified that witnessing this behaviour by the Member made him feel unsafe.

E. SUBMISSIONS OF COLLEGE COUNSEL

14College Counsel reviewed the relevant evidence with the Panel and submitted that the witnesses had a good memory of the events and that they were credible witnesses. College Counsel submitted that the evidence of the four student witnesses proves each of the allegations of misconduct on a balance of probabilities, and that the Panel should find that the Member engaged in professional misconduct as alleged, apart from the withdrawn allegation.

F. DECISION ON FINDING

15The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities.

16At the outset of the hearing, Counsel for the College requested that the allegation of professional misconduct outlined in paragraph (a) of the Notice of Hearing, namely that the Member contravened subsection 1(5) of Ontario Regulation 437/97, be withdrawn. The Panel granted this request.

17Having considered the evidence and the submissions of College Counsel, the Panel rendered an oral decision on February 8, 2021 finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(7.1), 1(7.2), 1(14), 1(15), 1(18) and 1(19).

G. REASONS FOR DECISION

18The Panel has carefully reviewed the evidence and submissions presented in this matter. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Panel first sets out its factual findings and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.

19As stated above, the College has the burden of proving the allegations. This means that first, the College must prove that the behaviour alleged in the Notice of Hearing occurred on a standard of the balance of probabilities – or that it is more likely than not that the Member acted as alleged. Second, the College has the burden of proving that any such behaviour constitutes professional misconduct.

20In evaluating the evidence before it, the Panel recognizes that it can accept all, some, or none of any witness’ evidence. When deciding how much of each witness’ testimony to accept, the Panel has considered the following credibility factors: the witness’ ability to observe and recall the events; whether the witness has an interest in the outcome of the hearing that may cloud their recollection; the plausibility or reasonability of the evidence; and the internal and external consistency (or inconsistency) of the evidence. The Panel can also determine credibility based on logic, common sense, and its experience.

(1) Evidence and Factual Findings

21The Panel finds that all of the students were credible witnesses. The students had the opportunity to experience or observe the events that they testified to, and seemed to have a good memory of the events of the 2015/2016 academic year. Their evidence was clear and consistent. The Panel notes that Student 2, Student 4, and Student 5 likely discussed the events testified to prior to the hearing, as they are [XXX] and were also involved in a police investigation in relation to the Member. However, the Panel does not believe that this has made their evidence unreliable. It makes sense that three [XXX] may have discussed their observations of an abusive teacher. Any possible discussion among the students does not affect the reliability of their evidence or their credibility in this case. The students were measured in their testimony and did not seem to embellish their evidence. Furthermore, the Panel did not hear evidence to contradict or challenge the students’ version of events. Overall, the Panel accepts the students’ evidence in its entirety.

(a) Student 1

22The Panel finds that the College has proven on a balance of probabilities that the Member made inappropriate physical contact with Student 1. The Member grabbed Student 1’s arm, pulled Student 1’s arms behind Student 1’s back, and on several occasions the Member placed Student 1 on his lap and moved Student 1’s arms as if Student 1 was a puppet. This conduct was observed by Student 3 and Student 4. Both of the students testified that Student 1 was the smallest kid in class and that the Member used to pick on Student 1.

23Student 3 testified that, more than once per week, the Member picked Student 1 up, placed the student on his lap, grabbed the student’s hands and pretended that he was a doll. Student 3 believed that the Member likely thought it was a joke. Student 3 also testified that, on one occasion, the Member grabbed Student 1, and held Student 1’s hands behind his back in what Student 3 described as a “chicken wing hold”. The Member held Student 1 in this way for about five to ten seconds after which Student 1 fell to the ground, began crying, and ran out of the classroom.

24Student 4 also testified that he witnessed the Member put Student 1 in a “chicken wing” hold by holding Student 1’s arms behind his back. Student 4 described Student 1 running out of class following this incident and Student 4 followed Student 1 to comfort him.

(b) Student 2

25The Panel finds that the College has proven on a balance of probabilities that the Member made inappropriate physical contact with Student 2. The Member pulled Student 2’s arm behind his back, which was painful and hurt Student 2.

26Student 2 was in grade [XXX] at the time of the alleged events and was in the Member’s [XXX] class. Student 2 testified that, around September of 2015, he broke his arm [XXX], and his arm was in a cast for a few weeks. Shortly after the cast was removed, the Member grabbed Student 2’s recently injured arm and pulled it behind his back really hard. Student 2 testified that he was in pain because of the Member’s actions. The Member did this in front of the whole class and Student 2 felt embarrassed as a result.

(c) Student 3

27The Panel finds that the College has proven on a balance of probabilities that the Member made inappropriate physical contact with Student 3. The Member placed his hands on Student 3’s shoulders and applied pressure to Student 3’s shoulders.

28Student 3 testified that in the first half of the 2015/2016 academic year, the Member used to put his hands on Student 3’s shoulders and dig his fingers into Student 3’s shoulder blades for approximately 10-15 seconds. Student 3 testified that this happened relatively frequently during the first half of the year. The Member’s grip on his shoulders was very painful to Student 3 and Student 3 exhibited this pain by grunting and sliding off his chair while the Member applied pressure.

29Student 3 also testified that he found the Member to be very intimidating and that, overall he was very scared of the Member. Because of this fear, Student 3 did not ask the Member to stop and Student 3 did not report the Member’s behaviour to the School’s administration. Student 3 testified that he believed that the Member picked on him specifically and that the Member saw this behaviour as a joke.

30Student 4, who was in the same class as Student 3 also testified that he observed the Member pushing down on Student 3’s shoulders and that this seemed to make Student 3 uncomfortable.

(d) Student 4

31The Panel finds that the Member made inappropriate physical contact with Student 4. The Member grabbed Student 4’s hand and applied pressure to it in a manner that was painful for Student 4.

32Student 4 testified that the Member used to approach him for a handshake, and when Student 4 shook the Member’s hand, the Member squeezed his hand very hard. Student 4 testified that this conduct occurred more than three times per week and that it made him feel uncomfortable.

(e) Student 5

33The Panel finds that the College failed to prove on a balance of probabilities that the Member had inappropriate physical contact with Student 5. Student 5 testified that he witnessed the Member grabbing students’ wrists and twisting students’ arms behind their backs. Student 5 testified that seeing the Member physically hurt his classmates made him feel unsafe. However, Student 5 testified that the Member did not engage in any inappropriate physical contact with him specifically.

(2) Legal Conclusions

34The Panel finds that the Member’s actions constituted professional misconduct contrary to subsections 1(7.1), 1(7.2), 1(14), 1(15), 1(18), and 1(19) of Ontario Regulation 437/97. The Panel granted the College’s request to withdraw the allegation of professional misconduct contrary to subsection 1(5) of Ontario Regulation 437/97.

35The Panel finds that the Member physically abused students contrary to subsection 1(7.1) of Ontario Regulation 437/97. The evidence demonstrates that the Member made repeated inappropriate physical contact with four of his students. The Member picked up Student 1, placed the student on his lap, and moved his arms around like a puppet. The Member also grabbed Student 1’s and Student 2’s arms, pulled them behind their backs, and applied pressure to them in what was described by the students as a “chicken wing” hold. Further, the Member grabbed Student 3 by his shoulders and dug into his shoulder blades. Finally, the Member applied painful pressure to Student 4’s hand. Members of the profession must prioritize the well-being of students. The unnecessary use of physical force against students is prohibited. The Member repeatedly hurt his students for no reason. The Member’s conduct clearly amounts to physical abuse of his students.

36The Panel finds that the Member psychologically or emotionally abused students contrary to subsection 1(7.2) of Ontario Regulation 437/97. Psychological or emotional abuse is characterized as behaviour that can seriously interfere with a child’s cognitive, emotional, psychological, or social development. The Member regularly made his students feel uncomfortable, embarrassed, and afraid. In fact, the Member embarrassed Student 1 to the point that he ran out of the classroom in tears. The Panel further finds that the Member psychologically abused students by creating and perpetuating an environment of fear in his classrooms and a culture of distrust of authority. Some of the students testified that they did not report the Member because they did not have confidence that anything would be done as a result of their complaint. Therefore, the Panel finds that the Member’s behaviour was emotionally or psychologically abusive to his students.

37At the outset of the hearing, College Counsel requested to withdraw the allegation under subsection 1(5) of Ontario Regulation 437/97. College Counsel submitted that the request was being sought to enhance the efficiency of the hearing and to avoid duplication with the finding being sought under subsection 1(14). According to College Counsel, proceeding under subsection 1(5) would require the College to call expert evidence regarding the standards of the profession, whereas proceeding under subsection 1(14) would not.

38The Panel disagrees with this submission. The Superior Court’s decision in Novick v. Ontario College of Teachers, 2016 ONSC 508 (“Novick”) states that if the College seeks a finding that the Member has failed to comply with the standards of the profession, the College generally needs to tender expert evidence of the standards of the profession, unless the conduct is so notorious and so obviously contrary to the standards (such as physical or sexual abuse) that expert evidence is not required. In the Panel’s view, the decision in Novick did not confine the expert evidence requirement only to a finding under subsection 1(5). The general requirement for expert evidence applies equally where the College seeks a finding that the Member failed to maintain the standards of the profession under subsection 1(5) or subsection 1(14). Subsection 1(14) provides that it is professional misconduct to fail to comply with the Act or the regulations or the by-laws. Section 32 of the by-laws codifies the professional and ethical standards. To treat the evidentiary requirements to prove a finding under subsection 1(5) differently than what is ostensibly the same finding under subsection 1(14) would require the Panel to draw a distinction without a meaningful difference. Both subsections contemplate a breach of the Standards of Practice and the Ethical Standards for the Teaching Profession, and a finding under either subsection would require the Panel to base its decision on expert evidence, unless the conduct is so notorious that expert evidence is not required. As such, the Panel rejects College Counsel’s submission that expert evidence is not required simply because the College has elected to proceed with subsection 1(14) as opposed to subsection 1(5).

39Nevertheless, the Panel recognizes that in this case, the Member’s conduct involved physical abuse of students. This is conduct that is so notorious that expert evidence is not required to make a finding of professional misconduct. As such, the Panel finds that the Member failed to comply with the Act, or the Regulations or the by-laws contrary to subsection 1(14) of Ontario Regulation 437/97. In particular, the Member failed to comply with section 32 of the by-laws, which outlines the professional and ethical standards of the teaching profession. The ethical standard of “care” encourages members to have “compassion, acceptance, interest and insight for developing students’ potential”. The Member defied this standard by his physical abuse of his students. Further, the ethical standard of “respect” encourages members to “honour human dignity, emotional wellness and cognitive development”. The Member failed to do so by picking on his smallest student and by physically abusing his students in front of the class.

40The Member failed to comply with the Education Act, contrary to subsection 1(15) of Ontario Regulation 437/97. In particular, the Member failed to comply with section 264(1) of the Education Act, which sets out the duties of a teacher. Subsection 264(1)(b) of the Education Act provides that it is the duty of a teacher to encourage pupils in the pursuit of learning. By physically abusing his students during class, the Member detracted from his students’ formative education, created an atmosphere of fear and discomfort in his classroom, and therefore failed to encourage his students in their pursuit of learning, contrary to his duties as a teacher.

41The Member’s conduct would reasonably be regarded by members as disgraceful, dishonourable or unprofessional contrary to subsection 1(18) of Ontario Regulation 437/97. The teaching profession does not tolerate the physical and emotional abuse of students by its members. Members are entrusted with the safety of children and are expected to keep their students safe, which the Member failed to do by his misconduct. It was entirely inappropriate for the Member to repeatedly physically abuse his students and as such his conduct was clearly disgraceful, dishonourable, and unprofessional.

42Similarly, the Member’s conduct is unbecoming a member of the profession contrary to subsection 1(19) of Ontario Regulation 437/97. By physically and emotionally abusing a number of his students, the Member undermined the reputation of the teaching profession and the trust that parents, students and the public place in teachers.

H. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

43College Counsel explained that the Panel has the discretion to order a penalty that it considers appropriate in the circumstances, but submitted that a reprimand and revocation are appropriate in this case because of the severe and repeated nature of the Member’s physical abuse of his students. College Counsel further submitted that revocation was not mandatory in this case, as the Member’s conduct did not fall within the enumerated types of misconduct set out at subsection 30.2(2) of the Act, but that the Panel nevertheless has the authority to order this penalty pursuant to subsections 30.2(3), 30(4) and 30(5) of the Act.

44College Counsel presented the Panel with six previous cases decided by the Discipline Committee to establish that revocation was an appropriate order that fell within the range of penalties ordered for similar misconduct in the past. Three of the following cases resulted in revocation and three of the cases resulted in a penalty of a reprimand, a six-month suspension, and coursework: Ontario College of Teachers v. Foucault, 2015 ONOCT 22; Ontario College of Teachers v. Biggs, 2014 ONOCT 7; Ontario College of Teachers v. Luke, 2016 ONOCT 33; Ontario College of Teachers v. MacAdam, 2019 ONOCT 3; Ontario College of Teachers v. Hall, 2019 ONOCT 20 (“Hall”);and Ontario College of Teachers v. O’Shea, 2017 ONOCT 8.

I. PENALTY DECISION

45On February 8, 2021 the Panel made the following order as to penalty:

The Member is directed to receive a reprimand, which will be delivered in writing, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (“Register”); and
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

46In 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. In cases such as this, where the Member’s professional misconduct involved repeated physical abuse of several students, the objectives of deterrence and public protection are of primary concern to the Panel. The Panel also recognizes the principle that like cases should be treated alike. The penalty in this case falls within the range of penalties ordered in several similar cases before the Discipline Committee, as presented by College Counsel.

47The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are the repeated nature of the misconduct, the fact that the misconduct involved multiple students, and the fact that the Member picked on vulnerable students. The Panel finds it particularly aggravating that the Member chose to pick on Student 1, who was the smallest kid in his class.

48The Panel notes that one of the students testified that he believed that the Member may have attended residential school and may have been abused there. When asked for additional submissions, College Counsel stated that the evidence on whether the Member attended residential school was merely a rumour. The College stated that this fact would only be relevant to the Panel’s order if the Member had attended the hearing and provided evidence on what impact attending residential school had on him. College Counsel further submitted that the Panel should not take the Member’s Indigenous identity into account without the Member having attended and provided specific evidence of that identity. The Panel disagrees. While College Counsel is correct in his submission that the evidence of the Member’s Indigenous identity and whether he attended residential school is lacking in detail, the Panel nevertheless finds that it is relevant in its determination of the appropriate penalty. The history of Indigenous people in Canada, and particularly in education, is fraught with colonial violence. As such, it would be inappropriate for the Panel not to consider this history in the case of an Indigenous man who worked as a teacher in an Indigenous community.

49The Panel finds that the Member’s repeated physical and emotional abuse of his students warrants a reprimand by his peers. Members are expected to adhere to the professional and ethical standards at all times and to refrain from physically abusing their students. The reprimand will allow the Panel to directly address its concerns with the Member. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession. Delivering the reprimand in writing ensures that the Panel’s concerns will be communicated to the Member, even if he demonstrated ungovernable behaviour by not engaging in his disciplinary proceedings. As such, the Panel finds that it is appropriate for the reprimand to be delivered in writing.

50Taking into consideration the submissions of College Counsel and the limited information that the Panel had regarding the Member’s Indigenous identity, the Panel finds that revocation is the appropriate order given the circumstances. The Member physically abused four young Indigenous students. This physical abuse happened in several of the Member’s [XXX] classes and was not reported by the student victims due to their lack of confidence in the authority figures at the School. The Panel is disheartened by the fact that the Member’s misconduct likely contributed to the students’ lack of confidence. The Panel does not tolerate this type of conduct. The students were vulnerable, and the Member took advantage of his position of trust and authority to physically abuse, pick on, and otherwise make his students uncomfortable in the classroom.

51There is no place in the profession for members who physically abuse students. The public expects that children will be safe when they are at school. Teachers are entrusted with the care of students. They must provide students with a physically and emotionally safe learning environment. They must never physically abuse their students. The Member egregiously breached his position of trust and authority by his misconduct. Revocation is the only penalty that appropriately responds to professional misconduct of this nature and gravity. The Member’s conduct was ongoing, intentional, and affected a number of students in his classes. By his conduct, the Member undermined the reputation of the teaching profession. He has accordingly forfeited the privilege of holding a teaching certificate and being a member of the teaching profession in Ontario.

K. COSTS SUBMISSIONS OF COLLEGE COUNSEL

52College Counsel sought an order for costs in the amount of $10,000 payable by the Member to the College pursuant to s. 30(5) at paragraph 4 of the Act. College Counsel cited Rule 16.05(3) and Tariff A of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee for the proposition that the College does not have to give evidence of the cost or expense of a hearing if the request is equal to or less than $10,000 per hearing day. College Counsel submitted $10,000 is appropriate as the Member was uncooperative and declined to participate in the discipline process entirely.

L. decision on costs

53On February 8, 2021, the Panel made the following order as to costs:

The Member shall pay costs of this proceeding to the College, fixed in the amount of $10,000, within 120 days of the date of the Decision, Reasons for Decision and Order.

M. REASONS FOR decision on costs

54In accordance with paragraph 4 of subsection 30(5) of the Act, Rule 16 and the factors in Hall, the Panel finds it appropriate to make a costs award in this proceeding.

55The Panel recognizes that an award of costs is discretionary and compensatory in nature rather than punitive. 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).

56Hall provides the panel with guidance as to the factors to be considered when making a costs order:

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

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

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

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

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

57The Panel finds that it is appropriate to order costs against the Member in the full Tariff A amount of $10,000 for one hearing day, as requested by College Counsel.

58The Panel finds four factors relevant to this determination. First, the Member completely refused to participate in this proceeding or cooperate with College Counsel on any matter in the discipline process. The Member was entirely unresponsive to any communication from College Counsel regarding this case. While the College always bears the burden of proof in discipline proceedings, if the Member had participated in any way it is possible that the parties could have agreed on some matters and conserved Committee resources. Second, the College put the Member on notice that it would be seeking costs if it were successful in obtaining findings of professional misconduct. Third, the College was entirely successful in proving their case, for all heads of misconduct that were not withdrawn. Finally, the Panel did not hear any evidence on the Member’s ability to pay or any submissions as to why costs should not be ordered.

59As such, the Panel finds that the cost order payable by the Member to the College is just and appropriate in the circumstances.

Date: April 29, 2021

Rebecca Forte, OCT

Chair, Discipline Panel