DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Spence 2022 ONOCT 37

Date: 2022-04-08

PENALTY DECISION AND REASONS FOR DECISION

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

Christopher Michael Spence, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

CHRISTOPHER MICHAEL SPENCE (REGISTRATION #184667)

PANEL: John Hamilton, OCT, Chair

Diane Ballantyne, OCT

Jonathan Rose

HEARD: December 2, 2021

Caroline Zayid, for the Ontario College of Teachers

Christopher Michael Spence, 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 December 2, 2021. In accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee, this matter proceeded by way of an electronic hearing.

2On August 16, 2021, the Panel found that Christopher Michael Spence (the “Member”) engaged in professional misconduct: Ontario College of Teachers v. Spence, 2021 ONOCT 139 (Decision on Finding and Reasons for Decision). In particular, the Panel found that the Member had engaged in plagiarism on numerous occasions, including between 2009 and 2013 when he was the Director of Education for the Toronto District School Board (the “Board”). Specifically, the Panel found the Member: authored books in or around 2002, 2008, and 2009 which contained plagiarized material; posted blog entries between September 2010 and October 2011 containing plagiarized material; wrote articles and opinion pieces between May 2010 and January 2013 for the Toronto Star newspaper, which contained plagiarized materials; and delivered speeches in or around March 2012, which contained plagiarized material. Based on this conduct, the Panel found that the Member contravened subsections 1(5), 1(12), 1(15), 1(18), and 1(19) of Ontario Regulation 437/97.

3The Panel reconvened on December 2, 2021 to hear submissions with respect to penalty. The Member was self-represented and he was in attendance for this phase of the hearing. Upon hearing the submissions of the parties, the Panel decided to reserve its decision on penalty and costs and advised the parties that it would provide a written decision with decisions. The Panel subsequently asked the parties to provide further written submissions on the appropriateness of ordering a fine in this matter.

4This is the Panel’s decision on penalty and costs, and the reasons for the Panel’s order.

A. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

5Counsel for the College submitted that the appropriate penalty in this matter was revocation of the Member’s certificate of qualification and registration. College Counsel outlined the mitigating and aggravating factors relevant to the Panel’s determination and provided the Panel with seven cases in support of the College’s revocation request.

6College Counsel noted that a guilty plea is often considered a mitigating factor in a decision on penalty. College Counsel also acknowledged that the Member had pled guilty to the allegations against him and stated several times during the hearing that he was accepting full responsibility. However, College Counsel submitted that the evidence presented during the hearing demonstrated that the Member’s acceptance of responsibility was, at best, minimal and superficial.

7As an example, College Counsel referred the Panel to the Member’s apology statement in January 2013 regarding the Member’s opinion piece published in the Toronto Star on January 5, 2013 on the value of sports in school. College Counsel argued that the Member had only made this statement because he could not deny the overwhelming evidence of plagiarism that the Toronto Star had provided. College Counsel noted that the apology was limited to the particular work in question and that the Member did not take responsibility for other instances of plagiarism that had occurred just months prior to this opinion piece.

8College Counsel also referred to the Member’s suggestions during the hearing that he did not write the plagiarized materials but had relied, in his capacity as the Director of Education, on writing assistance from external sources. College Counsel noted that the Member said he could not reveal who provided him writing assistance or for which projects he had received help as he was bound by non-disclosure provisions, but the Member did not provide the Panel with the non-disclosure agreements to support his assertions.

9College Counsel also referred the Panel to the opinion piece the Member had written for the Toronto Star, while Director of Education, in response to the shooting at Sandy Hook Elementary School in Newton, Connecticut. College Counsel submitted that the Member would not have had writing assistance on this piece, given its supposedly personal nature (i.e., reflections from a conversation he supposedly had with his son about the shooting), and how soon after the shooting it was written (i.e., the day after the shooting). Moreover, College Counsel noted that some of the Member’s plagiarized materials were written before he became Director of Education and had access to external writing assistance.

10College Counsel argued that all of these examples showed that the Member did not actually take responsibility or appreciate the gravity of his acts of plagiarism. College Counsel acknowledged that the Member has suffered significant repercussions as a result of his misconduct. The Member lost his job and has not returned to the teaching profession. However, College Counsel submitted that the consequences the Member has suffered for his actions are tempered by the fact that he has not taken full responsibility, and that he was the author of his own misfortune as an individual who held a significant leadership position and should have known (and was told) that plagiarism is wrong, yet engaged in repeated, dishonest conduct.

11With respect to aggravating factors, College Counsel noted that the Member repeatedly engaged in significant plagiarism, over an extended period of time (from 2002 through 2013). College Counsel also noted that academic honesty is fundamental to the teaching profession and is at the heart of what it means to be a student, a learner, and a teacher. The Member’s position as a Director of Education provided him with access to resources to help him write and meant that he was required to lead by example. The content of the plagiarized works that the Member produced were all related to education and the Member’s professional responsibilities as an educator. Additionally, these works were intended for widespread circulation and consumption having been published in, among other things, the Toronto Star newspaper, and the Board blog which is available to all teachers in the Board.

12College Counsel provided the Panel with seven prior decisions of the Discipline Committee in order to establish the range of appropriate penalties based on cases involving similar acts of dishonesty by members of the teaching profession: Ontario College of Teachers v. Haines, 1999 ONOCT 9 (“Haines”); Ontario College of Teachers v. Nugent, 2000 ONOCT 14 (“Nugent”); Ontario College of Teachers v. Racicot, 2001 ONOCT 20 (“Racicot”); Ontario College of Teachers v. Larocque, 2013 ONOCT 58 (“Larocque”); Ontario College of Teachers v. Davidson, 2015 ONOCT 16 (“Davidson”); Ontario College of Teachers v. Elliott, 2021 ONOCT 23 (“Elliott”); and Ontario College of Teachers v. Rocco, 2021 ONOCT 42 (“Rocco”).

13In Haines, the member was found to have lied about his academic credentials and qualifications. He had falsely claimed that he obtained a Bachelor of Arts degree, Master of Arts degree, and Doctorate degree from the University of California, Los Angeles. He obtained his teaching certificate based on these qualifications. The Discipline Committee found that he engaged in professional misconduct and ordered an immediate revocation of his certificate of qualification and registration.

14In Nugent, the member was a principal who stole electronic equipment from his school and used the Board’s credit card for unauthorized personal purchases. He failed to return to school after these incidents and was eventually charged criminally in regard to these incidents. The member was found to have engaged in professional misconduct and his certificate of qualification and registration was revoked.

15In Racicot, the member held herself out to have completed a Bachelor of Arts degree and she obtained admission to a Bachelor of Education program on that basis. She also advised her employers and the College that she had a Bachelor of Arts degree. Upon finding that the member engaged in professional misconduct, the Discipline Committee ordered that she be fined two thousand dollars, and that her certificate of qualification and revocation be immediately revoked.

16Larocque involved the financial dishonesty of a member who misappropriated more than $90,000 from her employer. She was charged criminally and found guilty of Fraud over $5,000 and Laundering the Proceeds of Crime. The Discipline Committee found that she engaged in professional misconduct and ordered the immediate revocation of her certificate of qualification and registration.

17In Davidson, the member was charged criminally and received a conditional discharge for having stolen a colleague’s credit card. In 2008, the Discipline Committee found that her conduct amounted to professional misconduct. In 2015, she appeared before the Discipline Committee again for various allegations of professional misconduct, including providing her employer with false information relating to her criminal and employment history. The Discipline Committee suspended her certificate of qualification and registration for two years, in addition to ordering a reprimand and the successful completion of remedial coursework before the member returned to teaching.

18Elliott and Rocco were two related cases, involving the same instances of dishonesty. Mr. Elliott was a vice-principal and Mr. Rocco was one of the superintendents for Mr. Elliott’s school board. Mr. Rocco misused the Board’s credit card, incurred improper expenses on the board’s account, had Mr. Elliott provide him with teaching materials and answer guides without proper authorization and for use in a different school board, and asked Mr. Elliott to alter documents for use in his application for U.S. citizenship. After finding that both Mr. Elliot and Mr. Rocco engaged in professional misconduct, the Discipline Committee ordered, among other things, a 15-month suspension of Mr. Elliott’s certificate of qualification and registration and a 22-month suspension of Mr. Rocco’s certificate of qualification and registration.

19While the specific misconduct in these cases differs from the case at hand, College Counsel noted they were all matters involving members’ dishonest conduct. Moreover, College Counsel opined that the cases involving dishonesty regarding members’ academic credentials were similar to the Member’s acts of plagiarism, to the extent that the members all took credit for work they had not done themselves. College Counsel submitted that revocation, and not a lengthy suspension, is appropriate considering the mitigating and aggravating circumstances of this case.

B. PENALTY SUBMISSIONS OF THE MEMBER

20The Member provided the Panel with three documents consisting of: the death certificate of his [XXX], and two [XXX] test results for himself (Exhibit 26). The Member did not make specific submissions about what conclusions the Panel should draw from these documents. He also did not make submissions as to what he believes is the appropriate penalty to be ordered by the Panel or as to the College’s request for an order of revocation of his certificate of qualification and registration.

21The Member read from an affidavit he swore on December 1, 2021 (Exhibit 25) which stated that he takes full responsibility and apologizes for engaging in professional misconduct. He said that his ability to participate in the hearing was significantly limited by life altering circumstances and ongoing health issues. He acknowledged that his actions caused pain to others and stated he is deeply committed to rehabilitation and change. He advised that he has completed a course called “EDD 8113 Policy Analysis and Ethics in Education” from a “College of Education”.

C. additional submisisons Of college counsel

22During the course of its deliberations, the Panel sought additional written submissions from the parties regarding the appropriateness of ordering a fine, pursuant to subsection 30(5) at paragraph 2 of the Act. A letter was sent to the parties on January 10, 2022, requesting submissions by January 31, 2022.

23College Counsel provided the Panel with several cases confirming the authority of the Committee to order fines following a finding of professional misconduct: Ontario College of Teachers v. Black, 2008 ONOCT 6 (Decision and Reasons on Finding) and 2009 ONOCT 8 (Decision and Reasons on Penalty) (“Black”); Racicot; and Ontario College of Teachers v. Williamson, 2017 ONOCT 20 (“Williamson”).

24In Black, the member had disclosed information from a closed hearing, in which he had participated as a member of the Discipline Committee. In that case, the College submitted that the member’s certificate should be suspended for 24 months and a reprimand should be ordered. The panel found that penalty would not sufficiently address the impact that the member’s actions had on public confidence in the profession, the public interest, and public safety and that a stronger general deterrent was required. The panel therefore imposed a $1,000 fine in addition to the penalty requested by the College.

25In Racicot, the member had misrepresented her professional credentials. The panel noted in its decision that the member’s “reprehensible behaviour must be dealt with severely as it undermines the integrity of the profession”. The panel revoked the member’s certificate of qualification and registration and ordered a fine in the amount of $2,000.

26In Williamson, the member was found to have engaged in over 100 instances of sexual abuse of a young person to whom he had been assigned as a Big Brother. The Committee imposed a fine of $5,000 (in addition to revocation and costs) and stated that: “a fine of $5000 is appropriate in order to denounce in the strongest possible terms the Member’s conduct. As well, a fine will serve to deter other members of the profession from engaging in such abuse by making it clear that sexual abuse will never be tolerated”.

27College Counsel did not take a position as to whether the Panel should order a fine in the Member’s case but noted that fines have been imposed infrequently by the Discipline Committee. College Counsel also reiterated the College’s position that the appropriate penalty in the circumstances of this case is the revocation of the Member’s certificate of qualification and registration, and that an order for costs in the amount of $10,000 would also be appropriate.

D. additional submissions Of the member

28The Member advised that he is experiencing financial difficulties due to life altering circumstances and the impact of COVID-19 and is unable to pay any fine ordered by the Panel. He provided the Panel with Exhibit 26 again for their consideration but did not provide any evidence with respect to his financial circumstances.

E. PENALTY DECISION

29The Panel makes the following order as to penalty:

1. The Registrar of the Ontario College of Teachers is directed to suspend the certificate of qualification and registration of the Member for a period of 24 months commencing on the 15th calendar day following the date of the Penalty Decision and Reasons for Decision of the Discipline Committee.

2. The Panel imposes a fine in the amount of $5,000, to be paid by the Member to the Minister of Finance for payment into the Consolidated Revenue Fund, to be paid within 24 months of the date of the Penalty Decision and Reasons for Decision of the Discipline Committee.

F. REASONS FOR PENALTY DECISION

30The Panel has carefully considered the submissions of the parties with respect to penalty and has reviewed the relevant jurisprudence provided. The Panel believes that the order set out above satisfies the penalty objectives of specific and general deterrence, rehabilitation and remediation, transparency, and protection of the public interest. The penalty ordered is proportionate to the misconduct committed by the Member and reasonable in the circumstances.

31The Panel carefully considered the cases presented by College Counsel but found them to be of limited assistance as they were not sufficiently similar on their facts to the circumstances of the Member’s case. The cases involved financial impropriety (Nugent; Larocque; Elliott; and Rocco), members’ dishonesty in relation to their academic credentials (Haines; Racicot), their criminal and employment history (Davidson, who had also previously engaged in financial impropriety), or a member’s forgery of official legal documents, among other dishonest acts (Rocco), all of which acts were done out of self-interest or self-advancement. Unlike the Member’s case, none of the cases presented by College Counsel related to plagiarism specifically. Moreover, no evidence was presented to the Panel regarding the Member’s motivation for his conduct.

32The Panel also considered the circumstances of this matter and identified several aggravating and mitigating factors. The aggravating factors in the Member’s case are the prolonged duration and repeated nature of the Member’s misconduct. The Member could have stopped at any point but did not do so; and he committed significant plagiarism in numerous works over a period of more than 10 years. The repeated nature and prolonged duration of the Member’s plagiarism indicates to the Panel that much of the Member’s misconduct was conscious and deliberate – it was not the result of a momentary lapse in judgment or any unintentional error. The Panel also finds it aggravating that the Member committed these acts, in part, while holding a position of significant leadership and responsibility within his Board. The Member was a Director of Education, which is a position of great influence within the educational community. In terms of mitigating factors, the Member has expressed remorse in submissions at the penalty hearing (and see Exhibit 25) and he has taken a course on Policy Analysis and Ethics in Education of his own accord to rehabilitate himself.

(1) Suspension

33The Panel finds that the Member’s actions were unacceptable and warrant a suspension of the Member’s certificate of qualification and registration. Academic honesty is fundamental to education and is impressed upon students from early in their educational careers. As a member of the College, and the Director of Education for one of the province’s largest school boards, it was incumbent on the Member to set an example for others and to uphold and promote the standards of the teaching profession, including honesty and integrity. The Member’s repeated plagiarism over the course of more than 10 years, including when he was a Director of Education, showed a flagrant disregard for his professional obligations. The Panel finds the Member’s plagiarism of articles about the shooting at Sandy Hook Elementary School in Newton, Connecticut, particularly egregious. It is abhorrent that the Member would appropriate someone else’s deeply personal experience of speaking to their son about the school shooting and about its impact on their family, and claim this personal account as his own in a published article.

34Given the serious and repeated nature of the Member’s misconduct, the Panel finds that a suspension of 24 months is reasonable, appropriate, and in line with the penalty objectives outlined above. The Panel was not persuaded that revocation was required. The Member is no longer in the teaching profession. Further, the Panel disagrees with College Counsel’s suggestion that the Member is not remorseful. The Member was fired from the Board and has already been scrutinized and censured by the profession and the public for his misconduct. The Member expressed acceptance of and remorse for his wrongdoing during the penalty hearing and has taken some steps towards rehabilitation, having already taken, on his own initiative, a course on Policy Analysis and Ethics in Education. The Panel considers this a mitigating factor favouring suspension over revocation.

35In this case, the Panel is of the opinion that the maximum suspension allowable under the Act – 24 months – is appropriate. The Member’s numerous acts of plagiarism have jeopardized the public’s trust in and eroded the reputation of the teaching profession. The seriousness and the repeated nature of Member’s misconduct over a prolonged period time requires an acknowledgment by this Committee to him, the profession, and the public that his behaviour was unacceptable and will not be tolerated. The suspension will serve as a specific deterrent to the Member. Recording the fact of the suspension on the Register, and the publication of this Penalty Decision and Reasons for Decision, will serve as a general deterrent to other members of the profession and will ensure the transparency of these discipline proceedings.

(2) Fine

36The Panel finds that a fine of $5,000 is appropriate in the circumstances. This is the maximum fine allowable under subsection 30(5) at paragraph 2 of the Act. The Panel notes that fines are not commonly ordered by the Discipline Committee. The cases provided by College Counsel demonstrate that fines have been ordered where panels have found a particular need to stress the seriousness of a members’ misconduct and where deterrence was a significant concern. The Panel finds that this is such an instance where a fine is warranted. The Member was an educator in a position of authority. He engaged in plagiarism in numerous works across different platforms repeatedly for more than 10 years. His actions were completely out of line with the expectations and requirements of members of the teaching profession and are not condoned by the Discipline Committee. Plagiarism will not be tolerated by the College under any circumstances.

37However, as stated above, the Panel does not find that revocation is warranted in the circumstances. The Member is not currently teaching, has shown remorse, and has taken steps towards remediation. Rather, the 24 month suspension together with this significant fine appropriately impresses upon the Member, the profession, and the public, the seriousness of the Member’s wrongdoings.

38The Member submitted that he cannot pay any fine ordered by the College. The Panel is sympathetic to the circumstances described in Exhibit 26 but, absent some evidence from the Member with respect to his financial circumstances, cannot conclude that Exhibit 26 clearly supports a finding that the Member cannot pay any fine. The Member will be provided with 24 months from the date of this Penalty Decision and Reasons for Decision to pay the fine.

G. COSTS SUBMISSIONS OF COLLEGE COUNSEL

39College Counsel 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 submitted that the Panel should be guided by Rule 16.05(3) and Tariff A of the Rules in making the costs order. Read together, Rule 16.05(3) and Tariff A provide that the College can ask the Panel to order costs and does not need to provide evidence of the actual costs of a day of hearing if the amount claimed is equal to or less than $10,000 per day of hearing.

40College Counsel requested a total costs order of $10,000. College Counsel presented the Panel with an affidavit of Daniela Spano (Exhibit 24) which outlined the progression of this matter and showed that the Member had been advised in September 2019 and again in November 2021 that the College would be seeking revocation as well as costs if it successfully proved the allegations of professional misconduct against the Member, which it did.

41College Counsel referred the Panel to Ontario College of Teachers v. Hall, 2019 ONOCT 20 (“Hall”)for principles to guide its decision regarding costs. College Counsel also provided the Panel with the following additional cases where costs were ordered against members: Ontario College of Teachers v. Chong Yen, 2018 ONOCT 56 (“Chong Yen”); Ontario College of Teachers v. Armstrong, 2019 ONOCT 49 (“Armstrong”); and Ontario College of Teachers v. Kelley, 2020 ONOCT 198 (“Kelley”).

42College Counsel acknowledged that the Member has the right to present a full and fair defence and to provide evidence during the hearing. However, College Counsel asked the Panel to consider that the Member could have done more to reduce the length and costs of the hearing. While the Member stated he was accepting responsibility and pleading guilty to the allegations, the College was still ultimately required to bring evidence of the Member’s plagiarism through live witnesses. College Counsel suggested this could have been avoided if the Member had worked with the College on an agreed statement of facts. Additionally, the Member did not return for the completion of his cross-examination. College Counsel did not argue that the Member acted vexatiously or in bad faith during the hearing. College Counsel noted, however, that because the College was unable to complete its cross-examination, the Panel could not place great weight on the evidence they heard from the Member, and that portion of the hearing was of limited value for the Panel. College Counsel submitted that it did not have any evidence that the Member could not pay $10,000 in costs, and that the Member should bear some of the costs given that the College was successful in proving all of the allegations of professional misconduct against the Member.

43Given these considerations, College Counsel submitted that the general membership should not bear the entire costs of the hearing and sought costs in the amount of $10,000.

H. Member’s submission on costs

44The Member was asked by the Panel during the penalty hearing if he wanted to make submissions on costs. The Panel reminded the Member that it was incumbent on him, not the College, to identify any extenuating circumstances regarding his ability to pay costs. The Member declined to make any submissions on costs.

I. COSTS ORDER

45The Panel makes the following order as to costs:

1. The Member shall pay costs of this proceeding to the College, fixed in the amount of $10,000, within 24 months of the date of the Penalty Decision and Reasons for Decision of the Committee.

J. REASONS FOR COSTS ORDER

46The Committee is empowered by subsection 30(5) at paragraph 4 of the Act to order costs payable by a member to the College where it has found that member guilty of professional misconduct.

47Rule 16 of the Rules sets out the applicable procedure where costs are sought by either party. Pursuant to Rule 16.05(3), where the College requests costs, it is not required to provide evidence of the costs of a day of hearing if the amount claimed is equal to or less than the amount set out in Tariff A. Tariff A is currently set at $10,000.

48Hall 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.

49After considering the factors in Hall, and particularly the Member’s conduct during the disciplinary proceedings, the Panel finds that it is appropriate to order costs against the Member in the amount of $10,000, payable within 24 months of this Penalty Decision and Reasons for Decision.

50The Panel agrees with Hallthat the goal of costs orders is the fair allocation of costs incurred in proceedings. Costs are intended to be compensatory in nature and are not intended to be an additional penalty to the Member. Costs are a mechanism to ensure the College’s membership is not held entirely financially responsible for proceedings where a member has been found guilty of professional misconduct, particularly where the member has failed to participate in the hearing process or has unnecessarily complicated the proceedings, as the Member has done in this case (by failing to return to complete his cross-examination after requesting an adjournment purportedly for the purpose of trying to obtain certain evidence, which ultimately was not provided by the Member).

51The Member pled guilty to the allegations of professional misconduct against him at the outset of the hearing on October 2, 2019. However, he did not enter into a resolution or any agreed statement of facts with the College and he wanted the opportunity to be heard as he believed the College’s anticipated evidence presented an unfair narrative about him. Accordingly, the Panel proceeded to hear the parties’ evidence before making any findings against the Member. The hearing was conducted over three days: October 2 and 3, 2019 and June 28, 2021. The Member asked for and was granted an adjournment on October 3, 2019 to adduce further evidence. The College was in the middle of its cross-examination of the Member at this point. When the proceedings resumed on June 28, 2021, the College could not conclude its cross-examination as the Member did not attend the hearing, and the finding stage of the hearing was concluded without the Member’s participation.

52Members are entitled to present a full and fair answer to the allegations made against them. However, the Member also chose to plead guilty to the allegations against him and admitted on cross-examination that many of the works attributed to him contained plagiarized materials and yet he also stated that he wished to present evidence because he disagreed with the College’s portrayal of events. The Panel is of the view that if the Member had been more cooperative with the College, the parties could have arrived at some agreement on the relevant facts which could have shortened the hearing and saved the College from having to call witnesses to present evidence proving plagiarism had occurred.

53Further, while the College did not suggest the Member’s inconsistent participation in the hearing was vexatious, the Member’s conduct during the hearing process frustrated the College’s cross-examination of the Member’s evidence and reduced the value of that portion of the hearing for the Panel. The Member could have, but chose not to communicate with College Counsel regarding his continued participation in the hearing on June 28, 2021.

54The Panel wholly agrees with the principle in Hall that “participation in the disciplinary process, cooperation and conduct that shortens or reduces the complexity of the proceeding ought to be encouraged” and finds that costs against the Member are appropriate in this instance. The College, and other members of the profession (through their registration fees) should not incur the entire cost of hearings where the cooperation of a member facing disciplinary action could significantly shorten the hearing and the reduce the costs of the hearing.

55The College was successful in establishing all of the allegations against the Member. The Member was put on notice throughout this prosecution by the College regarding potential costs consequences should the Discipline Committee find that he engaged in professional misconduct, as it did.

56In considering the quantum of the costs order, the Panel considered the length and complexity of the proceeding as well as the number of witnesses that testified in the hearing. In this case, the finding stage proceeded over three days. The College called two witnesses in support of its position. As already mentioned, the Panel is of the view that the matter could have been simplified through an agreed statement of facts, particularly given that the Member entered a guilty plea at the start of the hearing. Proceeding in such a manner could have saved the witnesses the inconvenience and burden of testifying at the hearing. Additionally, the College spent resources in preparing for and beginning the Member’s cross-examination but could not complete its cross-examination because the Member did not return to the hearing after it was adjourned at his request (other than for the penalty phase).

57The Member was provided with an opportunity to make submissions on the appropriateness of costs and his ability to pay any costs ordered and declined to do so. In accordance with the Kelley decision provided by College Counsel, as the Member has not provided evidence about his inability to pay costs, the Panel was not required to, and did not consider, the Member’s liquidity in deciding to order costs.

58In the circumstances, the Panel is satisfied that an order of $10,000 of costs payable by the Member to the College is just and appropriate.