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 Lee Allan Bujacz, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
LEE ALLAN BUJACZ (REGISTRATION #526770)
PANEL: Tom Potter, Chair Élaine Legault Rosemary Sadlier, OCT
HEARD: May 20, 2021
Andrew Matheson and Noam Uri, for the Ontario College of Teachers Christopher Perri and Kylie Sier, for Lee Allan Bujacz 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 May 20, 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”).
2Lee Allan Bujacz (the “Member”) did not attend the proceeding but had legal representation.
A. PUBLICATION ban
3The 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 MOTION
4Prior to the start of the hearing, the Member brought a motion to adjourn the scheduled May 20 and May 21, 2021 hearing dates in this proceeding without a return date, until such time as the Member is medically able to participate in a contested hearing before the Discipline Committee. At the outset of the hearing, the Panel was advised that the Member had amended his motion to adjourn the matter and reschedule the hearing to September 13, October 6, and October 7, 2021.
5In support of his motion, Member’s Counsel provided the Panel with the Affidavit of Lee Allan Bujacz, sworn May 11, 2021. In this affidavit, the Member confirms that he has been diagnosed with several medical conditions. This affidavit includes letters from his treating health professionals dated March 17, 2020, August 20, 2020, October 30, 2020, January 21, 2021, and May 5, 2021, which confirm the Member’s diagnoses. In the opinion of the Member’s family physician, the Member’s [XXX] health issues make him unfit to participate in a hearing at this time and doing so would likely result in the deterioration of his [XXX] health. Member’s Counsel provided that, in such circumstances, fairness requires that the Panel adjourn the proceeding.
6Member’s Counsel also provided the Panel with the Undertaking and Acknowledgment of Lee Allan Bujacz dated November 13, 2020 (the “Undertaking”). With this Undertaking, the Member has agreed not to teach in a public or private school in Ontario, or to hold or seek to hold a position requiring a Certificate of Qualification and Registration until the Discipline Committee has adjudicated this proceeding. Member’s Counsel submitted that the presence of this Undertaking should give the Panel comfort that there is no potential risk to the public if this matter were adjourned.
C. SUBMISSIONS OF COLLEGE COUNSEL
7College Counsel did not oppose the adjournment request but submitted that certain terms should be placed on the Member in the event of a future request for adjournment.
8College Counsel pointed to some concerns that they had with the medical documents provided by the Member in support of this adjournment. Namely, the College is concerned with the fact that the documents do not provide a qualified opinion from a [XXX] health professional regarding the Member’s ability to proceed with a hearing. Additionally, College Counsel submitted that they are growing concerned with the pattern of adjournment requests made by the Member. College Counsel reiterated that the resources of the Committee are precious, resources are wasted when there are repeated adjournments, and it is highly inconvenient for the College’s witnesses for matters to be delayed repeatedly. Due to these concerns, College Counsel requested that the Panel grant the adjournment on certain terms and conditions, namely that if the Member seeks to adjourn the newly scheduled hearing dates (September 13, and October 6-7, 2021), he shall:
serve and file a motion record at least six weeks prior to September 13, 2021;
consent to submit to an evaluation by an independent medical health professional selected by the College, to be completed no less than three weeks before September 13, 2021. The evaluation by the independent [XXX] health professional will be reported to the College and may be introduced by the College into evidence in a proceeding including as part of the record on a motion by the Member for an adjournment; and
consent to the independent [XXX] health professional and the College receiving any records and information the independent [XXX] health professional deems necessary for his/her evaluation, including records and information of any treating health professionals or health professionals whose letters or reports the Member has relied upon to seek an adjournment, and furthermore the Member will execute any further confirmation of his consent as may be necessary or requested.
9College Counsel submitted that, while unusual, these conditions are required to avoid any further delay in this hearing due to what is, in their mind, insufficient medical evidence. The allegations against the Member are serious and the College has an interest in proceeding with this matter expeditiously. College Counsel submitted that, in the event of a future adjournment request, an independent medical evaluation is the best way to allow the Member to present evidence as to his illness in a way that is fair to the College and to the witnesses in this case.
D. SUBMISSIONS OF MEMBER’S COUNSEL
10Member’s Counsel submitted that the Member’s request for an adjournment is based on his current medical condition, evidenced by sufficient medical evidence, which prevents him from being able to sufficiently participate in the hearing and/or instruct counsel.
11Member’s Counsel consented to providing six week’s notice as to any future adjournment but objected to the Panel placing the condition of an independent medical evaluation for two reasons. First, Member’s Counsel submitted that it would be premature to place such a condition in advance of any adjournments being brought by the Member. Member’s Counsel submitted that, if another adjournment is requested, it should be up to the panel hearing that adjournment to decide whether the reasons and evidence advanced by the Member at that time are sufficient or if an independent medical assessment is necessary. Second, Member’s Counsel submitted that an independent medical evaluation, particularly one of a [XXX] nature, is highly invasive and personal, and an order for an independent medical evaluation would be an undue interference with the Member’s rights to privacy and personal autonomy.
12Member’s Counsel submitted that they were not aware of a precedent where an independent medical evaluation was ordered by a professional discipline panel in the context of an adjournment. However, he presented the Panel with Bottiglia v. Ottawa Catholic School Board, 2017 ONSC 2517 [“Bottiglia”]. In this case, the Divisional Court considered when an employer may request an independent medical assessment from an employee and found that, “An employer is only entitled to request that an employee undergo an [independent medical assessment] where the employer cannot reasonably expect to obtain the information it needs from the employee’s expert as part of the employer’s duty to accommodate.” Member’s Counsel submitted that the Panel should apply this same principle when making its decision and that the Panel should avoid ordering an independent medical assessment without good reason or simply because it may provide helpful evidence.
E. DECISION
13On May 20, 2021, having considered the evidence and submissions of the parties, the Panel granted the Member’s request for an adjournment and made the following order:
The hearing is rescheduled to proceed on September 13, October 6 and October 7, 2021;
If the Member seeks to adjourn the hearing dates above for medical reasons, the Member shall comply with the following terms:
(a) the Member shall serve and file a motion record in support of the adjournment request at least six weeks prior to September 13, 2021;
(b) if the College, acting reasonably, requests an evaluation of the Member by an independent [XXX] health professional selected by the College, and the Member consents to such evaluation:
(i) the Member shall submit to such evaluation as soon as reasonably possible, in order that it may be completed no less than three weeks before September 13, 2021;
(ii) the evaluation will be reported to the College and may be introduced by the College into evidence in a proceeding including as part of the record on a motion by the Member for an adjournment;
(iii) the Member shall consent to the independent [XXX] health professional receiving any information concerning the Member’s condition that the independent [XXX] health professional deems necessary for their evaluation. This may include information from any treating health professionals or health professionals whose letters or reports the Member has relied upon to seek an adjournment. The Member will execute any further confirmation of his consent as may be necessary.
(c) The Member may only seek a variation of the terms of this order based on exigent circumstances, as determined within the discretion of the Discipline Committee.
F. REASONS FOR DECISION
14The Panel carefully considered the submissions of Counsel for the Member and Counsel for the College. Pursuant to Rule 14 of the Rules, the Panel has the discretion to adjourn a hearing. Furthermore, pursuant to sub-rule 14.01(2) of the Rules and in accordance with section 21 of the Statutory Powers Procedure Act, the Panel may consider one or more of the following factors when deciding whether or not to grant an adjournment:
the sufficiency of the reasons advanced for the request to adjourn;
the timeliness of the request;
the resources of the Committee, including scheduling related issues;
any prejudice to the parties;
whether any adjournments had been granted previously;
the consent of the parties; or
any other relevant factor.
15In arriving at its decision to grant the Member’s request for an adjournment, the Panel gave significant weight to the fact that the College consented to the Member’s motion. The Panel notes that this is the second adjournment requested by the Member. The first adjournment request was not supported by medical evidence and the Panel agrees with the submission of College Counsel that the medical evidence provided at this adjournment request was lacking in detail. However, the Panel agrees with the submission of Member’s Counsel that the Member’s medical issues are an appropriate reason for this matter to be adjourned. The Panel is also comforted by the Member’s signing of the Undertaking, which ensures that he will not teach until this matter has been adjudicated. The Panel finds that the public interest is satisfied by the Member’s Undertaking.
16The Panel finds that it is appropriate to place some conditions on any potential future requests for an adjournment. The Panel disagrees with the submission of Member’s Counsel that it is unnecessary for the Panel to decide the issue of whether to place conditions on any future adjournments. The hearing of this motion has taken up Committee resources and the Panel has the power to engage in case management to ensure that further resources are not used needlessly in the future.
17The 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. The Panel is not bound by the Divisional Court’s decision in Bottiglia as that decision did not relate to a discipline tribunal’s ability to impose conditions on an adjournment but rather to an employer’s ability to order an independent medical examination. Therefore, it is not necessary for the Panel to follow the reasoning in that case.
18Additionally, the Panel finds that there is a significant need in this case to prevent further undue delay. The Notice of Hearing in this matter was issued in 2019 and relates to events that occurred from 2014 to 2017. The Panel is mindful that, the longer this hearing is adjourned, the more likely the delay is to affect witness’ memories and their availability to testify. Additionally, this matter has been adjourned on the Member’s request on one prior occasion, using up Committee time and resources. Overall, the Panel is not prepared to continue to delay this matter without comprehensive evidence from the Member as to why he is unable to proceed. However, the Panel is mindful that an independent medical assessment conducted without the Member’s consent would excessively affect the Member’s privacy right and bodily integrity. As such, the Panel has ordered that, if the Member requests an adjournment of the September 13, and October 6-7, 2021 hearing dates, and if the College, acting reasonably, requests that an independent medical assessment be conducted in support of this adjournment, the Member can consent to such an evaluation. Any refusal by the Member to a reasonable request from the College would be a factor considered by any future panel that may be asked to grant a further adjournment.
19As per the parties’ request, this Panel is not seized of this matter and a new panel will be constituted for the hearing on the merits.
20The Panel finds that its order for an adjournment and the corresponding conditions appropriately accommodate the needs of the Member, while not unduly prejudicing the College’s interests, and it satisfies the public interest.
Date: January 3, 2022
Tom Potter Chair, Discipline Panel
Élaine Legault Member, Discipline Panel
Rosemary Sadlier, OCT Member, Discipline Panel