Ontario College of Teachers v. Kaprusiak, 2022 ONOCT 72

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

2022 ONOCT 72

Date: 2022-06-30

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

Andrew Paul Kaprusiak, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ANDREW PAUL KAPRUSIAK (REGISTRATION #422689)

PANEL: Rebecca Forte, OCT, Chair Gary Pieters, OCT Anne Resnick

HEARD: June 13, 2022

Ava Arbuck, for the Ontario College of Teachers No one appearing for Andrew Paul Kaprusiak Erica Richler, 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.

1The penalty portion of this proceeding was heard before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on June 13, 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”), this matter proceeded by way of an electronic hearing.

2On March 21, 2022, the Panel found that Andrew Paul Kaprusiak (the “Member”) engaged in acts of professional misconduct. In particular, the Panel found that the Member posted pictures and videos of members of the public without their knowledge or consent. He also posted derogatory, offensive and disparaging statements, comments and characterizations about individuals or groups of individuals, at times based on their race and ethnicity. The Member was found to have publicly espoused racist and prejudicial views and to have made false accusations of criminality targeted at certain members of the community. Based on this conduct, the Panel found that the Member contravened subsections 1(14), 1(15), 1(18), and 1(19) of Ontario Regulation 437/97. During the finding stage of these proceedings, the Panel withdrew the subsection 1(5) allegation at College Counsel’s request.

3The Panel reconvened on June 13, 2022 to hear submissions with respect to penalty. Counsel for the College submitted an Affidavit of Annie Lacroix (Communications with Member) [Exhibit 1 on Penalty], affirmed on June 6, 2022 by Ms. Lacroix, a litigation law clerk with McCarthy Tétrault LLP, to show that the Member had been informed and was aware of the time and date of the penalty hearing, as well as the penalty and costs being sought by the College. More specifically, the affidavit contains exhibits showing that the Member tweeted and blogged about the College’s intention to “levy a fine” and “revok[e]” his teaching certificate. In this affidavit, Ms. Lacroix also outlines her communications to the Member, including the fact that the Member has not responded to any attempts to communicate with him. Based on this affidavit, the Panel was satisfied that the College properly informed the Member of the time and date of the penalty hearing, as well as the penalty and costs it would seek against him.

4Approximately 15 minutes after the start of the hearing, the Chair confirmed with the Tribunals Clerk that no other participants were attempting to join the hearing. The Member did not attempt to join at any point in time. The Panel therefore heard the penalty hearing in the absence of the Member who had no legal representation.

5Upon hearing the submissions of the College, the Panel made the following orders as to penalty and costs:

1. The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member.
2. The Member shall pay costs of this proceeding to the College, fixed in the amount of $15,000, within 30 days of the date of the Order dated June 13, 2022.

6The following are the reasons for the Panel’s order.

A. PUBLICATION ban

7The 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. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

8Counsel for the College submitted that the only appropriate penalty in this matter was the immediate revocation of the Member’s certificate of qualification and registration. Anything short of revocation would not serve the public interest nor would it meet the goals of protecting the public, maintaining the high standards of the teaching profession and preserving public confidence in the profession. College Counsel further reminded the Panel of the principles generally considered as goals of a penalty decision: (a) specific deterrence; (b) general deterrence; (c) rehabilitation and remediation; (d) protection of the public; and (e) transparency and proportionality.

9College Counsel emphasized the Member’s lack of response throughout the proceedings and argued that his deliberate and total lack of participation in the disciplinary process points to his ungovernability. In short, College Counsel submitted that any penalty short of revocation would greatly limit the College’s ability to govern the Member. The evidence shows that the Member has not accepted responsibility in any way or ceased his disturbing behaviour which led to the finding of professional misconduct in these proceedings.

10College Counsel outlined the mitigating and aggravating factors relevant to the Panel’s determination and provided the Panel with several cases in support of the College’s revocation request. College Counsel argued there was no mitigating factor in this case. College Counsel also submitted that there was no evidence of remorse, no evidence of insight, and no evidence the Member was willing to engage with the College, which points to his ungovernability. The College finally submitted that it was aggravating that his social media posts were invasive, aggressive and published with the expressed intention that they be disseminated within the community.

11College Counsel argued there was no evidence of insight from the Member and referred the Panel to the Member’s reply to the College at the investigation stage, which was entered into evidence at the finding stage of these proceedings on July 27, 2021 (Exhibit 21). In his reply, the Member admits to posting disparaging, derogatory and offensive comments about people on social media and even transcribed or discussed examples of other similarly derogatory and offensive posts that he claimed he had uploaded to social media. College Counsel argued that not only was the Member admitting authorship to the offensive posts, but he was also defending his behaviour.

12College Counsel also referred to an Affidavit of Annie Lacroix (Additional Information), affirmed on June 6, 2022 (Exhibit 2 on Penalty). In this affidavit, Ms. Lacroix states that the College received an email from a member of the public warning that the Member “has continued to publish material similar to that which was the subject of the disciplinary hearing”. She further explains that she accessed the Member’s Twitter page on June 3, 2022 and was able to read posts of the same offensive and derogatory nature as those that were the subject of the allegations brought against him at the hearing of July 27, 2021. College Counsel also referred to a picture that the Member had posted of two people sitting at the cafeteria of London’s Victoria Hospital with a caption reading “Another psychopath suspected of child murder at the Victoria Hospital. He has very intense, glaring eyes” (Exhibit 24). This post was noticed by a member of the public (who chose to remain anonymous) on June 8, 2018, just four days after the Member had replied to the College regarding his investigation. This is, in the College’s view, a further indication that the Member lacks insight into his behaviour, as he continued to engage in it even while knowing he was under investigation.

13College Counsel also argued that the Member was unwilling to engage with the College and was therefore ungovernable. She specifically referred to the Member’s publicly taking a position against the College on Scribd, suggesting that it was a corrupt institution (Exhibit 1 on Penalty, p. 12). In that same post, the Member states that he does not consider himself to be a teacher anymore and denies that the College has jurisdiction to investigate him since “the last time [he] was employed by a school board was in 2005.” Further, the affidavit from Ms. Lacroix shows that, on May 17, 2022, she viewed tweets that suggested the Member was still teaching as a tutor through a private educational institution as of March 8, 2022. In the opinion of the College, such statements and the fact that the Member is still teaching in some capacity leave no confidence that he will be able to reform, as he does not recognize the College as his regulator and has no qualms about publicly declaring this viewpoint. Given the Member’s ungovernability, College Counsel submitted that revocation is the only order that will ensure the protection of students and the public.

14College Counsel provided the Panel with several prior decisions of the Discipline Committee and of the Law Society of Upper Canada in order to establish that revocation is appropriate in this case: Ontario College of Teachers v. Glazer, 2018 ONOCT 37 (“Glazer”); Ontario College of Teachers v. Frederick, 2006 ONOCT 17 (“Frederick”)¹; Ontario College of Teachers v. Suzuki, 2019 ONOCT 75 (“Suzuki”); Ontario College of Teachers v. Reinders, 2017 ONOCT 62 (“Reinders”); Ontario College of Teachers v. Castellano, 2016 ONOCT 100 (“Castellano”); Law Society of Upper Canada v. Cammisuli, 2012 ONLSHP 157 (“Cammisuli”); Ontario College of Teachers v. Weglarz, 2019 ONOCT 95 (“Weglarz”). According to College Counsel, these cases show that revocation can be an appropriate order, even in circumstances where a member has not engaged in physical or sexual abuse of students or where the mandatory penalty provisions at section 30.2 of the Act are not engaged.

15In Glazer, the member made numerous comments to some 20 students, including comments of a sexual and racist nature, that were deemed to be “humiliating, demeaning and unpleasant”² by the Discipline Committee. The Committee had also found the member to be “intractable and incorrigible”³, and had no confidence that the member wished or would be able to rehabilitate himself. The member had continued his inappropriate behaviour despite numerous warnings and complaints, suspensions and training paid for by the Board. The member had also chosen to take no part in the discipline process or to take it seriously. It therefore considered revocation to be the only appropriate penalty to protect the public interest and the school community, and to uphold the principles of denunciation as well as specific and general deterrence.

16In Frederick, the member was found to be publicly espousing racist ideology and attending public meetings or rallies where racist and anti-multicultural views were expressed and where he himself would speak using racist language. These views were considered to be contrary to the values of the profession and the education system, as well as detrimental to the school community and the confidence placed in the member himself and the Ontario school system as a whole. The Discipline Committee found that there was “no evidence that over the years the member took any steps to cease public activities that are inconsistent with the duties of professional membership and the values on which the education system in Ontario is based.”⁴ The Committee found that public confidence in the profession’s ability to govern its members would be jeopardized if it ordered anything short of a revocation.

17In Suzuki, the member was found to have posted obscene, offensive and demeaning comments on Facebook about a student and the student’s mother, and even posted a picture of a former girlfriend suggesting she was associated with terrorists. That post was the subject of intense discussions and instilled fear within the community, with some parents even refusing to send their children to school. Besides the serious and repeated nature of the member’s misconduct, the Discipline Committee found that the member’s ungovernability was another factor weighing in favour of revocation.

18In Suzuki, ungovernability is described as when a member “will not abide by the authority of the College as a governing body”⁵. The Discipline Committee relied on the Cammisuli decision of the Law Society Tribunal, which sets out the following factors informing the determination of whether a licensee is ungovernable:

(a) the nature, duration and repetitive character of the misconduct;

(b) any prior discipline history;

(c) any character evidence;

(d) the existence or lack of remorse. Remorse includes a recognition and understanding of the seriousness of the misconduct;

(e) the degree of willingness to be governed by the Society;

(f) medical or other evidence that explains (though does not excuse) the misconduct;

(g) the likelihood of future misconduct having regard to any treatment being undertaken, or other remedial efforts;

(h) ongoing co-operation with the Society in addressing the outstanding matters that are the subject of the misconduct.⁶

19The Discipline Committee in Suzuki concluded that these factors supported a finding of ungovernability. Among other things, the member had refused to communicate with College Counsel despite numerous attempts and took no part whatsoever in the discipline proceedings, thus showing a failure to acknowledge he may have committed serious misconduct and harmed his community.

20In Reinders, the Discipline Committee also relied on the factors set out in Cammisuli to arrive at a finding of ungovernability. The member had committed numerous acts of harassment and abuse of staff and students, which had escalated over time. Despite discipline action previously being taken against him, the member had failed to reform his behaviour. The member had not shown remorse for his actions and had even sent insulting emails to the College showing that he was not willing to cooperate with the College or to be governed by it. He had also not participated in the discipline proceedings. The Committee took the approach that “it cannot fulfil its mandate when it is ignored by a member who is accused of misconduct” and added that “[t]he member’s refusal to abide by the College’s processes makes him ungovernable, which is an aggravating factor militating towards revocation”.⁷

21In Castellano, the member had repeatedly abused female students in his classes through sexual comments and sexual touching over a number of years.⁸ The member’s conduct had escalated over time, despite receiving cautions and coursework on boundary violations, and had shown that he was unwilling to reform his behaviour. Here, too, the Discipline Committee relied on the factors set out in Cammisuli to conclude that the member disregarded the College’s authority as a self-governing body and was therefore ungovernable. The member had failed to participate in the proceedings and had even requested to resign at the last minute with the intent, in the Committee’s view, to avoid being governed by the College or having to cooperate with it.

22College Counsel submitted that revocation, and not a lengthy suspension, is the only appropriate penalty considering the circumstances of this case. College Counsel further argued that revocation will address specific deterrence in the only way that it can at this point, given the fact that the Member does not seem to be deterred at all by the finding of professional misconduct made against him. He is still teaching and still making disturbing posts online. With regard to general deterrence, College Counsel argued that revocation would inform the profession that such behaviour is very serious, and that the College has no tolerance for members unwilling to participate or cooperate with the College. It is College Counsel’s contention that the Member would be unwilling to undergo any form of rehabilitation under the College’s regulatory authority.

C. PENALTY DECISION

23On June 13, 2022, the Panel made the following order as to penalty:

1. The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member.

D. REASONS FOR PENALTY DECISION

24When the Panel finds a member guilty of professional misconduct, as is the case here, subsection 30(4) of the Act sets out the Panel’s authority to order a range of penalties up to and including revocation.

25The Panel has carefully considered the submissions of the College with respect to penalty and has reviewed the jurisprudence provided. The Panel finds that the order set out above satisfies the penalty objectives, particularly as they relate to the need for deterrence and protection of the public interest in this case. The penalty ordered is proportionate to the misconduct committed by the Member and is the only appropriate penalty in the circumstances. This penalty is also consistent with the penalties ordered in the caselaw provided by College Counsel.

(1) Caselaw

26In all the cases provided except for Weglarz, which will be addressed below, members refused to take part in the discipline process and showed they were not willing to cooperate with or be governed by the College. More specific parallels can be drawn with Frederick and Suzuki. Like in Frederick, the Member has publicly displayed racist ideologies and other views that are contrary to the standards of the profession and the values of the education system, and he has advanced no evidence to show that he has taken steps to address or cease this behaviour. Like in Suzuki, the Member’s actions have also created panic and concerns within his community, prompting people to complain to the police and attracting unfavourable media attention. The Panel finds this particularly alarming.

27College Counsel did not specifically address Weglarz at the hearing on penalty, but it is included in the College’s Brief of Authorities. After reviewing the decision, the Panel chooses to disregard Weglarz in its determination on penalty for the following reasons. First, even though the matter was heard in the absence of the member, there was not a complete lack response or cooperation from him prior to the hearing. The member did in fact reply to the College’s emails and had even asked how he should deliver his submissions. Second, the member’s ungovernability was not a key factor in the Discipline Committee’s decision in that matter. Third, the member's mental health condition was a consideration at the penalty stage of Weglarz, unlike in the Member's case. Given these distinguishing factors, the Panel did not rely significantly on the outcome in Weglarz when determining the appropriate penalty in the Member's case.

(2) Mitigating and Aggravating Factors

28The Panel also considered the circumstances of this matter. The Panel agrees with College Counsel and fails to see any mitigating factor in this case given the Member’s overall lack of cooperation and engagement throughout these proceedings. The Panel moreover agrees with the several aggravating factors identified above by College Counsel.

29The Panel was advised by Independent Legal Counsel not to consider the absence of remorse as an aggravating factor. The Panel notes that, despite the Member’s not attending to present his defense, this was a contested matter where the Panel must assume that the Member is denying the allegations made against him. The Panel does find, however, that the absence of remorse is a relevant factor at the penalty phase when determining whether the Member is ungovernable or not, as per Cammisuli. Absence of remorse is also a relevant factor at the penalty phase insofar as it may indicate a lack of insight on the part of the Member into his misconduct and thereby inform the Panel on issues of rehabilitation and specific deterrence. In other words, the Panel accepts that the Member’s absence of remorse may not be considered as an aggravating factor, but it may be relevant to demonstrate a lack of insight or to show ungovernability.

(a) Lack of insight

30Based on College Counsel’s submissions and the evidence presented to the Panel, it is clear that the Member has not been taking responsibility for his actions and that he is lacking the insight to appreciate their gravity. The Member has not ceased his disturbing behaviour and has shown no remorse despite being made aware of this Panel’s finding of professional misconduct, and by all accounts is not taking this discipline process seriously given his lack of response and his characterization of the College. This demonstrates to the Panel that the Member is not likely to benefit from a remedial order such as a suspension or coursework.

(b) Ungovernability

31The Panel considers the Member’s ungovernability to be the overarching aggravating factor in this case and that which alone justifies immediate revocation. Relying on the factors set out in Cammisuli, the Panel finds that the Member’s ungovernability is obvious.

32First, his misconduct is especially egregious and repetitive, spanning several years. The evidence shows that he continued making wild, unfounded accusations against individuals or groups of individuals on social media up to a mere 10 days before this hearing. The Panel has no reasons to believe that the Member intends to stop.

33Second, the Member’s lack of insight was amply and ably demonstrated by College Counsel, as set out above, and the Panel finds that the Member completely lacks remorse for his actions. He did not acknowledge that there was anything wrong about his posts, but rather sought to defend his positions in his reply to the College at the investigation stage.

34Third, the Member’s unwillingness to engage with the College as his regulatory body is apparent. The Panel agrees with College Counsel that the Member is recalcitrant or, as College Counsel submitted, “intractable and incorrigible”. The Member seems to misunderstand his status with the College as he claims not to be a teacher anymore. Worse, the Member disparages the College by claiming that it is corrupt and has no jurisdiction to penalize his actions. It is therefore clear that the Member has absolutely no willingness to be governed by the College or to cooperate with it.

35Fourth, the Member could have presented character evidence, medical evidence or any other evidence to explain his behaviour, but he did not, and the Panel cannot make any determination as to the Member’s mental state without evidence to support it.

36Fifth, although the Panel received no evidence of prior discipline history, the absence of prior discipline alone does not make the Member suddenly governable. The fact that the Member does not consider himself to be a teacher anymore remains, and so does his refusal to accept the College’s jurisdiction. Accordingly, the Panel finds that rehabilitation is likely out of reach.

37Sixth, the Panel received no evidence that the Member had made any kind of remedial efforts to conduct himself in a way that better aligned with the duties of his professional membership and the values on which the education system is based. Quite to the contrary, the evidence points to the Member’s committing the same kind of conduct as that of which he was found guilty. Coupled with the Member’s apparent disdain for the College, the Panel finds that the likelihood of future misconduct is high.

(c) Invasiveness of actions

38The Panel finds particularly aggravating that the Member is making his prejudicial and derogatory views known publicly and on multiple platforms (Facebook, Twitter and Scribd). As noted in Frederick, by choosing to post his statements or comments on social media and taking pictures or videos of members of the public without their knowledge or consent and then posting them online, the Member has opened the door to creating an effect on his entire community which greatly undermines the reputation of the teaching profession and runs counter to the values the Member is meant to uphold.

(3) Specific and General Deterrence

39College Counsel argued that revocation is the only way to address specific deterrence given the specific circumstances of this case. The Panel agrees. Given the Member’s conduct throughout these proceedings and his public statements about the College, the Panel fails to see what means are left at the College’s disposal to engage the Member. The only solution available is for the College to sever its relationship with the Member completely.

40Further, not revoking the Member’s certificate would be contrary to the principle of general deterrence, as this would send a message to the profession that members of the teaching profession can do such things as falsely and publicly accusing people of crimes, taking pictures or videos of people without their consent or espousing racist or denigrating views about groups of people based on their race or ethnicity, while maintaining the privilege of being a member of this profession. Worse, and much like in Frederick, it would jeopardize public confidence in the profession’s ability to govern its members efficiently. Allowing the Member to keep the privilege of membership would put the College in an untenable and unjustifiable position.

(4) Public Protection

41The fact that the Member is still teaching in a tutor’s capacity, while still posting wildly offensive and racist comments online, is deeply concerning to the Panel. The protection of the students, staff and the public is paramount and at the core of the College’s mandate. As noted in Reinders, the Panel finds that it cannot fulfill its mandate when it is knowingly ignored by a member who was accused and found guilty of professional misconduct. In the circumstances, the Panel fails to see what other penalty could meet the goal of protecting the public and finds that revocation is the only penalty that will protect the public interest.

E. COSTS SUBMISSIONS OF COLLEGE COUNSEL

42College Counsel sought an order for costs payable by the Member to the College pursuant to paragraph 4 of subsection 30(5) 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.

43College Counsel requested a total costs order of $15,000 for one and a half days of hearing (i.e., $10,000 for a full day of hearing at the finding stage and $5,000 for a half-day of hearing at the penalty stage). College Counsel presented the Panel with an Affidavit of Annie Lacroix (Communications with the Member) [Exhibit 1 on Penalty] which outlined the progression of this matter and showed that the Member had been advised on March 25, 2022 and again on June 1, 2022 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.

44College 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. Kelley, 2020 ONOCT 198 (“Kelley”); and Ontario College of Teachers v. Fox, 2021 ONOCT 34 (“Fox”). Both the Kelley and Fox decisions are examples of the Discipline Committee applying the principles set out in Hall.

45College Counsel argued that the College had successfully proved the allegations against the Member, and that the evidence is moreover embedded in his social media posts. The Member even admitted his conduct at the investigation stage. College Counsel further argued that the Member was advised numerous times that if he chose not to engage, the College would be seeking costs if there was a finding of professional misconduct. The College had hoped that if the Member knew about the possibility of costs, which the evidence shows he did, he would choose to participate, but he did not respond or participate in any way.

46Had the Member chosen to participate, it would have saved the College time, expense and resources, and possibly narrowed and shortened the proceedings. Since there was a prior admission by the Member in his reply to the College at the investigation stage, there was a good chance a contested matter could have been avoided in this case. College Counsel reminded the Panel that the College had sent several communications to the Member since the finding stage of the hearing, and that the Member had acknowledged the position of the College publicly and still chose not to engage. The general submission is that the Member has not responded to the College at all throughout the entire proceedings.

47Given these considerations, College Counsel submitted that the College (and therefore the general membership through their registration fees) should not bear the entire costs of the hearing and sought costs in the amount of $15,000 for one and a half days of hearing.

F. COSTS ORDER

48On June 13, 2022, the Panel made the following order as to costs:

1. The Member shall pay costs of this proceeding to the College, fixed in the amount of $15,000, within 30 days of the date of the Order dated June 13, 2022.

G. REASONS FOR COSTS ORDER

49The Committee is empowered by paragraph 4 of subsection 30(5) of the Act to order costs payable by a member to the College where it has found that member guilty of professional misconduct.

50Rule 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.

51Hall 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.

52After considering the factors in Hall, and particularly the Member’s deliberate absence from the proceedings, the Panel finds that it is appropriate to order costs against the Member in the amount of $15,000, payable within 30 days of the Panel’s Order dated June 13, 2022.

53The Panel agrees with Hall that 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, and particularly where the member has failed to participate in the hearing process or has unnecessarily lengthened the proceedings, as the Member has done in this case by failing to engage with the College.

54Members are entitled to present a full and fair answer to the allegations made against them. However, the Member chose not to answer to these allegations during the discipline proceedings. The Panel is of the view that if the Member had been more cooperative with the College, and particularly given his admission at the investigation stage, the parties could have arrived at an agreement on the relevant facts, which would have considerably shortened the hearing and saved the College from having to call a witness to present evidence proving that the misconduct had occurred.

55Further, while the College did not suggest the Member’s absence in the hearing was vexatious, the Member’s complete refusal to participate in the hearing process certainly demonstrates his uncooperativeness and his ungovernability. The Member could have but chose not to communicate with College Counsel regarding his participation in the hearing on June 13, 2022.

56The 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 reduce the costs of the hearing.

57The College was successful in establishing all of the allegations against the Member, other than the subsection 1(5) allegation that was withdrawn by the College. The Member was put on notice throughout this prosecution by the College regarding potential cost consequences should the Discipline Committee find that he engaged in professional misconduct, as it did.

58The 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.

59The Panel recognizes that the caselaw on costs presented by College Counsel points to an average payment timeline of 120 days. It should be noted, however, that neither the Act nor the Rules impose a minimum timeline for the payment of costs against a member or against the College for that matter. It is then entirely up to this Panel to decide what the appropriate payment timeline should be. In this case, the Panel considers that a 30-day payment timeframe is a reasonable amount of time to allow the Member to pay costs to the College. As shown by the evidence, the Member was given ample notice – on March 25, 2022 and on June 1, 2022 – of the College’s intention to seek costs. The Member then publicly posted both on Twitter and Scribd about the penalty and costs the College would seek. He even purported the “fine” would be in “the hundreds of thousands of dollars”. This goes to show that the Member was likely expecting to pay a significant amount of money as early as March 25, 2022. Moreover, the Member deliberately chose not to attend the penalty stage of the hearing, even though he was advised of the hearing date on multiple occasions, where he could have presented evidence on his ability to pay costs. The level of unresponsiveness from the Member – and concurrently his level of awareness about the penalty he was facing – is such that the Panel chooses to place more weight on ensuring the integrity of the discipline process by ordering payment within a relatively short timeline.

60Consequently, the Panel is satisfied that an order of $15,000 of costs payable by the Member to the College within 30 days of the Order dated June 13, 2022 is just and appropriate in the circumstances.

Footnotes

1. 1College Counsel referred to this case as “Fromm” (the Member’s name being “Frederick Paul Fromm”) but the Panel notes that the neutral citation refers to it as “Ontario College of Teachers v. Frederick, 2006 ONOCT 17”.
2. 2Ontario College of Teachers v. Glazer, 2018 ONOCT 37 [Glazer], p. 38.
3. 3Id., p. 40.
4. 4Ontario College of Teachers v. Frederick, 2006 ONOCT 17 [Frederick], p. 52.
5. 5Ontario College of Teachers v. Suzuki, 2019 ONOCT 75 [Suzuki], p. 42.
6. 6Suzuki, p. 43, as cited in Law Society of Upper Canada v. Cammisuli, 2012 ONLSHP 157 [Cammisuli], para. 12.
7. 7Ontario College of Teachers v. Reinders, 2017 ONOCT 62 [Reinders], p. 23.
8. 8It should be noted that revocation was not a mandatory penalty under the Act at the time of the member’s misconduct.