Discipline Committee of the Ontario College of Teachers
DECISION AND REASONS ON MOTION FOR ADJOURNMENT
IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against
Joël Patient Tchoreret-Mbiamany, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
JOËL PATIENT TCHORERET-MBIAMANY (REGISTRATION # 429577)
PANEL: Marlène Marwah, Chair Élaine Legault Yasser Leheta, OCT
HEARD: July 6, 2022
Christine Lonsdale, for the Ontario College of Teachers Joël Patient Tchoreret-Mbiamany, absent and unrepresented Renée Kopp, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
1On July 6, 2022, a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) held an electronic proceeding, pursuant to Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), to hear the allegations against Joël Patient Tchoreret-Mbiamany (the “Member”) in the Notice of Hearing dated July 13, 2020 (Exhibit 1).
2The Member did not attend the hearing and did not have legal representation.
3College Counsel immediately advised the Panel that the Member had submitted an email request for adjournment which, for the purposes of this hearing, will be treated as a motion for adjournment.
A. Publication BAN
4The 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. MOTION
5At the hearing, College Counsel submitted to the Panel an Affidavit de Beti Poyastro (Affidavit of Beti Poyastro) (Exhibit 3), sworn on June 27, 2022, to prove that the Member had been informed of the allegations against him and of the date and time of the hearing. In the affidavit, Ms. Poyastro, a paralegal at McCarthy Tétrault LLP, details her communications with the Member and provides evidence that all required disclosure documents were sent to him, first electronically and then in hard copy to Libreville, Gabon, via DHL. However, it appears that the Member failed to attend at the service point to pick up the documents.
6On June 7, 2022, the College was informed via email by Mr. Kaka Rapono Louis-Joseph that the Member had been illegally detained in a Gabonese prison since February 2022 and was seeking a stay of the proceedings. On June 27, 2022, the College received what appears to be a copy of a summons issued by the Gabonese authorities to the Member. However, College Counsel reports that its firm's inquiries into the alleged imprisonment of the Member, including inquiries to Global Affairs Canada, were unsuccessful. Global Affairs Canada also requires the Member’s written and signed consent for the College to make an access to information request under the Access to Information Act to learn more about the alleged detention.
7College Counsel also submitted a second Affidavit de Beti Poyastro (Affidavit of Beti Poyastro) (Exhibit 4) sworn on July 5, 2022. In the affidavit, Ms. Poyastro states that she received two emails from the Member on July 1, 2022, informing her that he had been released and then admitted to intensive care in a hospital in Gabon, and attaching supporting documents. A third email from the Member was received on July 4, 2022, which indicates that he had a medical appointment on July 6, 2022, the day of this hearing. In another email introduced in evidence by the College dated July 5, 2022 (Exhibit 2), the Member stated that his current medical condition prevented him from participating in the hearing and requested that the hearing be postponed to a later date between December 10 and 20, 2022. On July 5, 2022, College Counsel acknowledged receipt of the emails and stated the College's position on the Member's request for an adjournment. In her email, College Counsel argued that adjournment to December was unwarranted and suggested adjournment to October 3, 7 or 14, 2022 instead. She also advised the Member that the College would seek to impose certain conditions on the adjournment.
C. SUBMISSIONS OF COLLEGE COUNSEL
8College Counsel began by recalling the background to this motion. She then explained that the situation was difficult to understand given the sporadic communication from the Member, often at the last minute. She found it difficult to understand why the Member had failed to pick up the disclosure documents sent to him by courier by the College when they arrived in January, given that his alleged detention began in February. She argued that the College had little information explaining what had actually happened or getting to the truth, other than an email from the Member and another from the Member's alleged brother, Kaka Rapono Louis-Joseph, who did not confirm his identity or in fact answer the College's questions about the circumstances surrounding the alleged detention or the Member's medical condition.
9College Counsel did not object a priori to the request for adjournment but believed that postponing the hearing until December was not necessary, fair or appropriate. She gave the Member the benefit of the doubt that he could not attend the July 6, 2022 hearing, but a hospital medical certificate filed in evidence (Exhibit 4, p. 34) stated that the Member would be off work for 30 days (1 month) as of July 1, 2022, subject to further complications. The College also believed that while the request for an adjournment should be granted, certain conditions should be imposed on the adjournment: (1) a requirement to provide the College with a detailed medical report 30 days prior to the new hearing date to obtain an update on the Member's medical condition and thus avoid any surprises; (2) a requirement for the Member to give his written consent to the College to contact Global Affairs Canada for information about the Member's alleged detention in a Gabonese prison. College Counsel claimed that the Government of Canada would have become involved if a Canadian citizen had been illegally detained in a foreign country.
10College Counsel cited Spence v. Ontario College of Teachers, 2018 ONSC 3335 (the "decision of the Divisional Court in Spence"), which the Panel will address in its reasons, to guide the Panel in its analysis of whether or not to grant the motion to adjourn.
11Initially, College Counsel requested a peremptory adjournment date, but later changed her mind after Independent Counsel brought Ontario College of Teachers v. Spence, 2021 ONOCT 26 (the "decision of the Discipline Committee in Spence") to the attention of both College Counsel and the Panel. In that matter, the Panel dismissed College Counsel's argument that peremptory dates were appropriate. The Panel felt that this approach would be unduly restrictive for a self-represented individual who was absent from the hearing1, as in the matter before us. The Panel felt that it would be more appropriate to allow the Member to choose from among the proposed hearing dates.
D. DECISION
12Having considered the submissions of the parties and the relevant legislation and cases provided, on July 6, 2022, the Panel granted the motion for adjournment according to the following terms and conditions:
- The hearing shall be adjourned to October 7, 2022.
- The Member must provide the College with a detailed medical report on his condition within 30 days prior to the new hearing date.
- The Member must provide the College with his written consent for the College to communicate with Global Affairs Canada regarding his situation as a detainee in Gabon.
E. REASONS FOR DECISION
13The Panel listened carefully to College Counsel's submissions and considered the advice of Independent Counsel. Pursuant to Rule 14 of the Rules, the Discipline Committee – through its Panel – may adjourn a hearing. Furthermore, pursuant to sub-rule 14.01(2) of the Rules and in accordance with section 21 of the Statutory Powers Procedure Act (the "SPPA"), in deciding whether to adjourn a hearing, the Discipline Committee may consider one or more of the following factors:
a) the sufficiency of the reasons advanced for the request to adjourn; b) the timeliness of the request; c) the resources of the Committee; d) any prejudice to the parties; e) whether any adjournments have been granted previously; f) the consent of the parties; or g) any other relevant factor.
14In the decision of the Divisional Court in Spence, Horkins J. noted that the broad discretion conferred on the Discipline Committee by Rule 14 of the Rules and section 21 of the SPPA was still subject to the rules of procedural fairness. She reviewed the Discipline Committee's analysis of the factors listed above and concluded that the Panel in this matter had not respected Mr. Spence's right to procedural fairness. The Panel should have considered all of the medical evidence and should not have proceeded in Mr. Spence's absence in light of his serious mental health diagnosis, which the College did not dispute, that his ability to function was impaired.
15In arriving at its decision, the Panel considered the seven factors set out above as well as the decision of the Divisional Court in Spence. First, the Panel agreed with College Counsel that the Member should be given the benefit of the doubt on the basis of the medical documentation provided to him. While the sequence of events was not completely clear and ideally the Panel would have received a little more detail about the Member's medical condition, it was clear that the Member was suffering from health problems that prevented him, at least in the immediate future, from properly preparing for this disciplinary proceeding and from presenting a full and complete defence.
16Second, the Panel found that the timing of the Member's request for an adjournment was somewhat unreasonable, giving the College barely 24 hours’ notice. It should also be noted that this was a second request for adjournment of a hearing that was originally scheduled for December 16, 2021.
17Third, it is clear that every request for adjournment means that resources must be reorganized, if only to find a new hearing date that is convenient for all stakeholders. In this case, the reorganization of resources did not require undue effort: this Panel will be hearing the case on its merits and its members were able to quickly find a date that was convenient for them.
18Fourth, the Panel agreed with College Counsel that neither party would be prejudiced by an adjournment, particularly since the three-month delay between July 6, 2022 and the new hearing date was not unreasonably long.
19Fifth, the Panel noted that this was a second adjournment. As noted above, the hearing on the merits in this case was scheduled for December 16, 2021, but the withdrawal of the Member's counsel on December 9, 2021 meant that the Member was suddenly required to represent himself. He then asked for more time to prepare, which was granted. The hearing was postponed to July 6, 2022.
20Sixth, it is clear that the parties agree to a second adjournment. In the case of the College, however, this adjournment is not without conditions.
21Seventh, with respect to any other relevant factors, the Panel sees no other relevant factors that should be considered in this case. It does have some concerns, but these will be addressed by the terms and conditions imposed on the adjournment.
22The Panel therefore grants the Member's request for adjournment on the terms and conditions listed in paragraph 12 above.
23The Panel could have chosen to grant an adjournment to a later unspecified date, but instead chose to impose a specific adjournment date from among those proposed by College Counsel. Given the Member's sometimes lengthy response time and the fact that this is a second adjournment, the Panel believed it was important to move the matter forward by imposing an adjournment date, but not making it peremptory. This will give the Member a clear idea of how much time he has to prepare for the hearing on the merits. This is a middle ground between an adjournment to some future date and an adjournment to a peremptory date, as originally sought by the College. In light of the decision of the Discipline Committee in Spence, a peremptory date would not have been warranted since the Member is representing himself and was effectively absent from the July 6, 2022 hearing to make his submissions. However, in the Panel's view, there was merit in ensuring that this matter was not unduly delayed and that the disciplinary process continued smoothly by imposing a specific adjournment date.
24To adjourn the hearing to next December, as sought by the Member, seems excessive. According to the medical evidence received to date, the Member is only on medical leave for one month, which means that he would be able to attend a hearing as early as August. It is true that the Member could very well request a third adjournment, but in any event, he would have to make further submissions to the Panel in order for it to be granted.
25In addition, the Panel grants the two other conditions requested by College Counsel: the detailed medical report within 30 days prior to the new hearing date and the written consent of the Member with respect to dealing with Global Affairs Canada. These two conditions serve the same purpose: to allow the Panel to properly assess the issue of timing and to respect the Member's rights.
26The postponement of the hearing to October 7, 2022 accommodates the Member’s needs without unduly prejudicing the interests of the College and is in the public interest.
July 19, 2022
Marlène Marwah Chair, Discipline Panel
Élaine Legault Member, Discipline Panel
Yasser Leheta, OCT Member, Discipline Panel
Footnotes
- Ontario College of Teachers v. Spence, 2021 ONOCT 26, para. 19.