Ontario College of Teachers v. Mammarella, 2022 ONOCT 87

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Mammarella 2022 ONOCT 87 Date: 2022-09-02

DECISION AND REASONS FOR DECISION ON MOTIONS

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 Daniel Mark Mammarella, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

DANIEL MARK MAMMARELLA (REGISTRATION #257491)

PANEL: Rebecca Forte, OCT, Chair Rachelle Coleman Erin Durant

HEARD: July 12, 2022

Nicholas Fitz and Christine Lonsdale, for the Ontario College of Teachers Kirsty Niglas-Collins and Christopher Reid, for Daniel Mark Mammarella Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(4) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of Student 2 who was allegedly sexually abused, or the subject of sexual misconduct, a prohibited act involving child pornography, or a prescribed sexual act.

The Discipline Committee further ordered a publication ban pursuant to subsection 32.1(1) of the Ontario College of Teachers Act, 1996, preventing the publication of the identity of, or any information that could disclose the identity of Student 1.

1On July 12, 2022, Daniel Mark Mammarella (the “Member”) brought two motions before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”). The first motion was for an order of the Panel to sever the allegations contained in the Notice of Hearing issued against the Member. The second motion was for a request to hold in-person hearings for the evidence given by Student 1, Student 2 and the Member. 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 proceeding was heard electronically.

2The Member attended the proceeding and had legal representation.

3This is the Panel’s decision and reasons on both motions.

A. PUBLICATION ban

4The Panel ordered a publication ban pursuant to subsection 32.1(4) of the Ontario College of Teachers Act, 1996 (the “Act”) at the request of Student 2, who was allegedly sexually abused. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 2.

5College Counsel indicated that she had not received instructions from Student 1 as to whether he wished a publication ban pursuant to subsection 32.1(4) of the Act be enforced on his behalf or not. The Panel cannot therefore enforce such a ban under subsection 32.1(4). Wishing nonetheless to protect the identity of Student 1, and upon the advice of Independent Legal Counsel, a publication ban was ordered by the Panel under subsections 32(7) and 32.1(1) of the Act. Subsection 32.1(1) gives the Panel authority to make an order that the public, including members of the College, be excluded from a hearing if, in the Panel’s opinion, the possibility of serious harm or injustice to any person justifies a departure from the general principle that hearings should be public. Subsection 32.1(1) allows the Panel to order a publication ban in circumstances in which the test for closing the hearing under subsection 32(7) is met, and the Panel did so in this case with respect to Student 1’s identity.

B. THE ALLEGATIONS

6The allegations against the Member in the Notice of Hearing dated October 28, 2019 are as follows:

IT IS ALLEGED that Daniel Mark Mammarella is guilty of professional misconduct as defined in the Act in that:

(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) he abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(c) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(d) he abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(e) he failed to comply with the Act, or the regulations or the by-laws, and specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(f) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(g) 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Daniel Mark Mammarella is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the York Catholic District School Board as a teacher at [XXX] School (the “School”) in Markham, Ontario.

3. In or around the academic years 2016-2017 and 2017-2018, Student 1 was a male student at the School.

4. In or around the academic year 2016-2017, Student 2 was a male student at the School.

5. In or around the academic year 2016-2017, the Member:

(a) transported male students in his car and/or drove them home from school without appropriate permission;

(b) while driving with Student 1:

(i) engaged in inappropriate physical and/or sexual contact with Student 1;

(ii) placed his hand on Student 1’s lap;

(iii) made inappropriate comments to Student 1, including but not limited to: words to the effect of “[Student 1], every time you talk to me, I get this sensation that you want to tell me something deeper”;

6. On or about May 31, 2017, the Member:

(a) engaged in inappropriate physical and/or sexual contact with Student 2;

(b) placed his hand on Student 2’s arm;

(c) increased Student 2’s grade on a test and/or assignment without an appropriate basis to do so;

7. On or about April 30, 2018, the Member:

(a) engaged in inappropriate physical and/or sexual contact with Student 1;

(b) put his arm around Student 1;

(c) hugged Student 1;

(d) touched Student 1’s hair and/or head;

(e) touched Student 1’s cheek;

(f) forced and/or turned Student 1 to face him;

(g) made inappropriate comments to Student 1, including but not limited to: words to the effect of “I know you think I’m disappointing you, but I’m not … I still care about you … I miss my buddy … I miss driving you home”;

(h) engaged in interaction with Student 1 when he knew or should have known that his interaction was inappropriate and/or unwelcome.

C. the motion for severance

7In his Amended Notice of Motion dated June 28, 2022, the Member brought a motion for:

1. An order from the Discipline Committee of the Ontario College of Teachers for the severance of allegations contained in the Notice of Hearing issued against the Member.

2. Specifically, that the allegations concerning Student 1, [XXX], (particulars 1, 2(b), and 7)¹ be severed from the allegations concerning Student 2, [XXX] and should be heard by separate panels of the Discipline Committee of the Ontario College of Teachers.

THE GROUNDS FOR THE MOTION ARE:

3. The Member brings this motion pursuant to section 1(3), 4.7, 5.2.1, 9.1(1), 23(1), 25.0.1 of the Statutory Powers Procedure Act, section 30 (1) of the Ontario College of Teachers Act, 1996 and the Rules of Procedure of the Discipline and Fitness to Practice Committees.

D. submissions of member’s counsel

8Relying on Baker v. Canada (Minister of Citizenship and Immigration)² from the Supreme Court of Canada (the “SCC”), Member’s Counsel’s broader argument for this motion was that the procedural fairness owed to the Member should be proportionate to the Member’s interests that are affected or to the impact on his life. Member’s Counsel argued that, if found guilty, the Member would lose his teaching certificate and therefore his livelihood, and that his professional and personal lives, as well as his reputation, would be severely and irreparably damaged. Consequently, if the allegations brought against the Member are to be heard in a way that is proportionately fair to him, the allegations regarding Student 1 and those regarding Student 2 should be separated.

9Member’s Counsel illustrated this argument by submitting there were three different “buckets of particulars” in the allegations set out by the College in the Notice of Hearing. The first bucket is the 5(a) particular, which would be, in the opinion of Member’s Counsel, questionable or debatable professional misconduct that would in any case fall on the lower end of the spectrum.

10The second bucket includes the particulars listed under item 6, which relate exclusively to Student 2. Member’s Counsel argued that touching Student 2’s arm does not amount to sexual abuse, even if there was a finding that the Member had in fact touched his arm. Member’s Counsel further submitted the alleged grade increase is not sexual abuse, and again would be debatable professional misconduct that would in any case fall on the lower end of the spectrum.

11The third bucket includes the particulars listed under items 5(b) and 7, which relate exclusively to Student 1. Member’s Counsel submitted that they were skeptical that Student 1 would give viva voce testimony on these allegations, despite being under subpoena by the College. Without Student 1’s direct testimony, Member’s Counsel indicated they would be making hearsay objections regarding this evidence.

12Specifically on the matter of severance, Member’s Counsel invoked the case of R. v. Last,³ a criminal law decision in which the SCC provided a non-exhaustive list of factors to inform courts in their determination of what is in the interests of justice in cases where severance is requested.⁴ In her submissions, Member’s Counsel specified that two of those factors would be irrelevant in this case, namely the potential prejudice to the Member’s right to be tried within a reasonable time—as the Member himself is bringing this motion—and the existence of antagonistic defences as between co-accused persons, since the Member stands alone before the Discipline Committee. As such, Member’s Counsel largely focused on three of the factors:

(a) the legal and factual nexus between allegations;

(b) the general prejudice to the Member;

(c) whether the Member intends to testify on one allegation but not another.

13On the legal and factual nexus, Member’s Counsel argued the allegations pertaining to Student 1 and those pertaining to Student 2 are “deeply different” factually. There is no substantial overlap between them—they are about different students, occurred in different years and involve different witnesses. Member’s Counsel further submitted the Panel would not be asked to rule on the same legal issues. On the one hand, the allegations in the case of Student 2 would not raise any hearsay issues and would mostly revolve around professional standards, what constitutes professional misconduct, as well as credibility assessments between the Member and Student 1. On the other hand, the case of Student 1 raises and revolves around significant hearsay issues if Student 1 does not testify. Member’s Counsel anticipates making repeated hearsay objections if the matters proceeded together and submitted that it would be more efficient to separate the allegations.

14On the issue of general prejudice to the Member, Member’s Counsel raised the issue of cross-pollination and propensity reasoning, namely that evidence admissible on one set of allegations might improperly bolster or enhance the evidence on another set of allegations and therefore influence the Panel’s decision. In Member’s Counsel’s view, each basket of allegations should represent a separate decision, and if these baskets were to be heard together, cross-pollination would occur. Member’s Counsel was careful not to question the Panel’s ability to render a fair decision but insisted that the Panel is confronted with one set of “low-level allegations” with “significant evidence to lead on” and another set of very serious allegations with “big evidentiary issues”. Member’s Counsel was concerned that the Panel would, consciously or unconsciously, believe that the Member was disposed to act in a certain way, which would be procedurally unfair and inappropriate.

15As to whether the Member intends to testify on one allegation but not another, Member’s Counsel submitted this is a significant division between the allegations pertaining to Student 1 and those pertaining to Student 2. The College has the onus of proving the Member sexually abused both Student 1 and Student 2. The College intends to call Student 2 to testify, and the Member intends to testify as well as part of his response to those allegations. In the case of Student 1, Member’s Counsel argued it would require viva voce testimony from Student 1—hearing solely from hearsay testimonies would not be enough to find the Member guilty of sexual abuse in the case of Student 1. Member’s Counsel also contended that, if Student 1 did not testify, the Member should have the right not to testify and to argue that the College has not met its onus of proof given the hearsay evidence.

16If the allegations were heard together, Member’s Counsel submitted it would “obliterate” the Member’s right to defend himself—he would lose the option of leading distinct legal defences for each set of allegations. Member’s Counsel gave the example of the Member’s choosing to testify about the allegations related to Student 2 and yet being cross-examined on the allegations related to Student 1.

17Member’s Counsel referred the Panel to College of Nurses of Ontario v. Member⁵ in support of their position.

E. SUBMISSIONS OF COLLEGE COUNSEL

18College Counsel first reminded the Panel that this was not a hearing on the merits and that the Panel was not deciding on any allegations of professional misconduct. The Panel should not rely on assertions made by counsel unless there is evidence to support them. College Counsel submitted that the only evidence in the record is the affidavits submitted by the parties (Exhibits 1 to 5). Except for some minor discrepancies, the parties are in general agreement as to what the facts are in this case.

19College Counsel explained that the legal test for this motion is described in the text by Richard Steinecke, Complete Guide to the Regulated Health Professions Act, of which a section is reproduced in the College’s factum. College Counsel referred to the following passage as to the legal test to be applied in matters of severance:

The allegations should be severed only where hearing them together would result in manifest prejudice or injustice to the member.⁶ [emphasis added]

20College Counsel agreed with Member’s Counsel that the applicable factors in this case are outlined in Last. College Counsel also agreed with the two irrelevant factors identified by Member’s Counsel above but argued that whether the Member intends to testify on one set of allegations and not another is also irrelevant, as these are not criminal proceedings where the Member would have the right to silence. Rather, discipline proceedings are civil proceedings in which members are compellable, as noted by the Ontario Divisional Court in Rathe v. College of Physicians and Surgeons of Ontario.⁷It then follows that the reservations of Member’s Counsel, namely that the Member would be prejudiced if unable to launch separate defences, are moot. College Counsel submitted that there is also no evidence before the Panel as to what the Member’s testimonial intention is, besides bald assertions in the Member’s factum. In response to a question from the Panel, College Counsel did advise that if the Member chose not to testify, the College had no intention of summonsing him to require him to testify.

21College Counsel focused on the following factors in Last:

(a) the general prejudice to the accused;

(b) the legal and factual nexus between the counts;

(c) the desire to avoid a multiplicity of proceedings; and

(d) the use of similar fact evidence at trial.

22On prejudice, College Counsel acknowledged the risks of cross-pollination and propensity reasoning raised by Member’s Counsel but submitted that those risks are not realized before the Discipline Committee based on the Committee’s experience and structure. College Counsel argued that the Discipline Committee routinely deals with multiple and separate allegations involving multiple witnesses stemming from different incidents. College Counsel asserted that the Discipline Committee has many times made findings on some, but not all of the allegations in a Notice of Hearing, parsing through the evidence, including in sexual abuse cases.⁸ This is the result of the Discipline Committee’s structure as a three-member panel of trained adjudicators who must articulate their reasons in a written decision and who can benefit from the advice of an independent legal counsel, as opposed to a jury of laypersons. College Counsel cited Law Society of Ontario v. Suh⁹ in support of their argument.

23College Counsel further argued that there are both factual and legal similarities to the allegations. Though the College does not intend to adduce similar fact evidence, College Counsel submitted that the allegations “disclose a similar course of conduct” between the different sets of allegations. College Counsel argued that the allegations brought against the Member stem primarily from interactions with two separate students at the same school and that there are common themes to those interactions. For example, the Member was interacting with the students alone, there was inappropriate physical contact, and the Member is accused of transporting students in his personal vehicle without proper permission.

24College Counsel submitted that legally, the same analysis would apply to a number of allegations. The Panel would have to make findings according to the same applicable provisions in assessing whether the facts support sexual abuse, breach of ethical standards or breach of the duties of teachers, for example subsections 1(18) and 1(19) of Ontario Regulation 437/97. College Counsel submitted that severance would almost lead to an artificial separation of the allegations. College Counsel noted that the overlap between the sets of allegations is highlighted by the Member’s referencing of the anticipated testimony of the principal of the School (who is expected to testify with respect to both the allegations relating to Student 1 and Student 2) in the Affidavit of Nicole Voce (Exhibit 1).

25The most significant factor, in College Counsel’s view, is the desire to avoid a multiplicity of proceedings in the name of efficiency. College Counsel noted the Notice of Hearing in this matter was issued in October 2019 and argued this motion brought by the Member—on the day the hearing on the merits was set to commence—has already protracted these proceedings. Severance would bring further delay. College Counsel submitted the SCC was clear in Last that multiple proceedings should be avoided and referred the Panel to Re Stone and Law Society of Upper Canada for the proposition that public interest requires matters be carried out expeditiously.¹⁰

26Finally, College Counsel submitted that the College does not intend to adduce similar fact evidence, but this does not mean there is not a similar course of conduct. It is College Counsel’s view that a similar course of conduct should factor into considering whether there is a sufficient factual nexus, though it still does not rise to the level of being similar fact evidence. College Counsel also argued that the CNO v. Member case put forth by Member’s Counsel is different from the case at issue. The College of Nurses tried to show similar fact evidence to argue the member had a propensity to engage in the alleged conduct. The College does not anticipate trying to show any such propensity.

F. reply from member’s counsel

27In their reply, Member’s Counsel disagreed with College Counsel as to the Member’s right to silence in quasi-judicial proceedings, arguing it would be unusual for the College to subpoena a member to testify.

28Member’s Counsel submitted that College Counsel’s submissions that there was a nexus between the different sets of allegations reflects the Member’s concern about cross-pollination. Member’s Counsel submitted it was inconsistent for College Counsel to say they will not be asking the Panel to make a finding that the Member had a disposition to engage in the alleged conduct, while also suggesting there is a similar course of conduct and similar facts. Member’s Counsel argued College Counsel’s submissions supported the Member’s argument that the Panel may be led to find it is more likely that the Member did one thing because he did another.

29Member’s Counsel also addressed the College’s submissions on the length of the proceedings, arguing that severance would actually reduce hearing time, as it would limit the issues around the admissibility of evidence. Member’s Counsel added there was no evidence before the Panel of a timeline for these proceedings, noting that a prehearing motion was heard just last December and that the decision on that motion had been received recently. Delays are not uncommon and should not be a consideration for rejecting the Member’s motion. The Member’s teaching certificate as well as his personal and professional lives are at stake in these proceedings.

G. ADVICE FROM INDEPENDENT LEGAL COUNSEL

30Independent Legal Counsel reminded the Panel that the onus is on the Member to show that severance would be in the interests of justice. The interests of justice encompass the Member’s right to be tried only on evidence that is admissible against him as well as the public interest in seeing that justice is done in a reasonably efficient and cost-effective manner. In professional disciplinary hearings, the Panel must determine whether the Member will suffer manifest prejudice or injustice if the allegations relating to Student 1 were heard in the same hearing as the allegations relating to Student 2. The rationale behind the motion to sever is the risk that evidence relating to Student 2 will be improperly used—even subconsciously—to bolster the evidence relating to Student 1 or vice versa, otherwise known as propensity reasoning or cross-pollination.

31Independent Legal Counsel reviewed the factors in Last, which the SCC stated must be considered and weighed cumulatively. She advised that the factor of prejudice to the Member is likely the most important factor in this case; in other words, the impact on the Member and whether the evidence about one student will be improperly used to bolster the evidence about the other student. Independent Legal Counsel also advised the Panel that factual similarities are not the same as factual nexus. Referring to paragraph 32 in Last, she recommended that the Panel determine whether a trier of fact would need to understand the facts of one incident in order to understand the other. According to Independent Legal Counsel, based on the way the allegations are drafted in the Notice of Hearing, it is unlikely the Panel would need to understand the facts relating to Student 1 to understand the facts relating to Student 2. Independent Legal Counsel also advised that it was not entirely clear whether the allegations truly demonstrate a course of conduct. Independent Legal Counsel’s advice was that there is, however, a legal nexus since there are allegations of sexual abuse relating to both students.

32As to the complexity of the evidence, Independent Legal Counsel indicated it did not appear unduly complicated. The one exception may be the arguments Member’s Counsel may make regarding hearsay evidence in Student 1’s case, and more specifically the admissibility and propriety of admitting such evidence in a case involving sexual abuse allegations. She also advised that the Panel does not need to answer the legal question of whether the Member is compellable or not—though the courts have ruled that a member is compellable in a disciplinary hearing—since the College indicated it had no intention of compelling the Member to testify. This could become relevant (unlike in criminal proceedings) if the Member decides not to testify, as the Panel could then draw an adverse inference from his failure to testify. Independent Legal Counsel noted that, practically speaking, it would be extremely difficult for the Member to testify about one student and not about the other given that he would open himself up to cross-examination about the other student.

33Independent Legal Counsel’s advice was that the possibility of inconsistent findings, the use of similar fact evidence and the length of the hearing were all neutral factors. The prejudice to the Member’s right to have his hearing held within a reasonable time is not an important factor as this motion is brought by the Member himself. He is presumably aware that severing the allegations may cause delay. Independent Legal Counsel did note that the desire to avoid multiple proceedings is always an important factor and that the Panel should consider the impact on the College and the students. Independent Legal Counsel noted that the students would not have to testify twice if the allegations were severed, but the administrators would possibly have to. Independent Legal Counsel also urged the Panel to review the relevant case law, in addition to Last, particularly, Rathe, Stone and Suh.

34Independent Legal Counsel finally commented on the argument that the Panel can get independent legal counsel on how to properly weigh the evidence, which College Counsel argued would reduce the risk of propensity reasoning. The SCC in Last stated that such independent legal advice is not one of the factors that should be considered in deciding whether to sever allegations. The availability of independent legal counsel only becomes relevant when there are sufficient factors to support a joint hearing to begin with.

H. DECISION

35Having considered the submissions of the parties, the advice from Independent Legal Counsel as well as the relevant jurisprudence and legislation, the Panel denies the Member’s motion to sever allegations, namely that particulars 3, 5(b) and 7 be severed from the rest of the allegations.

I. REASONS FOR DECISION

36Neither the Rules nor the Statutory Powers Procedure Act (the “SPPA”) specifically address the severance of allegations. Section 25.0.1 of the SPPA provides, however, that a tribunal such as the Discipline Committee has the power to determine its own procedures and practices and may, for that purpose, make orders with respect to the procedures and practices that apply in any particular proceeding. Subsection 23(1) of the SPPA provides that “[a] tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”. The Panel therefore has the authority to sever—or not—allegations in this case and hear the severed allegations at separate hearings.

37There is no dispute as to the legal test to be applied in a disciplinary context when considering a motion to sever allegations. Both parties recognize the Member’s right to procedural fairness, and both parties agree that the factors in the Last decision of the SCC may be used to inform a disciplinary tribunal to determine whether severance would be in the interests of justice, as does the Panel.¹¹ Both parties agree the “interests of justice” test applies but disagree slightly on which of the following factors enunciated in Last should apply—or not—in this case:

(a) the general prejudice to the accused;

(b) the legal and factual nexus between the counts;

(c) the complexity of the evidence;

(d) whether accused intends to testify on one count but not another;

(e) the possibility of inconsistent verdicts;

(f) the desire to avoid a multiplicity of proceedings;

(g) the use of similar fact evidence at trial;

(h) the length of the trial having regard to the evidence to be called;

(i) the potential of prejudice to the accused with respect to the right to be tried within a reasonable time; and

(j) the existence of antagonistic defences as between co-accused persons.¹²

38The positions of the parties also differ slightly in how the Panel should arrive at its determination of whether to sever these allegations. While Member’s Counsel submitted that a tribunal must balance the risk of prejudice to the Member and the public interest in a single hearing,¹³ College Counsel argued that in a disciplinary context, allegations should be severed only when hearing them together would result in manifest prejudice or injustice to a member. The Panel notes that the latter test is also spelled out in some of the case law submitted by both counsel.¹⁴

39The Panel’s conclusion is that the public interest outweighs the prejudice to the Member in this case, and the Panel is not convinced that rejecting this motion would result in manifest prejudice or injustice to the Member. Based on the factors listed in Last, the Panel finds it is not in the interests of justice to sever the allegations, as requested by the Member.

(1) General Prejudice to the Member

40The Panel does not accept the argument by Member’s Counsel that the Member would be prejudiced by propensity reasoning and cross-pollination if the allegations were not severed. The Panel agrees with College Counsel’s argument that this risk is minimized given the Discipline Committee’s experience and structure. Panellists of the Discipline Committee, such as the undersigned, are sufficiently trained as not to allow propensity reasoning and cross-pollination to occur. The Panel is asked to form its opinion by looking strictly at the facts and the evidence presented before it and is well able to delineate the evidence and allegations as they relate to two different students.

41As shown by College Counsel in their written and oral submissions, the Discipline Committee of the College regularly makes findings based on multiple allegations, sometimes involving several different students. For instance, in Ontario College of Teachers v. Glazer, 2018 ONOCT 37, the Panel heard and parsed through evidence—including witness testimonies and expert evidence—on allegations involving eight different students. In Ontario College of Teachers v. Duncan, 2022 ONOCT 26, the Panel was asked to make factual findings from a long list of particulars and did not agree with the College on all of them. In contrast, the Member has offered no case law to show that panels of a discipline committee faced with factually separate allegations would inevitably fall into the trap of propensity reasoning and credibility bolstering.

42The Panel’s structure and experience mitigate the risk of propensity reasoning. The three-person composition of the Panel ensures a multiplicity and diversity of perspectives from panelists. Even if some of them have no legal training—or the “lifeline of comprehensive legal training”, as Member’s Counsel put it in their factum—they will bring other valuable experience from their own profession or previous adjudicative experience. More importantly, panelists of the Discipline Committee receive adjudicator orientation and training, unlike a jury of laypersons. The Law Society Tribunal ably characterized the benefits of a three-person panel in disciplinary proceedings in Suh:

Having three panel members allows for differing perspectives to be brought to bear and for unconscious misuse of evidence to be challenged. Panels almost invariably deliver written reasons which helps guard against unconscious and conscious misuse of evidence. As conduct applications commonly include factually unrelated allegations, most Tribunal members have experience addressing such cases.¹⁵

43For these reasons, the Panel finds there is no general prejudice to the Member here.

(2) The Legal and Factual Nexus Between the Allegations

44The Panel recognizes that this factor would support severing the allegations. However, the Panel adopts the advice of Independent Legal Counsel in finding that there is no factual nexus between the different sets of allegations. As explained in Last by Justice Deschamps, as she then was, the Panel in this case would not need to understand the incident involving Student 1 in order to understand the incident involving Student 2 or vice versa.¹⁶ College Counsel made it clear the College does not intend to adduce similar fact evidence. While College Counsel talked about “a course of similar conduct” or “factual similarities”, these do not make out a factual nexus. These allegations clearly refer to separate incidents, occurring one year apart, involving two different students.

45The Panel agrees there is a legal nexus, however thin, as the incidents relating to Student 1 and Student 2 both involve allegations of sexual abuse. However, the Panel is of the view that the two incidents may raise different legal issues. As Member’s Counsel pointed out, one set of allegations would mainly revolve around witness credibility assessment, while the other would raise the issue of weighing hearsay evidence.

(3) Complexity of the Evidence

46The Panel does not find the evidence to be so complex that the allegations would need to be severed. Based on the Affidavit of Nicole Voce (Exhibit 1), the Member was advised by the College that it intends to call five witnesses to testify¹⁷ and to qualify the principal as a participant expert.¹⁸ Based on the Affidavit of Lana Biggs (Exhibit 2), the College has issued summonses for all five witnesses and moreover intends to tender into evidence a videotaped statement of Student 1 to the police. This kind of evidence is not uncommon and is routinely considered by the Discipline Committee.

47The evidence may become more complex if Student 1 does not testify, as this may raise the issue of admissibility and propriety of hearsay evidence. The Panel notes nonetheless that hearsay evidence is admissible in disciplinary hearings under subsection 15(1) of the SPPA, making it ultimately a question of weight. Any debate on the admissibility or propriety of hearsay evidence would potentially be short lived or would in any case become a question of weight at the decision-making stage.

(4) The Member’s Intention to Testify on One Set of Allegations but not Another

48The Panel agrees with Independent Legal Counsel’s advice that it does not need to answer the legal question as to whether the Member would be compellable or not in disciplinary proceedings since the College has indicated it does not intend to compel the Member to testify. The Panel notes, however, that the Divisional Court in Rathe confirmed that the Member would be compellable in any event since these are civil proceedings.¹⁹

49The Panel takes the approach adopted by the Discipline Committee of the College of Nurses in CNO v. Member. In that case, the College of Nurses also had no intention of calling the member to give evidence with respect to either set of allegations and the panel accepted there was a possibility that the member might choose to testify in respect of one set of allegations and not the other.²⁰ The same concerns apply here. The Panel agrees with Independent Legal Counsel that, whether in a separate or joint hearing, it would be extremely difficult for the Member to testify about one student and not about the other. However, the Panel was presented with no evidence as to the Member’s testimonial intentions and it therefore considers this factor to be largely neutral.

(5) Desire to Avoid a Multiplicity of Proceedings and Length of the Proceedings

50It will always be in the interests of justice to avoid a multiplicity of proceedings, and it is in the public interest that justice be conducted efficiently and in a cost-effective manner. In this case, severing the allegations would result in doubling the costs to the College, largely borne by the members of the teaching profession. A second panel would have to be established—involving six panelists in total—and separate hearing days scheduled. Some witnesses would potentially have to testify twice. Moreover, and as stated by Justice Griffiths of the Divisional Court, as he then was, in Stone, the public interest also dictates that this matter be held expeditiously instead of having the evidence heard by each separate panel one after the other, which would unduly lengthen the proceedings.²¹

51The College’s core mandate is to protect the public and public protection in this case demands that there not be delay with respect to a finding on the second set of allegations, given the serious nature of the allegations. An intrinsic component of public protection is public perception. Members of the public expect and need to trust that regulatory colleges will hear matters involving their members, whose honesty, professionalism or integrity have been called into question, expeditiously or without undue delay.

(6) Use of Similar Fact Evidence

52The Panel considers the use of similar fact evidence to be a neutral factor as the College does not intend to tender similar fact evidence.

(7) Additional Factors

53The possibility of inconsistent findings does not apply in this case, as the College accepts that a finding may be made with respect to one student but not the other. Neither does the potential prejudice to the Member’s right to be tried within a reasonable time, as he is bringing this motion himself. The existence of antagonistic defences as between co-accused persons is also inapplicable, as the Member stands alone before this Discipline Committee.

54The Panel finds that, cumulatively, the factors above do not militate in favour of severance and therefore the Member has not met the burden of proof with respect to this motion. It would not be in the interests of justice to sever the allegations, as requested by the Member. Furthermore, the Panel does not consider that the Member would suffer manifest prejudice or injustice if these allegations were heard together.

J. motion to object to an electronic hearing

55In his Notice of Motion dated June 10, 2022, the Member brought the following motion:

THE MEMBER makes a motion to the Discipline Committee of the Ontario College of Teachers objecting to the College’s intention to proceed with an electronic proceeding for the following witnesses:

1. [XXX]

2. Daniel Mammarella, and

3. Any other direct witnesses to allegation(s) of sexual abuse.

THE MOTION IS FOR

1. A decision from the Committee to hold in-person hearings for the evidence of the above-noted witnesses.

THE GROUNDS FOR THE MOTION ARE:

2. The Member brings this motion pursuant to section 30(1) of the Ontario College of Teachers Act, 1996, ss. 9, 4.7, 25.0.1, and 25.1 of the Statutory Powers Procedure Act, rules 5, 8.03(1) and 12 of the Rules of Procedure of the Discipline and Fitness to Practice Committees.

3. The Member intends to question the constitutional validity of Rule 8.03 of Rules of Procedure of the Discipline and Fitness to Practice Committees under s. 7 of the 2 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

56The Panel notes that the Notice of Motion above does not mention Student 1, but that, at the hearing, Member’s Counsel submitted that this motion was for Student 1, Student 2 and the Member to be examined and cross-examined in person. The Panel therefore finds it reasonable to read “Any other direct witness to allegation(s) of sexual abuse” as to include Student 1.

K. submissions of member’s counsel

57The Member challenged the constitutionality of Rule 8 of the Discipline Committee’s Rules and claims it breaches section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”),²² which protects the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.²³ Member’s Counsel’s breach argument is two pronged: (1) the Member would suffer psychological harm as a result of these proceedings; and (2) the Member’s procedural fairness rights would be infringed upon.

58Relying on Blencoe v. British Columbia (Human Rights Commission),²⁴ Member’s Counsel first submitted that the SCC has held that violations of the security of a person may involve serious psychological harm as a result of state interference with a person’s interests of fundamental importance. Member’s Counsel argued the Member would experience deep psychological harm and stress if a finding of sexual abuse was made in his case, as he would automatically be subject to revocation of his teaching certificate, which would have a profound impact on his family as well as on his personal and professional lives. Member’s Counsel submitted this would amount to the same kind of state interference that was at issue in Blencoe and thus engages section 7 of the Charter. Member’s Counsel cited the SCC’s Reference Re Public Service Employee Relations Act (Alta.) in support of the argument that work is one of the most fundamental aspects of a person’s life and essential to their identity, and therefore an interest of fundamental importance.²⁵

59Member’s Counsel further argued that the Member’s Charter rights are engaged based on his right to procedural fairness. Member’s Counsel asserted that Rule 8 unduly restricts the Member’s hearing rights as it requires him to go through a lengthy and expensive written motion process to show significant prejudice to be granted an in-person hearing. Moreover, sub-rule 8.03 bars the Discipline Committee from ordering an in-person hearing based purely on the issue of credibility. Member’s Counsel referred the Panel to the SCC decision of Suresh v. Canada (Minister of Citizenship and Immigration) to submit that section 7 of the Charter should incorporate at least the common law duty of procedural fairness.²⁶ Consequently, given the lack of procedural protection afforded by Rule 8, section 7 of the Charter would be engaged here as well.

60Member’s Counsel submitted that the factors set out by the SCC in Baker are relevant to show the extent of the procedural fairness required in this case. These non-exhaustive factors are the following:

(a) the nature of the decision being made and process followed in making it;

(b) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

(c) the importance of the decision to the individual or individuals affected;

(d) the legitimate expectations of the person challenging the decision;

(e) the choices of procedure made by the agency itself.

61First, both in their written and oral submissions, Member’s Counsel pointed to similarities between the Panel’s decision-making process and procedures and those of courts. The types of allegations being made, such as sexual abuse, as well as the types of penalty orders that can be made, such as revocation, significant fines or costs, closely resemble those that would be made in criminal proceedings. Member’s Counsel also referred to the format and procedures of the Discipline Committee.²⁷

62Second, Member’s Counsel submitted that, although there is a statutory right of appeal before the Divisional Court under the Act, there is neither an internal review process nor a process for a de novo hearing. The statutory scheme is such that first-instance findings of the Discipline Committee, based on evidentiary and credibility assessments, are precluded from “a certain level of scrutiny”, giving members little recourse to challenge and review those decisions. Member’s Counsel submitted that a heightened level of procedural fairness would be required here given the limitations of the statutory scheme.

63Third, on the importance of the decision to the Member, Member’s Counsel reminded the Panel of the importance of work and the impacts this decision would have on the Member, particularly the possibility of having his teaching certificate revoked.

64Fourth, Member’s Counsel maintained that, prior to the COVID-19 pandemic, members had the legitimate expectation to be able to “confront their accusers” before the Disciplinary Committee as all hearings were held in person. In the wake of the pandemic, courts and tribunals were forced to adopt new procedures. Member’s Counsel acknowledged that other colleges have adopted rules similar to Rule 8 but argued Rule 8 is unique in that it is overly broad and unduly restricts members’ rights to procedural fairness. Member’s Counsels cited sub-rule 8.03(4) of the Rules as an example of a unique restriction.

65Fifth, Member’s Counsel expressed concerns with the approach that the College undertook to develop Rule 8, namely the lack of public evidence about the process for changing the rule. Member’s Counsel referred to several paragraphs of the Affidavit of Andrew Rosenhek affirmed on June 27, 2022 (Exhibit 4). The Affidavit refers to key considerations considered by the College’s Working Group, but Member’s Counsel argued the Affidavit makes no mention of how these considerations were weighed. According to Member’s Counsel, many other stakeholders would have been impacted by such new procedures, including members, but that no one was given an opportunity to comment. Overall, Member’s Counsel considered the process for changing Rule 8 to be opaque. Member’s Counsel submitted that the formation of the Working Group and its consideration of key factors were not sufficient to displace the Member’s right to an in-person hearing. Taken together, the Baker factors, when applied to this case, warrant procedural fairness on the higher end of the spectrum.

66Finally, Member’s Counsel explained the significant impact a virtual hearing would have on the Member. Since the students and the Member are the only direct witnesses for the most serious of allegations, any finding would rely heavily, if not exclusively on their testimonies. Member’s Counsel referred the Panel to F.H. v. McDougall, where the SCC discusses the difficulties decision-makers face where there is little other evidence besides the plaintiff and the defendant.²⁸ They also referred the Panel to College of Massage Therapists v. Registrant M²⁹ and R. v. Petit,³⁰ two cases where testimony by videoconference was denied on grounds that it would impede credibility assessment.

L. submissions of college counsel

67College Counsel reminded the Panel of the statutory provisions that authorize the Discipline Committee to hold electronic hearings, namely sections 5.2 and 25.1 of the SPPA and section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act (the “HTPA”), whose measures remain in force, as well as the Discipline Committee’s Rules.

68College Counsel submitted that while it is not clear whether the Charter applies to these proceedings, it is abundantly clear from Tanase v. College of Dental Hygienists of Ontario³¹ and Mussani v. College of Physicians and Surgeons of Ontario,³² that section 7 of the Charter does not apply to these discipline proceedings. College Counsel argued that these two decisions of the Court of Appeal for Ontario refer to an unbroken line of SCC case law that states the right to practise a profession is not constitutionally protected and accordingly, section 7 of the Charter cannot be used to challenge Rule 8.

69The College acknowledged that it owes procedural fairness to the Member and did not dispute the common law duty of procedural fairness. College Counsel denied, however, that holding an electronic hearing would be a breach of procedural fairness. College Counsel submitted there are strong legislative signals indicating electronic hearings should be promoted as useful and necessary innovative measures. The College reviewed the benefits and challenges of electronic hearings and made the policy decision—as it was authorized to do—to maintain electronic hearings as the default hearings format. The Discipline Committee amended its rules of procedure in keeping with statutory guidelines. On principle alone, College Counsel argued that it is not open to a court or tribunal to apply a common law rule in the face of clear statutory direction.³³ College Counsel argued Member’s Counsel mostly referred to pre-pandemic rules of other colleges in their comparison; more recent rules are more permissive of electronic hearings.

70Finally, College Counsel referred to several recent cases where courts and tribunals have held that electronic hearings do not impact credibility assessments, including two decisions from this Discipline Committee in Ontario College of Teachers v. Paterson, 2022 ONOCT 58 and Ontario College of Teachers v. Johnston, 2022 ONOCT 4. Given the weight of the case law and the new statutory scheme currently in force, College Counsel maintained there is no breach of procedural fairness. Moreover, the Member has failed to show he does not have access to technology and that he could not effectively participate in the process. The motion should be dismissed entirely.

M. reply from member’s counsel

71Member’s Counsel acknowledged that the Discipline Committee had the authority to create rules pertaining to electronic hearings, but argued it still had to ensure such rules are compliant with the Charter and afford members the necessary procedural fairness protections. Member’s Counsel also acknowledged that other colleges had adopted similar rules but noted that those rules give discretion to discipline committees whether to order an electronic hearing, while the Discipline Committee has no discretion. Member’s Counsel referred to sub-rule 8.03(4) of the Rules as an example in that it prevents the Discipline Committee from holding an in-person hearing solely on the basis of credibility assessment.

N. advice from independent legal counsel

72Independent Legal Counsel advised that she was not aware of any case law to the effect that electronic hearings would be a Charter breach. Courts have consistently held that professional discipline hearings do not engage a member’s rights under section 7 of the Charter. It is therefore highly unlikely that section 7 of the Charter is engaged in this case. She agreed the Baker factors do inform the content of the duty of procedural fairness. In professional discipline hearings, the degree of procedural fairness owed to the member falls on the higher end of the spectrum. The onus rests nonetheless on the Member to demonstrate that an electronic hearing would deny him his right to procedural fairness. Independent Legal Counsel referred the Panel to Arconti v. Smith.³⁴

73With respect to the submissions by Member’s Counsel that in pre-pandemic times, a member had a right to face their accusers in person, Independent Legal Counsel commented that it was not entirely clear that the pandemic was over. She noted the HTPA has yet to be repealed. Independent Legal Counsel reminded the Panel that even in the case of in-person hearings, there is no unrestricted right to physically face an accuser. For example, vulnerable witnesses may testify behind a screen. She also advised that it would be incorrect to claim that sub-rule 8.03(4) bars the Panel from ordering an in-person hearing purely on the issue of credibility. Instead, the Rule provides that the issue of credibility, in and of itself, will not necessitate an in-person hearing. The Panel could always decide, based on any combination of factors, including credibility assessment, that significant prejudice would be caused by holding a hearing electronically.

74Finally, Independent Legal Counsel stressed that the use of may and not shall at sub-rule 8.03(3) of the Rules, means the Panel is not bound by the factors to be considered in deciding whether an electronic hearing should be held. Given the adversarial nature of these proceedings, she advised that the Panel consider the enumerated factors.

O. decision

75Having considered the submissions of the parties as well as the relevant jurisprudence and legislation, the Panel denies the Member’s motion to hold an in-person hearing for the examinations and cross-examinations of the Member, Student 1 and Student 2. As such, this matter will proceed entirely by way of an electronic hearing.

P. reasons for decision

(1) The Charter Challenge

76The Panel rejects Member’s Counsel’s argument that section 7 of the Charter is engaged in this case. The Panel agrees with College Counsel and Independent Legal Counsel that there is an unbroken line of case law from the SCC stating that there is no constitutional right to practise a profession, and more specifically that section 7 of the Charter does not concern itself with economic interests.

77Member’s Counsel’s suggestion that their argument was supported by a combination of Blencoe and Re: Public Service is taken out of context. In Re: Public Service, the SCC ruled on the issue of whether freedom of association under subsection 2(d) included the right to strike. In his factum, the Member cites the dissent of Dickson C.J., as he then was, in which he argued that the right to strike and the right to collectively bargain should be treated as fundamental rights because work is central to the way of life of every individual. Though the SCC later adopted Dickson C.J.’s dissent and ruled that the rights to strike and to collectively bargain were protected under subsection 2(d) of the Charter, this was in the context of labour relations, not in the context of individuals potentially losing their chosen line of work.

78Even if the Panel were to accept Member’s Counsel’s argument that work is an interest of fundamental importance protected under section 7 of the Charter, what is at issue here is not the right to work at all, but the privilege to practise a profession of one’s choice. In other words, if the Member’s teaching certificate were revoked, he would not be fundamentally or completely deprived of his ability to earn a livelihood. Likewise, the Member’s security would not be deprived to the point where his economic survival or human dignity would be at stake. Rather, the Member would be prohibited from pursuing a particular profession, i.e., teaching in Ontario, which is a pure economic interest.

79Exercising a regulated profession is not a right, but a privilege bestowed upon professionals who undertake to maintain certain standards and to comply with all requirements prescribed by statute and regulations, in this case the Act and its regulations. Even if his teaching certificate were revoked, the Member would still be able to work and earn a living outside of teaching in Ontario.

80The distinction between “fundamental” economic interests and “pure” economic interests is described clearly in Tanase. In that case, the arguments of the appellant were strikingly similar to those of the Member here, namely that psychological stress would flow directly from revocation and from the permanent notation of a finding of sexual abuse. The Member argued, as did the appellant in that case, that such stress would be analogous to the possibility of the removal of a child, citing New Brunswick (Minister of Health and Community Services) v. G.(J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46 in support of that argument.³⁵ Huscroft J.A. of the Court of Appeal for Ontario rejected those arguments and affirmed a previous ruling of the Court in Mussani, namely that section 7 of the Charter is not engaged in cases of mandatory revocation of licence:

40The basic holding in Mussani is supported by what the Attorney General aptly describes as an unbroken line of authority from the Supreme Court of Canada confirming that s. 7 of the Charter does not protect the right to practice a profession or occupation, an example of what that court has described as “pure economic interests”. The cases include Walker v. Prince Edward Island, 1995 CanLII 92 (SCC), [1995] 2 S.C.R. 407, in which the Court summarily affirmed the decision of the Prince Edward Island Court of Appeal that s. 7 does not protect the right to practice a profession (in that case, public accounting) and Siemens v. Manitoba (Attorney General), 2003 SCC 3, [2003] 1 S.C.R. 6, at para. 45, in which the Court held that s. 7 “encompasses fundamental life choices, not pure economic interests” (in that case, the ability to generate business revenue by one’s chosen means).³⁶

81For these reasons, the Panel finds that the Member’s constitutional challenge cannot succeed.

(2) Duty of Procedural Fairness

82Although the constitutional challenge to Rule 8 has failed, the Panel must still decide whether an electronic hearing would infringe upon the Member’s right to procedural fairness. There is no dispute that the Member is owed procedural fairness in this case and, as Independent Legal Counsel confirmed, the degree of procedural fairness in the context of disciplinary hearings falls on the higher end of the spectrum. The question is whether the higher end of the spectrum requires the Panel to order an in-person hearing for the examination and cross-examination of the Member, Student 1 and Student 2.

83It is the Member’s view that the Panel’s determination would mostly hinge on credibility assessments and that, as such, an electronic hearing would hinder such assessments and would cause the Member to suffer significant prejudice. The Member also stressed his right to face his accusers. Member’s Counsel cited the SCC decision of Kane v. Bd. of Governors of U.B.C.,³⁷ where Charter protections were not at play, but which serves to reinforce the Member’s argument that a high standard of justice is required when one’s ability to continue in their profession or employment is at stake. As will be explained below, natural justice is not jeopardized if a member does not have the opportunity to challenge a witness in person.

84Pursuant to sub-rule 8.01 of the Rules, the Panel will hold all hearings electronically, unless it is satisfied that doing so is likely to cause a party significant prejudice. In deciding whether holding an electronic hearing is likely to cause a party significant prejudice, the Panel may consider the following factors listed under sub-rule 8.03(3) of the Rules:

(a) the sufficiency of the reasons advanced for the objection;

(b) the need to prevent undue delay and use of Committee resources judiciously;

(c) the anticipated length of delay if the matter is adjourned in favour of an in-person proceeding;

(d) the complexity of the matter;

(e) the potential prejudice to a party;

(f) procedural fairness considerations;

(g) any other relevant factor.

85Based on these factors, the Panel reaches the conclusion that the Member would not suffer significant prejudice from an entirely electronic hearing.

86First, the Panel finds that the Member failed to advance sufficient reasons for his objection to holding an electronic hearing. In particular, the Member has failed to show the actual or potential prejudice that he would experience if the hearing was held electronically, except to say that it would place limitations on assessing witness credibility,³⁸ which will be addressed further below.

87Second, the Panel believes there is a need to prevent undue delay in this matter. The Member is requesting that the Member, Student 1 and Student 2 be permitted to testify in person. This would involve finding dates all parties and witnesses can agree on to hold an in-person hearing specifically for those examinations and cross-examinations, which will inevitably lengthen these proceedings. The Panel is mindful of the fact the events at issue go back as far as 2016. The longer witnesses wait to testify, the more likely the delay is to affect their memories of those events. If their testimony is crucial, it is in the interests of all parties that these witnesses be examined and cross-examined without undue delay. Member’s Counsel argued that since the Member was only asking for part of the proceedings to be held in person, it would not be unduly expensive. To the contrary, hybrid proceedings are more resource intensive, if not only because parties must sometimes travel to the College or because safety protocols would have to be put in place due to the COVID-19 pandemic. It would not be a judicious use of Committee resources.

88Third, and as explained above, the Panel anticipates a significant length of delay if the matter is adjourned until all evidence of the witnesses in issue could be heard in person due to scheduling challenges. Even if dates were already scheduled for the hearing on the merits, dates scheduled for an electronic hearing cannot necessarily be changed to an in-person hearing automatically. While one date may be suitable to all parties for an electronic hearing, that same date may not work for an in-person hearing; one person could be out of town and only able to attend electronically or travelling requirements may make the date suddenly unworkable.

89Fourth, the Member's arguments regarding the complexity of the matter, the potential prejudice he would face, and procedural fairness considerations were largely the same, namely that an electronic hearing would hamper the Panel’s ability to assess the credibility of the witnesses in question and raise objections to hearsay evidence. The Panel is satisfied that the matter is not otherwise overly complex. As well, the Member did not make further submissions as to prejudice and the Panel fails to find any other potential source of prejudice.

90The parties have provided contradicting case law on the issue of electronic hearings and testimonies. The Panel found that the case law presented by College Counsel to be more helpful than the cases provided by the Member. College Counsel provided decisions released both before and during the COVID-19 pandemic, thus providing the Panel with a more comprehensive overview of the judiciary’s position on the issue. On the other hand, the case law presented by Member’s Counsel on this issue predates the pandemic and does not take into account the significant increase in electronic hearings, and the judiciary’s analysis of the ability to assess credibility in the face of numerous specific challenges about that ability since the onset of the COVID-19 pandemic.

91In Arconti, Justice Myers of the Ontario Superior Court of Justice responded to “due process concerns” and held that electronic hearings did not negatively impact the ability of parties to participate and be heard or the ability to present and challenge evidence put before the court.³⁹ The Panel also found two recent decisions from this Discipline Committee to be quite persuasive, as they both relied on higher court decisions. In Johnston, the Discipline Committee ruled that a member’s right to fundamental justice is not breached if they do not have an opportunity to challenge a witness in person, relying on R. v. Singh, 2015 ONSC 6823. The panel in Johnston also noted that, during the COVID-19 pandemic, courts have repeatedly held that hearings should proceed electronically, even if credibility assessment was at issue, citing Association of Professional Engineers v. Rew, 2020 ONSC 2589 and Forest Hill Homes (Cornell Rouge) Limited v. Wei, 2020 ONSC 5060.

92In Paterson, the Discipline Committee relied on Davies v. The Corporation of the Municipality of Clarington, 2015 ONSC 7353 [Davies] to deny the member’s motion for an in-person hearing. In Davies, Justice M.L. Edwards rejected the submission that hearing and viewing testimony by way of videoconference would negatively affect a court’s ability to make findings about the credibility of a witness.⁴⁰ Justice Edwards moreover quoted Rutherford J. in Pack all manufacturing Inc. v. Triad plastics Inc., 2001 CanLII 7655 (ON SC) to warn against overestimating the supposed benefit of observing a witness’ demeanour in an in-person hearing:

The danger lies in misinterpreting such “body language,” taking nervousness for uncertainty or insincerity, for example, or shyness and hesitation for doubt. An apparent boldness or assertiveness may be mistaken for candour and knowledge while it may merely be a developed technique designed for persuasion. Much more important is how the substance of a witness’ evidence coincides logically, or naturally, with what appears beyond dispute, either from proven facts or deduced likelihood. I am not at all certain that much weight can or should be placed on the advantage a trier of fact will derive from having a witness live and in person in the witness box as opposed to on a good quality, decent sized colour monitor in a video-conference.⁴¹

93It may be true that credibility assessment will be crucial in deciding this matter on the merits, but it is the Panel’s view that an electronic hearing would not unduly impact such an assessment, nor would it be procedurally unfair to the Member.

94As for the Member’s right to confront or face his accusers, the Panel notes that this right is not absolute. In sexual abuse cases, complainants may testify behind a screen under certain circumstances. More generally, whether the students testify in person or electronically, they would still be present. The Member would still be able to hear their evidence against him and cross-examine them.

95Turning to the Baker factors, the Panel does not disagree with Member’s Counsel that the Discipline Committee’s decision will be particularly consequential for the Member. However, the Panel does not accept that the Member is therefore necessarily entitled to the most favourable procedures possible. In other words, if the Baker factors inform a court or tribunal that its procedural fairness duty should fall on the higher end of the spectrum, they still do not require procedures to be “at some ideal maximum favourable to the person accused of conduct offensive to the public interest”.⁴² If, as demonstrated above, electronic proceedings do not jeopardize an individual’s right to procedural fairness because testimony via video does not present any inherent disadvantage and does not hinder witness credibility assessment in any way, the Panel is under no obligation to provide an in-person hearing to the Member because it would be ideal to him. Though the Discipline Committee’s procedures bear many similarities to the judicial process and to some extent to criminal proceedings, they are civil proceedings and do not result in true penal consequences.⁴³

96The Panel also disagrees with the Member that not allowing an in-person hearing for his testimony and that of the students would fall short of his legitimate expectations. As the Panel explained above, the right to confront one’s accusers is not unfettered and, perhaps more importantly, should not be taken in the literal sense. The Panel rejects the notion that the right to confront accusatory witnesses may only be satisfied through physical, face-to-face confrontation, especially now that courts and tribunals alike have largely adapted their practices in the wake of the COVID-19 pandemic, often resulting in greater efficiency and accessibility. The Discipline Committee’s procedures meet a reasonable person’s legitimate expectations that they will be able to hear witnesses testify fully and clearly about the events at issue and test their evidence through cross-examination, albeit virtually.

97As for the choice of the procedure itself, the Panel relies on the Affidavit of Andrew Rosenhek (Exhibit 4), which details the process undertaken by the College and the Discipline Committee to amend the Rules. The Panel notes that the College is a self-governing body whose tribunal—in this case the Discipline Committee—has authority under s. 25.1 of the SPPA to make rules governing the practice and procedure before it. More specifically, it has the authority to hold electronic hearings under section 5.2 of the SPPA. Currently, the Discipline Committee derives further authority from section 3 of the HTPA, which is still in force, to conduct a hearing electronically. As opaque as the amendment process of the Discipline Committee’s Rules may seem to the Member, the Panel finds that the College was under no obligation—statutory or otherwise—to consult members of the teaching profession, let alone the public, or to hold a public inquiry before making those amendments and choosing to make electronic hearings the norm rather than the exception. The statutes and regulations governing the College do not provide for any such obligation when rules of procedure are amended and no evidence to the contrary was presented to the Panel. Sub-rule 8.01 may be more limited than the rules of other regulatory colleges, but it fell under the Discipline Committee’s discretion to adopt it.

Q. disposition on the motions

98The Panel denies the Member’s motion to sever certain allegations (namely particulars 3, 5 (b) and 7) from the rest of the allegations. The Panel denies the Member’s motion to hold an in-person hearing for the examinations and cross-examinations of the Member, Student 1 and Student 2.

99As such, this matter will proceed entirely by way of an electronic hearing for all allegations.

Footnotes

1. 1The Panel finds that it is reasonable to assume that the Member meant to refer to particulars 3, 5(b) and 7 of the Notice of Hearing, namely the particulars referring exclusively to Student 1.
2. 2Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 [Baker].
3. 3R. v. Last, 2009 SCC 45 [Last].
4. 4Id. at para. 18.
5. 5College of Nurse of Ontario v. Member, 2013 CanLII 101345 (ON CNO) [CNO v. Member].
6. 6Richard Steinecke et al., Complete Guide to the Regulated Health Professions Act (Toronto: Carswell, 2022) at § 6:16: Discipline Proceedings, III. Procedure at Discipline Hearing, cited at page 217 of the College’s Factum on severance.
7. 7Rathe v. College of Physicians and Surgeons of Ontario, 2013 ONSC 821 [Rathe].
8. 8College’s factum on severance, para. 17 (footnote no. 12).
9. 9Law Society of Ontario v. Suh, 2021 ONLSTH 154 [Suh].
10. 10Re Stone and Law Society of Upper Canada, 1979 CanLII 1949 (ON SC) [Stone].
11. 11See Suh, supra, note 9 at para. 8; Rathe, supra, note 7 at para. 11.
12. 12Last, supra, note 3 at para. 18.
13. 13Id. at para. 17.
14. 14See Rathe, supra, note 7 at para. 13; Stone, supra, note 10 at p. 5.
15. 15Suh, supra, note 9 at para. 18.
16. 16Last, supra, note 3 at para. 32.
17. 17Exhibit B to the Affidavit of Nicole Voce.
18. 18Exhibit D to the Affidavit of Nicole Voce.
19. 19Rathe, supra, note 7 at para. 11.
20. 20CNO v. Member, supra, note 5 at p. 5.
21. 21Stone, supra, note 10 at p. 6.
22. 22Canadian Charter of Rights and Freedoms, s. 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11.
23. 23Please note, that pursuant to Rule 12 of the Rules, a notice of a constitutional question was served on the Attorneys General of Canada and Ontario. Neither made submissions on this motion.
24. 24Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 [Blencoe].
25. 25Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 SCR 313 [Re Public Service] at para. 91.
26. 26Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, at para. 113.
27. 27Paras. 23-24 of the Member’s factum on objection to an electronic hearing.
28. 28F.H. v. McDougall, 2008 SCC 53 at para. 46.
29. 29Ontario (College of Massage Therapists of Ontario) v. Registrant M, 2018 ONCMTO 12.
30. 30R. v. Petit, 2013 ONSC 2901 [Petit].
31. 31Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482 [Tanase].
32. 32Mussani v. College of Physicians and Surgeons of Ontario, 2004 CanLII 48653 [Mussani].
33. 33Para. 29 of College’s factum on objection to an electronic hearing, citing Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at para. 22.
34. 34Arconti v. Smith, 2020 ONSC 2782 [Arconti].
35. 35Paras. 28-33 of the Member’s factum on objection to an electronic hearing.
36. 36Tanase, supra, note 31 at para. 40.
37. 37Kane v. Bd. Of Governors of U.B.C., 1980 CanLII 10 (SCC), [1980] 1 SCR 1105.
38. 38Para. 49 of the Member’s factum on objection to an electronic hearing.
39. 39Arconti, supra, note 34, at para. 32.
40. 40Davies at para. 35.
41. 41Id. at para. 24.
42. 42Ironside v. Alberta (Securities Commission), 2009 ABCA 134 at para. 107; see also R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309 at para. 88.
43. 43See, inter alia, Mussani, supra, note 32 at para. 91.