DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Johnston 2022 ONOCT 04

Date: 2022-01-03

DECISION AND REASONS FOR DECISION ON MOTIONS 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 John Wilfred Martin Johnston, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

JOHN WILFRED MARTIN JOHNSTON (REGISTRATION #168913)

PANEL: Jean-Luc Bernard, Chair, OCT Godwin Ifedi Alicia Nunn, OCT

HEARD: November 5, 2020, February 10, 2021

Stephanie Sugar and Steven Chadwick, for the Ontario College of Teachers No one appearing for John Wilfred Martin Johnston Rebecca Durcan, 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 November 5, 2020 and February 10, 2021, in accordance with section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched 3 and Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”).

2John Wilfred Martin Johnston (the “Member”) did not attend the proceeding and did not have legal representation.

3The Member was alleged to have committed professional misconduct in a Notice of Hearing dated February 7, 2018. The Member sought and was granted an adjournment of his hearing on April 25, 2019 (Ontario College of Teachers v. Johnston, 2019 ONOCT 31), and again on January 9, 2020 (Ontario College of Teachers v. Johnston, 2020 ONOCT 120). Following this adjournment, the hearing was scheduled to commence on May 6, 13, or 27, 2020 as needed. The dates were made peremptory on the Member.

4On March 17, 2020, the Tribunals Office of the College postponed all in-person hearings, including the present matter, due to the COVID-19 pandemic. The Member and the College agreed that the hearing be rescheduled for the fall of 2020. The Member’s hearing was rescheduled to November 5, 2020. On September 22, 2020, the Tribunals’ Office notified the Member and the College that the hearing would be held electronically.

5At the outset of the hearing on November 5, 2020, the Panel was advised that the Member had corresponded with College Counsel and with the College Tribunals’ Office. The Member was not present at the hearing. A portion of his correspondence was put before the Panel and characterized as a formal objection to proceeding electronically and, in effect, a motion to adjourn the proceedings until such time as the proceedings could be held in person. The Panel denied the Member’s motion and the hearing on the merits proceeded electronically on November 5, 2020.

6The College did not complete its case on November 5, 2020. As such, College Counsel requested that this matter continue another day and that the hearing be adjourned until that date. College Counsel also requested that the Panel put terms or conditions on the Member’s Certificate of Qualification and Registration (“Certificate”) until the Committee has disposed of the allegations against him. The Panel granted the first request and ordered that the hearing continue on February 10, 2021. The Panel denied the second request.

7On February 10, 2021, the hearing resumed. The Member was not present. The Panel was advised that the Member had corresponded with College Counsel and with the College Tribunals’ Office. This correspondence was put before the Panel and characterized as notice for a motion to adjourn the proceedings. The correspondence did not indicate the length of the adjournment requested. Following the hearing, the Panel granted the Member’s request for an adjournment and placed terms, conditions, or limitations on his Certificate.

8What follows are the Panel’s reasons for three hearing management decisions. First, for denying the Member’s adjournment request on November 5, 2020. Second, for denying the College’s request to place terms, conditions, or limitations on the Member’s Certificate on November 5, 2020. Third, for granting the Member’s adjournment but placing terms, conditions, or limitations on his Certificate on February 10, 2021.

A. PUBLICATION ban

9The 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 MEMBER’S OBJECTION TO HOLDING ELECTRONIC HEARING – NOVEMBER 5, 2020

(1) The Member’s Motion

10Between October 17, 2020 and October 25, 2020, the Member sent an email to College Counsel, as well as a series of emails to the Tribunals’ Office, objecting to the electronic format of the hearing and disputing the merits of the allegations against him.

11The Member’s objections to holding the hearing electronically can be distilled to three submissions. First, holding a hearing electronically would subject the Member to significant prejudice due to “inferior equipment, lack of office space and training”. Second, that the Member is entitled to an in-person hearing by the Canadian Charter of Rights and Freedoms. Third, that the Member cannot afford to renew his agreement with his internet provider and, as such, he may not have access to the internet. The remainder of the Member’s submissions relate either to the merits of the hearing or are a response to the College’s notice of the penalty and costs that they would seek if the Member were found to have committed professional misconduct at the conclusion of the hearing.

12As noted above, the Member did not attend the hearing to make further submissions on his motion or to reply to the College’s submissions.

(2) The College’s Submissions on Motion

13College Counsel submitted that the College’s Tribunals’ Office had reached out to the Member to offer technical support to test the videoconferencing platform on the Member’s computer and to guide him through the electronic hearings process. College Counsel further submitted that she offered the Member additional technological support, including the use of an office. If the Member had accepted these accommodations and this technical support, any alleged prejudice arising out of “inferior equipment, lack of office space and training” would be cured. This would also address the Member’s concern that he had not renewed his internet access at home. As the Member has refused any technological assistance offered by the College (including the use of internet), the Member’s argument regarding the alleged prejudice that would be caused due to technological issues should fail.

14Additionally, College Counsel submitted that there is no constitutional right to an in-person hearing, that there is no absolute right to challenge witnesses in person, and that access to justice for litigants does not equate to an absolute right to in-person hearings. As such, the Member’s constitutional arguments should fail as well, and the hearing should proceed by video conference.

(3) Decision

15On November 5, 2020, the Panel denied the Member’s motion and proceeded with the hearing on the merits.

(4) Reasons for Decision on Motion

16The Panel carefully considered the submissions of the Member and College Counsel. Pursuant to sub-rule 8.01 of the Rules, the Panel may hold some or all of a proceeding electronically, unless it is satisfied that doing so is likely to cause a party significant prejudice. Pursuant to sub-rule 8.03(3) of the Rules, in deciding whether holding an electronic proceeding is likely to cause a party significant prejudice, the Panel may consider one or more of the following factors:

1. the sufficiency of the reasons advanced for the objection;

2. the need to prevent undue delay and use Committee resources judiciously;

3. the anticipated length of delay if the matter is adjourned in favour of an in-person proceeding;

4. the complexity of the matter;

5. the potential prejudice to a party;

6. procedural fairness considerations; or

7. any other relevant factor.

17In arriving at its decision to deny the Member an adjournment on the basis that proceeding electronically would cause him significant prejudice, the Panel applied the six factors set out above. First, and most importantly, the Panel determined that the Member failed to advance sufficient reasons for his objection in holding an electronic hearing. In particular, the Member has failed to show the actual or potential prejudice that he would experience if the hearing was held electronically. The Member set out his reasons for an adjournment as “inferior equipment, lack of office space and training.” The Member did not provide details as to how his equipment is inferior and why he would require office space to participate in the hearing electronically. Additionally, the Member did not respond to the Tribunals’ Office’s offers to provide training on the College’s electronic hearing platform or to College Counsel’s offers of accommodation. Even if the Member’s inferior technology or a lack of access to the internet might have caused him prejudice, this prejudice could have been cured through the Member accepting the support offered by the Tribunals’ Office and by College Counsel.

18The Member’s motion also included a suggestion that he may not be able to participate in the hearing due to health concerns. In support of this justification, the Member referenced a document from a doctor dated April 23, 2019 stating that he was unable to attend the April 25, 2019 hearing due to medical concerns (Exhibit 2). This letter relates to the Member’s adjournment request made on April 25, 2019 and did not provide any current medical information as to the Member’s ability to proceed with the hearing in November of 2020. As such, the Panel also finds that the Member put forward insufficient reasons to grant him an adjournment based on health concerns.

19Second, the Panel finds that there is a significant need in this case to prevent undue delay. This matter has been ongoing since 2018 and relates to events that occurred in the 2015-2016 academic year. 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 two prior occasions, using up Committee time and resources. The Panel is not prepared to continue to delay this matter without sufficient reasons advanced by the Member.

20Third, at the time that the request was made, the anticipated length of the delay if the hearing were to be held in person was entirely unknown due to the status of the COVID-19 pandemic. The considerable uncertainty stemming from the pandemic and the possibility that the hearing would be significantly delayed if it were to be held in person weighed in favour of denying the Member’s request to adjourn.

21Fourth, the only anticipated issues in this matter are the credibility of the witnesses. This matter is not otherwise complex. As per sub-rule 8.03(4), the possibility of credibility being at issue in a proceeding will not, in and of itself, be sufficient reason to necessitate an in-person proceeding.

22Fifth, as previously stated, the Member has not advanced sufficient reasons to show that he will be prejudiced by holding this hearing electronically. The College, on the other hand, could be prejudiced by delaying this matter, as the memories of their witnesses would reasonably fade over time.

23Sixth, the Member has not advanced any procedural fairness considerations that will arise from holding the hearing electronically.

24Lastly, the Panel rejects the Member’s submission that there is a Charter or otherwise constitutional right to an in-person hearing. A member’s right to fundamental justice is not breached if they do not have the opportunity to challenge a witness in person (see: R. v. Singh, 2015 ONSC 6823). While a member is entitled to a fair hearing process, they are not entitled to “the most favourable procedures that could possibly be imagined” (see: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at para. 88). During the COVID-19 pandemic, numerous decision makers have held that hearings, including those involving credibility assessments, should proceed electronically and should not be adjourned (see e.g.: Association of Professional Engineers v. Rew, 2020 ONSC 2589; Forest Hill Homes (Cornell Rouge) Limited v. Wei, 2020 ONSC 5060). The Panel finds that the Member’s right to a fair hearing will not be violated by proceeding with an electronic hearing and, as such, denies the Member’s motion to adjourn the hearing until it can be held in person.

C. the college’s request for terms, conditions, OR limitations – november 5, 2020

(1) The College’s Submissions on Motion

25Due to the time required to hear the College’s oral arguments and to review the Member’s written arguments regarding the Member’s motion at the outset of the hearing, the College did not complete its case on November 5, 2020. As such, College Counsel requested that this matter continue another day and that the hearing be adjourned until that date. The Panel granted the adjournment to permit the College to finish calling evidence in this case. College Counsel further requested that the Panel make an interim order imposing terms, conditions, or limitations on the Member’s Certificate until the Committee has disposed of the allegations against him. In particular, College Counsel requested that the Member either not be permitted to teach, or that his certificate be suspended until the hearing on the merits has concluded.

26College Counsel submitted that the Panel’s authority to suspend the Member’s certificate on an interim basis stems from the Panel’s broad power to control its process as per section 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) and from sub-rule 14.01(3) of the Rules, which allows the Panel to grant an adjournment on such terms and conditions as it considers just.

27College Counsel submitted that, while unusual, an order prohibiting the Member from teaching until the outstanding allegations have been determined was appropriate in the circumstances of this case and in light of the evidence presented on the first day of the hearing. College Counsel submitted that witnesses in this case have provided evidence as to “very real and immediate concerns about the Member’s fitness and ability to be in the classroom”. According to College Counsel, an order prohibiting the Member’s teaching was required in this case in order to protect the public interest and student safety.

28As the Member was not present, he did not make submissions as to the issue of whether his certificate should be subject to terms, conditions, or limitations for the duration of the adjournment.

(2) Decision

29Having considered the evidence and submissions of the College, the Panel rendered a decision on November 18, 2020, denying the College’s motion to place terms, conditions or limitations on the Member’s certificate for the duration of the adjournment.

(3) Reasons for Decision on Motion

30The Panel finds that it has jurisdiction to impose terms and conditions on parties as per the broad power conferred by section 16.1 of the SPPA 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. As such, the Panel has the jurisdiction to make the order requested by College Counsel.

31The Panel agrees with College Counsel’s submission that, in deciding whether to impose a restriction on the Member’s Certificate that would prohibit him from teaching until the outstanding allegations against him have been determined, the appropriate considerations should be whether there is a pressing and immediate (or at the very least timely) concern to the public interest if the Member were to return to teaching. This consideration should be made in light of the College’s duty to protect the public interest as outlined in section 3(2) of the Act. However, The Panel has not heard evidence in this case that gives rise to this pressing and immediate concern to public safety. The evidence heard thus far in the hearing relates to the Member’s behaviour in the 2015-2016 academic year. Additionally, the Panel has heard some evidence about misconduct that the Member may have committed prior to the 2015-2016 academic year. The Panel has not heard any evidence about the Member’s recent behaviour in the classroom.

32Additionally, the Panel was mindful that the matter would only be adjourned for three months between the November 5, 2020 hearing date and the February 10, 2021 continuation date. This diminished the need to impose the requested terms and conditions. The Panel may have considered placing conditions on the Member’s Certificate if the College had requested a lengthy or indefinite adjournment.

33As such, the Panel denied the College’s request to place conditions on the Member’s Certificate as part of the adjournment of this hearing.

D. THE MEMBER’S ADJOURNMENT MOTION – FEBRUARY 10, 2021

(1) The Member’s Motion

34At the outset of the continuation of the hearing on February 10, 2021, the Panel was advised that the Member had corresponded with College Counsel and with the Tribunals’ Office prior to the continuation date. This correspondence was put before the Panel. Some of the correspondence related to the merits of the hearing, the credibility of the College’s witnesses, the conduct of College Counsel, and the role of Independent Legal Counsel. The remainder of the correspondence can be characterized as notice for a motion to adjourn the proceedings. The Member did not indicate the length of the adjournment requested. With this correspondence, the Member provided two letters from his treating health professional. The first was dated November 3, 2020 and specified that he continues to have medical issues which preclude him from being in a stressful environment. The second was dated February 8, 2021 and included a medical diagnosis, as well as an opinion that continuing with the hearing at that time would have been detrimental to the Member’s health.

(2) The College’s Submissions on Motion

35The College submitted that they had corresponded with the Member and were willing to consent to his adjournment request if he signed an undertaking agreeing not to teach in a classroom until this matter has been disposed of by the Committee. The Member did not respond to this request and did not sign any undertaking. College Counsel submitted that, if the Panel grants the Member’s indefinite adjournment, the Member’s Certificate should be made subject to terms, conditions, or limitations restricting his ability to teach due to the public interest and student safety concerns outlined on the previous hearing day.

36College Counsel submitted that the medical evidence provided by the Member in this case is scant and that it does not indicate that the Member is unable to participate in these proceedings, but rather that he is unwilling to participate. As such, College Counsel submitted that the Member did not advance sufficient evidence for the Panel to grant an adjournment, and that the Panel should deny the Member’s motion and proceed with the hearing on the merits.

(3) Decision

37On February 10, 2021, having considered the submissions of the parties as well as the relevant jurisprudence and legislation, the Panel granted the Member’s motion and ordered that the matter is adjourned without a return date, with the following conditions:

1. 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 Committee has resumed the hearing against the Member.

2. The following notation will be included on the Member’s public register profile:

“On February 10, 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 discipline proceeding pending against the Member has resumed. As of this time, no finding had been made concerning the allegations against the Member.”

3. The Member may, at any time, contact the Tribunals’ Office to request that the hearing resume.

4. Every six months beginning from the date of this order, the Member will provide to the College, in a manner acceptable to the Registrar, a detailed update from a qualified medical practitioner, setting out whether the Member is medically fit to proceed with his discipline hearing. If the Member fails to provide sufficient medical evidence, the Panel will assume that the Member is medically fit to proceed and the Tribunals’ Office will reschedule the hearing.

(4) Reasons for Decision on Adjournment

38The Panel carefully considered the parties’ submissions. 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 SPPA, the Panel may consider one or more of the following factors when deciding whether or not to grant an adjournment:

1. the sufficiency of the reasons advanced for the request to adjourn;

2. the timeliness of the request;

3. the resources of the Committee, including scheduling related issues;

4. any prejudice to the parties;

5. whether any adjournments had been granted previously;

6. the consent of the parties; or

7. any other relevant factor.

39In arriving at its decision to grant the Member an adjournment, the Panel applied five of the factors set out above. First, the Panel determined that the Member advanced sufficient reasons to support his request for an adjournment. The Member provided a letter from his treating physicians that was recent, timely and detailed. This letter provides a medical opinion that the Member’s medical condition is directly worsened by stressful events, including participating in his discipline hearing. The medical opinion was that continuing with the hearing would be detrimental to the Member’s health. This is a sufficient reason to grant an adjournment.

40Second, the Panel finds that the Member’s request for an adjournment was made without much notice to the College. The Member provided the College with approximately six days’ notice of the adjournment request, and only provided medical documents on the day prior to the continuation of these proceedings in February 2021. While the Panel finds that this request was not sufficiently timely, given the circumstances of this case and the fact that the Member is self-represented, this factor does not operate to deny the Member an adjournment.

41Third, the Panel determined that granting an adjournment would cause some prejudice to the College. College Counsel was prepared to proceed with the hearing and witnesses had made themselves available to testify. However, the Panel finds that the prejudice to the Member from failing to grant the adjournment outweighed any prejudice to the College. Failing to grant an adjournment would force the Member to proceed with a hearing while he was medically unfit and it may have negatively impacted his health.

42Fourth, the Panel noted that, while several adjournments had previously been granted in this matter, and while the Member had previously been denied an adjournment due to insufficient medical evidence, the Member has now provided timely medical evidence demonstrating that he has a medical condition that affects his ability to participate in the hearing. As such, the Member’s request for an adjournment was reasonable despite the previous adjournments which had been granted in this case.

43Fifth, while College Counsel submitted that the Member’s documents were insufficient to grant an adjournment, the evidence submitted showed that the College was prepared to consent to the adjournment if the Member agreed to certain conditions on his certificate. As such, while the College did not formally consent to the Member’s adjournment, it seems that it was prepared to consent to the adjournment in principle. The College’s position on the Member’s adjournment did not persuade the Panel to deny the Member’s adjournment motion in this case.

44In accordance with sub-rule 14.01(3), the Panel further has the jurisdiction to grant adjournments on any conditions that it considers just. The Panel found that it was appropriate in this case to place two conditions on the adjournment.

45First, the Panel found that there was a change in circumstances in this case on February 10, 2021, which made it appropriate for the Panel to place a condition on the Member’s Certificate, prohibiting him from teaching until this proceeding has resumed. Although the Panel had declined to impose these conditions on November 18, 2020, as the evidence did not point to a pressing and immediate concern about the Member continuing to teach and as the adjournment was a very short one that did not require restrictions on the Member’s Certificate, the circumstances were significantly different on February 10, 2021. In November 2020, it was the College that requested the adjournment so that they could finish the evidence in the hearing; whereas, in February 2021, it was the Member who requested the adjournment without an anticipated return date. As such, there was greater uncertainty in February 2021 as to when these proceedings would resume, and a greater risk to the public of the Member returning to teaching in the interim. The Panel found that it was therefore in the public interest to restrict the Member’s ability to teach until these proceedings resumed.

46Second, the Panel found that the medical evidence provided by the Member was not sufficient to demonstrate whether he was being treated for his medical condition and, if so, how long it would be until he became medically able to participate in his hearing. There is a public interest in holding this hearing, adjudicating the allegations against the Member, and bringing finality to discipline proceedings. As such, the Panel finds that it is appropriate for the Member to update the Registrar regarding his health on a regular basis. Through this condition, if the Member’s health improves, the Committee can resume the proceedings and the hearing can continue. Or, if the Member fails to provide sufficiently detailed medical evidence to the Registrar about the state of his health at six-month intervals, the Panel will assume that the Member is medically fit to proceed and the Tribunals’ Office will reschedule the continuation of this hearing.

47The Panel finds that the adjournment, with conditions, appropriately accommodates the needs of the Member, while not unduly prejudicing the College’s interests, and it satisfies the public interest.