DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
DECISION AND REASONS ON FINDING
IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against
Joël Patient Tchoreret-Mbiamany, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
JOËL PATIENT TCHORERET-MBIAMANY (REGISTRATION #429577)
PANEL: Marlène Marwah, Chair Élaine Legault Yasser Leheta, OCT
HEARD: October 7, 2022, and January 10, 2023
Christine Lonsdale, for the Ontario College of Teachers No one appearing for Joël Patient Tchoreret-Mbiamany Renée Kopp, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
1This matter was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on October 7, 2022, and on January 10, 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”).
2Joël Patient Tchoreret-Mbiamany (the “Member”) did not attend the hearing and did not have legal representation.
3The hearing on the merits began on October 7, 2022, after the Panel rendered an oral decision in which it denied the Member’s motion for adjournment. The reasons for this decision were published on October 24, 2022, in Ontario College of Teachers v. Tchoreret-Mbiamany, 2022 ONOCT 106. Following this decision, the hearing on the merits continued on January 10, 2023.
4Since the beginning of the proceedings, College Counsel has filed in evidence a series of affidavits (Exhibits 3, 4, 5, 6, 7, 9 and 10) of Beti Poyastro, a paralegal with the law firm of McCarthy Tétreault LLP, proving that the Member was advised of the allegations against him as well as of the date and time of the hearing, including each new hearing date, and that the Member was often updated on the progress of the case. In the affidavits, Ms. Poyastro sets out the numerous steps the College took to serve the Member with the Notice of Hearing and all the required disclosure documents, including by electronic means and by courier.
5The relevant rules for the service of documents are set out in Rule 2.03 of the Rules, in section 52 of the Ontario College of Teachers Act, 1996 (the “Act”) and in sections 8.09 to 8.12 of the College Bylaws. Rule 2.03 provides that, “Service of notice or documents is effective when it is made in accordance with the College’s Act or Bylaws.” Section 52 of the Act provides that the notice or document to be given or served is sufficiently given or served if it is “(a) delivered personally; (b) sent by mail; or (c) given or served in accordance with by-laws respecting service.” Section 8.09 of the College Bylaws provides that documents may be served in a variety of ways, including by courier to the person’s last known address or via electronic means. According to sections 8.10 to 8.12 of the College Bylaws, there is a rebuttable presumption that the documents were delivered to the person after a certain number of days, depending on the method of service.
6The Panel notes that the Member indicated that he did not have access to an internet connection to download the disclosure documents and requested that a hard copy be sent to a DHL depot in Libreville, Gabon. In response to this request, the College sent a hard copy of the documents by courier to Gabon (Exhibit 3, pages 2 and 3). However, since the Member did not collect them in Gabon, the documents were returned to Canada.
7In this case, although the Member did not confirm receipt of any of the documents delivered to him by the College, he is deemed to have received those documents at his last known address (in this case, the DHL address in Libreville, Gabon). The College has demonstrated that it complied with its service obligations by sending the documents by courier to the last address provided by the Member.
8In addition, the Panel delayed the start of the hearing for approximately 15 minutes to allow time for the Member to appear at the hearing, which he did not. The Panel therefore held the hearing in his absence.
A. Publication BAN
9The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, 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
10It is alleged that between February 1, 2017, and October 25, 2017, the Member misrepresented the reasons for his absences in order to take advantage of his sick leave entitlements and that he received a salary and benefits from the Board while employed by an organization in another country.
11The Panel must determine whether these allegations have been proven on a balance of probabilities and, if so, whether the Member’s conduct supports a finding of professional misconduct. For the reasons that follow, the Panel finds that the Member engaged in professional misconduct and contravened Ontario Regulation 437/97, subsections 1(13), 1(14), 1(15), 1(18) and 1(19).
C. THE ALLEGATIONS
12The allegations against the Member in the Notice of Hearing dated July 13, 2020 (Exhibit 1), are as follows:
IT IS ALLEGED that the Member is guilty of professional misconduct as defined in the Act in that:
a) he falsified a record relating to the member’s professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);
b) he failed to comply with the Act or the regulations or the by-laws, specifically section 321 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
c) 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);
d) 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);
e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:
Joël Patient Tchoreret-Mbiamany is a member of the College.
At all material times, the Member was employed by the Conseil scolaire catholique MonAvenir (the “Board”) as a teacher at École secondaire catholique Sainte-Trinité (the “School”) in Oakville, Ontario.
Between February 1, 2017, and October 25, 2017, the Member:
a) misrepresented the reasons for his absences in order to take advantage of his sick leave entitlements;
b) received a salary and benefits from the Board while he was employed by an organization in another country.
D. THE MEMBER’s PLEA
13As the Member was not present at the hearing, the Panel proceeded on the basis that he denied the allegations set out in the Notice of Hearing.
E. THE EVIDENCE
14The College filed oral and documentary evidence to prove the allegations set out in the Notice of Hearing. The relevant elements of the testimonies are described in detail in the Panel’s Reasons for Decision. The College’s oral evidence is summarized below.
(1) Oral Evidence
15The College called three witnesses: (1) Tammie Hayes, Vice-Principal at the School, who was told by the Member that he needed to take time off from work; (2) Rachele Caron, Principal at the School, who was also told by the Member that he needed to take time off from work and who, along with Ms. Hayes, looked into the legitimacy of his request and (3) Gabriel Bérard, former Assistant Director of Administrative Services and Human Resources at the Board, who investigated the events in question for the Board.
16For the reasons set out in detail below, the Panel finds that the testimony of the three witnesses was credible and consistent in all material respects. Although there are minor inconsistencies in their accounts, the Panel finds that these do not undermine the credibility of the witnesses on the key facts at issue.
17As the Member chose not to participate in the hearing, no testimony was presented in his defence.
a) Testimony of Tammie Hayes
18Ms. Hayes began working for the Board in 2006 while completing an alternative Bachelor of Education degree. She began as a long-term occasional teacher at an elementary school and then worked as a high school teacher in Hamilton, Ontario, until 2013. In 2013, she was transferred to the School, which had recently opened, to serve as vice-principal, a position she held at all material times. At the time of the hearing, she was principal of École Sainte-Marguerite-Bourgeoys in Brantford, Ontario.
19Ms. Hayes testified that she had always had a good relationship with the Member, free of any conflicts. In 2017, as vice-principal, Ms. Hayes was in charge of occasional teaching, scheduling, finances, the appraisal of experienced teachers and student discipline.
20Regarding the events in question, Ms. Hayes testified that the Member told her he needed to take time off from February 13 to February 15, 2017, to visit his dying mother in Africa. He was supposed to be back in the classroom on February 16, 2017, in time for the presentation of the students’ International Baccalaureate projects, but he did not return since he had supposedly been in a car accident in Gabon and was in intensive care. As a result, an occasional teacher had to be found to teach his classes, the date of the International Baccalaureate project presentation had to be changed, and other teachers had to be assigned assessment duties. Ms. Hayes also testified that she later discovered that the Member did not appear to be in intensive care, but rather was engaged in politics in Gabon. Lastly, Ms. Hayes confirmed that she attended a meeting on June 14, 2017, in which the Member as well as the Human Resources department participated. Gabriel Bérard was in charge of the investigation and asked the questions, while Ms. Hayes, Ms. Caron and Romaric De Vita, Manager of Labour Relations, took notes. Ms. Hayes was unable to answer what notes she and the other participants took.
b) Testimony of Rachele Caron
21Ms. Caron was a teacher and academic advisor for many years. In February 2017, she was the principal at the School, a position she held for five and a half years. At the time of the hearing, she was the principal at École élémentaire Saint-Philippe.
22With respect to the events in question, Ms. Caron testified that she had only known the Member for about a week when he took time off from the School. She testified that she had two interactions with the Member before he told her he was leaving for Africa that were not necessarily positive and that she therefore did not have a good feeling about him. She also agreed with Ms. Hayes about the importance of the International Baccalaureate projects and found it “fishy” that the Member claimed that he could return from Africa in time given the distance he would need to travel. Ms. Caron explained that she had heard rumours from colleagues that the Member was involved in politics in Gabon. As a result, she conducted online research and found supporting videos and photos. In March 2017, the matter was referred to Human Resources since the Member had still not returned to the School. She stated that in the end, the Member did not return until June 2017. She attended the June 14, 2017, meeting with Ms. Hayes. She asked Ms. Hayes to take notes so that she could listen attentively and make sure to follow up as necessary. She said that no further meetings were held.
c) Testimony of Gabriel Bérard
23Mr. Bérard was Assistant Director of Administrative Services and Human Resources from 2015 until 2021. He was in charge of the Board’s investigation of the Member. During his testimony, Mr. Bérard provided an account of the course of events that led to the investigation and ultimately to the Member’s dismissal.
24In sum, he explained that the Member had been absent since mid-February 2017 to travel to Gabon because his mother was ill and had stayed there for health reasons. The Member returned to Canada in June 2017. In February 2017, when he learned that the Member was involved in politics in Gabon, Mr. Bérard began to conduct online research. He found newspaper articles and photos on Facebook that showed the Member was engaged in politics in Gabon while claiming to be ill. Mr. Bérard also found an online article that showed that the Member had been the acting Deputy Director of the Société nationale des logements sociaux (SNLS) in Gabon since late April 2017.
25Mr. Bérard testified that between mid-February 2017 and June 2017, he sent several emails to the Member requesting supporting documentation regarding his absence. The Member did not provide any, except for the airline ticket and certificate of hospitalization from February 15 to 17, 2017. The Board also asked the Member to undergo an independent medical assessment in Canada, but the Member indicated that, among other things, he was unable to undergo the medical assessment because he did not have the money to return to Canada.
26Mr. Bérard explained that subsequently, the Member forwarded several medical reports to account for his absence, but the documents shared were inconclusive, did not account for his absence and left the Board with serious doubts as to his absence. On June 12, 2017, the Board began its investigation. On June 14, 2017, an in-person meeting was held with the Member to discuss his absence, after which two additional meetings requiring his presence were scheduled, to be held on September 22 and October 2, 2017. The Member did not attend either meeting. On October 26, 2017, Mr. Bérard informed the Member that his employment had been terminated.
27In addition, Mr. Bérard explained that the Member was paid for the entire period from February 13, 2017, until his dismissal on October 26, 2017.
F. SUBMISSIONS OF COLLEGE COUNSEL
28College Counsel submitted that the evidence presented to the Panel proved every allegation set out in the Notice of Hearing on a balance of probabilities. She submitted that the Panel should find that the Member had engaged in professional misconduct, as alleged in the Notice of Hearing.
29College Counsel reviewed the relevant evidence with the Panel. In her view, although the Member was not present at the hearing and did not give evidence, the College’s three witnesses provided the Panel with the explanations and documents that the Member had previously provided to the Board regarding his absence, which lasted approximately six months. In sum, the Member’s version of events is that he had gone to Africa because his mother was dying and had stayed there for health reasons. College Counsel stated that the information, emails and medical notes that the Member provided to the Board were inconsistent, unauthentic and insufficient to account for a six-month absence. In addition, the Member did not undergo a medical assessment as mandated by the Board. The College argued that, in fact, the evidence showed that the Member was involved in political proceedings in Gabon during the time he claimed to be ill and was employed by an organization in Gabon while receiving a salary and benefits from the Board. According to the College, these actions constitute professional misconduct.
G. DECISION ON THE FINDING
(1) Burden and Standard of Proof
30The 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
31Having considered the evidence, onus and standard of proof and the submissions of College Counsel, the Panel finds that the Member engaged in professional misconduct alleged, contrary to Ontario Regulation 437/97, subsections 1(13), 1(14), 1(15), 1(18) and 1(19).
H. REASONS FOR DECISION
32The Panel carefully reviewed the evidence and submissions in this matter. In the reasons that follow, the Panel addresses only those portions of the evidence that are the most relevant to the allegations set out in the Notice of Hearing. The Panel first makes its findings of fact and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.
(1) Factual Findings
a) Particular 3(a)
33The Panel finds that, on a balance of probabilities, during the period between February 1, 2017, and October 25, 2017, the Member misrepresented the reasons for his absences in order to take advantage of his sick leave entitlements.
34According to the testimony of Ms. Hayes and Mr. Bérard, the reasons given by the Member to explain his absences were that he had gone to Gabon for a week to visit his ailing mother and had needed to stay there because he was ill himself. However, the College’s witnesses did not believe him.
35Mr. Bérard testified that he did not receive an official leave request form from the Member. The information that was shared with the administration team at the School was that the Member had to leave for Africa on February 11, 2017, for approximately one week because his mother was ill. On February 17, 2017, the Member was still not back at work and his wife said that he had been in a car accident and was hospitalized in Africa. On April 5, 2017, since the Member had not returned to work, Mr. Bérard asked him to account for his absence for the following three periods: February 13 to 14, 2017; February 18 to March 8, 2017; and March 14 to April 5, 2017 (Exhibit 8, Tab 6, page 28). Mr. Bérard explained that he did not ask the Member to account for his absence for the period of March 9 to 13, 2017, since it was March break.
36Because the Member had not provided supporting documentation, with the exception of the plane ticket and certificate of hospitalization from February 15 to 17, 2017 (Exhibit 8, Tab 30, pages 198-200), and because the Member was not cooperating with the Board with respect to the documentation required, the Board requested that he undergo an independent medical assessment on April 26, 2017 (Exhibit 8, Tab 8, page 33). In addition, because the Member had not submitted supporting documentation after six weeks, his absence was considered unexcused and the Board stopped paying his salary. On April 18, 2017 (Exhibit 8, Tab 8, page 33) the Member reported that he was still in Gabon, was unable to undergo a medical assessment in Canada on April 26, 2017, had no money to travel to Canada, that his mother had passed away and that he was awaiting a medical consultation on May 16, 2017, to return to Canada. The Member’s salary was therefore reinstated. On April 27, 2017, the Member reiterated, among other things, that his “absence from [his] workplace is due to a poor state of health, a source of deep concern” and that “above all, [he] wishes to have a complete medical check-up and return to [his] work in a better state of health” (Exhibit 8, Tab 8, page 32).
37On May 23, 2017, since the Member was still absent, Mr. Bérard asked him when he planned to return to work (Exhibit 8, Tab 9, page 36). In his responses sent on May 26 and June 7, 2017, the Member indicated that he would return to work on June 12, 2017, and forwarded a medical report dated June 6, 2017. On June 12, 2017, the Member was informed of the investigation and was scheduled to attend a meeting on June 14, 2017 (Exhibit 8, Tab 16, pages 122-124) to discuss his absence.
38At the June 14, 2017, meeting, the Member was accompanied by his union representative and reiterated that he had needed to take time off as of February 11, 2017, to visit his ailing mother in Gabon, that he had then been in a car accident and that his poor health had prevented him from returning to Canada (Exhibit 8, pages 126-159). With respect to how this impacted his daily activities, the Member was able to meet with people who visited him at home and sometimes outside. He also explained that he did not always receive a medical note when he went to see his doctor. Mr. Bérard testified that the Member was evasive in his answers and seemed frustrated when questioned about the period from March 13 to June 9.
39As discussed during the June 14, 2017, meeting, the Member was asked to send supporting documentation regarding his absences from February to June 2017 to Mr. Bérard, but he did not do so. Therefore, on June 16, 2017, Mr. Bérard sent him an email specifying the supporting documentation required by the Board (Exhibit 8, Tab 18, page 162). On August 31, 2017, after having received several reminders, the Member finally sent a medical note dated August 9, 2017. Mr. Bérard explained that this document was not sufficiently detailed and contradicted the medical report from June 6, 2017. The Member was thus called in for a second meeting to be held on September 22, 2017, but he did not show up. The Member was called in for a third meeting set to take place on October 2, 2017, but again failed to appear. On October 26, 2017, the Member was informed that the Board had terminated his employment, effective on October 25, 2017 (Exhibit 8, Tab 24, page 180).
40Ms. Hayes, Ms. Caron and Mr. Bérard testified that, despite the reasons for his absences given by the Member, they believed that he was absent in order to pursue politics in Gabon, not because of his medical conditions.
41Ms. Hayes testified that after the Member’s wife told her on February 16, 2017, that he was in intensive care, his colleagues later discovered, through research, that he instead appeared to be in Africa to participate in political activities. On February 17, 2017, Ms. Hayes sent some links to online articles from “Gabonreview” to Janet Ritchie, the Salary Manager (Exhibit 8, Tab 29, page 193), and informed her that the Member was in a photo in the article and his name appeared in the text as a member of a political party.
42Ms. Caron noted that she had heard rumours from colleagues at the School that the Member had already taken time off to be with his mother, that his mother had supposedly already passed away and that he had gone to Africa to pursue politics. Ms. Caron and Ms. Hayes therefore began conducting research on the internet and social media. They discovered posts, supported by photos and videos, which suggested that the Member was participating in political events in Gabon, and therefore appeared to be in Gabon for reasons other than his mother’s illness.
43Mr. Bérard recounted that the email dated February 17 from Ms. Hayes to Ms. Ritchie prompted his own social media and online research on the “Political Dialogue”. He explained that according to his research, the “Political Dialogue” was a political process that brought together Gabon’s government and opposition party to discuss the country’s political future. The “ad hoc committee” did the preparatory work for the “Political Dialogue”. Mr. Bérard found two online articles from “Gabonreview” (Exhibit 8, Tab 11, page 53) and “Info241.com” (Exhibit 8, Tab 12, page 63) published on February 17, 2017, indicating that on February 16, 2017, the membership of the ad hoc committee responsible for preparing the Political Dialogue was released and that the Member was listed as one of the opposition party’s Deputy General Rapporteurs. The ad hoc committee was set up around February 15, 2017 (Exhibit 8, Tab 11, page 54) and its work continued until February 20, 2017 (Exhibit 8, Tab 12, page 64).
44Mr. Bérard also found the General Report on the Political Dialogue (Exhibit 8, Tab 13, pages 68-100) online. The report shows that the Political Dialogue meetings were held from March 28 to May 26, 2017, in Gabon. The Member was identified as a member of the opposition party’s “Commission 1” delegation (page 86). In addition, the Member’s signature appears at the bottom of Commission 1’s General Report on the political dialogue as one of the opposition party co-chairs (page 99). Further, during his research, Mr. Bérard found photos from a Facebook page for the Political Dialogue (Exhibit 8, Tab 14, pages 101-110) that was publicly accessible. They show that the Political Dialogue took place in Libreville, Gabon in February 2017. Mr. Bérard identified the person circled in the photos as the Member, who was participating in the Political Dialogue.
45Mr. Bérard also said that at the June 14, 2017, meeting, the Member admitted to having attended two political forums and having met with journalists at the Radisson Hotel in Gabon on February 15, 2017. According to Mr. Bérard, this tallied with or corresponded to the information he had gathered about the Political Dialogue in Gabon.
46The Panel accepts the testimony of Ms. Hayes, Ms. Caron and Mr. Bérard. The facts presented are consistent overall. During the period from February 9, 2017, to October 25, 2017, the Member sent several emails and medical notes to his employer stating that he had to take time off to go to Gabon on account of his ailing mother and needed to stay there because he was ill himself. The Panel reviewed the medical notes provided by the Member and found that they were inconsistent and did not excuse the Member’s extended absence. The hospitalization certificate dated February 17, 2017 (Exhibit 8, Tab 30, page 198) shows that the Member was hospitalized on February 15, 2017, and was “currently in intensive care”, but does not indicate the amount of time or reason for which he was hospitalized, or the treatment he received. The medical note from the Zoe Clinic dated March 13, 2017 (Exhibit 8, Tab 5, pages 22-24), states that the Member was suffering from hemorrhoids, that his condition required a 30-day observation and that he was scheduled to return to the Zoe Clinic on April 13, 2017. It does not state that the Member could not return to work. The Panel also received a medical report dated June 6, 2017 (Exhibit 8, Tab 10, pages 39-51) from the Centre Hospitalier Universitaire de Libreville in Gabon that refers to a pre-existing medical condition the Member had and states that he could return to work as soon as possible if he continued taking the prescribed dosage. The Panel therefore finds that the Member could have returned to work but did not do so.
47The Panel also reviewed the “Patient Medical Follow-up Report” dated August 9, 2017 (Exhibit 8, Tab 19, page 166) with respect to the Member’s absences from February 15, 2017, to June 6, 2017. The Panel has serious doubts about the authenticity and reliability of this report. First, it does not give the author’s name. Second, although the June 6, 2017, report from the Centre Hospitalier Universitaire de Libreville in Gabon and this report were issued by the same hospital, the dates pertaining to the Member’s anticipated return to professional activities contradict one another. Third, the August 9, 2017, report states, “On March 9, the patient underwent a medical procedure and was hospitalized until Friday, March 13”, the same day on which, according to the Zoe Clinic report, the Member required surgical treatment for his hemorrhoids. The Panel finds it implausible that the Member had two medical procedures at two different hospitals on the same day. Fourth, the August 9, 2017, report is vague, making no mention of the treatments the Member received or any restrictions imposed.
48The Panel believes that it is more likely that the Member went to Gabon to pursue politics and remained there for that reason. The period during which the Member was absent (February 13 to June 9, 2017) corresponds to the period during which the preparatory work as well as the Political Dialogue meetings took place in Gabon (February 15, 2017, to May 26, 2017). The documents presented, including the General Report on the Political Dialogue, identify the Member as a member of the “Commission 1” opposition delegation. The Member’s name and signature also appear at the bottom of Commission 1’s General Report on the Political Dialogue as one of the opposition party co-chairs.
49The Panel also compared the image of the person circled in the Political Dialogue photos (Exhibit 8, Tab 14, pages 103-110, especially those on pages 105, 107 and 109) to the Member’s passport photo (Exhibit 5, pages 66-67 and 74). The Panel is satisfied that the person circled and identified by Mr. Bérard in the Political Dialogue photos is indeed the Member.
50The Panel notes that at the June 14, 2017, meeting, the Member denied having chaired a Political Dialogue commission. He claimed that the government in power was using his name without his approval and that he had no control over what the government did with his name. The Political Dialogue photos that Mr. Bérard showed him were another example of government “exploitation”. According to the Member, the government was using his name and image in these publications because “it is advantageous for the government, it sells well, it legitimizes their position. It’s a dictatorship. They’re taking advantage, I’ve been an opponent since I was 15 years old […] it looks good […] it gives the impression that even I am part of the Political Dialogue” (Exhibit 8, Tab 17, page 137). The Panel finds the Member’s explanations for his involvement in the Political Dialogue to be inconsistent and implausible. Moreover, the Panel notes that at the June 14, 2017, meeting, despite alleging serious government misconduct against him through the use of his name and image to “legitimize” the government’s position, the Member made no mention of any steps taken to address the exploitation of his identity, if such was indeed the case.
51The Panel therefore concludes that the Member misrepresented the reasons for his absences in order to take advantage of his paid sick leave while he was in Gabon working for a political party.
b) Particular 3(b)
52The Panel finds that, on a balance of probabilities, during the period ranging from February 1, 2017, to October 25, 2017, the Member received a salary and benefits from the Board while he was employed by an organization in another country.
53Mr. Bérard testified that in his research, he found an online article from “Gabonreview” dated May 1, 2018 (Exhibit 8, Tab 15, pages 111-117), which indicated that the Member had been acting Deputy Director of SNLS in Gabon since late April 2017 and had implemented projects. Mr. Bérard also explained that the Member was paid for from February 13, 2017, until his employment was terminated by the Board on October 26, 2017, while simultaneously employed by SNLS. Mr. Bérard went over the “Summary of Pay” (Exhibit 8, Tab 26, page 185), a chronological table summarizing the Member’s salary payments for the 2016-2017 school year and up to his dismissal. He explained that for the period of February 13-15, 2017, the Member received his regular salary due to “illness in the family”. He explained that under the Board’s short-term disability coverage, 11 days are paid at 100% and 120 days at 90%. Thus, for the period of February 16 to March 2, 2017, the Member received 100% of his regular salary for “certified illness” and then 90% of his regular salary for the period of March 3 to June 11, 2017.
54Mr. Bérard clarified that while the table shows that the Member did not receive any salary for the pay period of March 19 to April 15, 2017, he was in fact paid retroactively as an advance to allow him to access funds to return to Canada as he had indicated that he did not have enough money to return. This payment was not considered salary in the table. In addition, his salary for the April 16-29, 2017, pay period was adjusted and is slightly different. As of June 12, 2017, the Member was assigned to work from home and paid as per usual until his employment was terminated. Mr. Bérard added that the letter notifying the Member of his dismissal also stated that he could not accept other employment without the express permission of the Board.
55In the absence of evidence to the contrary, the Panel accepts Mr. Bérard’s testimony and the documents admitted into evidence (the Gabonreview article dated May 1, 2018, and the pay summary for the period of September 2016 to October 2017). Moreover, the Panel has no reason to doubt the veracity of Mr. Bérard’s testimony, which it considers credible, nor the version of events he reported. Mr. Bérard investigated the events that led to the Board’s dismissal of the Member. In his testimony, he was able to recall the events and had documentary evidence to support his testimony. Moreover, Mr. Bérard has no interest in the outcome of the hearing that might alter his recollection of the events. The Panel believes that he was only doing his job as an investigator and testified in that capacity; he was clear, precise and impartial. His testimony was consistent throughout the proceedings. He had no hesitation, never corrected himself and made no prior inconsistent statements.
(2) Legal Conclusions
56The Panel finds that the Member’s conduct as described above supports a finding of professional misconduct. In particular, the Member:
falsified a record relating to the member’s professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13);
failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);
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);
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);
engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
a) The Member falsified a record relating to the member’s professional responsibilities, contrary to Ontario Regulation 437/97, subsection 1(13)
57The evidence shows that during the period between February 1, 2017, and October 25, 2017, the Member misrepresented the reasons for his absences in order to take advantage of his sick leave entitlements. As described above, the Member had stated that he needed to leave for Gabon on February 13, 2017, because his mother was unwell, and he remained there for reasons relating to his health. While he was away, he sent several emails to Mr. Bérard in which he claimed to be ill and unfit to carry out his teaching duties. For example, in his April 27, 2017, email, the Member informed Mr. Bérard that his “absence from [his] workplace is caused by a poor state of health, a source of deep concern” and that “above all, he wishes to have a complete medical check-up and return to [his] work in a better state of health” (Exhibit 8, Tab 8, page 32). He also sent several medical notes to the Board to account for his absence that the Board and the Panel found to be inconsistent, contradictory and false. Moreover, during the June 14, 2017, meeting until his dismissal on October 25, 2017, the Member continued to state that he had remained in Gabon for health reasons. But the evidence shows that he was engaged in politics in Gabon during the time he claimed to be ill. The Panel therefore concludes that by misrepresenting the reasons for his absences in his statements, emails and medical documents sent to the Board, the Member falsified a record relating to his professional responsibilities.
b) The Member failed to comply with the Act or the regulations or the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14)
58The Panel finds that the Member failed to meet the ethical standards set out in section 26.02 of the College Bylaws, in particular the standards of “integrity” and “trust”. Members are expected to act in a manner that is honest, trustworthy and ethical (“integrity”). Further, members’ relationships with colleagues, the public and others are based on trust (“trust”). The Member did not meet these expectations. By misrepresenting the reasons for his absences in order to receive paid sick leave and by receiving a salary and benefits from the Board while employed by SNLS in Gabon, the Member engaged in dishonest conduct; he demonstrated a lack integrity and undermined the trust his employer and the public placed in him.
c) The Member 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)
59The Panel finds that the Member failed to comply with subsection 264(1) of the Education Act, which sets out the duties of members of the teaching profession. Paragraph 264(1)(c) provides that a teacher shall “inculcate by precept and example […] the highest regard for truth, justice, loyalty, love of country, humanity, benevolence, sobriety, industry, frugality, purity, temperance and all other virtues.” In short, teachers must act with integrity and set an example within their school community. The Member engaged in dishonest conduct and therefore, in the view of the Panel, did not set a good example in his school community of the conduct expected from members of the College.
60Paragraph 264(1)(d) provides that members shall assist in developing cooperation and coordination of effort among the members of the staff of the school. The evidence shows that on several occasions, the Board asked the Member to provide supporting documentation for his absences, to undergo an independent medical assessment and to attend meetings to discuss his absences. The Member failed to provide the documentation in a timely manner. In addition, the information in the documents he did eventually provide was contradictory. He refused to undergo a medical assessment despite having his salary reinstated and did not attend the scheduled meetings with his employers in September and October 2017.
61The Panel believes that the Member has demonstrated a serious lack of cooperation with the School. Moreover, he gave only very short notice of his impending departure to Gabon. He gave a false return date and assured the School that he would be back in time to complete the students’ projects, which he was not. His misconduct created a difficult situation for his students and his colleagues, who had to take on some of his responsibilities and duties. The Panel therefore concludes that the Member did not cooperate with the Board. As such, his conduct is contrary to his obligations as a member of the teaching profession.
d) 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).
62The Panel finds that the Member’s conduct was disgraceful, dishonourable and unprofessional. Disgraceful and dishonourable conduct includes unethical or dishonest conduct. The Member lied to his employer about the reasons for his absences in order to take advantage of his sick leave entitlements. He also received a salary from the Board while employed by SNLS in Gabon. It is unacceptable for a teacher, who holds a position of trust and influence within his community, to behave in such a dishonest manner. The Panel therefore concludes that the Member’s conduct was disgraceful and dishonourable.
63The Panel also finds that the Member’s actions were unprofessional. Ms. Hayes and Ms. Caron stressed the importance of the International Baccalaureate projects. They testified that the Member should have been back in the classroom on February 16, 2017, in time for the presentation of these projects. However, since he was absent, an occasional teacher had to be found to teach his classes, the date for the presentation of the International Baccalaureate projects had to be changed and the assessment tasks had to be assigned to other teachers. The Panel believes that by engaging in politics in Gabon instead of returning in time for the presentation of the International Baccalaureate projects, the Member demonstrated serious dereliction of his professional duties as a teacher. For these reasons, the Panel concludes that the Member contravened the provisions of Ontario Regulation 437/97, subsection 1(18).
e) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
64The Panel finds that the Member engaged in conduct unbecoming a member of the teaching profession. Through his dishonest actions, as described above, the Member tarnished the reputation of the teaching profession and undermined public confidence in teachers.
I. PENALTY
65The Tribunals Office will set a date for the Panel to hear the parties’ submissions with regards to penalty.
Date: May 9, 2023
Marlène Marwah Chair, Discipline Panel
Élaine Legault Member, Discipline Panel
Yasser Leheta, OCT Member, Discipline Panel