DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Baldwin 2024 ONOCT 18

Date: 2024-05-31

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

Kenneth Grant Baldwin, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KENNETH GRANT BALDWIN (REGISTRATION #251388)

PANEL: Emile Ramlochan, Chair

Anthony Jeethan, OCT

HEARD: October 27 and 28, 2022; November 1, 2022; December 20 and 21, 2022; February 2, 2023; April 24 and 26, 2023; May 11, 2023; and June 13, 2023

Jordan Glick and Karen Heath, for the Ontario College of Teachers

Kenneth Grant Baldwin, self-represented

Erica Richler, 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 October 27 and 28, 2022; November 1, 2022; December 20 and 21, 2022; February 2, 2023; April 24 and 26, 2023; May 11, 2023; and June 13, 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”).

2Kenneth Grant Baldwin (the “Member”) attended the hearing and was self-represented.

A. PUBLICATION BAN

3The 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. OVERVIEW

4The College alleged that in the 2018-2019 academic year, the Member misused the sick time allotted to him by the Thames Valley District School Board (the “Board”), when he engaged in activities during a school day that were inconsistent with the restrictions and limitations underlying his medical leave, including but not limited to driving a vehicle for an hour without taking a break and playing an instrument while standing for approximately 45 minutes; and when he used his full allotment of sick time and returned to work in June in an attempt to ensure renewal of sick time allocations for the following year. The College further alleged that the Member had previously misused his allotment of sick time for the 2016-2017 and 2017-2018 academic years, when he used his full allotment of sick time and returned to work each June, in an attempt to ensure renewal of sick time allocations for the following year.

5The Panel’s task is to determine whether the facts alleged by the College have been proven on a balance of probabilities and if so, whether the Member’s conduct gives rise to a finding of professional misconduct. For reasons that follow, the Panel finds that the Member engaged in professional misconduct as defined in subsections 1(18) and 1(19) of Ontario Regulation 437/97.

C. THE ALLEGATIONS

6The allegations against the Member in the Notice of Hearing dated October 2, 2020 (Exhibit 1) are as follows:

IT IS ALLEGED that Kenneth Grant Baldwin is guilty of professional misconduct as defined in the Act in that:

(a) he committed an act 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);

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

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. Kenneth Grant Baldwin is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Thames Valley District School Board as a teacher at Saunders Secondary School in London, Ontario.

3. In or about the 2018/2019 academic year, the Member misused his Board allotted sick time when:

(a) on or around April 11, 2019, he performed at a concert in Sarnia, Ontario during the school day while on sick leave; and

(b) he performed at a concert in Montreal, Quebec while on sick leave.

4. On or around April 11, 2019, the Member engaged in activities which were inconsistent with the restrictions and limitations set out in the Member’s medical leave, including but not limited to:

(a) driving a vehicle for an hour without taking a break; and

(b) playing an instrument while standing for approximately 45 minutes.

5. From 2016 to 2019, the Member used his full allotment of sick time and returned to work each June in an attempt to ensure renewal of sick time allocations for the following year.

6. On or about September 5, 2019, the Member was terminated from his employment with the Board.

D. PRELIMINARY ISSUES

7Multiple preliminary issues were raised prior to and throughout the hearing, by both the Member (two issues), and the Panel (two issues).

Preliminary Issue #1 - The Impartiality of the Panel

8On October 27, 2022, prior to the hearing proceeding on its merits, the Member raised concerns about the Panel’s impartiality because the matter had been discussed publicly in the media.

9In response, College Counsel submitted that the test to prove bias is exceptionally high and that the Member has not sufficiently proven that the Panel was made aware of the allegations against the Member through the news prior to the hearing and that the Panel was therefore biased. College Counsel submitted that the Panel has no prior knowledge of the case and would not be aware of any facts giving rise to the case that would create an apprehension of bias. In reply, the Member submitted that he was advised to question the impartiality of the Panel at each stage of the proceedings, given what he anticipated to be the testimony of the College’s witnesses.

10Independent Legal Counsel (“ILC”) advised the Panel that if a party has a concern about the Panel’s impartiality, they ought to raise it with the Panel. ILC noted that although the Member’s concern was that the Panel had some prior knowledge about the matter, the hearing had just begun, no evidence had been tendered and witnesses had not yet been heard. ILC advised the Panel to speak amongst its members to determine what, if any, information the Panel had access to prior to the hearing date. There is a presumption that administrative decision-makers (including the Panel) approach their work impartially and that when there is an allegation of bias, the legal test is objective in that the Panel must determine whether reasonable people who are aware of all the information would conclude that the Panel could not decide this matter objectively.

11The Panel did not find that there was any validity to the Member’s claim that the Panel was biased and could not adjudicate impartially in this matter. The Member did not present any compelling evidence or argument to support his concerns, especially given that the hearing had not started yet. The Panel confirmed that it had not seen the Notice of Hearing in advance of the hearing and that it was not familiar with any public discussions or media reports about the Member’s matter. Moreover, the Panel noted that its findings would be based on the evidence and submissions before it, which would be heard in a fair and transparent manner. The Panel delivered its decision with respect to the Member’s impartiality concerns, on the record.

Preliminary Issue #2 - Closing the Hearing to the Public

12On October 27, 2022, and prior to the commencement of the hearing on its merits, the Member sought an order from the Panel to close the hearing from public observers. The Member submitted that people who are not required to be present should be excluded, including a member of the public who represents the Board in the Member’s labour arbitration (a separate, parallel proceeding the Member was involved in).

13The Member explained that his privacy takes priority over people’s voluntary attendance in the hearing. The Member also submitted that if the Panel opens the hearing to the public, the impact on the Member’s reputation could, in turn, negatively impact his adult niece by “burden[ing] her with a proceeding that could reflect poorly on [the Member] and the College.” The Member did not elaborate on this reasoning or provide further clarification regarding this submission.

14In response, College Counsel submitted that subsection 32(7) of the Act stipulates that hearings are open to the public but that the Panel could exclude the public from all or part of a hearing if the possibility of serious harm or injustice to any person justifies a departure from the general principle that hearings should be open to the public. College Counsel noted that although the Member had filed a Form 5A to initiate a motion before the Panel to address this issue, he failed to present any evidence in the form of an affidavit, pursuant to rule 5.06(1) of the Rules. College Counsel submitted that even if the Member had fulfilled the procedural requirements regarding motions, there is no possibility of serious harm or injustice that justifies closing the hearing to the public. Members before the Discipline Committee routinely face serious allegations and this fact does not warrant a departure from the open court principle. Similarly, it is not unusual for hearings to be discussed in the media, and this fact also does not justify closing the hearing. College Counsel submitted that the Panel has a duty to conduct its hearings fairly and transparently, which includes making the hearing process publicly accessible to show the broader community that justice is being carried out.

15ILC provided advice to the Panel regarding the general presumption that hearings are to be open to the public, as part of a larger principle protected under the Canadian Charter of Rights and Freedoms. Before limiting public access to a hearing, the Panel must be satisfied that an open hearing would pose a serious risk to an important public interest, such that an order is necessary to prevent this identified risk and that there are no reasonable alternative measures. ILC advised that the benefits of the Panel’s order must outweigh its negative effects. ILC further advised the Panel as to the criteria to consider when making its decision, including that: (1) the Member must identify an interest that needs to be protected; and (2) if the Panel is satisfied that there is such an interest, the Panel must consider the least restrictive order possible to protect the identified interest, including closing part of the hearing or ordering a publication ban. ILC advised that the most extraordinary order would be to close the hearing entirely, as it would run counter to the presumption of the open court principle. ILC advised the Panel to consider whether the Member has presented sufficient evidence of serious harm to any person that would justify a departure from the general principle that hearings should be open to the public.

16After considering the parties’ submissions, ILC’s advice and the legal principles and legislation before it, the Panel denied the Member’s motion to close the hearing to the public. Although the Member submitted that his adult niece could be negatively impacted by the proceedings, the Member did not provide any compelling evidence to substantiate his position and he did not offer any clear explanation as to how an open hearing would create a possibility of serious harm or injustice to his niece or to anyone else. As such, the Panel denied the Member’s request given that he did not present sufficient evidence to meet the legal test for closing a hearing to the public.

Preliminary Issue #3 - Removal of a Public Observer

17On December 20, 2022, the Panel removed a public observer. The observer identified herself as the lawyer representing one of the College’s witnesses, in a separate, parallel proceeding involving both the Member and the witness.

18The public observer had a history of disrupting these proceedings, to which the Panel issued cautions. Previously, the public observer interrupted the Member’s opening statement and cross-examination of the College’s witnesses, and privately emailed ILC, without invitation, regarding her views on legal and administrative issues in the hearing and how it should be conducted. On October 27, 2022 and November 1, 2022, the Panel warned the public observer of their limited role as a public observer in the hearing (which is that of a non-party observer who does not have legal standing), subject to any motions in which the Panel grants them standing. No such motions were brought before the Panel. When the public observer emailed College Counsel, this time about the witness’ availability, despite being cautioned, the Panel found it appropriate to remove the public observer from the hearing.

19The parties were given an opportunity to make submissions and the Panel received advice from ILC about this issue. College Counsel submitted that it was not uncommon or problematic for a witness’ lawyer to discuss scheduling during their examination and that in his opinion, the public observer did not violate the Panel’s previous caution. The Member did not object to the removal of the public observer. ILC advised the Panel to reconsider its decision and that the public observer’s email about the witness’ availability was not inappropriate, uncommon, or disruptive.

20Subsection 9(2) of the Statutory Powers Proceedings Act, R.S.O. 1990, c. S.22 (the “SPPA”) provides that a tribunal may make such orders or give such directions necessary for the maintenance of order at the hearing. Subsection 23(1) of the SPPA provides that a tribunal may make such order or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

21Upon considering the parties’ submissions, the Panel was satisfied that in order to maintain fairness to all parties, the public observer should be removed from the proceedings. The Panel found that the public observer disrupted the hearing by interrupting the Member’s presentation, and attempted to influence how the hearing was to be conducted by contacting ILC directly, despite being told that the Panel did not find it appropriate, and when she was reminded that she had no legal standing. Therefore, and pursuant to subsections 9(2) and 23(1) of the SPPA, the Panel ordered the removal of the public observer.

Preliminary Issue #4 - The Panel Proceeding with Two Members

22On December 20, 2022, the original three-member panel was reduced to a two-member panel, when Ms. Erin Durant became unable to continue as a member of the Panel. In accordance with section 4.4(1) of the SPPA, the remaining two Panel members determined that that they would complete the hearing and render a decision without any further participation from Ms. Durant. The parties did not object to the remaining two Panel members continuing to hear this matter. The hearing continued through to completion with a two-member Panel.

E. MOTIONS MADE DURING THE HEARING

23The Member made three motions during the hearing. The first motion was to close the hearing to the public. The second motion was to adjourn a hearing date scheduled for February 2, 2023. The third motion was for the Panel to dismiss the allegations outlined in the Notice of Hearing (Exhibit 1). The Panel denied these motions.

Motion #1 – Closing the Hearing to the Public

24On April 26, 2023, the Member made a second request to close the hearing to the public. At this time, the Member had tendered most of his evidence on the merits of the case to the Panel, except for one witness and his own testimony. The Member sought to control the release of information to the public, primarily his medical information, by having the proceedings closed to the public. The Member reiterated that he was seeking this order to also protect his adult nieces and sons, for whom he is responsible. The Member submitted that closing the hearing to the public was a matter of life or death and referred to his niece’s classmate who was very ill. Based on the possibility of harm to the Member’s family as well as the fact that the parties’ submissions on the motion may include the disclosure of information the Member sought to protect, and with the parties’ consent, the Panel ordered that the hearing be closed on a limited basis, confined to the portion of the hearing when the parties presented their submissions with regard to this motion, pursuant to subsections 32(7.1) and 32.1(1) of the Act.

25The Member argued that he was seeking to limit the public disclosure of his medical information to protect his family and himself. He submitted that he was concerned about disadvantaging his nieces, particularly one of his nieces who is training to be a teacher. Moreover, the Member submitted that disclosing his health information to the public would impact his personal health, harm his reputation, and damage the reputation of the teaching profession by disclosing that there is a teacher who allegedly abuses their sick benefits. The Member argued that closing the hearing would maintain the integrity of the teaching profession. The Member maintained that closing the hearing to the public was the only way to protect these interests. As such, the Member sought to redact information, stop the publication of the decision and “keep [him] out of the Blue Pages” (i.e., the portion of the College’s official publication where discipline decisions are summarized).

26In response, College Counsel submitted that the Panel received insufficient information or evidence to justify the order sought by the Member, and that it therefore ought to deny the Member’s request. For instance, the Member did not submit any affidavits or documentation stipulating which medical records he sought to protect. Moreover, College Counsel argued that it is not unusual for medical records to be introduced as part of legal proceedings such as this.

27ILC advised the Panel that the Act requires that a notice of hearing and the decisions and reasons of the Discipline Committee be made publicly available, subject to the Panel’s powers to order discretionary publication bans. ILC referred the Panel to the legal test that must be met when making a discretionary order involving privacy issues as set out in Sherman Estate v Donovan, 2021 SCC 25 (“Sherman Estate”). A discretionary publication ban may be imposed only if there was a high privacy interest or particular concern that would justify departing from the presumption of an open hearing, and if the Panel was satisfied that such an order was necessary to prevent the serious risk to the identified interest. In Sherman Estate, the court noted that an issue related to a protected ground or a stigmatized medical condition does not necessarily rise to the level of warranting a publication ban, but there are cases that do justify an order, depending on the circumstances. Lastly, the Panel should make the order sought if the benefits of a closed hearing outweighed its negative effects. While considering the common law test in Sherman Estate, the Panel was also advised to apply the language in subsection 32(7) of the Act, which requires the Member to establish that the possibility of serious harm or injustice to any person justifies a departure from the open court principle.

28After careful consideration of the parties’ submissions and ILC’s advice, the Panel rendered an oral decision with reasons, during the hearing, finding that the Member’s circumstances did not meet either of the legal tests stipulated in Sherman Estate and in subsection 32(7) of the Act, to warrant a publication ban or a closed hearing. The Panel was not satisfied that the Member had provided sufficient evidence establishing either that there was an important public interest that would be at risk, or the possibility of serious harm or injustice to a person by holding an open hearing. The Panel also considered the probability of harm to any individuals, the Member’s privacy interest and any potential public interests, as well as the gravity of the potential harm, as noted in Sherman Estate. Although the Panel recognized that the Member has a personal interest in closing the hearing, the Panel found that the hearing does not involve information that strikes at an individual’s core identity and is not so sensitive that its dissemination through an open hearing would be an affront to the public. In light of the above and the public interest in having an open hearing, the Panel concluded that the negative effects of granting the Member’s request outweighed any benefits of an order closing the hearing.

Motion #2 – Adjourning the February 2, 2023 Hearing Date

29At the conclusion of the hearing on December 21, 2022, the Member sought to adjourn the next hearing date, which was previously scheduled for February 2, 2023, as a number of his witnesses were not available to testify and he planned to be abroad at that time. The Member submitted that he would have to fly back to Canada if the hearing proceeded as scheduled.

30College Counsel submitted that the Member had an opportunity to contribute to the hearing schedule and that the February 2, 2023 hearing date was booked in light of not only the parties’ schedules, but also that of the Panel and ILC. College Counsel opposed the adjournment as there was an interest in concluding the hearing quickly; the Member gave no indication as to how much time he needed to conclude his evidence; and the Member did not provide any evidence in support of his request. College Counsel submitted that it would be a disservice to the public confidence in the discipline process for the Panel to grant an adjournment for six months without any supporting evidence.

31The Panel denied the Member’s request to adjourn the hearing scheduled for February 2, 2023. Pursuant to rule 14 of the Rules, the Panel considered a number of factors, including but not limited to: the sufficiency of the reasons; the timeliness of the request; the resources of the Panel; the prejudice to the parties; whether adjournments were granted previously; and the consent of the parties. The Panel did not find the Member’s reasons to be compelling, particularly given that he had previously participated in the scheduling of the February 2, 2023 hearing date; that there was no evidence to support the Member’s adjournment request; and that a lengthy, unsubstantiated adjournment would not be in either the parties’ or the public interest.

Motion #3 – Dismissing the Allegations

32On February 2, 2023, the Member brought an oral motion to dismiss the allegations against him entirely. The Member advanced four reasons, as summarized below. At this juncture, the College had presented its case and the Member had started to call evidence in his defence.

33First, the Member submitted that the College’s delay in bringing the matter forward to a hearing warranted a dismissal of the allegations. The College initiated its investigation in December of 2019, months after the Member’s dismissal from the Board on September 5, 2019. In his Notice of Motion, the Member further submitted that the Board breached the legislated timelines for reporting complaints to the College (Exhibit 40). Second, the Member submitted that it was contrary to the principles of justice that the initiating complaint to the Board was anonymous. He argued that this was contrary to the information provided on the College’s website, which states that, “[t]he College does not typically investigate concerns raised anonymously.” Third, the Member made submissions on the merits of the allegations and argued that playing an instrument at a recital does not constitute professional misconduct and that he followed his doctors’ instructions and medical advice at all times. Fourth, the Member submitted that the Board’s investigation was unfair and that he was wrongfully dismissed. As such, the Member requested that the Panel dismiss the hearing altogether or order a reprimand only.

34College Counsel disagreed with the Member’s suggestion that there was any undue delay in this case. Subsection 43.2(1) of the Act requires a member’s employer to report a member’s termination to the College within 30 days, which the Board did in this case. The Board’s report to the College was made on September 22, 2019, which was within 30 days of the Member’s termination on September 5, 2019 (Exhibit 3). Second, College Counsel submitted that the complaint to the College was not anonymous. The Board had received an anonymous complaint, but then conducted its own independent investigation, which ultimately led to the Member’s termination. College Counsel further argued that the Member ought to have brought forward this motion months before the proceeding and that the Member’s arguments do not meet the high threshold for terminating the proceeding, especially since the College had presented their case with supporting evidence.

35ILC provided the Panel with independent legal advice and guided the Panel to the relevant Rules, namely rule 5, which sets out the procedural requirements for motions. ILC advised the Panel that the Member appeared to be seeking a dismissal of the allegations on two bases: first, that the College had not adduced evidence that his conduct was unprofessional (i.e., a directed verdict or non-suit motion); and secondly, because of alleged unfairness with how the hearing had come before the Discipline Committee. For the latter, ILC advised that the Member was essentially seeking a stay of the proceedings, alleging unfairness and an abuse of process relating to the timelines associated with the hearing. ILC advised that a stay of the proceedings is one of the remedies that the Panel can order if it finds that there has been an abuse of process. ILC further advised that, in making its decision, the Panel should consider whether continuing with the hearing would result in more harm to the public interest than if the proceedings were halted.

36Regarding the directed verdict or non-suit motion, ILC advised the Panel to consider whether the College had presented any evidence that could amount to a finding of professional misconduct. If the College has not presented any such evidence, then it would not be necessary to hear the Member’s defense. If the Panel does not grant a stay and the proceedings continue, the Member will have the opportunity to make closing submissions as to why the College did not discharge its burden of proving professional misconduct. ILC noted that the Panel cannot order a reprimand at this stage, as requested by the Member, as subsection 30(5) of the Act provides that a reprimand may only be ordered after a member has been found guilty of professional misconduct, which was the not the case at this point in the proceedings.

37After consideration of the parties’ submissions and ILC’s advice, the Panel denied the Member’s motion to dismiss the allegations and effectively terminate these proceedings, and provided oral reasons on the record. The Panel found that the College had led evidence that was adjudicable and as such, the Panel needed to hear all the evidence in this case before rendering a final decision. Also, the Panel was not persuaded that the origins of the complaint are so prejudicial to the Member to warrant a stay of the proceedings. Although the Panel noted that disciplinary proceedings weigh heavily on members, the public interest in having the matter heard outweighs the personal toll a hearing can place on members. One of the purposes of disciplinary bodies such as the Discipline Committee is to preserve public confidence in the teaching profession. To grant the Member’s motion would run counter to the Discipline Committee’s public mandate and responsibility in regulating members and holding them accountable for any professional misconduct. The Panel further rejected the Member’s submission that it could simply order a reprimand. The Panel does not have the authority to order any penalty under subsection 30(5) of the Act until it has found a member guilty of professional misconduct.

F. THE MEMBER’S PLEA

38The Member denied the allegations set out in the Notice of Hearing.

G. THE COLLEGE’S EVIDENCE

39The College presented oral and documentary evidence to prove the allegations set out in the Notice of Hearing. Relevant portions of this evidence will be set out in greater detail, as needed, in the Panel’s reasons for decision set out below. The following is a summary of the College’s evidence.

(1) Oral Evidence

40At the request of College Counsel and with the Member’s consent, the Panel ordered that the witnesses in the matter be excluded from the hearing until called to give evidence, in accordance with rule 13.12 of the Rules, other than the Member who, in accordance with rule 13.12(2), was a self-represented party to the proceedings and whose presence was therefore essential.

41The College called four witnesses: (1) Linda Nicholls, the superintendent of the Human Resources department at the Board, who first became aware of the allegations against the Member, directed the investigation into the Member’s conduct, and terminated the Member’s employment; (2) Marilyn Bantock, the disability management officer at the Board, who reviewed and evaluated the Member’s documents related to his medical leave; (3) Mary Whelton, a private investigator hired by the Board to conduct surveillance of the Member on April 11, 2019; and (4) Jennifer Tozer, the Human Resources manager at the Board, who led the investigation into the Member’s alleged misuse of sick benefits.

(a) Ms. Nicholls’ Testimony

42As superintendent of Human Resources at the Board, Ms. Nicholls was responsible for overseeing the Human Resources matters for 161 schools relating to issues of health and safety, employees’ abilities and wellness, labour relations and staffing. In February 2019, Ms. Nicholls became aware of an anonymous report alleging that the Member used the photocopier excessively and had misused his sick benefits. Ms. Nicholls contacted Ms. Tozer, the manager of Human Resources and then directed the investigation into the Member’s attendance records and conduct, which included conducting a social media search and hiring a private investigator to follow the Member on April 11, 2019. Ms. Nicholls ultimately terminated the Member’s employment for just cause, including on the basis that he breached his limitations and restrictions and used his sick benefits fraudulently.

(b) Ms. Bantock’s Testimony

43Ms. Bantock was the Abilities and Wellness Specialist at the Board and was responsible for assessing employees’ medical forms for sufficiency when they applied for Short-Term Leave and Disability Plan benefits (“STLDP”). Ms. Bantock was also responsible for asking employees’ health practitioners for medical updates and assessing employees’ return to work. Ms. Bantock oversaw the Member’s medical file during the times that he was on STLDP leave, and his subsequent returns to work.

(c) Ms. Whelton’s Testimony

44Ms. Whelton has been a private investigator for thirty years and has been employed by Corporate Investigation Services for ten years. The Human Resources department at the Board hired Ms. Whelton to perform surveillance on the Member. Ms. Whelton testified that the only information she received prior to performing surveillance was related to the Member’s restrictions (i.e., that he could not sit for more than an hour or lift anything weighing more than 8 pounds) and the Member’s home address.

45On April 11, 2019, Ms. Whelton followed the Member driving from his residence to his church, where she observed him performing and speaking to the audience about his past and upcoming concerts, without any notable breaks, for forty minutes. Ms. Whelton testified that the only time she observed the Member taking a break was for approximately thirty seconds, when he briefly checked the recording equipment before returning to the stage. After the concert, Ms. Whelton followed the Member to his car and observed him carrying two black cases and a green shopping bag. She then followed him to a restaurant, where she observed him seated in the restaurant. Ms. Whelton testified she covertly surveilled the Member in the restaurant for some time, then returned to her vehicle, where she continued to observe the Member in the restaurant. Ms. Whelton followed the Member to a residence, a Tim Hortons’ parking lot, Canadian Tire and then to the side of the road, where she observed him lifting and putting down a wooden fire door. Ms. Whelton testified that she then followed him to a gas station, convenience store and finally, a private residence, where she observed him emptying his belongings from his vehicle before entering the private residence. After waiting for an hour outside of the private residence, Ms. Whelton ended her surveillance and returned to her office. Ms. Whelton summarized her findings in an Investigation Report (Exhibit 28) and testified that she did not observe the Member exhibiting any physical limitations.

46After Ms. Whelton completed her surveillance of the Member on April 11, 2019, the Board requested that Ms. Whelton’s office discontinue their investigation (Exhibit 28). Ms. Whelton compiled her observations in a report (Exhibit 28), which included supporting video clips (Exhibits 29 and 30).

(d) Ms. Tozer’s Testimony

47At the time of the alleged conduct, Ms. Tozer was the manager of the Human Resources department at the Board. As manager, Ms. Tozer was responsible for overseeing employee relations and labour relations of the Board’s Human Resources portfolio. Her responsibilities included chairing labour management meetings, engaging in collective bargaining, conducting job evaluations and pay equity evaluations, and overseeing matters involving employees.

48After Ms. Nicholls told her about the anonymous complaint against the Member, Ms. Tozer investigated the Member’s attendance history. After reviewing the Member’s pattern of attendance and sick leave, Ms. Tozer reached out to the Health and Disability staff to confirm the Member’s status, medical information, and options available for his return to work. Ms. Tozer also led a social media search of the Member’s activities, in which she found that he had an upcoming performance in April of 2019. Ms. Tozer also testified about her meeting with the Member to discuss what she perceived to be inconsistencies with his medical restrictions.

(2) Documentary Evidence

49College Counsel submitted various pieces of documentary evidence throughout the course of their witnesses’ testimonies, including documentation related to the Member’s termination (Exhibit 3); the relevant excerpt from the Collective Agreement with the Board (Exhibit 4); correspondence with the Member; medical documentation from Dr. Chong, Dr. Potter, and Dr. Pezzutto; the Board’s correspondence with Dr. Chong, Ms. Tozer, and Ms. Bantock; and Ms. Whelton’s Corporate Investigation Services Report (Exhibit 28). College Counsel also submitted a copy of the anonymous report to the Board, alleging his misappropriation of the School’s printer supplies and his sick benefits, which led to the Board’s investigation into the Member (Exhibit 31) and the Board’s investigative findings, including statistics regarding the Member’s attendance at the School from 2016 to 2019 (Exhibit 32), and social media search results (Exhibit 33).

(3) Video and Audio Evidence

50College Counsel filed video clips of Ms. Whelton’s surveillance of the Member on April 11, 2019 (Exhibits 29 and 30).

H. The Member’s Evidence

51The Member presented oral and documentary evidence in response to the allegations set out in the Notice of Hearing. Relevant portions of this evidence will be set out in greater detail, as needed, in the Panel’s reasons for decision below. The following is a summary of the Member’s evidence.

(1) Oral Evidence

52The Member testified on his own behalf and called two witnesses: (1) Martin Neuland; and (2) Gerald Vreman. Both witnesses are the Member’s friends. Mr. Vreman is also a teacher who performs as a musician with the Member.

53The Member also sought to call Dr. Ole Hammerberg, the Member’s friend who works as a medical doctor, as an expert witness. After assessing Dr. Hammerberg’s evidence about his qualifications and the parties’ submissions, the Panel ultimately decided not to admit Dr. Hammerberg as an expert witness. In coming to this decision, the Panel considered whether Dr. Hammerberg’s expert evidence would be relevant to the facts at issue and necessary to assist the Panel on matters that would be outside its own knowledge and experience, whether there was an exclusionary rule that prohibited the Panel from hearing Dr. Hammerberg’s evidence, and whether Dr. Hammerberg was properly qualified to give an impartial and independent opinion to the Panel.

54Although there was no exclusionary rule that prohibited the Panel from admitting Dr. Hammerberg as an expert witness, the Panel found that Dr. Hammerberg was not a properly qualified expert and therefore his evidence would not be relevant to the Panel’s decision as to whether the Member is guilty of professional misconduct in misusing his sick benefits. The Panel found that any testimony Dr. Hammerberg provides based on his level of knowledge and involvement in the matter before the Panel would not be relevant because he is a general physician, not an expert on back pain, and has never treated the Member as a patient. Likewise, Dr. Hammerberg has little to no expertise on the Member’s back pain. The Panel understands that in a letter dated August 12, 2021, Dr. Hammerberg explained that he reviewed a report written by one of the Member’s doctors, Dr. John Chong (dated February 19, 2020), and concluded that the medical report was indicative of substantial lumbar back pathology leading to the Member’s chronic back pain. However, Dr. Hammerberg has never treated the Member as a patient, did not recall whether he spoke to Dr. Chong directly and did not have any independent recollection of the Member’s other medical reports or of any communication between the Member and the School. As such, the Panel found that Dr. Hammerberg is not a properly qualified expert for these proceedings and therefore, his evidence would not be relevant to assist the Panel in its findings.

55Moreover, the Panel found that Dr. Hammerberg would not be properly suited to provide an impartial and independent opinion to the Panel, as he was the Member’s friend and not his physician. As such, Dr. Hammerberg was not admitted as an expert witness, and he did not provide any oral testimony in this case as an expert medical witness.

56On May 11, 2023, while the Member was testifying, the Member sought to call Dr. Hammerberg back as a witness to comment on the Member’s medical documentation. The Panel refused the Member’s request, as he was seeking expert evidence from Dr. Hammerberg, which the Panel had already previously refused to allow.

(a) Mr. Neuland’s Testimony

57Mr. Neuland is a retired music teacher and a friend of the Member who provided character evidence about the Member. The Panel precluded Mr. Neuland from providing opinion evidence as to whether the Member was the type of person who would misappropriate funds or benefits but allowed Mr. Neuland to provide factual testimony as to whether he knew of any instance in which the Member misappropriated funds or benefits. Mr. Neuland testified that he was not aware of any occasion in which the Member misappropriated funds or benefits and noted that the Member was “picky” about how school money was used because it was not his own money. With respect to the Member’s medical conditions, Mr. Neuland testified that he was aware of the medical attention that the Member received and noted that the Member was taking better care of himself by seeking more opinions as to why his back hurt often and for long periods of time.

(b) Mr. Vreman’s Testimony

58Mr. Vreman is a private music teacher and a music director at Central United Church. He has been friends with the Member for approximately six years, and they play music together at Mr. Vreman’s church concerts. The Member sought to admit Mr. Vreman as an expert in the areas of teaching, music, and religion. However, the Panel did not admit Mr. Vreman as an expert witness, as the Member had failed to meet the requirements for calling expert evidence pursuant to rule 7.04 of the Rules which specifically included delivering an expert report. As such, Mr. Vreman was limited to providing evidence as a factual witness and character witness.

59In providing factual evidence, Mr. Vreman testified that he was aware that the Member performed at a church on April 11, 2019, without any remuneration. In his own experience, Mr. Vreman has been asked to perform at a church concert and has been taken out to lunch afterwards. In cross-examination, he testified that a full concert at a church would last an hour and a half, whereas a mini concert would generally take half as long and conclude within an hour. Mr. Vreman confirmed that the April 11, 2019 concert was a mini concert and that the Member would not perform for the entirety of the concert, as there would have been other musicians and singers performing their pieces as well. Rehearsals for such concerts can vary in length, but typically last for approximately thirty minutes.

60With respect to the effort that would have been exerted by the Member in this performance, Mr. Vreman testified that one cannot measure the effort put into playing the trumpet and that he did not know what shape the Member was in, but it appeared to him that the performance was hard on the Member’s breathing, as the Member was not performing at “top notch” at the previous week’s rehearsal due to his sore tooth. Although Mr. Vreman testified that a trumpet player would typically stand when playing the trumpet, he denied that the Member would be standing throughout the entirety of a rehearsal or concert; the Member would play for short stints and alternate between sitting and standing, as he could play the trumpet while sitting down. Mr. Vreman testified that he knew the Member had a chronic back issue, which flares up from time to time and causes him to change positions from either sitting or standing.

61With respect to the Member’s character, Mr. Vreman testified that he does not know the Member to be disrespectful, disgraceful, dishonorable, or disloyal. Mr. Vreman testified that the Member brings joy to people through his music and is the first trumpet player people want to work with.

(c) The Member’s Testimony

62The Member testified about his employment history at the Board. As of November 9, 2018, the Member ranked 35th on the Board’s Employee Seniority List, with 29.3 years of experience at the Board (Exhibit 45). The Member worked as a teacher librarian at the School’s library for about five years and also described himself as a music teacher. Prior to working at the School, he had worked in three or four other schools’ libraries. He testified generally about his responsibilities as a teacher, and about his experience as a trumpet musician.

63The Member also detailed his medical history, including the various doctors that treated him and completed his medical forms as required by the Board. The medical conditions relevant to the allegations are detailed in the Member’s Abilities Forms and other medical records and reports. They generally relate to his back pain. The Member explained that he needed to have different doctors complete the forms for him based on their limited availability and the time-sensitive nature of the forms. The Member testified that his physical abilities deteriorated over time, but that his Abilities Forms did not reflect this deterioration.

64Furthermore, with respect to the activities at issue in this case, the Member explained that he drives his car as long as he can, takes a break when necessary (within an hour), and plays his instrument while standing and sitting. He noted that there are some days where he cannot get out of bed and where he would consider it to be wonderful if he could walk just 100 metres. The Member testified that in August 2016, he had not taken any pain medication for his back pain for a few months (Exhibit 48).

65Regarding the concert on April 11, 2019, the Member did not deny that he performed at the concert without remuneration. He testified that of the five pieces programmed for the concert, the second and fourth pieces were organ solos, during which he sat down and did not play the trumpet. He testified that he was not standing for more than thirty minutes during the concert. The Member denied playing at a concert in Montreal.

66The Member did not deny that he was off work and on STLDP leave for periods between 2016 to 2019. The Member never transferred his STLDP leave into Long-Term Disability benefits. The Member testified that he returned to work on or around the first and last days of the school year from 2016 to 2019. The Member rejected College Counsel’s suggestions that he was deliberate in returning to work on or about the last day of school from 2016 to 2019, to renew his sick benefits. From 2016 to 2018, the Member testified that he returned to work with poor accommodations, but never requested a different teaching position as he had developed expertise working in the School library.

67When asked what attempts he made to work with the Board in returning to work with accommodations in 2019, the Member explained that he promptly went to collect information from Dr. Chong and contacted his union office. He testified that the union office left the issue of the Member’s return to work in the hands of the Board. The Member testified that Dr. Chong examined him and said that it was better if the Member took the time off instead and recommended a reassessment in June 2019 (Exhibits 17 and 18). The Member testified that he stayed in touch with his union and the Board, ensuring that all documentation to and from his doctors were received.

68The Member testified that, when he did eventually return to work on June 26, 2019, he did not actually resume work because he was called into a meeting with the Board to discuss allegations of improper behaviour and was subsequently put on a paid leave of absence.

(2) Documentary and Audio Evidence

69The Member submitted many documents to substantiate his evidence and submissions, including email correspondence with Ms. Bantock; audio clips of a concert (Exhibit 35); notes of his meeting with the Board on June 26, 2019 (Exhibit 37); medical documentation; the Board’s seniority list as of November 9, 2018 (Exhibit 45); evidence of the Board issuing the Member a paid day off to attend a recital (Exhibit 47); various articles and fact sheets; and documents relating to his conduct prior to 2016.

I. SUBMISSIONS OF COLLEGE COUNSEL

70College Counsel submitted that the evidence presented to the Panel proves each of the allegations set out 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.

71College Counsel submitted that the allegations in the Notice of Hearing largely track the Board’s investigation into the Member’s misuse and misappropriation of sick time and STLDP leave from 2016 to 2019. College Counsel reviewed the Member’s Collective Agreement and submitted that the Member used the majority of his sick days and STLDP leave credits from 2016-2019, and that he made himself available to attend school on the first and last day of school in order to replenish his benefits.

72College Counsel relied on the Member’s medical documents, including Abilities Forms, to indicate the Member’s limitations and restrictions were walking, standing, and sitting. College Counsel submitted that although the Member had relied on these forms to substantiate his sick leave, the Board’s investigation and surveillance of the Member on April 11, 2019, showed that he was acting inconsistently with his limitations and was publicly performing during the school day when he was alleging to be sick. Although the Board had indicated a willingness to discuss the possibility of accommodations in 2019, College Counsel submitted that the Member did not meaningfully engage in the return-to-work process and continued to be absent from work until the last day of school on June 26, 2019, which he was medically cleared to attend based on a different doctor’s Abilities Form.

73College Counsel argued that based on this evidence, the Panel should find that the Member abused his sick time and benefits. College Counsel submitted that the Member’s behaviour was disgraceful, dishonourable, and unprofessional, as he was dishonest and demonstrated a moral failing in misappropriating his sick leave benefits for a period of three years. College Counsel urged the Panel to also conclude that the Member’s actions were unbecoming a member, as his misuse of sick benefits undermined the reputation of the profession and breached the public’s trust.

74College Counsel clarified that the factual issues before the Panel are whether the Member misused sick leave from 2016 to 2019 and returned to work in June of each year to ensure the renewal of his benefits. College Counsel noted that perhaps it would have been clearer if the Notice of Hearing explicitly alleged that the Member misused sick time from 2016 to 2019, instead of stating that he used his full allotment of sick time from 2016 to 2019. However, College Counsel submitted that there is no dispute that the allegation pertains to a misuse of sick time from 2016 to 2019 and on April 11, 2019.

75College Counsel argued that the Panel should not treat the particulars of the Notice of Hearing with the same scrutiny as charges in a criminal proceeding. College Counsel argued that the Panel can make findings of fact on issues that emerge during the hearing that are not particularized, so long as the Panel determines that there is no unfairness, and the Member was aware of those issues and responded.

76In this case, College Counsel submitted that the College presented evidence outside the purview of the Notice of Hearing, to which the Member responded. College Counsel presented the following cases in support of its position that allegations should be read with some flexibility: Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819; and Brooks v. Ontario Racing Commission, 2016 ONSC 1136.

J. Submissions of the Member

77The Member denied the allegations against him. He submitted that he used his sick credits during the past three years to look after himself, his family and his community (including the church where he performed on April 11, 2019) and to maintain his health. Although the Member admitted that he performed at a concert on April 11, 2019, he submitted that he followed his doctors’ instructions and that he was entitled to use his sick credits and never violated any rules. He denied that he was malingering or that there was a pattern to his attendance at the School. The Member stated that his doctors had assessed the medical necessity of his leave and that their assessments were not solely based on his self-reporting. The Member denied any suggestion that the Board accommodated him, and he submitted that he never declined to return to work when his doctors cleared him as able to work.

78With regard to his medical evidence and the fact that his doctors did not testify, the Member submitted that he spoke with Dr. Chong and Dr. Potter about testifying, but that they advised him that they would only speak to what they wrote in the medical documentation. As such, the Member did not call them to testify, and submitted that the medical evidence speaks for itself. The Member submitted that “everything has an adverse side” without elaborating on what he meant by that comment in relation to the legal issue of drawing adverse inferences.

K. Reply Submissions of College Counsel

79College Counsel submitted that once the Board became aware of the issues in February of 2019, the Board did everything right in contacting the Member’s doctors and advising the Member that they could accommodate him. College Counsel stated that there may not be any indication that the Member misused his sick benefits based on the Abilities Forms themselves. As such, College Counsel argued that the Panel must look at the broader picture to infer that the Member misappropriated his sick benefits from 2016 to 2019.

80In response to the Member’s submissions about his medical evidence and his decision to not call his doctors to testify, College Counsel submitted that the Member ought to have called his doctors to testify about what tests they conducted and why it was okay for the Member to attend the church concert on April 11, 2019. College Counsel asked the Panel to draw an adverse inference from the fact that the Member did not call his doctors as witnesses.

L. Advice of Independent Legal Counsel

81ILC provided the Panel with independent legal advice on the Panel’s role and jurisdiction to assist them in analyzing the evidence and making findings. ILC first advised that the Panel’s jurisdiction is limited to assessing whether the College had discharged their onus of proving the facts and legal issues alleged in the Notice of Hearing, on a balance of probabilities. ILC advised that the Panel should not go beyond what was set out in the Notice of Hearing.

82ILC noted that the College did not make any submissions or tender any evidence regarding the allegation that the Member performed at a concert in Montreal while on sick leave, and advised the Panel to clarify whether the College was asking the Panel to make a finding about that allegation.

83ILC advised the Panel that the Notice of Hearing and the parties’ submissions identified two main factual issues. Firstly, the Panel must determine whether the College had discharged its onus to prove that the Member’s conduct on April 11, 2019 was inconsistent with the restrictions and limitations set out in his medical leave and if so, whether this amounted to a misuse of sick time. Secondly, the Panel must determine whether the College had discharged its onus to prove that the way the Member used his sick days between 2016 to 2019 was reflective of a pattern to renew his sick benefits for the following year and as such, amounted to a misuse of the sick days.

84ILC clarified that her advice was not intended to confine the Panel to review only two particulars. Rather, her advice was intended to assist the Panel in approaching their deliberations based on the two main issues in this case – as a practical way of approaching the case, and not as a legal limitation on what the Panel could determine.

85Regarding the medical evidence, ILC advised the Panel that both parties had presented medical information without calling the doctors who authored the reports. The Panel has the discretion to determine the appropriate weight to give to these reports. ILC noted that it appeared that College Counsel may be asking the Panel to draw an adverse inference from the fact that the Member did not call any of his doctors as witnesses. ILC advised the Panel that they have the discretion to draw an adverse inference and could conclude that the Member did not call his doctors to testify because their evidence was not likely going to be helpful to the Member’s defense. ILC explained that adverse inferences are generally made when a party does not call a witness who is in their exclusive control and there is no explanation as to why they did not call that witness. Where this occurs, a Panel can conclude that if that witness were to testify, they may not have provided any helpful evidence.

M. DECISION ON FINDING

(1) Onus and standard of proof

86The 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

87Having considered the evidence, onus and standard of proof, and the submissions of the parties, the Panel finds that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(18) and 1(19).

N. REASONS FOR DECISION

88The Panel has carefully reviewed the evidence and submissions presented in this matter. In the reasons that follow, the Panel comments only on the portions of the evidence that are most relevant to the allegations contained in the Notice of Hearing. The Panel first sets out its factual findings, and then explains why these facts give rise to a finding of professional misconduct, as alleged in the Notice of Hearing.

(1) Credibility Findings

89The Panel recognizes that it can accept all, some, or none of any witness’ evidence. When deciding how much of each witness’ evidence to accept, the Panel can consider logic, common sense and experience, and also credibility factors including: the witness’ ability to observe and recall the events; the plausibility or reasonability of the evidence; the internal and external consistency of their testimony; and whether the witness has an interest in the outcome of the hearing that may cloud their recollection. Where there are factual disputes, the Panel will address its credibility findings. It should be noted that although there were not many factual disputes, the parties were in dispute about the conclusions to be drawn from the facts.

(2) Factual Findings

(a) On or about April 11, 2019, the Member engaged in activities which were inconsistent with the restrictions and limitations set out in the Member’s medical leave.

90The Panel finds that there is insufficient evidence to support a finding that on April 11, 2019, the Member engaged in activities which were inconsistent with the specific restrictions and limitations set out his medical leave, as particularized in paragraph 4 of the Notice of Hearing.

91The Member’s restrictions and limitations related to his medical leave are set out in his Abilities Forms (Exhibits 7, 9, 13, 14, 17, 23, 24, 26). The Panel notes that the top of the Abilities Forms have sections addressed “To the Employee” and regarding “Employee’s Consent”. Both of these sections clearly indicate that the purpose of the form is to collect information to assess the Member’s abilities to perform the essential duties of his position at work and any required workplace accommodations. Accordingly, in determining whether, on April 11, 2019, the Member engaged in activities that were inconsistent with the restrictions and limitations set out in the Member’s medical leave, the Panel must consider how the activities the Member was observed to have engaged in on that day relate to his ability to perform his essential activities as a teacher librarian.

92The Panel accepts that the Board’s surveillance of the Member on April 11, 2019, established that the Member engaged in the following activities: (i) sitting for extended periods of time while driving an automobile or otherwise; (ii) standing while playing an instrument; and (iii) engaging in lifting various objects throughout the day. The Panel notes that Member’s medical restrictions and limitations set out in his Abilities Forms do not include driving a vehicle for an hour without taking a break; and playing an instrument while standing for approximately 45 minutes, as the Member’s activities in this regard were not those that were contemplated in his medical leave.

93However, for the reasons below, the Panel is not satisfied that the College discharged its onus of proving that the specific activities documented in the College’s evidence pertaining to the Member’s physical abilities (namely the Board’s surveillance of the Member on April 11, 2019) is directly transferrable to essential duties of the Member’s job as a teacher librarian. Additionally, the Panel does not find that the Member’s participation in each of the activities outlined below by itself illustrates that he engaged beyond his work-related limitations and restrictions as articulated in the Abilities Forms.

(i) Sitting for extended periods of time, while driving or otherwise

94The Panel does not find that on or around April 11, 2019, the Member drove contrary to his limitations and restrictions related to sitting, as alleged in particular 4(a) the Notice of Hearing.

95The Member’s Abilities Forms do not specifically consider the ability to drive a vehicle for an hour without taking a break. However, in the most recent Abilities Form at the time, Dr. Chong noted that the Member was able to drive and could sit for 30 to 60 minutes at a time (Exhibit 17). Based on Ms. Whelton’s testimony, her report (Exhibit 28) and accompanying video evidence (Exhibit 29), the Member’s uninterrupted drive to the church took a little over an hour, from approximately 9:29 a.m. to 10:37 a.m. This was uncontradicted by the Member. The Panel is therefore satisfied that the Member sat in and drove a car for over an hour, while his Abilities Form which limits his ability to sit for up to an hour.

96Based on the Panel’s experience and common sense, the Panel is of the view that sitting while driving for extending periods is distinguishable from that required when teaching, the latter of which involves periods of dynamically alternating between standing, sitting and walking, and sitting in a static seated device (i.e., a chair). Further, driving is not one of his duties as a teacher librarian and the physical demands associated with driving are not directly transferrable to those of a teacher librarian based on the evidence presented.

97Accordingly, the Panel finds that there is insufficient evidence to support a finding that the Member engaged in activity that was inconsistent with his limitations and restrictions to work, as it specifically relates to sitting while driving.

98The College also adduced some evidence that the Member sat at the concert and subsequently at a restaurant, for extended periods of time. The Panel is not satisfied that the evidence proves that the Member acted in violation of his restrictions with respect to sitting as outlined in his Abilities Forms. The Panel notes that Ms. Whelton did not testify about the length of time that the Member was sitting at the concert and that she gave contradicting evidence about the number of breaks that the Member took between his performances. On the one hand, she testified that the Member took a single, 30-second break, to check on recording equipment, but that he was otherwise participating in the concert from start to finish. However, in her surveillance report, she wrote that the Member took three breaks (Exhibit 28). Regardless, Ms. Whelton did not provide any evidence on whether the Member was sitting during these breaks. Similarly, Ms. Whelton’s surveillance footage of the concert was segmented, but there is no evidence to prove that the Member was sitting beyond his restrictions during the time that he was not video recorded. Further, the surveillance video of the concert only showed the Member sitting in a pew from 12:48 p.m. to 12.52 p.m. (four minutes) (Exhibit 29). This is within the Member’s restricted ability to sit for up to an hour. Similarly, surveillance video recorded of the Member after the concert was finished showed segments of time that the Member was sitting in a restaurant from 1:40 p.m. to 1:43 p.m.; 1:53 p.m. to 1:55 p.m.; 2:09 p.m. to 2:10 p.m.; and then 2:15 p.m. to 2:16 p.m.; and at 2:22 p.m. (Exhibit 30). Based on the video evidence, there is no evidence that the Member was sitting beyond his restrictions. Even if the Member was sitting continuously from 1:40 p.m. to 2:15 p.m., he was acting within his restricted ability to sit for up to an hour (Exhibit 30). The Panel notes that Ms. Whelton’s surveillance report and testimony provide different evidence, namely that she videorecorded the Member sitting at the restaurant at 1:26 p.m. until 2:15 p.m. and observed him until approximately 2:18 p.m. (i.e., for slightly shorter than the surveillance video showed). However, the Member would still have been acting within his restrictions as he would have been sitting in the restaurant for less than an hour. The Panel did not hear evidence of what the Member was doing between 2:15 p.m. when Ms. Whelton went to her car, and 2:40 p.m. when she resumed her surveillance of the Member, and so does not have sufficient evidence to find that the Member sat for more than an hour at the restaurant. Furthermore, College Counsel did not make submissions of how the Member’s observed sitting at the concert and the restaurant were applicable to his duties as a teacher librarian and therefore relevant to the Abilities Form.

99Accordingly, the Panel finds that the College did not present sufficient evidence to establish that the Member acted in violation of his medical leave with respect to sitting for extended periods of time on April 11, 2019 (while driving or otherwise).

(ii) Standing while playing an instrument

100The Panel does not find that on April 11, 2019, the Member acted contrary to his limitations and restrictions set out in his medical leave when he played an instrument while standing for approximately 45 minutes, as alleged in particular 4(b) the Notice of Hearing.

101The Member contested the allegation that he stood for approximately 45 minutes at the concert. Although the Member stated in his interview with Ms. Tozer that the performance was between 30 to 45 minutes (Exhibit 37), he later clarified in his testimony that he did not stand continuously during that time as there were songs that were reserved for the organ to play on its own.

102Ms. Whelton testified that the Member stood for the entirety of the concert from 12:07 p.m. to 12:47 p.m. (40 minutes) and participated in the concert in its entirety, except for when he took a break for approximately 30 seconds to check on the recording equipment. However, her testimony was inconsistent with the external evidence, namely her report (Exhibit 28) and the corresponding video evidence (Exhibits 29 and 30). Ms. Whelton stated in her surveillance report that the Member departed the playing stage approximately three times to check on the recording device (Exhibit 28) and not once, as she had testified. Based on this evidence, it is unclear how long the Member spent walking to the recording equipment and whether he sat while checking on the recording equipment, stood, or assumed another position. In addition, Ms. Whelton’s testimony and report was not supported by the surveillance video, which showed that the Member stood and played the trumpet from 12:07 to 12:11 p.m.; 12:16 to 12:25 p.m.; 12:29 to 12:31 p.m.; 12:33 to 12:40 p.m.; made an announcement from 12:41 p.m. to 12:44 p.m.; and then played the trumpet again from 12:45 p.m. to 12:47 p.m. (Exhibits 29). Aside from the few occasions in which the Member was observed walking between performing and speaking to the audience, the surveillance video does not show whether he was standing or sitting in between the times not recorded on video. Based on the surveillance video, the Panel finds that the longest duration of time that the Member stood was for approximately 18 minutes, although this includes the times at which he was observed walking.

103The Panel accepts the Member’s evidence that he did not play continuously throughout the concert and that there were interludes between his performances. Based on his testimony and the surveillance video, the Panel finds t that the College has failed to prove that the Member had stood and played his instrument for 45 minutes.

104Additionally, the Panel is of the view that the College did not prove that the Member acted beyond his restrictions in his medical leave because the nature of standing while performing as a musician in the manner which the Member was observed, is inherently different from the standing involved in his work as a teacher librarian. The most recent Abilities Form states that the Member is limited to standing up to 30 minutes (Exhibit 17). However, as explained above, the Abilities Form is limited to providing information about the Member’s ability to fulfill his duties as a teacher librarian and does not apply to his ability to perform personal activities. From the Panel’s careful review of the surveillance video, the Member stood in one position while performing his trumpet. On the other hand, the Panel finds it reasonable to expect that the Member would be required to engage in more dynamic movements as a teacher librarian in the classroom or library. The Member testified that in his role, he was required to bend, lift, and twist his body as required to assist students with library resources and supervise students. The Panel is therefore satisfied that the physical demands as a teacher librarian interacting with students are notably different when compared to the standing demands while performing as a musician.

105Based on the foregoing, the Panel finds that the College did not present sufficient, compelling evidence to support a finding that, on a balance of probabilities, the Member’s performance on April 11, 2019, was evidence that he breached his work-related restrictions and limitations related to standing.

(iii) Lifting beyond his medical restrictions

106While not specifically particularized in the Notice of Hearing, Ms. Whelton testified and reported in her surveillance report, that the Member had lifted various objects on April 19, 2019. The Panel finds that there is insufficient evidence to support a finding, on a balance of probabilities, that the Member violated his medical leave by lifting weighted material beyond his prescribed lifting restrictions not to exceed 5 kilograms.

107There is no dispute between the parties that the Member lifted weighted items including a trumpet case and various bags on April 11, 2019. Although the College further alleged that the Member lifted a wooden fire door as Ms. Whelton testified, Ms. Whelton’s report noted that she observed him “handling” the wooden door and that it was lowered to the ground (Exhibit 28), her surveillance video did not show the wooden door being lifted up above the ground by the Member (Exhibit 29), and the Member did not provide any evidence with respect to this particular allegation. Regardless, the parties do dispute whether any lifting performed by the Member was beyond his medical limitations and restrictions prescribed by his health professionals as applied to his work-related duties.

108As there was no evidence led which demonstrated that the Member lifted material in excess of 5 kgs, the Panel is satisfied that that, on a balance of probabilities, and relying on the evidence led during the hearing, the Member did not engage in lifting activity on the April 11, 2019 that was greater than the prescribed medical restrictions attached to his medical leave.

(b) The Member misused his Board allotted sick time

109The Panel finds that the Member misused his Board allotted sick time in or about the 2018/2019 academic year when he performed at a concert in Sarnia, Ontario, during the school day while on sick leave on April 11, 2019, as alleged in paragraph 3(a) of the Notice of Hearing. The Panel also finds that the Member used substantial amounts of his allotted sick time from 2016 to 2019 and then returned to work each June which ensured a renewal of sick time allocations for the following year, as alleged in paragraph 5 of the Notice of Hearing. The Panel finds that the College has not proven that the Member misused his Board allotted sick time by performing at a concert in Montreal, Quebec while on sick leave, as alleged in paragraph 3(b) of the Notice of Hearing.

(i) The Member performed at a concert in Sarnia, Ontario, during the school day while on sick leave, on April 11, 2019

110The Panel accepts that the Board’s summary of the Member’s absences (Exhibit 32) establishes that April 11, 2019 was a school day and the Member was on sick leave. The Member did not dispute these facts. Despite being absent from work that day, the Member performed the trumpet at a concert for a local church. This finding is supported by the Member’s own admission, Ms. Whelton’s testimony and her supporting report (Exhibit 28) and video recordings (Exhibits 29 and 30).

111The Panel finds that the Member’s participation in a concert on April 11, 2019 to be misuse of his sick time. In coming to this conclusion, the Panel has given careful consideration to the Member’s evidence that he conducted himself in accordance with the medical advice he received from his various healthcare professionals, as outlined in the Abilities Forms. While the Panel accepts that the Member did not engage in activities that day which were inconsistent with the restrictions and limitations set out within his medical leave (as alleged in particular 4), the Panel is nevertheless of the view that the Member misused this Board allotted sick time when he performed at a concert in Sarnia during the school day as he could have, but chose not to work with the Board to find accommodations that could have allowed him to return to work.

112The Panel has reviewed the Abilities Forms and finds that there is no dispute that the Member retained some ability to perform certain tasks, including walking short distances up to 100 meters, standing for up to 15 minutes, sitting for periods up to 30 minutes, and lifting weighted material from the floor to shoulder levels not exceeding 11 lbs (i.e. 5 kilograms). Based on the medical evidence presented, none of his medical professionals opined that he required assistive devices (i.e., such as a wheelchair, walker, nor other ambulatory device or assistive technology), nor other forms of rehabilitation-related interventions (i.e. such as physical or occupational therapy, alterations to be made to the workplace, nor admission to a hospital or rehabilitation facility) to address his work-related physical limitations. The Abilities Forms also demonstrated that he had full use of his hands, was able to climb stairs without limitations or restrictions, and that he was able travel to work using either public transportation or by driving a car. Further, the Panel accepts, as evidence, the Abilities Forms (Exhibits 7,9, 13, 14, 17, 23, 24, and 26) all indicated that the Member did not have any notable cognitive restrictions with respect to his ability to fulfill his essential work duties. The Panel also accepts the evidence advanced by both parties which showed the Member being relatively physically active during the relevant period. Specifically, the Panel accepts the Member’s evidence that he could drive a vehicle from his residence to the concert and back, to be able to unload and reload his musical instruments (and other items) into and out of his vehicle, and successfully prepare for and perform a concert in a local church (tasks which require both cognitive and physical abilities). The Panel also accepts the College’s surveillance evidence in this regard as the video footage reinforced the Member’s evidence on this point which, collectively, supports the medical evidence captured in the Abilities Forms (Exhibits 7, 9, 13, 14, 17, 23, 24, and 26).

113Considering the totality of the evidence and applying a common-sense approach to the analysis, the Panel finds that although limited in some ways, the Member had sufficient functional reserves to collaborate with his employer in the accommodation process. In the Panel’s view, it is reasonable that if the Member was physically and cognitively able to perform on April 11, 2019, he should have known that he was sufficiently able to also collaborate with the School to work on a plan to return to work with accommodations.

114The Panel finds that there was ample opportunity and ability for the Member to explore the Board’s offers to return him to work with accommodations before the end of the 2018/2019 academic year. The Panel accepts the College’s evidence that in 2019, the Board continuously informed the Member that it could accommodate the Member’s restrictions. Specifically, the Panel accepts the oral evidence of Ms. Bantock who testified that the Board had previously accommodated similar restrictions the Member had and, that the Principal of the School was willing to provide similar accommodations again in 2019. Ms. Bantock’s testimony was consistent with the supporting documentation provided during the hearing. The Panel notes that on February 20, 2019, Ms. Bantock emailed the Member advising that the Board could accommodate the Member’s restrictions, which may facilitate an earlier return to work and that the Member’s doctors should complete a new Abilities Form (Exhibit 16). The Member’s Abilities Form that followed, dated March 27, 2019, noted his restrictions and a recommended return to work in June of 2019 (Exhibit 17). Later, on April 9, 2019, Ms. Bantock emailed the Member and advised that the Board could accommodate his abilities as noted in the Abilities Form and would be reaching out to Dr. Chong to provide more information (Exhibit 19).

115The Panel recognizes that Dr. Chong’s subsequent report dated May 7, 2019 stated that although the Member can sustain a return to work, he is precluded from doing so immediately as he requires more time to titrate his pain medications (Exhibit 22). Further, in the Abilities Form completed by Dr. Potter on June 18, 2019 (Exhibit 23), the Member was cleared to return to work on June 26, 2019. Notwithstanding these reports, the Panel finds that the Member could have explored the possibility of accommodation to return to work earlier and not remain on sick leave, especially considering that the Member was engaging in activities outside of work prior to his return to work in June (i.e., performing at a concert on April 11, 2019). There was no evidence led by the Member that he was catastrophically impaired with limitations that would have precluded him from being accommodated or collaborating with the Board to explore suitable accommodations.

116The Panel also acknowledges that the Member duly cooperated with the Board’s requests for medical documentation and spoke to his doctors and union representatives about the issue of returning to work and that he testified that he was skeptical about the Board’s ability to provide proper accommodations based on his previous accommodations (which he found to be unsuitable). In the Panel’s view, even if he was skeptical about whether he would be appropriately accommodated, the Member could have made more reasonable efforts to engage with the accommodation process. The Member testified that he never advised the Board of his disapproval of his previous accommodations, nor did he inquire about the possibility of returning to a different position that could be more aligned with his abilities. In the Panel’s view, that in addition to providing medical documentation, it would have been reasonable for the Member to voice such opinions and concerns about accommodations, so that the Board could in turn propose alternative solutions that was suitable.

117The Member did not make reasonable efforts to return to work or engage in the accommodations process. Instead, he engaged in activities outside of work that required a particular level of physical exertion, sitting and standing (i.e., performed at a concert).The Member’s lack of cooperation in the Board’s proposed accommodation process was indicative of his intention to remain on disability leave and personally gain from the continued availability of his sick leave benefits, when it was possible for him to engage in some form of work-related activity, or, at the very least, engage more actively in the accommodation process.

118Based on the foregoing, the Panel finds that the Member’s failure to engage fully in the accommodation process ensured that he would remain on disability leave, in which he derived personal gain, both financially and in terms of opportunities to engage in recreational activity with his community through the sick leave benefits available to him and is, therefore, evident of his misuse of sick time.

(ii) the Member performed at a concert in Montreal, Quebec, while on sick leave

119There was insufficient evidence to support a finding that the Member performed a concert in Montreal, Quebec while on sick time in or about the 2018/2019 academic year as alleged in paragraph 3(b) of the Notice of Hearing.

120Although Ms. Whelton testified that she heard the Member mention a concert that he had done in Montreal, Quebec, College Counsel did not present any other evidence to substantiate that the Member actually attended and performed at this concert while on sick leave, particularly on a school day and contrary to his medical limitations and restrictions. The Member denied that he performed in Montreal during his sick leave. As such, the Panel finds that the College did not discharge its onus of proving this allegation on a balance of probabilities and makes no finding with respect to this allegation.

(iii) Between 2016 to 2019, the Member used his full allotment of sick time and returned to work in June in an attempt to ensure renewal of sick time allocations for the following year

121The Panel finds that the Member used almost his full allotment of sick time between 2016 and 2019, returning to work in June each year to ensure renewal of sick time allocations for the following year, as alleged in paragraph 5 of the Notice of Hearing. Therefore, the Panel is satisfied that the Member’s conduct in this regard amounts to a misuse of his Board allotted sick time.

122The Panel accepts as evidence, the terms of the Collective Agreement as it relates to sick benefits (Exhibit 4), the Member’s record of absence (Exhibit 32), and the oral testimony of Ms. Nicholls, as well as the Member’s testimony.

123As per the Collective Agreement, the Member was entitled to a total of 131 days of sick time comprised of 11 sick days paid at 100% salary and 120 STLDP days paid at 90% salary, for each academic year (Exhibit 4). Based on the Member’s undisputed attendance records, the Panel finds that the Member used a significant portion of his allowable sick time each year between 2016 and 2019: 123 days of sick time in the 2016/2017 academic year; 124.67 days of sick time in the 2017/2018 academic year; and 128 days in the 2018/2019 academic year (Exhibit 32).

124The Panel also finds that the Member returned to work in June, just before the end of the academic year. In the 2016/2017 academic year, the Member worked from the start of the school year on September 6, 2016, to September 30, 2016, consecutively without any absences. He was absent for the majority (if not all) of October and December 2016, January, April, May, and June of 2017. He returned to work on June 29, 2017, and worked on June 30, 2017, the last day of school. In the 2017-2018 academic year, the Member generally worked from the start of the school year on September 4, 2017, to December 5, 2017, went on consecutive leave from December 6, 2017, to June 21, 2018, and then worked from June 22, 2018, to June 29, 2018, the last day of school. In the 2018-2019 academic year, the Member worked from the start of the school year on September 4, 2018, to November 7, 2018, went on sick leave for a significant portion of the academic year, and returned to work from sick leave on June 26, 2019, the last day of exams and the academic year (Exhibit 32).

125The Panel finds that the Member’s pattern of absences and use of sick time during the 2016 to 2019 academic years was a contrived attempt to renew his sick time benefits for the following academic year and therefore a misuse of his sick time.

126As per the Collective Agreement (Exhibit 4) and Ms. Nicholl’s testimony, the Member’s attendance during the 2016 to 2019 academic years entitled him to renew his sick benefits for the following academic year. Additionally, the Member’s completion of 11 consecutive working days at his full Full-Time Equivalent (“FTE”) without absence due to illness and his return to work each June ensured that his absence due to an illness did not continue into the following academic year. The Member did not provide an explanation for this pattern of attendance. The Panel finds that it is reasonable to conclude that the Member was aware that his sick time allocations would be renewed for the following year if he worked some days in June. The Panel therefore finds, on a balance of probabilities, that the Member’s attendance pattern was deliberate. Reinforcing this conclusion was the absence of evidence that the Member was diagnosed with a medical condition or disability whose natural history and symptomatology mirrored his pattern of absences or coincided with his expected work cycle in the academic year.

127The Panel considered the Member's submission that he used the sick leave he was entitled to under the Collective Agreement and that he did not break any rules. However, the Panel finds that the sick leave was in fact misused, given the Member demonstrated a pattern of attending school at the beginning and end of each year (during or at the end of the exam period) for three years in a row, and because the Member could have collaborated with the Board to facilitate his return to work, being aware he had the capability of doing so (as evidenced by his actions on April 11, 2019). In this respect, the Member’s actions prolonged his access to the financial benefits available to him.

128In coming to this conclusion, the Panel declined to make a finding that the Member deceived the Board or misused his sick benefits by presenting medical forms from different physicians as was suggested by College Counsel during the hearing. This allegation was not detailed in the Notice of Hearing (Exhibit 1) and making a finding in favour of the College would be procedurally unfair, as the Member was not given appropriate notice of this allegation. Further, the Panel does not find that a person seeking medical care from different health professionals to address different facets of their health care is evidence of an attempt to deceive, and accepts the Member’s submission that he sought medical care from various physicians, due to the unique nature of his medical conditions (both work-related, and non-work related).

129The Panel also declined to draw an adverse inference from the Member not calling his doctors to testify in the hearing. The Panel disagrees with the College’s submission that the Member ought to have called the doctors to speak to specific questions. While the Member’s decisions about what evidence to call in his defense are his to make, the Member does not bear the burden of proof. Further, the Panel accepts the Member’s explanation that he did not call his doctors to testify because when he spoke to them about his proceeding, they advised him that they were not prepared to speak to anything other than their written reports, which speak for themselves. The Panel received substantial medical evidence in this proceeding and does not believe that it was necessary for the Member to call the doctors to essentially repeat what was written in their reports.

130The Panel is of the view that it is common practice for patients of heath care professionals to seek out or be referred to other health care providers, and receive support and direction to address multiple facets of their clinical profile to ensure their health care needs are met. Therefore, seeking medical advice from different medical professionals does not, on its face, mean that a person was attempting to deceive a third-party, but can simply indicate that one has multiple health care needs that need to be addressed by multiple medical professionals of various specialties and different levels of expertise, as the Member testified.

131The Panel notes that the College failed to present any medical evidence that challenged the validity and accuracy of the Member’s medical documentation presented during the hearing. As well, although the Board’s witnesses voiced their skepticism of the medical forms completed by different doctors, the Board did not complete their own Independent Medical Examination and did not request that one doctor complete all the Member’s forms. Absent any compelling evidence or submissions, the fact that different physicians completed the forms relied upon by the Member on its face is not evidence of the Member’s intentions to deceive the Board and therefore, is insufficient to prove that the Member misused his sick time.

132In summary and considering the totality of the evidence (including the Member’s actions on April 11, 2019), the Panel is satisfied that the Member’s 3-year pattern of being absent for a significant portion of the school year and returning at the end of June of each year, was indicative of his attempt to renew his sick benefits for the following academic year.

(3) Legal Conclusions

133The Panel finds that the Member’s conduct set out above gives rise to findings of professional misconduct.

134In particular, 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); and he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

(a) 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)

135The Panel finds that the Member’s conduct would reasonably be regarded by members as dishonourable and unprofessional, contrary to Ontario Regulation, subsection 1(18). The terms disgraceful, dishonourable, and unprofessional do not have a legislated definition, but discipline committees have defined these terms disjunctively, and in decreasing order of seriousness. Conduct characterized as disgraceful is considered the most egregious. Disgraceful conduct casts serious doubt on a member’s moral fitness to perform their professional duties and on their ability to be a member of the profession. Like disgraceful conduct, dishonourable conduct has an element of moral failing, but it need not be as severe. Dishonourable conduct often involves, but is not limited to, acts of dishonesty, deceit, fraud, and theft. Unprofessional conduct does not require an element of moral failing but involves acts demonstrating persistently poor professional judgment.

136The Panel finds that the Member’s conduct would reasonably be regarded as dishonourable and unprofessional. Members of the teaching profession are expected to be dedicated to their responsibilities and honest in their actions. The Member’s pattern of absences was indicative of a misuse of his sick benefits and was dishonest. The Member ought to have known that he was acting contrary to his responsibilities when he repeatedly used a significant portion of his sick benefits and returned to work at opportune times at the end of the school year, for the purpose of renewing his sick time allocations for the following year. The Member’s misconduct was also unprofessional, as it showed a flagrant disregard for his professional obligations and duties to his students. The Member behaved unprofessionally when he took advantage of his sick time for his own personal benefit. His conduct demonstrated dishonesty towards his employer, students, and colleagues, and demonstrated a lack of professional judgment. Although the Panel considered the Member’s entitlement to his sick leave benefits, the Panel finds his pattern of attending school at the beginning and end of the year, for three years in a row, and with respect to the 2018/2019 academic year, staying on sick leave while performing at a concert during school hours on April 11, 2019, to be professional misconduct.

(b) The Member engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19)

137The Panel finds that the Member’s conduct was unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19). The Member’s actions were inappropriate and reflected poorly on the teaching profession. The public, students and the school community expect that teachers will set a good example for students and within their communities. The Member’s repeated abuse of sick benefits undermined the reputation of the teaching profession. Moreover, performing in a concert during a school day, while on sick leave, punctuates the Member’s dishonesty and poor judgment. This conduct essentially signalled to the community that the Member did not take his professional obligations seriously, which diminishes the reputation of the teaching profession.

O. PENALTY

138The Tribunals’ Office will schedule a subsequent date on which the Panel will hear the parties’ submissions with respect to penalty.