DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Weglarz 2022 ONOCT 77

Date: 2022-07-25

DECISION, REASONS FOR DECISION AND ORDER

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 Alexander Weglarz, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

ANDREW ALEXANDER WEGLARZ (REGISTRATION #647896)

PANEL: Linda Staudt, OCT, Chair Erin Durant Andrew Glenny

HEARD: July 7, 2022

Danielle Miller, for the Ontario College of Teachers

No one appearing for Andrew Alexander Weglarz

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 July 7, 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”).

2Andrew Alexander Weglarz (the “Member”) did not attend the hearing and did not have legal representation.

3Counsel for the College submitted an Affidavit of Daniela Spano (Exhibit 2) affirmed on July 5, 2022, to show that the Member had been informed of the allegations against him, the time and date of the hearing, as well as the penalty and costs that would be sought by the College. In this affidavit, Ms. Spano, a law clerk with McCarthy Tétrault LLP, outlined communications with the Member and provided proof of service of all required documents. As such, the Panel was satisfied that the hearing could proceed in the absence of the Member.

4After the Notice of Hearing (Exhibit 1) was issued on September 1, 2021, College Counsel’s office emailed the Member a letter serving him with the Notice of Hearing and a link to access the College’s disclosure on September 7, 2021 (Exhibit 2C). After not receiving a response from the Member, Ms. Spano arranged for a hard copy of the documents to be mailed to the Member’s address on September 17, 2021 (Exhibit 2D). Although the package was returned by Canada Post, indicating that the Member was not at that address (Exhibit 2E, Exhibit 2F), the College confirmed that Ms. Spano had mailed the package to the Member’s last known address with the College (Exhibit 2G).

5Ms. Spano further describes multiple emails sent to the Member from October 2021 to June 2022, including the College’s Disclosure Brief, the Notice of Hearing and the Rules, advising the Member of the College’s penalty position, costs position and that the College would put the matter on the set date list if he does not contact Ms. Miller. At no point did Ms. Spano or her office receive any undeliverable receipts from their emails to the Member.

6On January 6, 2022, Ms. Miller again confirmed with the College whether the Member had updated his address or contact information with the College. The College again confirmed that the contact information Ms. Miller had on file matched the Member’s contact information on record with the College and further provided Ms. Miller with the Member’s business phone number (Exhibit 2L, Exhibit 2M).

7Ms. Miller advised Ms. Spano that she called the Member’s home phone number and business number multiple times on January 6, 2022 (Exhibit 2N), but the Member did not return her calls or voicemail message.

8On January 25, 2022, the College held a scheduling proceeding to set a date for the Member’s hearing. On January 31, 2022, Caroline Kelly, the College’s Tribunal Clerk emailed the Member, advising him that the hearing was scheduled to be heard on July 7, 2022 at 9:00 a.m. (Exhibit 2O).

9On February 1, 2022, Ms. Miller again wrote to the Member confirming his hearing date and the College’s position on penalty and costs. She invited the Member to contact her if he had any interest in discussing a resolution of the matter (Exhibit 2P).

10On June 8, 2022, Ms. Spano arranged for a process server to attend the Member’s last known address with the College to serve the materials on the Member. The Member’s father, Leslie Weglarz, accepted service on behalf of the Member and informed the process server that he will make sure that the Member receives the sealed addressed envelope the next time he sees the Member (Exhibit 2R).

11A week later, Ms. Spano emailed the Member the same documentation that she had previously mailed to the Member (Exhibit 2S).

12On or about June 28, 2022, Ms. Spano received a letter in the mail from Donna Weglarz, which stated not to send any correspondence to the house. This package also included the correspondence that was previously served on the Member’s father (Exhibit 2T).

13Based on Ms. Spano’s affidavit, the Panel was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents. Moreover, the Member was made aware of the time and date of this hearing and the penalty and costs that would be sought by the College should the Committee make a finding of professional misconduct.

14The Notice of Hearing explicitly states that the hearing can proceed in the absence of a party. Nevertheless, the Panel convened the hearing approximately 30 minutes after the scheduled start time. The Member still did not appear and so the Panel heard this matter in the Member’s absence.

A. PUBLICATION ban

15The 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. OVERVIEW

16On July 16, 2019, the Discipline Committee found the member guilty of professional misconduct contrary to Ontario Regulation 437/97 (Ontario College of Teachers v. Weglarz, 2019 ONOCT 95) and in its Decision, Reasons for Decision and Order (the “Order”) ordered, among other things, that the Member’s Certificate of Qualification and Registration (“Certificate”) be made subject to terms, conditions or limitations, including advising the Registrar if he is in a Teaching Position or whether he intends to return to or commence a Teaching Position, and provide the name, address and contact information of his employer or intended employer, within 30 days of the Order.

17The Order also required the Member to pay the College costs in the amount of $20,000.00 within six months of the Committee’s written decision dated August 15, 2019.

18The evidence tendered by the College in the July 7, 2022 hearing demonstrated that the Member failed to provide the College with the requisite information and payment of costs within the timelines ordered, or at all.

19Following the issuance of the Order, a College staff member emailed and mailed the Member letters, advising him of his obligations to comply with the Order (which included the payment of the costs order), and that failure to do so may be considered a breach of the Order and result in a new complaint against him. The Member responded by email and made comments indicating that he does not care and warned the College staff member to not get shot.

20The College subsequently retained legal counsel to enforce the outstanding cost award. Counsel emailed the Member to advise him of the outstanding payment of costs to the College. The Member replied and again made comments indicating that nobody cares and warned the College’s counsel to not get shot.

21The Panel’s task is to determine whether the facts alleged by the College have been proven on a balance of probabilities and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For the reasons that follow, the Panel finds that the Member engaged in professional misconduct. The Member contravened subsections 1(9); 1(18); 1(19); 1(21); and 1(25) of Ontario Regulation 437/97.

C. THE ALLEGATIONS

22The allegations against the Member in the Notice of Hearing dated September 1, 2021 (Exhibit 1) are as follows:

IT IS ALLEGED that Andrew Alexander Weglarz is guilty of professional misconduct as defined in the Act in that:

(a) he contravened a term, condition or limitation imposed on the member’s certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(9);

(b) he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);

(c) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19);

(d) he failed to comply with an order of a panel of the Discipline Committee, contrary to Ontario Regulation 437/97, subsection 1(21);

(e) he failed to respond adequately or within a reasonable time to a written inquiry from the College, contrary to Ontario Regulation 437/97, subsection 1(25).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Andrew Alexander Weglarz is a member of the Ontario College of Teachers.

2. On July 16, 2019, the Discipline Committee of the College found the Member to have engaged in certain acts of professional misconduct contrary to Ontario Regulation 437/97 and ordered, among other things, that the Member’s Certificate of Qualification and Registration be suspended and made subject to terms, conditions or limitations, including:

(a) within 30 days of the Order, to advise the Registrar if he is in a Teaching Position, or whether he intends to return to or commence a Teaching Position, and provide the name, address and contact information of his employer or intended employer;

3. The Discipline Committee further ordered the Member to pay the College costs of the proceeding in the amount of $20,000 within six months of the Committee’s written decision dated August 15, 2019.

4. The Member failed to provide required information about his employment status to the Registrar of the College within 30 days of the Committee’s Order or to date.

5. On or about November 20, 2019, College staff wrote to the Member asking him to provide the required information, but the Member failed to respond to the College’s inquiry.

6. On or about February 5, 2020, College staff again wrote to the Member requesting his compliance with the Committee’s Order to which the member responded on February 6, 2020, stating:

(a) “Tell the college (sic) I don’t care”;

(b) “Did you get the last message when I asked you to tell the college (sic) I don’t care? If not, tell the college (sic) I don’t care”;

(c) “Good for you. Don’t get shot”;

(d) “My email is playing tricks on me I think. The last email I sent was not in my sent folder and I’m not sure why. I said, ‘Good for you’ and ‘Don’t get shot.’ Did you get it?”

7. On or about March 4 and 5, 2020, the Member sent two emails to College Counsel, in response to a demand for payment of the cost order made by the Discipline Committee on August 15, 2019, stating:

(a) “Nobody cares”;

(b) “And…Don’t get shot :).”

D. THE MEMBER’S PLEA

23As the Member was not present, the Panel proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

E. THE EVIDENCE

24The College presented affidavit and documentary evidence to prove the allegations set out in the Notice of Hearing. Relevant portions of this evidence will be set out in greater detail, as needed, in the Panel’s reasons for decision below. The following is a brief summary of the College’s evidence.

(1) Affidavit of Jaclyn Luebke

25Jaclyn Luebke’s (“Ms. Luebke’s”) affidavit affirmed on June 7, 2022 (Exhibit 3D) was presented to the Panel during the hearing.

26Ms. Luebke is employed by the College as the Conditions Monitor & Public Register Coordinator for Professional Conduct (“Conditions Monitor”). As Conditions Monitor, Ms. Luebke is responsible for verifying whether the conditions and limitations imposed on a member’s Certificate of Qualification and Registration have been properly fulfilled or complied with.

27After the deadlines stipulated in the Order had passed, Ms. Luebke corresponded with the Member to advise him of his obligations to comply with the Order and payment of costs, via email and letters sent by regular mail. She also advised him of the repercussions of not complying with the Order, including that the failure to do so may be considered a breach and a new complaint could be initiated against him, and that the College would take steps to collect the costs, in addition to interest, legal fees and disbursements. Ms. Luebke also offered opportunities to discuss options for the Member to pay the costs award by way of a payment plan or negotiate the quantum.

28The Member responded to Ms. Luebke and made statements, including: “Tell the college (sic) I don’t care.”; “Did you get the last message when I asked you to tell the college (sic) I don’t care? If not, tell the college (sic) I don’t care.”; “Good for you. Don’t get shot”; “My email is playing tricks on me I think. The last email I sent was not in my sent folder and I’m not sure why. I said, “Good for you.” And “Don’t get shot.” Did you get it?”; and “If you change yours, don’t bother.”

29Ms. Luebke confirmed that, as of June 7, 2022 (i.e., the date of her affidavit), the Member has failed to provide the Registrar with the required information about his employment status and also failed to make payment of the cost award against him.

(2) Affidavit of Robin K. Mann

30Robin K. Mann (“Ms. Mann”) is a lawyer employed the law firm Andriessen & Associates and was retained by the College to enforce the outstanding cost award.

31Ms. Mann’s affidavit affirmed on June 7, 2022 (Exhibit 3E) was presented to the Panel during the hearing.

32Ms. Mann emailed the Member with details on how to make the payment, stipulated a deadline and also advised that the failure to pay the outstanding costs would result in enforcement proceedings being commenced against him without further notice, in addition to legal costs.

33The Member responded via email stating, “Nobody cares” and “And…don’t get shot.”

34Ms. Mann reported the Member’s communication to the Toronto Police Service and met with an officer. No criminal charges were laid against the Member.

35To the date of her affidavit, Ms. Mann confirmed that her office has not received payment of costs from the Member.

F. SUBMISSIONS OF COLLEGE COUNSEL

36College Counsel submitted that the evidence presented to the Panel proves each of the allegations set out in the Notice of Hearing, on a balance of probabilities. As such, College Counsel submitted that the Panel should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing.

37College Counsel reviewed the uncontradicted evidence with the Panel, which documented the Member’s contravention of the terms, conditions or limitations imposed on his certificate, his failure to comply with the Order, as well as his insolent and threatening comments to both Ms. Luebke and Ms. Mann.

38College Counsel submitted that the evidence that the Member breached subsection 1(9) of the Ontario Regulation 437/97 is plain on its face. The Member did not provide any information to the College about his employment as ordered. Despite being provided with Ms. Luebke’s clear email and opportunity for an extension, the Member chose to tell her that nobody cares and threatened her to not get shot. College Counsel argued that there is no conclusion to be drawn other than to find that the Member is in breach of subsection 1(9) of the Ontario Regulation 437/97.

39College Counsel further submitted that the Member was in breach of subsection 1(18) of the Ontario Regulation 437/97 when he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. Although the Member chose not to participate in the discipline hearing, he was aware of the decision and understood the terms with which he had to comply because Ms. Luebke reminded him of his obligations and the consequences of failing to abide by the Order, and he responded to her. Instead of complying with his obligations, College Counsel posited that the Member thumbed his nose at the College and was rude and threatening to Ms. Luebke. Likewise, the Member made no attempt to abide by the cost award and instead threatened the College Counsel who tried to enforce the order.

40College Counsel relied on two cases in support of this submission: College of Nurses of Ontario v. Kouxova, 2016 CanLII 104246 (“Kouxova”) and Ontario College of Teachers v. McIntyre, 2016 ONOCT 62 (“McIntyre”). In proposing that the Member was unprofessional when he failed to live up to the good judgment and responsibility expected of members, College Counsel relied on Kouxova, where the Discipline Committee of the College of Nurses of Ontario found that the member’s breach of their order would reasonably be considered as dishonourable and unprofessional, as she showed a lack of professionalism and unwillingness to be governed. College Counsel also relied on the McIntyre decision to argue that the Member’s breach and failure to comply with the Order was not only unprofessional, but his attempts to communicate with the College’s staff member and legal counsel were dishonourable and disgraceful. College Counsel submitted that the Member was aware that flouting the Order was wrong and could lead to a new complaint against him and so his blatant disregard was dishonourable, and reflective of his attitude that he is above the governance of his professional body. His conduct was also argued to be disgraceful because it reflected poorly on the whole profession and cast doubt on his moral fitness and ability to discharge the obligations expected of members.

41College Counsel submitted that the Member’s conduct was also unbecoming a member, contrary to subsection 1(19) of the Ontario Regulation 437/97, when the Member flouted the Order and explicitly told College staff and legal counsel that he had no intention of complying with the Order or paying the cost award. College Counsel argued that this kind of behaviour undermines the reputation of the College to regulate its membership.

42College Counsel further argued that the College had met its burden of proof in establishing that the Member failed to comply with an order of a panel of the Discipline Committee; contrary to Ontario Regulation 437/97, subsection 1(21), as stated above.

43Lastly, College Counsel submitted that the Member failed to respond to the College adequately and within a reasonable time, contrary to Ontario Regulation 437/97, subsection 1(25). The Member ignored Ms. Luebke’s first inquiry on November 20, 2019 and it was only after she followed up with the Member two months later, that he responded that he did not care. His first and subsequent responses flew in the face of what the College submits is an adequate response to an inquiry and therefore constitutes a breach. College Counsel also relied on the Member’s responses to Ms. Mann, when he responded that nobody cares and warned her not to get shot, to prove that his responses contravened professional expectations to respond adequately.

G. DECISION ON FINDING

(1) Onus and standard of proof

44The College bears the burden of proving the allegations in accordance with the standard of proof set out in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which is proof on a balance of probabilities.

(2) Decision

45Having considered the evidence, onus and standard of proof, as well as the submissions of College Counsel, the Panel rendered an oral decision on July 7, 2022, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(9); 1(18); 1(19); 1(21); and 1(25).

H. REASONS FOR DECISION

46The Panel carefully reviewed the evidence and submissions presented in this matter. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Panel first sets out its factual findings and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.

(1) Factual Findings

47The Panel considered affidavit and documentary evidence in making the factual findings set out below.

(a) The Member failed to provide the requisite information about his employment to the College, contrary to the condition imposed on his certificate of qualification and registration

48The Panel finds that the Member failed to advise the Registrar if he is in a Teaching Position, or whether he intends to return to or commence a Teaching Position, and to provide the name, address and contact information of his employer or intended employer within 30 days of the Order. This was contrary to the terms, conditions or limitations placed on his certificate of qualification and registration, as alleged in paragraph 4 of the Notice of Hearing.

49The Order was dated July 16, 2019 and the Member’s response was required by August 16, 2019.

50Ms. Luebke described her attempts to obtain the requisite information from the Member. The Panel reviewed her email and letter dated November 20, 2019 (Exhibit 3D, Exhibit C), which reminded the Member of the condition and that the College had not yet received such information from him. Ms. Luebke further wrote that the failure to provide this information may be considered a breach of the order of the Committee and a new complaint may be initiated against him by the Registrar.

51The Panel accepts that Ms. Luebke continued to follow up with the Member, as evidenced by the email and letter dated February 5, 2020. These correspondences outlined the terms of the Order and reiterated that the Member’s failure to comply could result in a new complaint (Exhibit 3D, Exhibit D). The Panel accepts that the Member emailed Ms. Luebke, stating “Tell the college (sic) I don’t care” (Exhibit 3D, Exhibit E) and “Did you get the last message when I asked you to tell the college (sic) I don’t care? If not, tell the college (sic) I don’t care” (Exhibit 3D, Exhibit F).

52The Panel further accepts that Ms. Luebke explained to the Member how he could satisfy the above-mentioned term of the Order in simpler terms in an email dated February 6, 2020 (Exhibit 3D, Exhibit G), to which the Member responded, “Good for you. Don’t get shot” (Exhibit 3D, Exhibit H) and “My email is playing tricks on me I think. The last email I sent was not in my sent folder and I’m not sure why. I said, “Good for you.” And “Don’t get shot.” Did you get it?” (Exhibit 3D, Exhibit I).

53The Panel reviewed the email correspondence dated February 6, 2020, in which Ms. Luebke concluded her email correspondence with the Member, allowing him the option of contacting her should he change his mind (Exhibit 3D, Exhibit J). The Member responded by replying, “If you change yours, don’t bother” (Exhibit 3D, Exhibit K).

54The Panel considered Ms. Luebke’s evidence, which showed that the Member was certainly in receipt of Ms. Luebke’s correspondence and understood his obligations and the consequences of failure to comply accordingly clearly, when he responded multiple times that he did not care.

55Despite Ms. Luebke’s many reminders to the Member, the Member did not provide the required information to the College within the stipulated deadline of August 16, 2019 nor did he provide a suitable response to the College when prompted to, in the months following. As such, the Panel finds that the Member failed to comply with the terms imposed on his certificate of qualification and registration.

(b) The Member failed to comply with the Committee’s order to pay costs to the College

56The Panel finds that the Member failed to comply with the Order when he did not pay $20,000 in costs to the College. The Committee ordered the Member to pay costs in the amount of $20,000 within six months of its written decision dated August 15, 2019; namely, by February 15, 2020. As stated in both Ms. Luebke and Ms. Mann’s affidavits dated June 7, 2022, the Member failed to make payment of the $20,000 costs award.

57In her affidavit, Ms. Luebke provided a detailed account and copies of correspondence with the Member, in which she reminded the member of the outstanding costs payment and that the failure to comply could be considered a breach of an order of the Committee and result in a new complaint against him, as well as the possibility that the College would take steps to collect the costs, in addition to interest, legal fees and disbursements (Exhibit 3D, Exhibit D). The Member responded as described above, stating that he did not care (Exhibit 3D, Exhibit E; Exhibit 3D, Exhibit F).

58Ms. Luebke further offered an option to pay the costs award by way of a payment plan and the possibility of negotiating the quantum (Exhibit 3D, Exhibit G), but the Member responded by stating “Good for you. Don’t get shot” (Exhibit 3D, Exhibit H).

59The Panel also received Ms. Mann’s affidavit evidence regarding her correspondence with the Member dated March 4, 2020 with respect to collecting the outstanding costs payment (Exhibit 3E). Ms. Mann affirmed that she emailed the Member, referenced the Committee’s August 15, 2019 decision and the costs award, as well as instructions to deliver the payment to her office by way of certified cheque or money order made payable to the College, within 7 days of her email. Ms. Mann further informed the Member that failure to pay would result in enforcement proceedings being commenced against him without further notice, in addition to legal costs (Exhibit 3E, Exhibit A).

60The Panel finds that the Member was in receipt of Ms. Mann’s email and understood his obligations and the consequences of failing to comply with the Order, when he responded the same day, stating “Nobody cares” and “And…don’t get shot” the following day (Exhibit 3E Exhibit B; Exhibit 3E, Exhibit C).

61The Panel finds that the Member did not comply with the Order by failing to pay the costs award at all, let alone within the deadline stipulated in the Order.

(c) The Member made dismissive and threatening comments to College staff and College Counsel

62In light of the documentary evidence, the Panel finds that the Member made the following statements to College staff: “Tell the college (sic) I don’t care”; “Did you get the last message when I asked you to tell the college (sic) I don’t care? If not, tell the college (sic) I don’t care”; “Good for you. Don’t get shot”; and “My email is playing tricks on me I think. The last email I sent was not in my sent folder and I’m not sure why. I said, ‘Good for you’ and ‘Don’t get shot.’ Did you get it?” (Exhibit 3D).

63The Panel also finds that the Member made statements to College Counsel, stating, “Nobody cares”; “And…Don’t get shot :)” (Exhibit 3E).

64Although the Member could have participated in the hearing, he chose not to and therefore did not cross-examine the affiants or present any evidence in his defence. Accordingly, the Panel finds on a balance of probabilities that the Member made such comments as alleged in paragraphs 6 and 7 of the Notice of Hearing.

(2) Legal Conclusions

65The Panel finds that the Member’s conduct set out above gives rise to a finding of professional misconduct. In particular, the Member contravened a term, condition or limitation imposed on his certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(9); he committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); he failed to comply with an order of a panel of the Discipline Committee, contrary to Ontario Regulation 437/97, subsection 1(21); and he failed to respond adequately or within a reasonable time to a written inquiry from the College, contrary to Ontario Regulation 437/97, subsection 1(25).

(a) The Member contravened a term, condition or limitation imposed on his certificate of qualification and registration, contrary to Ontario Regulation 437/97, subsection 1(9).

66The Member contravened a term, condition or limitation imposed on his certificate of qualification and registration. In its July 16, 2019 Order, the Discipline Committee directed the Registrar to impose terms, conditions or limitation on the Member’s certificate of qualification and registration, including a term directing the Member to advise the Registrar if he is in a Teaching Position, or whether he intends to return to or commence a Teaching Position, and to provide the name, address and contact information of his employer or intended employer, within 30 days of the Order, namely by August 15, 2019.

67As evidenced by Ms. Luebke’s affidavit, the Member failed to comply with this term within the stipulated deadline, which prompted her attempts to follow up with him and obtain the information directly. Despite Ms. Luebke’s correspondence, the Member continued to be in breach of this term and refused to comply with his obligations.

68The Member was well aware of his obligations and the consequences of failing to comply with the term. The term was placed on the Register after the Order was rendered and Ms. Luebke had provided him with a summary of the Order (Exhibit C, Exhibit D), which the Member clearly received as evidenced by his responses to Ms. Luebke’s emails.

69The Member’s breach of the term placed on his certificate of qualification and registration is clear. He was obligated to provide requisite information to the College within a set period of time, and failed to do so. Furthermore, when the Member was reminded of his obligation, the opportunity arose for him to abide by the Order yet he knowingly failed to do so. It is expected that members follow orders of the Committee, as it is part of their professional obligations to abide by and be respectfully willing to be governed by their regulatory body. The Member’s gross disregard for his professional obligations and the Committee’s order displays his disturbing lack of professional judgment, and his unwillingness to be governed by the teaching profession’s self-regulating governing body.

(b) The Member committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18).

70The Panel finds that the Member’s failure to comply with the Order, specifically the term imposed on his Certificate by the Committee and paying the costs award to the College as ordered, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. Members are expected to comply with orders of the Discipline Committee; it is part of their professional duties to abide by their obligations and be properly governable by their regulatory body. The Member’s failure to do so shows utter and blatant disregard for their professional obligations and can reasonably be regarded by members as dishonourable or unprofessional.

71The Panel also finds that the Member’s responses to Ms. Luebke and Ms. Mann would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Member’s responses to Ms. Luebke, who was simply reminding the Member of his obligations and generously giving him opportunities and extensions of time, were rude and threatening to her personal safety. His subsequent comments to Ms. Mann were similarly insolent and threatening, when she was providing him with details on how he could comply with his obligations.

72The Member’s responses to College staff and legal counsel were disgraceful, as they cast doubt on his moral fitness and ability to discharge the obligations expected of members of the teaching profession. The Panel finds his mocking and threatening responses to be shameful.

73The Panel also finds that the Member’s decision to mock and openly flout the Order is reflective of his disregard for his professional obligations and was dishonourable, as he was well-aware of his obligations and the possible consequences of breaching the Order, yet recklessly and knowingly disregarded them. The Member is not above the governance of the College or the Order of the Discipline Committee, yet his behaviour illustrates that he certainly considers himself to be. He is unwilling to be governed and his conduct was therefore dishonourable.

74Lastly, the Panel finds that the Member’s conduct could be regarded by members as unprofessional, as his disrespectful and threatening remarks to College staff and legal counsel showed poor judgment. Members are expected to behave professionally and respectfully when interacting with their professional regulator.

(c) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)

75The Panel finds that the Member engaged in conduct unbecoming a member. The Member’s behaviour in mocking the College’s authority and threatening its staff and legal counsel shows that he is unwilling to be governed by the teaching profession’s self-regulatory body, which undermines the public’s confidence in the College’s abilities to regulate its members. The Panel notes that the Member’s rude and threatening behaviour was especially inappropriate, considering that it was unprovoked and in response to people who were fulfilling their own professional responsibilities. The Member’s continued non-compliance with the Order and his disrespectful behaviour is unbecoming of a member, as members are expected to learn from their mistakes, take responsibility for their actions and abide by any penalty imposed as a consequence of their previous conduct. The Member’s failure to do so undermines the reputation of the teaching profession as a whole.

(d) The Member failed to comply with an order of a panel of the Discipline Committee, contrary to Ontario Regulation 437/97, subsection 1(21)

76The Panel finds that the Member failed to comply with an order of a panel of the Discipline Committee. As stated above, the Discipline Committee made a penalty order directing the Registrar to impose terms, conditions or limitations on the Member’s Certificate. The Member failed to comply with the term, condition or limitation, specifically paragraph 4(a) of the Penalty Decision, within the time period stipulated and despite the multiple extensions of time offered by the College.

(e) The Member failed to respond adequately or within a reasonable time to a written inquiry from the College, contrary to Ontario Regulation 437/97, subsection 1(25)

77The Panel finds that the Member failed to respond adequately and within a reasonable time to written inquiries from the College. Firstly, the Member failed to respond to Ms. Luebke’s first email dated November 20, 2019, reminding him of the Order that he provide information about his employment status. Ms. Luebke followed up with the Member on February 5, 2020, and only then did the Member respond to her. The Member’s failure to respond to Ms. Luebke’s original email until she followed up with him again two months later was an unreasonably long time to respond to a written inquiry from the College. Members of the teaching profession are expected to respond within a reasonable time to the College’s written inquiries, as part of their professional duties and responsibility to the College.

78The Panel also finds that the Member failed to respond adequately to the College’s written inquiries. When the Member finally responded to Ms. Luebke’s email, his response was rude, dismissive and threatening. He stated that he did not care and warned her not to get shot. Rather than responding adequately and providing information about his employment status to Ms. Luebke, the Member deliberately chose to craft multiple responses that were all insolent, brazenly disrespectful to the College, and threatening to Ms. Luebke.

79The Member also failed to respond adequately to Ms. Mann, when she provided him details on how to fulfill his obligations to pay the cost award to the College. The Member was dismissive and impudent when he told her that “nobody cares” and warned her not to get shot. The Member’s threatening and disrespectful responses were inadequate in that they failed to address the College’s concerns and inquiries. Not only were they inadequate, but they also demonstrated the Member’s impertinent attitude towards the College and his professional obligations, and threatened College staff’s personal safety.

I. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

80College Counsel submitted that the appropriate penalty was for the Member to receive a written reprimand and for the Registrar to revoke the Member’s certificate. College Counsel noted that the Member was provided with notice that the College was seeking this penalty following a hearing (Exhibit 2, Exhibit J, K, P and Q).

81College Counsel took the position that revocation of the Member’s certificate was warranted because he had proven himself to be ungovernable when he showed an appalling lack of respect for the College’s authority, was rude and dismissive to College staff and legal counsel, breached an order of the Discipline Committee, and refused to engage with the proceeding itself.

82College Counsel referenced relevant jurisprudence to establish that revocation was an appropriate order that fell within the range of penalties ordered for similar misconduct in the past: Law Society of Upper Canada v. Cammisuli, 2012 ONLSHP 157 (“Cammisuli”); Ontario College of Teachers v. Castellano, 2016 ONOCT 100 (“Castellano”); Ontario College of Teachers v. Reinders, 2017 ONOCT 62 (“Reinders”); and Ontario College of Teachers v. Suzuki, 2019 ONOCT 75 (“Suzuki”).

83Cammisuli is a decision from the Discipline Committee of the Law Society of Upper Canada (as it was then called), which was presented as the leading authority in ungovernability. In Cammisuli, the licensee was found to be guilty of professional misconduct and his licence was revoked when he was further found to be ungovernable. The Discipline Committee considered eight factors in determining ungovernability: (1) the nature, duration and repetitive character of the misconduct; (2) any prior discipline history; (3) any character evidence; (4) the existence of lack of remorse, including a recognition and understanding of the seriousness of the misconduct; (5) the degree of willingness to be governed by the Law Society; (6) medical or other evidence that explains (though does not excuse) the misconduct; (7) the likelihood of future misconduct having regard to any treatment being undertaken, or other remedial efforts; and (8) the licensee’s ongoing co-operation with the Law Society in addressing the outstanding matters that are the subject of the misconduct.¹ Among other facts, the Discipline Committee found that the licensee was ungovernable because of his demonstrated refusal to abide by the Law Society’s rules, regulations, requests for books and records, and his failure to attend his legal proceedings and abide by the imposed suspensions.

84In Castellano, the Discipline Committee of the College revoked the member’s Certificate because of his professional misconduct but also because they found him to be ungovernable. The Discipline Committee found that his lack of remorse and failure to participate in the proceedings showed that he was not willing to be governed by the College or to cooperate with it and would likely be unwilling or unable to take remedial action to correct his behaviour. The Discipline Committee concluded that the College cannot fulfill its mandate when a member ignores its processes. Therefore, the member’s ungovernability was a factor militating towards revocation.

85The Discipline Committee in Reinders also revoked the member’s Certificate based on the factors outlined in Cammisuli. In particular, the Discipline Committee found that the member’s failure to participate in the proceedings and his insulting emails to the College showed that he was unwilling to be governed by the College.

86College Counsel also presented the Suzuki case, where the Discipline Committee revoked the member’s certificate, having considered that he was ungovernable. The Committee relied on the factors in Cammisuli. In particular, the Discipline Committee considered the member’s lack of remorse, refusal to communicate with College Counsel and his lack of participation in the proceedings, which showed a failure to acknowledge his misconduct.

87College Counsel referred to the Member’s disciplinary decision, Ontario College of Teachers v. Weglarz, 2019 ONOCT 95 (Exhibit 3C) and submitted that the Committee’s finding that the Member lacked insight into his behaviour and the consequences for his colleagues and failed to provide an apology or explanation for his conduct provide evidence of ungovernability.

88College Counsel also referred to the Discipline Committee’s decision on the Member’s motion in Ontario College of Teachers v. Weglarz, 2019 ONOCT 34 (Exhibit 3B) and relied on the Member’s comment that he had no intention of complying with their order to suggest that the Member will continue to ignore the College with impunity.

89In sum, College Counsel argued that based on the application of the jurisprudence (particularly the factors in Cammisuli), the Member was ungovernable and therefore, his Certificate should be revoked. The Member has a prior discipline history with the College and has never shown remorse for his initial misconduct. In refusing to abide by the Order, the Member continues to not take responsibility for his actions. He has shown an unwillingness to be governed by the College, as evidenced by his lack of participation in the first hearing, his disregard for the Order and his absence during the hearing at hand. College Counsel argued that the Member’s failure to respond to the College’s communications, followed by his insulting, dismissive responses shows that he clearly has no respect for the College’s authority to regulate his conduct and suggests that he is likely to defy any future orders. College Counsel urged the Panel to consider that the present case meets the test for ungovernability.

90In addition to the revocation of the Member’s Certificate, College Counsel submitted that it would also be reasonable and appropriate for the Panel to order a written reprimand.

J. PENALTY DECISION

91On July 7, 2022, the Panel made the following order as to penalty:

1. The Member is directed to receive a written reprimand, which will be delivered by registered mail to his last known address and to his email on record with the Ontario College of Teachers. The fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers; and

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

K. REASONS FOR PENALTY

92In arriving at its decision with respect to penalty, the Panel carefully considered the College’s submissions. The Panel was also mindful of the guiding principles that penalty orders should address, including specific and general deterrence, public protection, confidence in the College and proportionality in considering that this penalty order was appropriate and reasonable.

93The Panel considered the Member’s circumstances in comparison to the cases provided by College Counsel. The aggravating factors in the Member’s case are his repeated failure to participate in the College’s discipline processes and his insolent behaviour not only by defying the Order but also by his rude and threatening communications to College staff and legal counsel. The Panel notes that the Member has a prior discipline history at the College for engaging in inappropriate communications with colleagues and other members of his school community. It is clear that the Member did not learn from his mistake when he continued with his inappropriate communications which were rude, dismissive and threatening. Without changing his behaviour or at the very least, acknowledging how inappropriate his actions were, the Member is likely to continue his insolent behaviour.

94Revocation is not a mandatory penalty in this case, but it is the only appropriate order given the circumstances. Through his actions and communications, the Member has proven to be ungovernable. He has failed to participate in the College’s discipline proceedings, knowingly failed to abide by the Order and responded to College staff and legal counsel in a manner that clearly indicates his brazen dismissal of the College’s authority over his behaviour and actions. The Member is, simply put, ungovernable and such a member cannot be given the privilege of membership in this College. As a self-regulating body, the College is expected to govern its membership to ensure that members are held to a high standard of behaviour and to make appropriate orders to rectify members’ misconduct. It is imperative for members of the College to respect its authority and follow its orders, as teachers hold a very privileged and trusted position in society, as those who guide students through their education and formative years. When members such as the Member demonstrate a complete, brazen disregard for the College and its processes, it is evident that they have no professional judgment, are ungovernable and cannot be trusted to act in accordance with their professional obligations.

95Revocation is the only penalty that appropriately responds to professional misconduct of this nature. The Member’s conduct undermined the reputation of the teaching profession and will not be tolerated. He has accordingly forfeited the privilege of holding a teaching certificate and being a member of the teaching profession in Ontario.

96Revocation and the delivery of a written reprimand will serve the principles of specific and general deterrence. The Member and the profession are being advised that such conduct is not permitted. The written reprimand will allow the Panel to address its significant concerns about the Member’s unacceptable behaviour directly to him. Recording the fact of the reprimand and the immediate revocation of the Member’s Certificate on the public register will reassure the public that the regulator can effectively and proportionately regulate its members in the public interest.

L. COSTS SUBMISSIONS OF COLLEGE COUNSEL

97College Counsel sought an order for costs payable by the Member to the College, pursuant to paragraph 4 of subsection 30 (5) of the Act. In accordance with Rule 16.05 (3) and Tariff A of the Rules, College Counsel asked the Panel to order the daily fee of $10,000 for the hearing day, which does not require the College to prove the expense of the hearing.

98College Counsel submitted that it was appropriate for the Panel to award costs against the Member in this case because he was uncooperative with the College since the start of the proceedings against him and refused to engage in the discipline process in any way, despite the College’s numerous attempts.

99College Counsel posited that had the Member been more cooperative, he and the College could have reached a resolution, which could have shortened the proceedings without the need to tender affidavits and make detailed legal submissions.

100College Counsel further argued that cost awards are typically made in favour of the College when the College is successful in proving its allegations, so as to not impose a burden on members who do follow the rules to pay (through their licensing fees) for the legal proceedings of members, like the Member, who fail to do so.

101College Counsel referred the Panel to the Affidavit of Daniela Spano (Exhibit 2), which outlined the progression of College Counsel’s communications with the Member and showed that the Member was advised on October 13, 2021 (Exhibit J), December 2, 2021 (Exhibit K), February 1, 2022 (Exhibit P) and June 8, 2022 (Exhibit Q) that the College would be seeking costs in the amount of $10,000 per hearing day.

102College Counsel relied on Ontario College of Teachers v. Hall, 2019 ONOCT 20 (“Hall”) to present factors for the Panel to consider in deciding whether or not to award costs. In particular, College Counsel argued that the factor, “Promotion of Good Conduct” weighed heavily against the Member based on his complete disengagement with the process and his refusal to discuss any way of resolving the matter. College Counsel also noted that the factor, “Success of the Parties” was relevant, as the Panel made findings on all heads of misconduct alleged in the Notice of Hearing. Lastly, College Counsel submitted that there was no evidence to suggest that the Member was unable to pay a cost award. Ms. Luebke had offered the Member some options to relieve some of the financial burden of the initial cost award against the Member (Exhibit 3D, Exhibit G) but the Member dismissed Ms. Luebke’s message.

103College Counsel also referred the Panel to the Ontario College of Teachers v. Arsenault, 2022 ONOCT 39 (“Arsenault”), in which the Discipline Committee ordered a cost award against the member based on the member’s lack of responsiveness to College Counsel’s communications. The Discipline Committee found that, had the member responded to the College Counsel’s communications, the parties could have made efforts to resolve the matter.

104Similarly, College Counsel argued that the Member could have made efforts in this case, but his failure to engage with the process resulted in the Panel convening a hearing and expending resources to hear the College present its case.

M. COSTS order

105On July 7, 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 $10,000, which must be paid within 60 days of the date of the Order dated July 7, 2022.

N. REASONS FOR COSTS

106The Panel has the jurisdiction and authority to order costs payable by a member to the College where it has found that member guilty of professional misconduct, according to paragraph 4 of subsection 30 (5) of the Act. Pursuant to Rule 16.05 (3) of the Rules, it is not required for the College 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. College Counsel sought $10,000 in costs, which is the amount set out in Tariff A.

107The Panel considered the factors outlined in Hall and the Arsenault decision carefully. The Panel agrees with Hall in that the goal of cost awards is to allocate the costs of the proceedings fairly. They are not intended to be an additional punishment to the member, but are rather ordered to ensure that 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 unnecessarily lengthened the proceedings, as the Member has done here by refusing to engage with the process and the College.

108The Panel cannot ignore that the Member dismissed College Counsel’s attempts to engage the Member in the disciplinary process and failed to attend the proceeding altogether, like the member in Arsenault. The Member’s brazen disregard for the College’s processes is indicative of his uncooperativeness and his ungovernability. The Member had the opportunity to cooperate with College Counsel and possibly shorten or streamline the proceedings, but chose not to. The College’s membership should not have to bear the financial burden of covering the cost of proceedings borne partly out of the Member’s refusal to cooperate.

109The Panel considers the College’s success in establishing all of the allegations, in favour of ordering costs against the Member. This was not a case where the College spent considerable time during the hearing presenting a case that was unsuccessful. The College proved all of its allegations against the Member and in such a case, cost awards against the Member are more appropriate.

110In failing to attend the hearing, the Member also did not put forth any evidence about his inability to pay costs ordered and as such, the Panel did not consider the Member’s financial ability in deciding to order costs against him.

111In ordering costs to be paid within 60 days of the Decision and Order, the Panel considered that the Member was given ample and repeated notice, on October 13, 2021 (Exhibit 2J), December 2, 2021 (Exhibit 2K), February 1, 2022 (Exhibit 2P) and June 8, 2022 (Exhibit 2Q) that the College would be seeking costs in the amount of $10,000 per hearing day. The Member had full knowledge of the hearing proceeding on July 7, 2022 and could have presented evidence on his ability to pay costs, but instead chose not to attend. When a member is so unresponsive and dismissive as this Member, it is incumbent on the Panel to ensure the integrity of the discipline process by ordering costs with a specific deadline.

112The Panel is satisfied that an order of $10,000 in costs payable by the Member to the College within 60 days of the Order dated July 7, 2022 is just and appropriate in the circumstances.

Footnotes

1. 1Law Society of Upper Canada v Cammisuli, 2012 ONLSHP 157 at para 12.