DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Asokantahn 2023 ONOCT 06

Date: 2023-02-03

DECISION ON FINDING 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: January 16, 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.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on January 16, 2023, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

2Ponita Subadra Asokanthan (the “Member”) attended the hearing and was self-represented.

3Following the hearing, the Panel found that the Member engaged in professional misconduct contrary to subsections 1(20) and 1(25) of Ontario Regulation 437/97. These are the Panel’s reasons for this finding.

A. PUBLICATION ban

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

B. THE ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated August 17, 2022 (Exhibit 1) are as follows:

IT IS ALLEGED that the Ponita Subadra Asokanthan is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) she failed to appear before a panel of the Investigation Committee to be cautioned or admonished, if the Investigation Committee has required the member to appear under clause 26(5)(c) of the Act, contrary to Ontario Regulation 437/97, subsection 1(20);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Ponita Subadra Asokanthan is a member of the Ontario College of Teachers.

2. On July 21, 2020, a panel of the Investigation Committee made a decision requiring that the Member appear before the Investigation Committee to be admonished.

3. On July 28, 2020, the Investigation Committee’s decision and reasons were sent to the Member via e-mail.

4. On August 4, 2020, the Member acknowledged receipt of the decision.

5. On September 3, 2020, the Member was advised that the admonishment would take place on September 17, 2020, at 9:05 a.m. The Member received instructions on how to participate via videoconference and was reminded that failure to attend could constitute professional misconduct.

6. The Member did not attend on September 17, 2020, to receive an oral admonishment as requested.

7. The Member failed to appear before the Investigation Committee to be admonished on any other date.

8. The Member did not respond to communication from the College regarding scheduling or appearing before the Investigation Committee to be admonished.

C. THE MEMBER’S PLEA

6At the outset of the hearing, the Member admitted that she did not appear before the Investigation Committee to be admonished, and that she did not respond to communication from the College regarding her admonishment. However, she advised the Panel that she wished to provide additional context as to why she did not respond to the College’s communication. While the Member seemed to admit the allegations in the Notice of Hearing, the Panel was not certain whether the Member was only admitting the factual allegations, or whether she was admitting that her conduct constituted professional misconduct under the Act. Additionally, the Panel was not certain whether the Member intended to put forward a defence as part of her case.

7As the Member was self-represented, Independent Legal Counsel (“ILC”) advised the Panel that it may not be fair to the Member to accept a guilty plea, in light of the uncertainty about the Member’s submissions. ILC suggested that the Panel proceed with the hearing as if the Member denied the allegations.

8The Panel accepted this advice and proceeded on the basis that the Member denied the allegations set out in the Notice of Hearing.

D. THE EVIDENCE

(1) The College

9The College relied solely on the Affidavit of Janice Duggan (“Affidavit”) sworn January 15, 2023 (Exhibit 2A) to prove the allegations set out in the Notice of Hearing. Ms. Duggan is the Manager of the Investigations and Hearings unit at the College. As part of her role as Manager, she reviews investigations of College members, supports the Investigation Committee in their duties, oversees the service of Investigation Committee decisions, and supervises the scheduling and administration of oral cautions and admonishments as ordered by the Investigation Committee.

10In the Affidavit, Ms. Duggan states that a panel of the Investigation Committee considered a complaint about the Member and, on July 21, 2020, directed that she be admonished in person. Due to the COVID-19 pandemic, in-person admonishments were conducted by video conference. In her affidavit, Ms. Duggan outlines the steps that she, the Director of the Investigation and Hearings Department (“Director”), and Ms. Duggan’s administrative assistant, Ms. Maala Nair, took to inform the Member of this decision and to schedule the admonishment as ordered by the Investigation Committee.

11Following the Investigation Committee’s Decision, Ms. Nair sent the Decision and Reasons of the Investigation Committee to the Member by email on July 28, 2020. On July 30, 2020 and on August 4, 2020, Ms. Nair emailed the Member again to schedule the admonishment. In her August 4, 2020 email, Ms. Nair reminded the Member that failing to appear to be admonished was defined as an act of professional misconduct under subsection 1(20) of Ontario Regulation 437/97.

12On August 4, 2020, the Member emailed Ms. Duggan and Ms. Nair acknowledging that she had received the July 30 and August 4 emails, as well as phone calls from Ms. Nair. In her email, the Member stated that she was still reviewing the decision of the Investigation Committee and would write about her situation once she finished her review. The Member asked that the College be patient with her until she got back to Ms. Nair and Ms. Duggan regarding this matter in writing.

13As Ms. Duggan and Ms. Nair did not hear from the Member by late August 2020, they scheduled the Member’s admonishment to occur on September 17, 2020. On September 2, 2020, Ms. Duggan wrote a letter to the Member to inform her of this date and to confirm the Member’s availability. A copy of this letter was also sent via email to the Member’s email address on September 3, 2020, and again on September 11, 2020. The Member did not respond to the emails but neither email bounced back as undelivered, so Ms. Duggan was satisfied that the College had met its obligation to inform the Member of the time and date of her scheduled admonishment. However, the Member did not appear to receive an admonishment on September 17, 2020.

14Ms. Duggan and Ms. Nair continued to attempt to communicate with the Member to reschedule the admonishment to the Investigation Committee’s next available date, October 13, 2020. On September 21, 2020, Ms. Nair emailed the Member requesting that she confirm her availability on October 13, 2020. In her email, Ms. Nair reminded the Member that failing to appear for an admonishment is defined as professional misconduct, and informed her that failing to respond to this email, and failing to schedule and attend the oral admonishment on October 13, 2020 may lead to an investigation being initiated against the Member for failing to attend an admonishment as ordered by the Investigation Committee. Ms. Nair did not receive a response to this email.

15On October 15, 2020, Ms. Duggan, with the Director, wrote a letter to the Member from the Director requesting that she contact the College to schedule the admonishment and advising her that the College would initiate an investigation if the Member failed to respond. On October 19, 2020, this letter was delivered to the Member’s last known residential address using a process server. The Member was given until October 23, 2020 to respond but did not do so.

16On February 22, 2021, Ms. Duggan again wrote a letter, on behalf of the Director, requesting that the Member contact the College by March 22, 2021 to reschedule her oral admonishment. This letter was delivered to the Member’s address by a process server on March 1, 2021. The College did not receive a response to this letter by March 22, 2021.

17In her affidavit, Ms. Duggan confirms that neither she nor anyone else in her unit has received any communication from the Member since August 4, 2020.

(2) The Member

18The Member testified during the hearing. In her testimony, the Member admitted that she failed to appear before the Investigation Committee for an admonishment and that she failed to communicate adequately with the College. The Member confirmed that she told the College that she needed time to consider the Investigation Committee decision and requested the College to be patient with her. At the relevant time, the Member was going through a period of self reflection and spiritual meditation. Nevertheless, the Member admitted that she did not communicate with the College following the August 4, 2020 email, despite having received all communications from the College regarding her admonishment. The Member confirmed during her cross-examination that the College sent communications to her accurate email and residential addresses, that she received all the emails sent by Ms. Nair and Ms. Duggan, and that she received all letters from Ms. Duggan and the Director, as referred to in Ms. Duggan’s affidavit. Ultimately, the Member did not challenge any of the information in Ms. Duggan’s affidavit.

E. SUBMISSIONS OF THE COLLEGE

19College Counsel submitted that the evidence set out in Ms. Duggan’s affidavit proves the allegations in the Notice of Hearing on a balance of probabilities. College Counsel therefore submitted that the Panel should find that the Member engaged in professional misconduct as alleged in the Notice of Hearing.

F. SUBMISSIONS OF THE MEMBER

20The Member agreed with College Counsel’s submissions that she committed professional misconduct. The Member again confirmed that she did not attend the admonishment as required and that she did not adequately communicate with the College.

G. DECISION ON FINDING

21The 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.

22Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Panel rendered a decision on January 16, 2023, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(20) and 1(25).

H. REASONS FOR DECISION

(1) Factual Findings

23The Panel sees no issues with the reliability of Ms. Duggan’s affidavit. In her affidavit, Ms. Duggan is clear about the communications with the Member to schedule her admonishment, to advise the Member of the date and time of the admonishment, and to assist the Member in participating in a video conference to receive the admonishment. Ms. Duggan’s affidavit is supported by emails (including one email from the Member), letters, and confirmations of service that confirm that the Member was made aware of the various dates and times of her admonishment that were proposed by the College and that the Member did not attend. Ms. Duggan’s affidavit further confirms that the Member did not respond to any communications from the College, except once on August 4, 2020, where she asked that the College not communicate with her until she has had the opportunity to review the Investigation Committee’s decision. The Member was provided with a copy of the Affidavit and advised of her right to cross-examine Ms. Duggan. She chose not to challenge Ms. Duggan’s evidence. The Panel accepts the evidence in Ms. Duggan’s affidavit in its entirety.

24The Panel further relies on the Member’s evidence that she had received every phone call, email, and letter from the College advising her of her obligation to appear before the Investigation Committee to be admonished, that she did not respond to those communications to set a date for her admonishment, and that she did not appear to be admonished by the Investigation Committee at any time. The remainder of the Member’s testimony was devoted to talking about the self-reflection and meditation in which she was engaging during this period, which the Member says is the reason she did not appear to be admonished and is why she failed to reply to the majority of the College’s communications.

25The Panel finds that the College has successfully proven on a balance of probabilities that:

1. On July 21, 2020, a panel of the Investigation Committee made a decision requiring that the Member appear before the Investigation Committee to be admonished;

2. On July 28, 2020, the Investigation Committee’s decision and reasons were sent to the Member via email;

3. On August 4, 2020, the Member acknowledged receipt of the decision;

4. On September 3, 2020, the Member was advised that the admonishment would take place on September 17, 2020, at 9:05 a.m. The Member received instructions on how to participate via videoconference and was reminded that failure to attend could constitute professional misconduct;

5. The Member did not attend on September 17, 2020, to receive an oral admonishment as requested;

6. The Member failed to appear before the Investigation Committee to be admonished on any other date; and

7. The Member did not respond to communication from the College regarding scheduling or appearing before the Investigation Committee to be admonished.

(2) Legal Conclusions

26The Panel finds that the Member failed to appear before a panel of the Investigation Committee to be cautioned or admonished, contrary to subsection 1(20) of Ontario Regulation 437/97. The Investigation Committee required the Member to appear for an admonishment pursuant to subsection 26(5)(c) of the Act. The evidence confirms that the Member was aware of the Investigation Committee’s decision, was aware of the scheduled time and date of the admonishment, and nevertheless failed to appear for an admonishment before the Investigation Committee.

27The Panel further finds that the Member failed to respond adequately or within a reasonable time to a written inquiry from the College, contrary to subsection 1(25) of Ontario Regulation 437/97. The College sent the Member numerous written inquiries, including several emails and two letters from the Director. The Member received this communication and did not respond, thereby failing to adequately respond to numerous written inquiries from the College.

I. PENALTY

28The penalty portion of this hearing has been scheduled and will take place on February 27, 2023.