DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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 Jolanta Mariola Miszkiel, OCT, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
JOLANTA MARIOLA MISZKIEL (REGISTRATION #272213)
PANEL: Diane Ballantyne, OCT, Chair Marlène Marwah Sara Nouini, OCT
HEARD: January 12, 2021
Zirka Jakibchuk, for the Ontario College of Teachers Jolanta Mariola Miszkiel, self-represented Julie Maciura, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on January 12, 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”).
2Jolanta Mariola Miszkiel (the “Member”) attended the hearing and did not have legal representation.
3At the conclusion of the hearing, the Panel ordered that the hearing be adjourned until it can be convened in person and placed conditions on the adjournment. What follows are the Panel’s reason for this decision.
A. PUBLICATION ban
4The 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. BACKGROUND
5This hearing began on June 5, 2019 and continued on June 6, 13, and 14, 2019, September 20, 2019, October 7, 8, and 30, 2019, and February 18 and 19, 2020. The hearing was scheduled to continue in May of 2020 but was adjourned to July 28, 2020 by the Tribunals’ Office due to the COVID-19 pandemic. On July 28, 2020, the parties came before the panel with a joint motion to adjourn the matter until it could be held in person. The matter was rescheduled for four additional days (January 11 and 12, 2021 and March 8 and 9, 2021). On November 5, 2020, the Tribunals’ Office notified the Member and the College that the hearing, like all hearings at the College, would be held electronically.
C. THE MOTION
6On November 20, 2021, the Member wrote to the Tribunals’ Office objecting to the matter proceeding by electronic hearing and filing a motion to delay the hearing until it could be held in person.
7On January 12, 2021, the parties made oral submissions before the Panel, via Zoom, with regard to the Member’s motion.
8College Counsel did not contest the Member’s motion but requested that any adjournment order be made subject to the following conditions:
That the Member be prohibited from teaching in a public or private school in Ontario, or from holding or seeking to hold a position requiring a Certificate of Qualification and Registration (“Certificate”), until the College’s Discipline Committee has adjudicated this discipline proceeding;
That a notation be placed on the Member’s profile on the Public Register of the College reflecting the above prohibition; and
That the Member be prohibited from introducing a defence of unreasonable delay regarding the timely completion of this discipline proceeding.
9The Member objected to these conditions.
D. SUBMISSIONS OF THE MEMBER
10The majority of the submissions of the Member focussed on the merits of her request to delay holding the discipline hearing until it could be held in person. She submitted that holding an electronic hearing would cause her significant prejudice, that it had the potential to violate natural justice, and that electronic hearings are “second class” compared to in-person hearings.
11The Member disagreed with the College’s proposed conditions of the adjournment. She submitted that imposing terms and limitations on her ability to practice would amount to penalizing her for the pandemic. She further submitted that the conditions proposed would not be fair, just, and equitable. Additionally, the Member submitted that, as the College has had 11 full days to present their evidence against her, and she has only had two and a half days to respond, it would be inappropriate for the Panel to limit any time that she had to present her evidence. The Member requested that she be permitted five additional days to complete her evidence.
12The Member further made three suggestions to improve the efficiency of the hearing when it resumes in person. First, prior to the hearing, the Member will provide a list of the exhibits that she will refer to as she leads her evidence. Second, the Member will provide the two “bundles” of documents that she intends to rely on in the continuation of the hearing to College Counsel to review prior to the continuation of the hearing. Third, the Panel should review the disclosure briefs prior to the continuation of the hearing.
E. SUBMISSIONS OF the college
13The College did not oppose the Member’s motion to adjourn the hearing until it could continue in person. The College submitted that the adjournment should be made subject to certain terms and conditions pursuant to the Panel’s authority in the Rules, as set out in paragraph 8 above.
14The College submitted that these terms and conditions are required in the public interest as the evidence tendered in the Member’s hearing so far raises significant concerns about the Member’s competence and ability to teach. Additionally, College Counsel submitted that the risk to the public of the Member teaching is increased by the fact that the adjournment is likely to be very lengthy and therefore limits on the Member’s ability to teach for the duration of the adjournment are required.
15The College also requested that the Panel set a timetable for the remainder of the hearing so that it can be completed expeditiously.
16College Counsel made no submissions to support the request for a condition that the Member be prohibited from introducing a defence of unreasonable delay in the future.
F. DECISION
17On January 12, 2021, having considered the submissions of the parties, the Panel granted the Member’s motion and ordered that the matter be adjourned until the hearing can be convened in person, with the following conditions:
The Member is not permitted to teach in any publicly funded or private setting, or to hold, or seek to hold, a position requiring a Certificate of Qualification and Registration, until the Panel has adjudicated the discipline proceeding against the Member.
The following notation will be included on the Member’s public register profile:
“On January 12, 2021, a panel of the Discipline Committee of the Ontario College of Teachers made an Interim Order that the Member not teach in any public or private school in Ontario, or hold or seek to hold a position requiring a Certificate of Qualification and Registration, until the panel has adjudicated the discipline proceeding pending against the Member. As of this time, no finding had been made concerning the allegations against the Member.”
- The Member may, at any time, contact the Tribunals’ Office to request that the hearing resume electronically.
18The Panel further ordered that, once the hearing resumes, the parties will strive to maintain the following schedule:
The Member will be given another one and a half days to complete her evidence-in-chief.
The College will be given up to half a day to conduct its cross-examination of the Member.
Each of the parties will then have half a day to present their submissions on finding, for a total of one day.
G. REASONS FOR DECISION
19The Panel carefully considered the submissions of the Member and College Counsel. Pursuant to Rule 14 of the Rules, the Panel has the discretion to adjourn a hearing. Furthermore, the Panel has jurisdiction to impose terms and conditions on parties as per the broad power conferred by section 16.1 of the Statutory Powers Procedure Act and as per the specific power to impose terms and conditions on an adjournment set out at sub-rule 14.01(3) of the Rules.
20Since the College did not oppose the Member’s request to delay the hearing until it can be held in person, it is not necessary for the Panel to address the merits of the Member’s arguments regarding the prejudice that could result from holding an electronic hearing. The Panel placed great weight on the College’s consent to the Member’s motion and, as such, grants the Member’s motion to delay the hearing until it can be held in person.
21The Panel finds that it is appropriate to impose the conditions set out above as part of its order to adjourn the hearing until it can be held in person. The Panel agrees with College Counsel that it has to date heard evidence of some concern regarding the Member’s competence to teach. However, the Panel is cognizant that this hearing is ongoing, that it has not heard the entirety of the evidence in this hearing, and that a decision has not yet been made on the merits. As such, the Panel was not persuaded that these conditions should be granted solely based on the strength of the College’s evidence in this hearing. However, the Panel agrees with College Counsel’s submission that the length of the adjournment increases the risk to the public of the Member continuing to teach. At the time of the Panel’s order, and indeed at the time of these reasons approximately one year later, there was significant uncertainty as to when hearings could be conducted in person again. Long adjournments of discipline hearings cause significant uncertainty to the public and increase any risk of a member, who is alleged to have committed professional misconduct or is alleged to be incompetent, continuing to teach. With an indefinite adjournment, as in this case, there is an even greater risk to the public of the Member returning to teaching in the interim. Furthermore, the Member has made no submissions as to whether she was teaching at the time of the motion and how these conditions would affect her. The Panel therefore finds that it was in the public interest to restrict the Member’s ability to teach until the Panel has adjudicated the discipline proceeding against the Member.
22In the absence of submissions from the College as to why the Member should be prohibited from introducing a defence of unreasonable delay, the Panel declines to order this requested condition.
23The Panel finds that it is appropriate to set a schedule for the remainder of this hearing. The Panel rejects the Member’s suggestion that she should be permitted exactly the same amount of time to present her evidence as the College has been permitted. The Member is entitled to take the time that she needs to present her evidence, as long as that evidence is relevant and not unduly repetitious. However, the length of time that the Member takes to present her evidence should not be guided by the length of time used by the College so far in this hearing, particularly keeping in mind that the amount of time that the College took to present its case was impacted by the amount of time the Member took to cross-examine the College's witnesses.
24Furthermore, there is a significant need in this case to prevent further undue delay. This matter has been ongoing since June of 2019 and relates to the 2014-2015 academic year. The Discipline Committee has spent significant time and resources to hear this matter, and there is an interest in concluding this matter in a timely manner to provide certainty to the parties, to the witnesses in this hearing, and to the public. As such, the Panel finds that it is appropriate to set a schedule, which the parties should strive to maintain. The Panel finds that the College’s proposed schedule provides the Member with sufficient time to complete her testimony, and it provides both parties with sufficient time to make final submissions. If the Member decides to call additional witnesses as part of her case, the Panel is open to revisiting its order regarding the schedule. Additionally, the Panel encourages the Member to take steps to improve the efficiency of how she presents her evidence, including the three suggestions made during her submissions (as set out at paragraph 12 above).
25Overall, the Panel’s order appropriately accommodates the needs of the Member, while not unduly prejudicing the College’s interests, and it satisfies the public interest.
Date: January 4, 2022
Diane Ballantyne, OCT Chair, Discipline Panel
Marlène Marwah Member, Discipline Panel
Sara Nouini, OCT Member, Discipline Panel