Discipline Committee of the Ontario College of Teachers
PENALTY DECISION AND REASONS FOR DECISION
IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;
AND IN THE MATTER OF a discipline proceeding against
Joël Patient Tchoreret-Mbiamany, a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
JOËL PATIENT TCHORERET-MBIAMANY (REGISTRATION #429577)
PANEL: Marlène Marwah, Chair Élaine Legault Yasser Leheta, OCT
HEARD: December 1, 2023
Christine Lonsdale, for the Ontario College of Teachers
No one appearing for Joël Patient Tchoreret-Mbiamany
Renée Kopp, Independent Legal Counsel
PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
The penalty portion of this proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on December 1, 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”).
On May 9, 2023, the Panel found that due to his fraudulent conduct, the Member had engaged in professional misconduct, contrary to Ontario Regulation 437/97, subsections 1(13), 1(14), 1(15), 1(18) and 1(19), as alleged in Notice of Hearing No. 5050 dated July 13, 2020 (Exhibit 1). The Panel found, among other things, that during the school year, specifically during the period ranging from February 1, 2017, to October 25, 2017, the Member gave false reasons for his absences in order to benefit from his sick leave entitlements and received salary and benefits from the school board while employed by an organization in another country. The Discipline Committee’s Decision on Finding and Reasons for Decision, dated May 9, 2023, is entitled Ontario College of Teachers v Tchoreret-Mbiamany, 2023 ONOCT 57.
The Panel reconvened on December 1, 2023, to hear submissions with respect to penalty and costs. The Member was not present at this stage of the hearing and was not represented by counsel.
College Counsel requested that the Panel hold the penalty portion of the hearing in the Member’s absence. She submitted the Affidavit of Beti Poyastro (Exhibit 11), sworn on November 23, 2023, to show that the Panel’s Decision on Finding and Reasons for Decision, dated May 9, 2023, as well as the date and time of the penalty hearing, the College’s position with regards to penalty and costs, and the case law in support of this position were all sent to the Member’s last known email address. In particular, the Member was advised of the decision rendered in Ontario College of Teachers v. Dorcin, 2023 ONOCT 28 and of the possibility that the Panel may render an order revoking his certificate.
Although the Member did not respond to any of the messages sent by College Counsel, none of the emails containing the required information and documents were returned as undeliverable. The Panel therefore finds that the College sent to the Member, at his last known email address, all the required documents and information and therefore, that the Member has decided not to attend the penalty stage of the hearing. As such, the Panel held this part of the hearing in the Member’s absence.
A. PUBLICATION BAN
The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.
B. PENALTY SUBMISSIONS OF COLLEGE COUNSEL
The College submitted that the Panel ought to order a penalty that includes the following elements:
a reprimand;
a suspension of six to nine months;
terms, conditions or limitations that would restrict the Member from returning to the teaching profession until he successfully completes a course on professional ethics.
College Counsel presented five cases in support of the proposed penalty: Ontario College of Teachers v Sincennes, 2020 ONOCT 221 (“Sincennes”), Ontario College of Teachers v Mackenzie, 2019 ONOCT 22 (“Mackenzie”), Ontario College of Teachers v Ibbott, 2022 ONOCT 11 (“Ibbott”), Ontario College of Teachers v Syed, 2020 ONOCT 138 (“Syed”), and Ontario College of Teachers v Dorcin, 2023 ONOCT 28 (“Dorcin”). According to College Counsel, these cases contain facts that are similar to the matter at hand and thus can provide guidance to the Panel in determining the appropriate penalty and establishing a range of reasonable penalties.
College Counsel submitted that the appropriate penalty in this case would be a six- to nine-month suspension, a reprimand and coursework on professional ethics. Moreover, College Counsel asserted that the Panel has the authority to order the penalty it deems appropriate based on the circumstances, and as such, could order that the Member’s certificate be revoked under subsection 30(4) of the Act, although such an order is not mandatory in this case.
Following the Panel’s request for further submissions in this regard, College Counsel submitted that if the Panel were considering revocation, it should look to the Dorcin decision to determine whether the Member can be deemed ungovernable.
C. ADVICE OF INDEPENDENT LEGAL COUNSEL
Independent Legal Counsel (“ILC”) advised the Panel about its role in considering the evidence tendered and the submissions of the parties in issuing an order that adheres to the principles underlying Discipline Committee orders. ILC noted that the Panel must determine the most appropriate penalty that meets the purposes of a sanction, including public protection, remediation, general and specific deterrence, and that the Panel should give due regard to principles of proportionality and consistency with past decisions from the Discipline Committee.
ILC noted that the Act gives the Panel discretionary power to order a penalty under subsections 30(4) and 30(5), including revocation. She told the Panel that they are not limited to ordering the penalty proposed by the College but advised the Panel of the risks associated with ordering a more severe penalty, which should only occur in very rare instances.
The Panel was advised of the factors set out in Law Society of Upper Canada v. Shifman, 2014 ONLSTA 21 (“Shifman”) that must be considered in determining whether a member is ungovernable. ILC also stressed that determining ungovernability is a case-by-case decision, and that the Panel’s guiding principle should be the public interest.
D. DECISION ON PENALTY
On May 27, 2024, the Panel made the following order as to penalty:
The Registrar of the Ontario College of Teachers is directed to immediately revoke the Certificate of Qualification and Registration of the Member.
The Member is directed to receive a reprimand in writing, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers.
E. REASONS FOR PENALTY DECISION
The Panel carefully considered the College’s submissions, the relevant case law provided, and the guiding principles underlying penalty orders, including specific and general deterrence, rehabilitation of the member (where appropriate), public protection, public trust in the College’s disciplinary process, and proportionality of the penalty to the misconduct committed.
Seeing as the penalty hearing was conducted on a contested basis, the Panel must determine, based on its findings of fact regarding the member’s conduct, the penalty that most appropriately meets these guiding principles, while ensuring that the penalty imposed falls within the range of acceptable outcomes. Although the decisions presented by College Counsel, with the exception of Dorcin, do not include a revocation order, the Panel believes that the Member’s misconduct in this case was very serious and that a more severe penalty than the one requested by the College is warranted. The Panel finds the Member to be ungovernable as a member of the profession and that revoking his Certificate of Qualification and Registration, together with a reprimand, is the only reasonable and appropriate penalty under the circumstances.
The Panel considered the Member’s case in comparison to the facts of the cases provided. The aggravating factors in this case considerably outweigh the mitigating factors. First, the Member’s misconduct involved several issues that took place over several months. The Member’s actions were far from a momentary or isolated error of judgment; on the contrary, they were well planned out and calculated, and took place on a repeated and continuous basis over a long period of time. The Member gave false reasons for his absences on numerous occasions and thus took advantage of his sick leave entitlements as a school board employee when his absences were not due to illness. As a result of his fraudulent conduct, he received salary and benefits from the school board for approximately eight months when he was not entitled to them. The Member had many opportunities to put an end to his misconduct, but decided to continue defrauding the school board until his eventual dismissal.
In so doing, the Member breached the school board’s trust, as well as that of the students under his care and the public. Another aggravating factor in this case is that he chose to abandon his students at a time when they were particularly vulnerable, during the preparation and assessment of their projects for obtaining their International Baccalaureate. Although he was aware of the importance of these projects for his students, he chose to abdicate his duties as a teacher, using false reasons to justify his absence and obtain personal financial gain from the school board while engaged in a political party in Gabon.
In addition, the Panel received no proof that the Member reimbursed the net amount of $4,900 owed to his school board, which is the amount that was paid to him in the form of a retroactive advance for the period from March 19, 2017, to April 15, 2017 (Exhibit 11, Tab D). The Panel is of the opinion that in taking no steps to repay the sums to which he was not actually entitled, the Member demonstrated a complete lack of judgment, contrition, remorse, responsibility and recognition of the detrimental effects his conduct had on his students and the school community.
Finally, the Panel considers the Member’s refusal to participate and cooperate in this disciplinary process to be an aggravating factor.
The Panel notes that the only mitigating factor in this case is the fact that Member has no previous disciplinary history with the College.
(a) Ungovernability test
The Panel notes that of the cases provided by College Counsel, the Dorcin decision, which was also a contested hearing, most closely resembles the one at hand. Mrs. Dorcin had received sick leave benefits from her school board in Toronto while she took up a teaching position at a school in another province. Like the Member, Mrs. Dorcin’s actions were considered deliberate, planned and committed over a long period of time. Mrs. Dorcin’s conduct had a negative impact on her students’ learning and undermined the reputation of both the teaching profession and the school board. Although Mrs. Dorcin reimbursed part of the amount owed to the school board, the panel that heard the matter noted that this reimbursement had not been prompted by her contrition or recognition of the harmful effects of her conduct. The panel found that Mrs. Dorcin was ungovernable and ordered the immediate revocation of her Certificate of Qualification and Registration. An important distinction between the two cases is that in Dorcin, the College argued that the Panel should find the member ungovernable and impose a penalty that included the revocation of her certificate, which the College did not expressly request in this case. However, College Counsel did point out that it was possible for the Panel to declare the Member ungovernable and consequently render an order revoking his certificate.
In addition to finding that the Member’s Certificate of Qualification and Registration should be revoked for the reasons detailed above, the Panel declared the Member to be ungovernable, which is an aggravating factor weighing in favour of revocation. A member is ungovernable if they fail to respect the College’s authority as a regulatory body. According to Law Society of Upper Canada v. Sebastiano Cammisuli, 2012 ONLSHP 157, as stated in Shifman, the factors to be considered in determining whether a licensee is ungovernable are:
A) the nature, duration and repetitive character of the misconduct;
B) any prior discipline history;
C) any character evidence;
D) the existence or lack of remorse. Remorse includes a recognition and understanding of the seriousness of the misconduct;
E) the degree of willingness to be governed by the Society;
F) medical or other evidence that explains (though does not excuse) the misconduct;
G) the likelihood of future misconduct having regard to any treatment being undertaken, or other remedial efforts;
H) ongoing cooperation with the Society in addressing the outstanding matters that are the subject of the misconduct: Cammisuli, para. 12.
These factors support the finding that the Member in this case is ungovernable. The Member behaved dishonestly and committed fraudulent acts repeatedly over a period of about eight months. Although he had no previous disciplinary record with the College, he offered no evidence of moral character, nor did he demonstrate any responsibility for his behaviour. Furthermore, he failed to recognize the fraudulent, even reprehensible, nature of his actions. He committed a serious breach of his professional duties as a teacher. The Panel finds that the Member feels no remorse for his conduct. As he appears not to have acknowledged its repercussions or adverse effects on students and the School’s reputation, the Panel finds that there is a real risk of recidivism.
Moreover, the Member clearly refused to cooperate with the College as his professional regulatory body. He requested three adjournments (two before the Panel), repeatedly encumbered and delayed the disciplinary process, and then chose not to respond to the College’s efforts to shorten the process.
The Member could have presented reliable medical or other evidence to explain his behaviour. In the absence thereof, the Panel is of the opinion that there is no convincing evidence to explain his misconduct. The documents provided to the school board were considered by the Panel to be inconsistent, contradictory and false.1
Finally, since the Member did not participate in the proceedings, the Panel received no evidence of any efforts on his part to rehabilitate himself. When a member demonstrates a commitment to act in a manner consistent with the duties of the profession and the values on which the education system is founded, the risk of recidivism is minimized.
The Panel believes that the Member’s conduct, and that of any other teacher who chooses to completely ignore their professional duties, should be denounced, and that the public should be protected from such dishonest and fraudulent behaviour. It is the teaching profession that shoulders the burden of the misconduct of one of its members, and that must expose the negative impact such misconduct has on students and the school community at large. The College’s role is to govern the profession in the public interest, and it cannot fulfill its mandate when a member found guilty of misconduct escapes the consequences. The Member’s refusal to submit to the College’s process demonstrates his ungovernability, which is an aggravating factor in favour of revocation.
(b) Revocation
The Panel finds that revocation of the Member’s Certificate of Qualification and Registration is appropriate and proportionate in this case. Based on his dishonest and fraudulent conduct, including his ungovernability, the Panel finds it is unlikely that the Member will live up to his professional obligations or abide by the authority of his professional regulatory body in the future. As such, it is unlikely that any order other than revocation would be sufficiently dissuasive or protect the public interest.
For the reasons described above, the Panel considers the Dorcin case to be the most similar to the one at hand.
The Panel also reviewed the Sincennes, Mackenzie, Ibbott and Syed decisions. In the Sincennes case, Mrs. Sincennes was a school principal who was found guilty of professional misconduct for engaging in dishonest behaviour including writing cheques in her name without supporting documentation, misusing the board’s funds and credit card, and claiming unsubstantiated expenses. The panel that heard the case ordered a reprimand and a five-month suspension and required the member to take a course on ethics.
In Mackenzie, the member was found guilty of professional misconduct for making false or inaccurate statements by claiming health care benefits for services she did not receive. In that case, the penalty order included a reprimand, a nine-month suspension and coursework on ethics.
In Ibbott, the member was found guilty of professional misconduct for engaging in dishonest behaviour and submitting claims under his and his wife’s group insurance plans for health care benefits to which he should have known he was not entitled. In addition, he submitted grades based on insufficient work done by his students and did not assess his students adequately. The panel that heard the case ordered a reprimand, a ten-month suspension and coursework on ethics and student assessment.
In Syed, the member was found guilty of professional misconduct for having submitted false health and drug claims to the benefits provider at the board. The member was found guilty of having breached subsection 368(1.1) of the Criminal Code. In that case, the Panel ordered a reprimand, a twelve-month suspension and coursework on ethics. Although these cases dealt with professional misconduct of a similar nature to that of the Member’s in this case, the Panel notes that Sincennes, Mackenzie, Ibbott and Syed were all uncontested hearings, which is an important distinction.
In arriving at the decision to revoke the Member’s certificate, the Panel considered that, unlike Sincennes, Mackenzie, Ibbott and Syed, the Member had been found to be ungovernable. In fact, the Member has yet to reimburse the net amount of $4,900 owed to his school board, unlike Mrs. Mackenzie, Mr. Ibbott and Mrs. Syed, who all reimbursed the full amount they owed. Finally, in the Sincennes, Mackenzie, Ibbott and Syed cases, the members all participated in their disciplinary hearing and reached agreements, thus acknowledging their misconduct, which is not the case in the present matter.
The Panel is therefore satisfied that the penalty is proportionate to the Member’s misconduct. As a self-regulatory body, the College is responsible for governing its members and ensuring they comply with established standards of conduct and respect the College’s processes and authority. A member who shows complete disregard for the College and its processes demonstrates a lack of professional judgment and ungovernability, indicating to both the profession and the public that they cannot be trusted to act in accordance with their professional and ethical obligations. The Member showed disregard for his professional obligations and his professional regulatory body, and as such, he lost the privilege of remaining a member of Ontario’s teaching profession. The revocation of his certificate will serve the principles of specific and general deterrence and of public protection, and will signal to the profession and the public that the College takes such misconduct seriously and will not tolerate members who fail to respect its authority to regulate its members in the public interest. Revocation is not a mandatory penalty in this case, but it is the only appropriate order given the circumstances.
(c) Reprimand
The Panel considers that the Member’s dishonest conduct warrants a reprimand. Teachers should always behave ethically and professionally and set an example of honest conduct, which the Member failed to do. His actions demonstrated a lack of integrity, awareness and judgment. The reprimand will allow the Panel to directly address its concerns with the Member and will serve as a specific deterrent. Recording the fact of the reprimand on the Register is important, as it will serve as a general deterrent to other members of the profession. Finally, the Panel considers that a written reprimand is appropriate given the Member’s refusal to participate in the disciplinary process.
The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.
F. SUBMISSIONS OF COLLEGE COUNSEL REGARDING COSTS
College Counsel sought an order for costs payable by the Member to the College, pursuant to subsection 30(5) of the Act. She submitted that the Panel could make an order relating to costs pursuant to Rule 16.03 and Tariff A. She noted that the College does not have to prove the actual amount of costs when the amount requested is equal to or less than Tariff A, i.e., $10,000 per day of proceedings.
In this case, College Counsel requested $25,000 in costs payable to the College. She argued that it was appropriate for the Panel to order the Member to pay costs as he had not contacted the College since the beginning of the proceedings, despite the latter’s numerous attempts to contact him in order to shorten the process. The College advised the Member of the possibility that the Panel may order him to pay costs on the following dates: October 7, 2022; January 10, 2023; and December 1, 2023 (Exhibit 11, Tab D).
College Counsel argued that if the Member had been more cooperative, the disciplinary proceedings could have been shorter, which would have saved significant and costly resources that were allocated to the hearing. Finally, College Counsel presented the Panel with four cases in support of her position with regards to costs: Ontario College of Teachers v Hall, 2019 ONOCT 20 (“Hall”), Ontario College of Teachers v Stan, 2023 ONOCT 61 (“Stan”), Ontario College of Teachers v Poon, 2023 ONOCT 42, and Ontario College of Teachers v Fox, 2021 ONOCT 34.
G. COSTS DECISION
On May 27, 2024, the Panel made the following order as to costs:
- The Panel requires the Member to pay costs in the amount of $15,000 to the College in relation to the present proceedings within nine months of the date of the Panel’s Decision on Penalty and Reasons for Decision.
H. REASONS FOR COSTS
According to paragraph 4 of subsection 30(5) of the Act, the Panel has the jurisdiction and authority to order costs payable by a member to the College in relation to proceedings during which it found that member guilty of professional misconduct. Pursuant to subsection 16.05(3) of the Rules, if the College claims costs, it is not required to provide proof of costs or expenses incurred if the amount claimed is equal to or less than the amount set out in Tariff A, i.e., $10,000 per day of proceedings. College Counsel requested that the Panel order the Member to pay costs to the College in the amount of $25,000, which is the amount provided for in Tariff A for two and a half days of proceedings.
In determining whether to order costs, the Panel considered the Stan decision, namely the section addressing the factors outlined in Hall.
Apportioning costs of proceeding: Costs orders are compensatory, rather than punitive, in nature. Their purpose is to apportion the financial burden of a discipline proceeding between the parties fairly. The nature or severity of a member’s misconduct is not a factor that should be considered when determining whether costs should be ordered or the quantum of any order.
Uncooperative and vexatious conduct: Uncooperative or obstructionist conduct in the course of the litigation process is a significant factor in the costs determination. Conduct that unnecessarily lengthens the duration of the proceeding ought to be sanctioned, as should vexatious or improper conduct. Consistent with the principle of apportionment, the College and, through their licensing fees, cooperative members of the teaching profession, ought not bear fully the costs of discipline proceedings against uncooperative members.
Promotion of good conduct: Members of the profession are not required to admit all or part of their professional misconduct because the College always bears the burden of proof. However, participation in the disciplinary process, cooperation and conduct that shortens or reduces the complexity of the proceeding ought to be encouraged. Engagement in efforts to settle all or part of a proceeding should be encouraged when considering whether costs ought to be ordered. Costs orders should not be so large as to discourage members from raising reasonable defences to allegations of professional misconduct.
Success of the parties: The relative success of the parties will be relevant in determining and apportioning costs. For example, if the College is only partially successful in establishing the allegations against a member, this will be relevant in determining whether and what amount of costs should be ordered. If significant hearing time is spent receiving evidence on allegations that are ultimately not established, the member ought not be liable for those costs.
The member’s ability to pay: Evidence or submissions about the member’s ability to pay a costs order may be relevant to the Committee’s decision. This factor may also be relevant to the Committee’s decision about how much time the Member is given to pay the costs order. The impact of other penalties imposed (for example, revocation) may be relevant to this factor: Hall at pp. 12-13.
The Panel considered that the goal of a costs order is to allocate the costs of the proceedings fairly. The order does not constitute a further penalty imposed on the Member.
The Panel finds that the Member failed to cooperate throughout the College’s disciplinary process. Conduct that unnecessarily lengthens the duration of the proceedings ought to be sanctioned. Consistent with the principle of apportionment, the College and, through their licensing fees, the members of the teaching profession ought not bear fully the costs of discipline proceedings against uncooperative members. In this case, the College attempted to contact the Member several times about the proceedings to shorten the process. Although his conduct was not vexatious, the fact remains that he often ignored College Counsel’s attempts to communicate with him and disengaged from the process completely as of January 2022. His lack of cooperation and participation caused the disciplinary process to stretch out over a longer period than was necessary and thus prevented possible savings in time and resources. As a result, the College had to prove its case in a contested hearing that lasted two and a half days. In short, the Member was both ungovernable and uncooperative.
The Panel notes that if significant hearing time is spent receiving evidence on allegations that are ultimately not established, the member ought not be liable for those costs. In this case, however, the College succeeded in proving all the allegations of professional misconduct listed in the Notice of Hearing.
Finally, seeing as the Member did not participate in the hearing, the Panel received no evidence as to his ability to pay the costs ordered.
Given the findings above relating to the factors set out in Hall, the Panel finds that a costs order in the amount of $15,000 is appropriate. The Member was aware that he could be required to pay costs yet chose not to participate in the College’s disciplinary process. The Panel therefore orders the Member to pay $15,000 in costs to the College within nine months of the date of its Decision on Penalty and Reasons for Decision.
May 27, 2024
Marlène Marwah Chair, Discipline Panel
Élaine Legault Member, Discipline Panel
Yasser Leheta, OCT Member, Discipline Panel
Footnotes
- Ontario College of Teachers v Tchoreret-Mbiamany, 2023 ONOCT 57, para. 57.