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
Joël Patient Tchoreret-Mbiamany, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
JOËL PATIENT TCHORERET-MBIAMANY (REGISTRATION #429577)
PANEL: Marlène Marwah, Chair Élaine Legault Yasser Leheta, OCT
Christine Lonsdale, for the Ontario College of Teachers
No one appearing for Joël Patient Tchoreret-Mbiamany
Renée Kopp, 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 held electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on October 7, 2022, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), to hear the allegations made against Joël Patient Tchoreret-Mbiamany (the “Member”) in the Notice of Hearing dated July 13, 2020 (Exhibit 1).
2The Member did not attend the proceeding and did not have legal representation.
3College Counsel immediately notified the Panel that the Member had submitted an email request for an adjournment which, for the purposes of this hearing, is considered a Motion for Adjournment.
4This is the second motion for an adjournment brought by the Member in these proceedings. In a decision rendered on July 6, 2022, the Panel granted the initial request for an adjournment.1 At that time, the Panel gave the Member the benefit of the doubt, even though the circumstances surrounding his inability to participate in the hearing remained somewhat unclear; without being completely certain, it seemed sufficiently plausible to the Panel that his health problems and potential problems with the Gabonese justice system were preventing him from participating in the hearing.
5The Panel denied the Member’s second Motion for Adjournment for the reasons set out below.
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. PRELIMINARY MATTER
7Before considering the Motion for Adjournment, the Panel must first decide on an issue regarding the admissibility of a document that was prima facie protected by solicitor-client privilege, as it appeared to be a communication between the Member and a lawyer. This document was sent to College Counsel by a third party. In the interest of fairness, College Counsel wrote to the Member to confirm the nature of the document and his intention to send it to her. The Member stated in his email response that he did not acknowledge sending this document to College Counsel (Exhibit 6, p. 7).
8College Counsel argued that because the document was sent by a third party, the waiver of privilege was implied. Independent Legal Counsel advised the Panel to consider whether the document was sent in error, and to pay particular attention to the content of the Member’s email response to College Counsel in determining whether the Member had expressly or impliedly waived the solicitor-client privilege attached to the document.
9The Panel considers solicitor-client privilege to be a fundamental client right. Therefore, only the client can waive this right to confidentiality. The Panel was not satisfied that the Member had waived – implicitly or explicitly – his right to solicitor-client privilege and therefore did not admit the document as evidence, as the Panel found it was protected by that right.
10Fairness was also a determining factor in this decision. The Panel believes that there would be a risk of prejudice to the Member if such a document were to be admitted into evidence in the absence of more details as to its true source. It should be noted that the document in question was sent to the College by a person whose relationship to the Member is unknown. Further, College Counsel made no submissions concerning the authenticity and reliability of the document nor the necessity for it to be admitted into evidence.
C. MOTION
11College Counsel entered into evidence the Affidavit of Beti Poyastro, sworn on October 6, 2022. Attached to this affidavit is an email dated October 3, 2022 (Exhibit 6, p. 9), in which the Member indicated that his current state of health, as well as potential legal proceedings against him in Gabon, were preventing him from taking part in the hearing and requested that it be postponed until mid-January 2023. In another email also dated October 3, 2022, he attached a medical report dated August 19, 2022 (Exhibit 6, p.11‑14), which appears to show that he underwent testing at a clinic in Morocco and must return in October for surgery.
D. SUBMISSIONS OF COLLEGE COUNSEL
12The argument presented by College Counsel can be summarized as follows: seeing as the Member did not comply with the conditions ordered by the Panel in the decision rendered on July 6, 2022 and seeing as all witnesses were present at the October 7, 2022, hearing, the Panel should dismiss the motion. College Counsel also expressed some doubt as to the veracity or authenticity of the medical evidence the Member provided.
E. DECISION
13On October 7, 2022, having considered the submissions of the parties as well as the relevant case law and legislation, the Panel denied the Motion for Adjournment.
F. REASONS FOR DECISION
14The Panel listened carefully to College Counsel’s submissions and considered the advice from 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 “SPPA”), the Panel may consider one or more of the following factors when deciding whether or not to grant an adjournment:
(a) the sufficiency of the reasons advanced for the request to adjourn;
(b) the timeliness of the request;
(c) the resources of the Committee;
(d) any prejudice to the parties;
(e) whether any adjournments had been granted previously;
(f) the consent of the parties;
(g) any other relevant factor.
15In the Divisional Court decision Spence v. Ontario College of Teachers, 2018 ONSC 3335, Justice Horkins noted that the Discipline Committee’s broad discretionary power, as conferred by rule 14 of the Rules and section 21 of the SPPA, remains subject to the rules of procedural fairness. She reviewed the Discipline Committee’s analysis of the above factors in the proceedings against the member in question (Spence) and found that the Panel who heard the matter did not respect the member’s right to procedural fairness. She stated that the Panel should have considered all the medical evidence and should not have proceeded in the absence of the member due to his serious mental health diagnosis, which the College had not called into question, and which caused his functional capacity to be impaired.
16In rendering its decision in the present matter, the Panel considered the seven factors set out above as well as the Divisional Court’s Spence decision. First, the Panel does not deny that the Member may be suffering from health problems based on the medical evidence provided, which it finds to be reliable overall. On the other hand, the Member often provides the College with information at the last minute or has medical appointments that fall either on the day of the scheduled hearing or the day or a few days before (this was also the case with regards to the first request for an adjournment). For example, in an email attached to the Affidavit of Beti Poyastro, sworn on September 30, 2022, the Member notified the College on July 6, 2022, the day on which the previous hearing was scheduled, that he had been “hospitalized since 2:00 a.m.” (Exhibit 5, p. 12), attaching a hospitalization certificate showing an admission on July 5, 2022 (Exhibit 5, p. 13). As to the present hearing, the Member sent an email to the College on October 3, 2022, just four days before the scheduled hearing, attaching a medical report from a clinic in Morocco dated August 19, 2022. This report indicates a hospitalization in Morocco (which albeit the Panel has no reason to doubt), a return to Gabon on August 21, 2022, and a planned readmission to the Moroccan clinic on October 7, 2022 – the day of the present hearing – for surgery taking place between October 13 and October 20, 2022.
17The Panel finds that this can no longer be considered coincidence or at the very least feels a certain unease regarding the times at which the Member chooses to provide the information requested by the College or schedule his medical appointments, in the absence of any evidence that he has no say in the matter. Therefore, despite seeming sufficient at first glance, the reasons the Member provided to explain his absence present too many grey areas, inconsistencies and new developments that cause the Panel to seriously question their veracity. For example, the Member wrote an email to the College on July 29, 2022 (Exhibit 5, p. 41) informing the College that he would be undergoing major surgery in Casablanca, Morocco, on August 15, 2022. However, he provided no follow-up evidence of this surgery and is now claiming to have a surgery scheduled in mid-October 2022.
18Second, the Panel acknowledges that as early as July 29, 2022, the Member informed the College that the October 7 hearing date did not work for him and insisted that the hearing be rescheduled to December 2022. It should however be noted that the College took the trouble, in an email dated August 9, 2022 (Exhibit 5, p. 48), to remind him of the conditions attached to the adjournment granted by the Panel on July 6, 2022, chief among them that he must provide the College with a detailed medical report by September 7, 2022, 30 days prior to the present hearing. The Member finally provided this report on October 3, 2022, almost a month late.
19The Panel sympathizes with the Member’s health problems but finds it curious that he was not able to send the report earlier. He also delayed in providing the College with written consent to communicate with Global Affairs Canada, which proved to be problematic anyhow. In an email to the College dated September 7, 2022 (Exhibit 5, p. 72), he claimed that he could not sign the form because he was using his phone and did not have good connection. It was not until September 21, 2022, that he sent a signed consent form through a third party; however Global Affairs Canada could not accept it because his last name was not spelled in the same way as in the College’s original application to the federal department.
20Third, each request for an adjournment requires a reorganization of resources, if only to establish a new hearing date that suits all stakeholders, and any postponement entails significant costs. In this case, three witnesses were present and awaiting to appear before the Panel. A date would then have to be selected that is convenient not only for the parties, but also for those three witnesses who were prepared to appear on October 7, 2022.
21Fourth, the Panel acknowledges that there would be no real risk to the College or the public if the hearing on the merits were to be adjourned. The allegations brought against the Member by the College involve concealing the reasons for his absence from the country in order to qualify for sick leave and receiving salary and benefits from the Board while employed elsewhere overseas. These are essentially financial misrepresentations. None of the allegations involve students or present potential risks to their safety or to the general public.
22On the other hand, the Panel recognizes that while there is prejudice to the Member because he is still absent, is self-represented and because the hearing on the merits will begin without him, the Member could have minimized this prejudice by being more transparent, more proactive in his communications and, most importantly, by presenting the chronology of events more clearly. According to the evidence, it was always at the request of the College, and sometimes after several reminders, that the Member sent any required documentation. Furthermore, the Member did not comply with the conditions previously ordered by the Panel. In failing to appear at the October 7 hearing, knowing full well that the College would oppose his last-minute request for an adjournment, the Member took the risk that the motion may be denied.
23Fifth, the Panel notes that this would essentially be a third adjournment of the hearing (the second before the Panel). The hearing on the merits was originally scheduled for December 16, 2021, but due to the Member’s counsel withdrawing on December 9, 2021, the Member was suddenly required to represent himself. He then asked for additional time to prepare his case, which was granted. Then, on July 6, 2022, the Panel agreed to postpone the hearing to October 7, 2022.
24Sixth, the College is clearly against a third adjournment.
25Finally, the Panel would like to reiterate that the Member’s lack of transparency, and his propensity to provide information either piecemeal or at the last minute, leaves the Panel with the impression that he is hiding something or not being entirely honest.
26After weighing all these factors, the Panel denied the Motion for Adjournment submitted by the Member and ordered that a hearing on the merits take place as scheduled.
Date: October 24, 2022
Marlène Marwah Chair, Discipline Panel
Élaine Legault Member, Discipline Panel
Yasser Leheta, OCT Member, Discipline Panel