Ontario College of Teachers v. Matar, 2024 ONOCT 16

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Matar 2024 ONOCT 16

Date: 2024-05-08

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

Edward William Matar, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

EDWARD WILLIAM MATAR (REGISTRATION #258768)

PANEL: Kimberley Westfall-Connor, Chair

Scott Barker, OCT

Kirby Chown, OCT

HEARD: March 22, 2024

Ava Arbuck, for the Ontario College of Teachers

Soumya Sanyal, for Edward William Matar

Ahmad Mozaffari, 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 March 22, 2024, 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 June 27, 2023, the Panel found that Edward William Matar (the “Member”) engaged in professional misconduct during his time as an occasional teacher at [XXX] Institute. The Panel found that the Member failed to maintain an appropriate learning environment by failing to adequately control his Period 2 and Period 4 classes on December 13, 2017. He engaged in confrontations with students and threw chalk in the classroom. The Member also made multiple inappropriate, disrespectful, and disparaging remarks to students in his classes on December 13, 2017. For example, he called a student the “Queen of Sheba”. He also told Student 1 that she was “racist”; that “for a very small girl, you have a big mouth” (or words to that effect); and that he wanted her out of his class. He also told students that their school should be a community centre or words to that effect. Based on this conduct, the Panel found that the Member contravened subsections 1(7), 1(7.2), 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97.

3The Panel reconvened on March 22, 2024 to hear submissions with respect to penalty. The Member was in attendance for this phase of the hearing and had legal representation for the penalty portion of the hearing.

A. PRELIMINARY MOTION

4At the start of the penalty hearing, the Member sought to bring a motion to have the evidence of one of the College’s witnesses, Ms. Shirley Nartey, struck from the hearing record and for the Panel to revisit its findings in light of additional evidence in his possession. College Counsel opposed the motion on the basis that the Panel lacked jurisdiction to deal with these issues.

(1) SUBMISSIONS BY THE MEMBER

5The Member submitted that the Panel should allow his motion because he had new evidence; namely phone records, that would demonstrate that he was not in class during Period 4 on December 13, 2017. The Member submitted that the evidence would also demonstrate that the College’s witness, Ms. Shirley Nartey, did not attend his class on December 13, 2017 and gave false evidence during the hearing. The Member advised the Panel that he lacked the resources to appeal its decision to the Divisional Court and submitted that the significance of this new evidence to his defence outweighed any concerns regarding the delay in obtaining it.

(2) SUBMISSIONS BY COLLEGE COUNSEL

6College Counsel submitted that the Panel lacked jurisdiction to reopen the hearing and admit additional evidence after it has made its findings and released its decision and reasons. College Counsel submitted that administrative tribunals may only reconsider their decisions in certain limited conditions. College Counsel referred to subsection 21.2(1) of the Statutory Powers Procedure Act (“SPPA”), which provides for a tribunal’s power to review all or part of its decision on two preconditions – first, if the tribunal considers it advisable and secondly, whether the tribunal’s rules deal with the matter. College Counsel reviewed the Discipline Committee’s Rules, which she submitted do not include a rule permitting a review of the Panel’s decision. College Counsel advised the Panel that she was prepared to provide submissions regarding why the motion should not be granted if the Panel ultimately decided that it had jurisdiction to hear the motion.

B. DECISION ON MOTION AND REASONS FOR DECISION ON MOTION

7After considering the submissions of the parties, the Panel held it lacked jurisdiction to hear the Member’s motion. The Panel accepted that its powers are limited by statute. The Panel reviewed the Ontario College of Teachers Act, 1996, (the “Act”) and noted that there are no provisions regarding reviews or reconsideration of Discipline Committee decisions, apart from appeals to Divisional Court. The Panel also carefully reviewed the wording of section 21.2 of the SPPA and accepted that it could not reconsider its Decision on Finding and Reasons for Decision issued on June 27, 2023, because the Rules do not provide for that power.

8The Panel then proceeded to hear the parties’ submissions on penalty and reminded the Member of his right to appeal, as set out by section 35 of the Act.

C. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

9The College submitted that the Panel ought to order a penalty that includes the following elements:

1. a reprimand;

2. a suspension of six months in duration; and

3. terms, conditions or limitations which would require the Member to successfully complete a course or courses regarding anger management, classroom management, professional ethics and cultural sensitivity, within 180 days of the Committee’s order on penalty.

10College Counsel submitted that the proposed penalty meets the objectives of specific and general deterrence, rehabilitation and remediation, and protection of the public interest. College Counsel advised that proposed penalty also balanced the aggravating and mitigating circumstances of the Member’s case. In terms of mitigating circumstances, College Counsel noted that this was the Member’s first appearance before the Discipline Committee, and that the Member has, since the events in question, continued to teach as an occasional teacher without further complaints. College Counsel outlined several aggravating factors. First, College Counsel submitted that, given the Member’s extensive teaching experience, he ought to have known how to manage his classes appropriately on December 13, 2017 as well as the importance of showing cultural sensitivity in the classroom. The Member has been an occasional teacher for over 35 years, having received his certificate in 1987. Secondly, College Counsel submitted that it was an aggravating factor that the Member had been previously counselled on two occasions and disciplined on another occasion by his school board for being disrespectful towards students and staff. Thirdly, College Counsel submitted that the Member’s misconduct was not a momentary lapse of judgment but a sustained pattern of behaviour that occurred in two different classes that day. The Member should have taken time between Period 2 and Period 4 to regain his composure and to talk to administrators about any concerns that he may have had about his ability to manage his classroom. Finally, College Counsel submitted that not only has the Member failed to demonstrate insight into his misconduct, there is no evidence that the Member has shown any remorse for his misconduct and its impact on his students, nor has he taken any responsibility for his actions.

11College Counsel presented six cases to the Panel in support of its proposed penalty: Ontario College of Teachers v. Aloise, 2022 ONOCT 9; Ontario College of Teachers v. Antonenko, 2019 ONOCT 79 (“Antonenko”); Ontario College of Teachers v. Calmeiro, 2023 ONOCT 27; Ontario College of Teachers v. Chrisopoulos, 2022 ONOCT 101; Ontario College of Teachers v. Labbé, 2018 ONOCT 39 (“Labbé”); Ontario College of Teachers v. Lim, 2020 ONOCT 184 (“Lim”). College Counsel submitted that these cases provide guidance for the Panel’s determination of the appropriate penalty, and as well they establish a range of reasonable penalties imposed in cases involving similar acts of professional misconduct.

D. PENALTY SUBMISSIONS OF THE MEMBER

12Member’s Counsel submitted that the appropriate penalty in the circumstances of this case is coursework and argued that the order requested by the College is excessive.

13Member’s Counsel distinguished the circumstance of the Member’s conduct from the cases presented by College Counsel on the basis that those cases dealt with continuous and longstanding misconduct of much more serious nature than the conduct that the Member engaged in. Member’s Counsel submitted that the Member had exhibited a momentary lapse of judgment on what was a very bad day for him and underlined that this was the Member’s first appearance before the Discipline Committee in his long teaching career.

14Member’s Counsel submitted that the Member was remorseful for what transpired, that he understood the gravity of what happened, and that he was willing to take responsibility of his actions. Member’s Counsel urged the Panel to consider the cultural context of the Member’s remarks and submitted that the term “Queen of Sheeba” was not intended to be offensive. Member’s Counsel acknowledged that the Member needed to renew his understanding of racism and what terms are inappropriate in the classroom and advised that the Member had undertaken coursework shortly after the events in question. No details of the content or duration of that coursework were provided to the Panel. However, Member’s Counsel submitted that in light of the coursework the Member had undertaken, there should be no further penalty ordered by the Panel.

E. REPLY SUBMISSIONS OF COLLEGE COUNSEL

15In reply, College Counsel reiterated that there is no evidence that the Member has shown any remorse and noted that the classroom management course referred to by the Member was completed in 2018. College Counsel submitted that the requested coursework is necessary to assist the Member in addressing his misconduct and maintained a six-month suspension is appropriate.

F. PENALTY DECISION

16On March 22, 2024, the Panel made the following order as to penalty:

1. The Member is directed to appear before the Discipline Committee on a date to be arranged by the Member and the Tribunals’ Office, to receive a reprimand which will be delivered electronically, 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 six (6) months. The suspension will begin 30 days after the date of the Panel’s Penalty Decision and Order dated March 22, 2024;

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

(a) The Member shall enrol in and successfully complete, prior to his return to the classroom, and at his own expense, a course or courses of instruction pre-approved by the Registrar regarding anger management, classroom management, professional ethics, and cultural sensitivity, subject to the following conditions:

(i) the Member will provide to the course practitioner(s) approved by the Registrar, a copy of the Decision on Finding and Reasons for Decision and Penalty Decision and Reasons for Decision of the Panel;

(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(s) which specifically addresses the Panel’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner(s) shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;

(b) within 30 days of his completion of the course(s) outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner(s):

(i) stating whether 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.

G. REASONS FOR PENALTY DECISION

17The Panel carefully considered the submissions of the parties with respect to penalty and reviewed the relevant jurisprudence provided. The Panel is satisfied that that the order set out above satisfies the penalty objectives of deterrence, rehabilitation, transparency, and protection of the public interest, and that it is proportionate to the misconduct committed by the Member. The penalty is also within a reasonable range, of penalties previously imposed for similar offences based on the analogous cases presented by College Counsel.

18The Panel finds that the Member’s misconduct warrants a reprimand. The Member failed to maintain proper control of both his Period 2 and Period 4 classes and ultimately engaged in behaviour that contributed to a hostile and negative environment for students in his classes. He was confrontational with multiple students and made disrespectful and derogatory remarks to them, including directing these comments to racialized students. Members of the teaching profession are expected to promote safe and supportive learning environments and to model appropriate and respectful behaviour. The Member’s conduct fell short of meeting these expectations. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent to him. Recording the fact of the reprimand on the Register will serve as a general deterrent to other members of the profession.

19The Panel finds that requiring the Member to undertake coursework on anger management, classroom management, professional ethics, and cultural sensitivity will assist in his rehabilitation. The Panel accepts that the Member has undertaken some coursework since the incidents on December 13, 2017. However, the Panel is of the view that additional courses that are tailored to address the specific concerns that the Panel has outlined in its Decision on Finding and Reasons for Decision is necessary. The ordered coursework will remind the Member of his obligations as a teacher and will help the Member to make better decisions in any future interactions with students. The courses will also equip him with the tools necessary for effectively managing difficult classroom dynamics while maintaining respect and a sense of safety in the classroom.

20College Counsel had requested that the Member be required to complete this coursework within 180 days of the Panel’s Penalty Decision and Order. However, given that the Member may be required to procure multiple course providers and considering the Member will have to pay for the course(s) of instruction, the Panel has not specified a deadline for completing the ordered courses of instruction. Instead, considering the Committee’s public protection mandate, the Panel holds that the Member be required to complete the coursework prior to returning to the classroom.

21Given the serious nature of the Member’s misconduct, the Panel finds that a six-month suspension is reasonable and appropriate. While the cases provided by College Counsel are factually distinct from this case, the misconduct represented in them is of a similar underlying nature and the cases support the imposition of a six-month suspension as appropriate.

22The Panel does not accept the Member’s submissions that he had a momentary lapse in judgement on December 13, 2017. The Member’s misconduct occurred over two (non-consecutive) periods, and he played an active part in escalating tensions in class by confronting students and by making inappropriate and disrespectful comments. The Member insists that he did not mean any harm when he called a student, “Queen of Sheba”. Whatever his intent was, it was inappropriate, disrespectful and abusive for the Member to make inappropriate comments to racialized students. Teachers must treat students with respect, equity, and with cultural sensitivity. Instead, the Member completely disregarded his ethical obligations by failing to maintain a safe and supportive learning environment in his classes. Moreover, the Member had been previously counseled and disciplined by his school board for engaging in similar disrespectful and belittling interactions with students. The fact that the Member continued to engage in similar misconduct despite prior warnings alerting him to its inappropriateness is an aggravating factor justifying a longer suspension, per Labbé, Antonenko, Lim.

23The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making it clear that the kind of misconduct the Member exhibited is unacceptable. The Member’s suspension will begin 30 days after the Panel’s Penalty Decision and Order made on March 22, 2024.

24The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

H. COST SUBMISSIONS OF COLLEGE COUNSEL

25College Counsel sought an order for costs in the amount of $20,000 payable by the Member to the College pursuant to subsection 30(5) of the Act. College Counsel noted that the proceedings lasted four days which would entitle the College to seek $40,000 in costs pursuant to rule 16.03 and Tariff A of the Rules. College Counsel presented the Panel with the Affidavit of Daniela Spano sworn March 19, 2024 (Exhibit 17) outlining the timeline of the proceedings and explained that the Member had been advised on numerous occasions of the College’s intention to seek costs in the amount of $20,000 if it was successful at the findings stage.

26College Counsel also relied on Ms. Spano’s affidavit to demonstrate that the Member had continued to earn income over the period this case was ongoing. In particular, he worked as an occasional teacher in September 2023 and has continued to do so, at least up to March 1, 2024. Additionally, College Counsel suggested that the Panel should take into consideration that in addition to the hearing days before this Panel, there were two other appearances on this matter. In June 2022, a different panel started to hear the matter but raised concerns about the Agreed Statement of Facts and Guilty Plea executed by the parties and ultimately granted the College’s request to adjourn the matter so as to proceed on a contested basis. Additionally, a set-date hearing had been scheduled for September 19, 2023 after the Member did not respond to College Counsel regarding the scheduling of a date for the penalty proceedings. The Member did not attend the September 19, 2023 set date hearing.

27College Counsel presented five cases to the Panel in support of the College’s position regarding the costs order: Ontario College of Teachers v. Armstrong, 2019 ONOCT 49; Ontario College of Teachers v. Hall, 2019 ONOCT 20 (“Hall”); Ontario College of Teachers v. Paterson, 2023 ONOCT 5; Ontario College of Teachers v. Spence, 2022 ONOCT 37; Ontario College of Teachers v. Stan, 2023 ONOCT 61. College Counsel submitted that the Panel should be guided by the principles set out in the Hall decision when determining the appropriateness of a costs order.

I. COSTS SUBMISSIONS OF THE MEMBER

28Member’s Counsel submitted that a costs order would not be appropriate in the circumstances.

29Member’s Counsel submitted that the Member should not be penalized for exercising his right to a hearing. As noted above, the Member represented himself at all stages of the proceeding before the penalty stage. According to Member’s Counsel, the Member did his utmost as a self-represented litigant to make prudent use of committee resources. He admitted some of the allegations during the hearing and tried to keep his submissions as succinct as is possible without the assistance of legal counsel. Member’s Counsel submitted that the Member’s continued efforts to submit further evidence and his motion for reconsideration relate to his understandable lack of knowledge of legal processes and not an attempt to lengthen the proceedings. Member’s Counsel also submitted that any delay in the proceedings was largely attributable to the College and suggested that College Counsel had acted questionably in influencing the Member to sign a joint resolution and had unnecessarily pursued numerous allegations that were later withdrawn or were ultimately unproven.

30Member’s Counsel urged the Panel to take into consideration the particular characteristics and conduct of the Member, as was done in Crowe v. The Manulife Financial Corporation, 2010 ONSC 3302. Member’s Counsel advised the Panel that the Member is 72 years-old, deeply indebted, and has no ability to pay any costs ordered against him. Member’s Counsel also provided the Panel with an additional case to support the Member’s position on costs: Ontario College of Teachers v. Riccardi, 2015 ONOCT 67.

J. REPLY SUBMISSIONS OF THE COLLEGE

31In reply, College Counsel submitted that the assertion that the College had acted improperly with respect to the original resolution efforts were untrue, and that the College has continued to engage the Member in resolution discussions throughout the proceedings. College Counsel also clarified that while they did not pursue all the particulars outlined in the Notice of Hearing and withdrew the allegation that the Member had engaged in professional misconduct as set out in subsection 1(5) of Ontario Regulation 437/97, the College was successful in proving all of the remaining allegations of professional misconduct. College Counsel also noted that the cases provided by the Member predate Hall, and submitted the Panel’s analysis on costs should be guided by the Hall decision.

K. COSTS DECISION

32On March 22, 2024, the Panel made the following order with respect to costs:

1. The Member shall pay costs of this proceeding to the College, fixed in the amount of $20,000, which must be paid in equal monthly installments over 48 months (4 years) beginning 30 days after March 22, 2024.

L. REASONS FOR COSTS

33The Panel has the jurisdiction and authority to order costs payable by a member to the College where it has found that member guilty of professional misconduct, according to paragraph 4 of subsection 30(5) of the Act. Pursuant to Rule 16.05(3) of the Rules, the College is not required to provide evidence of the costs of a day of hearing if the amount is equal to or less than the amount set out in Tariff A.

34The Panel considered the factors outlined in the Hall decision carefully. As noted at pages 12 and 13 of that decision, Hall provided guidance as to the factors to be considered when making a costs order as follows:

Apportioning costs of proceeding: Costs orders are compensatory, rather than punitive, in nature. Their purpose is to apportion the financial burden of a discipline proceeding between the parties fairly. The nature or severity of a member’s misconduct is not a factor that should be considered when determining whether costs should be ordered or the quantum of any order.

Uncooperative and vexatious conduct: Uncooperative or obstructionist conduct in the course of the litigation process will be a significant factor in the costs determination. Conduct that unnecessarily lengthens the duration of the proceeding ought to be sanctioned, as should vexatious or improper conduct. Consistent with the principle of apportionment, the College and, through their licensing fees, cooperative members of the teaching profession, ought not bear fully the costs of discipline proceedings against uncooperative members.

Promotion of good conduct: Members of the profession are not required to admit all or part of their professional misconduct because the College always bears the burden of proof. However, participation in the disciplinary process, cooperation and conduct that shortens or reduces the complexity of the proceeding ought to be encouraged. Engagement in efforts to settle all or part of a proceeding should be encouraged when considering whether costs ought to be ordered. Costs orders should not be so large as to discourage members from raising reasonable defences to allegations of professional misconduct.

Success of the parties: The relative success of the parties will be relevant in determining and apportioning costs. For example, if the College is only partially successful in establishing the allegations against a member, this will be relevant in determining whether and what amount of costs should be ordered. If significant hearing time is spent receiving evidence on allegations that are ultimately not established, the member ought not be liable for those costs.

The member’s ability to pay: Evidence or submissions about the member’s ability to pay a costs order may be relevant to the Committee’s decision. This factor may also be relevant to the Committee’s decision about how much time the Member is given to pay the costs order. The impact of other penalties imposed (for example, revocation) may be relevant to this factor.

35In light of the factors set out in Hall, the Panel finds that ordering costs is reasonable and appropriate in the circumstances and meets the compensatory goal of a costs order.

36The Panel agrees with Hall that the purpose of costs is to compensate the College, so that the membership of the teaching profession is not held entirely financially responsible for proceedings where a member has been found guilty of professional conduct. In this case, the College was successful in establishing the allegations against the Member. At the outset of the hearing it withdrew one allegation, namely that the Member had contravened subsection 1(5) of Ontario Regulation 437/97, as it was duplicative. However, the Member was found to have engaged in all other heads of professional misconduct alleged. The Panel does not accept the Member’s submissions that the College had acted improperly with respect to the original resolution or that the College unnecessarily prolonged the hearing.

37With respect to the factors relating to the Member’s conduct throughout the proceedings, the Panel recognizes the challenges faced by members representing themselves in discipline proceedings. The Panel noted the difficulty the Member experienced as his own advocate throughout the proceedings and assisted him where possible. The Panel did not place much weight on the fact that the matter was originally set to proceed by a joint resolution. Members are entitled to present a full defence to allegations made against them. Further, the Panel did not hold the Member’s actions of asking for adjournments on two occasions against him, as the reasons for the adjournments were outside of his control. However, considering that the Member made various admissions during his testimony at the hearing, the Panel is of the view that the proceedings could have been shortened by presenting an agreed statement of facts admitted by the Member.

38Finally, the Panel has considered the parties’ submissions regarding the Member’s ability to pay. The parties did not provide evidence regarding the Member’s financial situation. However, the Panel has considered the Member’s age and that he continues to work as an occasional teacher. The Panel has also considered that fact that the College is seeking $20,000 in costs, rather than the full amount it would be entitled to under the Rules. In these circumstances, the Panel finds it fair and appropriate to order the requested amount and to order that the costs be paid in scheduled monthly installments.

39Given the circumstances of this case and its consideration of the Hall factors, the Panel is satisfied that an order of $20,000 in costs payable by the Member to the College within 48 months of the date of the Panel's Penalty Decision and Order, is just and appropriate and represents a fair allocation of the costs of the hearing.