DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Asokanthan 2023 ONOCT 13

Date: 2023-03-02

PENALTY DECISION AND REASONS FOR DECISION

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Ponita Subadra Asokanthan, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

PONITA SUBADRA ASOKANTHAN (REGISTRATION #474709)

PANEL: Kirby Chown, OCT, Chair Maria Bueno-Marcial, OCT Andrew Glenny

HEARD: February 27, 2023

Ava Arbuck and Kathryn McChesney, for the Ontario College of Teachers

Ponita Subadra Asokanthan, self-represented

Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

1The penalty portion of this proceeding was heard before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on February 27, 2023. In accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), this matter proceeded by way of an electronic hearing.

2On January 16, 2023, the Panel found that Ponita Subadra Asokanthan (the “Member”) engaged in professional misconduct. The Panel’s Decision on Finding and Reasons for Decision was issued on February 3, 2023. The Panel found that the Investigation Committee made a decision requiring that the Member appear before it to be admonished; that the Member received the Investigation Committee’s decision; that the Member failed to appear to be admonished by the Investigation Committee; and that the Member failed to respond to numerous communications from the College to schedule the admonishment. Based on this conduct, the Panel found that the Member contravened Ontario Regulation 437/97, subsections 1(20) and 1(25).

3The Panel reconvened on February 27, 2023 to hear submissions with respect to penalty. The Member attended the hearing and did not have legal representation. The Panel was advised at the outset of the penalty phase of the hearing that the parties had entered into an agreement with respect to penalty and costs.

A. PUBLICATION ban

4On January 16, 2023, the Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

B. PENALTY DECISION

5The parties entered into a Joint Submission on Penalty (Exhibit 3), which was presented to the Panel. In an oral decision rendered on February 27, 2023, the Panel accepted the Joint Submission on Penalty and made the following order:

1. The Member is directed to appear before the Committee immediately following the hearing of this matter to receive a reprimand which will be delivered in person at the offices of the Ontario College of Teachers, 101 Bloor Street W., Toronto, Ontario, or by videoconference, and the fact of the reprimand shall be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of two (2) months commencing on the 15th calendar day following the date of the Decision and Order of the Discipline Committee relating to this matter;

3. The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:

(a) prior to commencing or returning to teaching or to any position requiring a Certificate of Qualification and Registration, the Member shall appear before a panel of the Investigation Committee and shall receive her oral admonishment as directed by the Investigation Committee in its Decision and Reasons on July 21, 2020;

(b) prior to commencing or returning to teaching or to any position requiring a Certificate of Qualification and Registration, the Member shall enrol in and successfully complete at her own expense, a course of instruction pre-approved by the Registrar regarding professionalism and ethics, with a focus on the Professional and Ethical Standards and the duties and obligations of members of the College, subject to the following conditions:

(i) the Member will provide to a course practitioner approved by the Registrar, a copy of the Discipline Committee’s Decision and Reasons for Decision on Finding, a copy of the Discipline Committee’s Decision and Reasons for Decision on Penalty and Orders, and a copy of the Joint Submission on Penalty made an exhibit at this hearing;

(ii) upon review of the documents noted at paragraph (i) above, the course practitioner will provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(c) within thirty (30) days of her completion of the course outlined above, the Member shall provide to the Registrar a written report from the course practitioner:

(i) stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course;

C. REASONS FOR PENALTY DECISION

6The Panel accepts the penalty jointly proposed by the parties. The Panel finds that the penalty proposed in the Joint Submission on Penalty is appropriate. The penalty satisfies the objectives of specific and general deterrence, rehabilitation and remediation, transparency, and protection of the public interest. The penalty ordered is proportionate to the misconduct committed by the Member and reasonable in the circumstances, based on the following prior decisions of the Discipline Committee presented by College Counsel: Ontario College of Teachers v. Reed, 2016 ONOCT 44, Ontario College of Teachers v. Primeau, 2010 ONOCT 30, Ontario College of Teachers v. Joly, 2016 ONOCT 26, and Ontario College of Teachers v. McIntyre, 2016 ONOCT 62. These decisions provide examples of penalties for professional misconduct following a member’s non-compliance with an agreement made with the College or with an order of a College Committee. As such, they are analogous to the Member’s case, in which she has been found to have breached an order of the Investigation Committee.

7The Panel considered the Member’s circumstances in comparison to the cases provided. An aggravating factor present in this case is that the Member displayed disrespect for the authority of College’s Investigation Committee by failing to attend her admonishment and by ignoring numerous written communications from the College. The mitigating factors in the Member’s case are that the Member admitted the misconduct, she has expressed contrition, and she has willingly entered a resolution on penalty, now demonstrating her respect for this Committee and the College. The Panel notes the Member’s submissions that she was strongly influenced by her faith both in making decisions dealing with the Investigation Committee and with respect to this proceeding. However, the Panel finds that the fact that the Member was going through a period of religious self reflection did not displace her duty to respond to College communications adequately and within a reasonable time in this case. After weighing these factors, the Panel accepts that the penalty proposed would not bring the administration of the discipline process into disrepute.

8The Panel finds that the Member’s failure to attend an admonishment as ordered by the Investigation Committee warrants a reprimand. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

9Given the nature and severity of the Member’s misconduct, the Panel finds that a two-month suspension is reasonable and appropriate. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature (i.e., member non-compliance) and the cases confirm that a suspension is justified. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable. General deterrence is particularly important in this case. A regulator such as the College cannot function in the public interest if its members are permitted to ignore the College’s authority to govern them. As such, it is vital that other members of the profession understand how seriously the College views misconduct that involves non-compliance with direction from a College committee. The Member’s suspension will make it clear to the profession that non-compliance with College directions and failure to communicate with the College will be taken seriously by the Discipline Committee. In accordance with the parties’ joint submission, the Member’s suspension will begin on March 14, 2023, which is 15 days after the Panel’s Decision and Order.

10The Panel finds it appropriate for the Member to appear before the Investigation Committee to receive an admonishment as directed by the Investigation Committee prior to commencing or returning to teaching. This order will ensure that the Member abides by her previous obligation to the Investigation Committee.

11The Panel finds that the course of instruction regarding professionalism and ethics will assist in the rehabilitation of the Member. If the Member returns to teaching, the coursework will remind her of her professional obligations to the College and will help her to make better decisions in any future dealings with the College.

12The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

D. COSTS ORDER

13On February 27, 2023, the Panel made the following order as to costs:

1. The Member is directed to pay costs of this matter to the College fixed in the amount of $5000.00, which must be paid within 12 months of the Committee’s Decision and Order.

E. REASONS FOR COSTS ORDER

14The Joint Submission on Penalty entered into by the parties included an agreement that the Member will pay the College costs in this matter in the amount of $5000, which must be paid within 12 months of this Panel’s order. The Panel sees no reason to interfere with the agreement between the parties as to costs and makes a cost order in accordance with the parties’ agreement as outlined in the Joint Submission on Penalty.