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 Loretto Ifeoma Okafor, OCT a member of the Ontario College of Teachers.
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
– and –
LORETTO IFEOMA OKAFOR (REGISTRATION #461729)
PANEL: Irene Dembek, OCT, Chair John Hamilton, OCT Marlène Marwah
HEARD: April 25 and June 8, 2023
Stephanie Sugar and Noam Uri, for the Ontario College of Teachers Loretto Ifeoma Okafor, 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.
Pursuant to subsection 32.1(1) of the Ontario College of Teachers Act, 1996, the Discipline Committee further ordered that no person shall publish the identity of or any information that could disclose the identity of Student 1.
1This proceeding was heard electronically in accordance with Rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (“Rules”) before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on April 25, 2023 and June 8, 2023.
2A decision finding that Loretto Ifeoma Okafor (the “Member”) engaged in professional misconduct was issued on October 21, 2022, with reasons reported at Ontario College of Teachers v. Okafor, 2022 ONOCT 109 (“Decision on Finding and Reasons for Decision”). In particular, the Panel found that the Member taunted and then hit one of her students during an incident in her classroom. Additionally, the Panel found that the Member yelled at or used an excessively loud voice with her colleagues on several occasions, that she yelled at a student, and that she made disparaging remarks about her students. The Member’s behaviour led to students becoming afraid, emotional, uncomfortable, and anxious. Based on this conduct, the Panel found that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(5), 1(7), 1(7.1), 1(7.2), 1(14), 1(15), 1(18) and 1(19).
3The Panel convened on April 25, 2023 to hear submissions with respect to penalty. The Member attended the hearing and did not have legal representation during the penalty hearing. At the outset of the hearing, the Panel was advised that the parties had entered into an agreement with respect to penalty. However, during the hearing, the Member took issue with the agreement. The Member submitted that she signed a joint submission document not because she agreed to the specific penalty but for other reasons relating to the penalty negotiation process. The Member submitted that the proposed agreement was not fair or reasonable and that she wished to present certain evidence in support of her position. The College objected to this evidence. As it was apparent that the parties no longer had an agreement with respect to a joint submission on penalty and costs, the penalty hearing was adjourned to give the parties an opportunity to communicate regarding this evidence and to prepare submissions regarding its admissibility. The Panel reconvened on June 8, 2023 for a contested penalty hearing to hear submissions regarding the admissibility of evidence and regarding the penalty that is appropriate in this case.
4Following the parties’ submissions on June 8, the Panel reserved their decision. For the reasons that follow, the Panel finds that the appropriate penalty order in this case is a reprimand, coursework, a five-month suspension, and costs in the amount of $60,000 to be paid over six years.
A. PUBLICATION ban
5The 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.
6The Panel also ordered a publication ban pursuant to section 32.1(1) of the Act, whereby no person shall publish the identity of, or any information that could disclose the identity of Student 1, who was a witness at the hearing and the subject of evidence at the hearing.
B. member’S request to admit documents
(1) Member’s Submissions on Admissibility
7The Member sought to admit a series of email communications between herself and her former lawyer that discuss penalty negotiations that occurred between College Counsel and the Member’s former lawyer. According to the Member, these communications demonstrate that College Counsel was willing to agree to a joint submission that included a 6-month suspension and a costs-order against the Member in the amount of $35,000 on the condition that the Member discontinue her appeal of the Panel’s Decision on Finding and Reasons for Decision. The Member wrote back advising that she would accept the length of the penalty and the quantum of costs but not the condition to discontinue her appeal. The Member’s former lawyer relayed this messaging to College Counsel. One week later, the Member’s former counsel wrote to the Member to advise that the College’s position without the condition to withdraw the appeal is for a penalty that included a reprimand, coursework, a seven-month suspension, and costs in the quantum of $80,000.
8Additionally, the Member sought to admit a letter from her union representative, which summarizes the negotiation between College Counsel and the Member’s former lawyer and advises that, in light of the Member’s rejection of this offer, the union is no longer able to fund the Member’s legal representation.
9The Member submitted that these documents demonstrate that College Counsel is actually of the opinion that a just and appropriate penalty would be a 5-month suspension and costs in the amount of $35,000. By not agreeing to this just and appropriate penalty, the College’s intention with their submissions was not to come up to the most appropriate penalty, but to force the Member to abandon her appeal of the Panel’s Decision on Finding and Reasons for Decision. The Member further submitted that College Counsel misled the Panel by submitting that the parties have come to an agreement on one particular quantum of costs. In fact, the College has offered the Member two cost figures – $35,000 on the condition that she will abandon her appeal and $80,000 if she continues with her appeal. Finally, the Member submitted that it was unjust for the College to make a penalty offer that was contingent on her abandoning her appeal as maintaining the appeal is essential to the Member’s mental health.
(2) College’s Submissions on Admissibility
10College Counsel submitted that all of the documents that the Member is attempting to rely upon are inadmissible due to settlement privilege. As such, pursuant to subsection 15(2)(a) of the Statutory Powers Procedures Act (“SPPA”), the Panel should refuse to admit these communications.
11College Counsel took the Panel through the law regarding settlement privilege. College Counsel submitted it is in the public interest to keep discussions between adversaries confidential and privileged to promote settlements and increase judicial efficiency. Privilege is important to encourage parties to have frank discussions without the fear that whatever compromised positions they might take will be used against them in a future hearing. College Counsel pointed the Panel to some cases that outline the law regarding settlement privilege: R. v. Manfredi, 2009 ONCJ 288, Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 [“Sable v. Ameron”], and R. v. N.L., 1998 CanLII 14944 (ON SC). These cases demonstrate that there are three elements required for settlement privilege to apply. First, a litigious dispute must be in existence or within contemplation. Second, the communication must be made with the express or implied intention that it would not be disclosed to the trier of fact if negotiations failed. Third, the purpose of the communication must be to attempt to effect a settlement. College Counsel submitted that all three are clearly present in the communications attempted to be admitted by the Member.
12College Counsel submitted that, in the event that the Panel finds that the documents are not privileged, they are not admissible because they are not a complete record of all penalty negotiations between the Member and the College. In support of this submission, the College presented an affidavit outlining the dates and times of 26 communications that occurred without prejudice between College Counsel and the Member’s former counsel and between College Counsel and the Member.
(3) Decision on Admissibility and Reasons for Decision
13At the conclusion of the parties’ submissions, the Panel found that the documents are inadmissible due to settlement privilege. These are the Panel’s reasons for this decision.
14The Member has requested that the Panel admit into evidence settlement communications between herself and her former lawyer, which discuss communications between College Counsel and the Member’s former lawyer. Additionally, she requested that the Panel admit a letter from her union.
15The Panel is governed by the SPPA, and subsection 15(2)(a) states that nothing is admissible in evidence at a hearing that would be inadmissible in a court by reason of any privilege under the law of evidence. There are two kinds of privilege that apply to the documents that the Member has requested the Panel to admit – solicitor-client privilege and settlement privilege. Solicitor-client privilege is privilege which belongs entirely to the client. As such, the Member (who was the client in this case) can choose to waive it. The Member has chosen to do so by requesting to admit these documents. As such, it is unnecessary to decide whether the documents are inadmissible due to solicitor-client privilege. Settlement privilege is privilege shared between opposing parties and cannot be waived unilaterally. In this case, it is shared between the Member and the College. The purpose of settlement privilege is to promote frank discussions between opposing parties and to encourage settlement between opposing parties. As stated by the Supreme Court in Sable v. Ameron, “what is said during negotiations … will be more open, and therefore more fruitful, if the parties know that it cannot be subsequently disclosed” (at paragraph 13). There is a public interest in promoting settlements – settlements contribute to the effective administration of justice as they save litigants the cost of a contested hearing and reduce the resources required by regulators to hold contested hearings.
16The Panel agrees with College Counsel’s submissions that there are three elements required for settlement privilege to apply:
A litigious dispute must be in existence or within contemplation
The communication must be made with the express or implied intention that it would not be disclosed to the court in the event the negotiations failed
The purpose of communication must be to attempt to effect a settlement.1
The Panel finds that all three apply in this case. First, the Member and the College are engaged in disciplinary litigation. Second, the Panel heard from College Counsel that they had numerous without prejudice discussions regarding penalty and costs with Member’s former counsel following the Panel’s finding in this case. These communications included the content of the emails that the Member has sought to put into evidence as well as more than a dozen other communication. Third, the purpose of the communications was clearly to try to come to an agreement on a penalty that can be jointly submitted to the Panel.
17The next step in the analysis is to determine whether any exceptions to the privilege apply in this case. The Panel’s Independent Legal Counsel presented it with some examples of potential exceptions. These include, but are not limited to:
(a) To prevent double recovery (i.e. in a civil lawsuit, if it is necessary to prove that there was complete recovery from one defendant to prevent recovery to from another defendant);
(b) If the communication is unlawful. For example, if the communication involved a threat; or
(c) If it is necessary to prove that a settlement was reached. For example, if one party denies that the parties came to a settlement and the other party wants to refute this statement.
18The Member made submissions that amounted to an argument that the privileged documents should be admitted pursuant to the second exception for two reasons. First, she submitted that the documents should be admitted to demonstrate that College Counsel was not truthful in her submissions about the appropriate penalty and costs order in this case. The Panel finds that the documents presented by the Member do not support this submission. First, the Panel can find no evidence in the documents provided by the Member that the College misled the Panel regarding the College’s submission as to the appropriate penalty and costs order. The communications show that the College was willing to agree to a certain penalty and costs order if the Member had abandoned her appeal and to a different order if the Member maintained her appeal. As the Member did not abandon her appeal, the College advised the Member that it will proceed with seeking a seven-month suspension and costs in the amount indicated. At the penalty hearing, College Counsel then sought a suspension and costs in that amount. The Panel therefore cannot find any evidence that College Counsel misled the Panel in any way regarding their position on the appropriate penalty or costs.
19Second, the Member submitted that, by making different cost offers depending on whether she continues her appeal, College Counsel has attempted to either extort the Member into abandoning her appeal or to make it impossible for the Member to continue with her appeal (because she will not be able to afford it due to the enormous cost order). The Panel does not agree with this submission. During settlement negotiations, the College is entitled to take more than one position on penalty, which may depend on several circumstances. It is very costly for the College to defend an appeal to the Divisional Court and, as such, it was an entirely appropriate litigation strategy for the College to make different settlement offers to the Member based on whether she continued with her appeal. The Panel does not find that the different offer of costs quantum is indicative of an intention to extort the Member into abandoning her appeal. The Panel finds that the there is nothing else in the communication that amounts to evidence of the College attempting to pressure the Member in any other way to abandon her appeal.
20Having found that settlement privilege applies to these documents, and that none of the exceptions to settlement privilege apply in this case, the Panel declined to admit them as exhibits in this hearing and has not relied on them to determine the appropriate penalty or costs in this case.
C. College submissions on penalty
21College Counsel submitted that the appropriate penalty in this matter is a reprimand, a seven-month suspension, and coursework regarding anger management and classroom management with a focus on effective workplace relationships and special needs students.
22College Counsel provided the Panel with several cases to support their position regarding the length of suspension: Ontario College of Teachers v. MacAdam, 2019 ONOCT 3 [“MacAdam”]; Ontario College of Teachers v. Hall, 2019 ONOCT 20 [“Hall”]; Ontario College of Teachers v. Armstrong, 2019 ONOCT 49 [“Armstrong”]; Ontario College of Teachers v. Peltier, 2021 ONOCT 122 [“Peltier”], Ontario College of Teachers v. Maddeaux, 2021 ONOCT 94 [“Maddeaux”], and Ontario College of Teachers v. Reid, 2021 ONOCT 126 [“Reid”]. According to College Counsel, these cases demonstrate that the appropriate range for a suspension for the kind of misconduct exhibited by the Member is between two and seven months. College Counsel submitted that a suspension in the higher range is appropriate in this case due to the significant aggravating factors present in this case, namely the vulnerability of the student victims, the conduct was repeated over multiple years, the Member’s colleagues told her she was yelling but the Member maintained it was a miscommunication, and the Member’s conduct continued despite being disciplined by her employer. Additionally, College Counsel noted that many of the cases involved agreements on the facts and the penalty and, therefore, the members in those cases had the mitigating factor of either a guilty plea or a plea of no contest, which was not present in this case.
23Finally, College Counsel submitted that the coursework should be ordered in order to equip the Member with the necessary skills to manage her anger when she returns to teaching following her suspension.
D. member’s submissions on penalty
24The Member did not make any submissions on the appropriateness of a reprimand and coursework and did not seem to take issue with College Counsel’s position on those elements of the proposed penalty.
25The Member’s submitted that a seven-month suspension is too long given the Panel’s finding and the analogous cases. According to the Member, the misconduct exhibited by the members in the cases provided by the College is significantly worse than that exhibited by the Member. In particular, the Member submitted that in the cases for which a six-month suspension was ordered, the misconduct included significantly more instances of verbal, physical, and emotional or psychological abuse than what the Panel found in her case.
26The Member also made submissions that essentially amounted to a denial of some of the Panel’s findings in this case. For example, she denied physically abusing Student 1, and denied yelling at her colleagues. College Counsel objected to these submissions and the Panel ultimately did not consider the substance of the submissions in its penalty determination. However, the Panel did take the fact that the Member made such submissions at her penalty hearing into consideration when weighing the aggravating and mitigating factors in this case.
E. PENALTY DECISION
27The Panel makes the following order as to penalty:
The Member is directed to receive a reprimand, which will be delivered in writing, and the fact of the reprimand shall be recorded on the Register of the Ontario College of Teachers (the “Register”);
The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of five months commencing on the 30th calendar day following the date of the Penalty Decision and Reasons for Decision of the Discipline Committee relating to this matter;
The Registrar is directed to impose the following terms, conditions, or limitations on the Member’s Certificate of Qualification and Registration:
(a) within 90 days of the date of the Penalty Decision and Reasons for Decision of the Discipline Committee, the Member shall enrol in and successfully complete at her own expense, a course or courses of instruction pre-approved by the Registrar regarding anger management and classroom management with a focus on effective workplace relationships and special needs students, subject to the following conditions:
(i) the Member will provide to a course practitioner(s) approved by the Registrar, a copy of the Discipline Committee’s Decision on Finding and Reasons for Decision, and a copy of the Discipline Committee’s Penalty Decision and Reasons for Decision;
(ii) upon review of the documents noted at paragraph (i) above, the course practitioner(s) will provide to the Registrar, for approval, a syllabus for the proposed course or courses which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner(s) shall also specify the length of the course to be undertaken by the Member, and the assignments to be completed by the Member;
(b) within thirty (30) days of her completion of the course or courses outlined in (a) above, the Member shall provide to the Registrar a written report from the course practitioner(s):
(i) stating that the Member has successfully completed the course or courses and reporting on the progress of the Member with respect to addressing the outlined goals of the course or courses.
F. REASONS FOR PENALTY DECISION
28The Panel has carefully considered the submissions of the parties with respect to penalty and has reviewed the relevant jurisprudence provided. The Panel believes that the order set out above satisfies the penalty objectives of specific and general deterrence, rehabilitation and remediation, and protection of the public interest. The penalty ordered is proportionate to the misconduct committed by the Member and reasonable in the circumstances.
29The Panel considered the circumstances of this matter and identified several aggravating and mitigating factors. There are two main aggravating factors in the Member’s case. First, the Member’s students were particularly vulnerable as she worked at a school for students with exceptionalities and special needs. All of the Member’s students had Individual Education Plans that indicated that yelling and other aggressive behavior should not be used to de-escalate stressful situations and misbehavior by the student. Second, the Member committed a large number of incidents of misconduct in this case, which did not stop even after she was reprimanded by the Board. Additionally, while this may not be an aggravating factor but rather the absence of a mitigating factor, the Panel has considered that the Member lacked any remorse regarding her actions or any insight into her behaviour. During the penalty hearing, the Member continued to make submissions defending her actions and disagreeing with the Panel’s findings, the Panel finds this indicative of a failure to appreciate the gravity of and seriousness of her behaviour. The Panel finds one mitigating factor in this case – the Member does not have any previous discipline history with the College.
30The Panel carefully considered the cases presented by College Counsel as well as the submissions made by the Member regarding the comparison value of these cases. The Panel has found some of these cases to be of assistance and has analyzed them below primarily as it relates to the appropriateness of a suspension in this case and regarding the appropriate length of suspension.
(1) Reprimand
31The College submitted that a reprimand is appropriate in this case, and the Member did not challenge this submission. The Panel finds that the Member’s misconduct warrants a reprimand. Teachers must be vigilant and properly supervise students under their care. Teachers must never taunt or hit students and must always maintain professional boundaries with their students. Additionally, teachers must not yell at their colleagues or students, particularly in the presence of students with exceptionalities who are more likely to become upset by this kind of behaviour. 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 will serve as a general deterrent to other members of the profession. The parties did not make submissions regarding the form of the reprimand. In this case, the Panel finds it appropriate that the Member receive the reprimand in writing to avoid spending additional tribunal resources for re-attendance before the Committee.
(2) Suspension
32Given the nature and severity of the Member’s misconduct, the Panel finds that a five-month suspension is reasonable and appropriate. In determining the appropriate length of penalty in this case, the Panel carefully considered the precedent cases presented by College Counsel.
33In MacAdam, the member “consistently” yelled at students over a period of nearly two years. There was some evidence accepted by the Panel that the member yelled every day. Additionally, the member was found to have physically abused four students on three occasions. First, by pushing a student; second, by hitting another student on his hand, pulling their coat collar, and throwing their bag at them; and third, by grabbing and pinching two other students. The findings were made following a contested hearing during which the member was not in attendance. The panel ordered a six-month suspension. The panel in MacAdam noted that one aggravating factor was the member’s refusal to accept responsibility for his actions. The Panel agrees with the Member’s submission that the misconduct in her case is less severe than the misconduct in MacAdam, as she was found to have engaged in only two instances of physical abuse of a student on one occasion, and the instances of verbal abuse by the Member were not a daily occurrence like they were in MacAdam. The Panel notes, however, that the Member’s students were significantly more vulnerable than the students in MacAdam case.
34In Armstrong, the member was found to have engaged in professional misconduct for his behavior during three incidents. First, by aggressively removing headphones from a student’s head and lifting that student out of his chair by his elbow. Second, by aggressively confronting his principal in the presence of students. And third, by yelling at a fellow teacher in the staff room and sending emails to undermine a fellow teacher’s professional competence. The panel made this finding following a contested hearing, but the penalty phase proceeded by way of joint submission, in which the parties jointly submitted that an appropriate range for a suspension is six to eight months. The panel ordered a six-month suspension. Much like in the case before us, the panel in Armstrong found that the member did not show insight into his behaviour at the hearing. The panel in Armstrong received evidence about the significant effect that the misconduct had on the student who was physically abused. The Panel finds that this case has many similarities to the Member’s as it involved one incident of physical abuse of a student and a number of incidents of yelling at colleagues, one in the presence of students.
35In Hall, the member was found to have engaged in physical abuse of four students on four separate occasions – by shaking or pushing them. Additionally, the panel found that the member was verbally and psychologically abusive towards specific students on six discrete occasions by making disparaging and embarrassing comments to students, and also that she was generally abusive towards her class by yelling at them after poor classroom performances. These findings were made following a contested hearing during which the member was not in attendance. In Hall, the panel ordered that the member receive a six-month suspension. The panel noted the very young age of the students abused by the member in that case, as well of the effects felt by the students (i.e. that they lived in fear of going to school, experienced bedwetting, needed therapy, and were diagnosed with PTSD). Like in MacAdam, the Panel agrees with the Member’s submission that this conduct in her case was less severe than the misconduct in Hall.
36In Peltier, the member was found to have frequently raised her voice at students, to have engaged in eight instances of inappropriate comments, which included embarrassing students in front of classmates, risking student safety, and mimicking a student who was having a tantrum. Additionally, the member engaged in physical abuse of a student by grabbing him and dragging him to his seat. The panel ordered a five-month suspension following an uncontested hearing. The panel in this case noted that an appropriate penalty for this kind of misconduct was between two and six months.
37In Maddeaux, the member was found to have committed two instances of extremely aggressive physical contact with a student (i.e., grabbing the student, dragging them on the floor and out of the school, pushing the student up against the lockers, and getting within a few inches from the student’s face and shouting). The member received a four-month suspension following an uncontested hearing. The Panel did not find this case particularly helpful to its determination as the physical contact with the student was very dissimilar (and arguably more severe) than that exhibited by the Member. Additionally, this case did not include additional misconduct such as inappropriate comments towards colleagues or of yelling at students (except as part of the physical abuse incident).
38In Reid, the panel found that the member committed misconduct by engaging in instances of inappropriate comments to colleagues that disparaged students, as well as four instances of inappropriate interactions with colleagues, which included imitating colleagues’ disabilities. The member received a two-month suspension following an uncontested hearing. Similar to Maddeaux, the Panel did not find this case to be helpful to its determination as it did not include any misconduct involving students.
39In reviewing these cases, the Panel notes that that, while every case before the Committee is unique, and the imposition of penalty is an individualized exercise, penalties should be consistent with established precedents. In this case, the Panel found that the Member yelled (or spoke at an excessive volume) and made inappropriate, unprofessional or disrespectful comments to fellow staff members on four occasions. The Panel also found that the Member yelled or used an excessively loud voice with a student on one occasion, and that there was one incident during which the Member hit a student twice and made inappropriate comments to that student. The Panel finds that some of cases presented are of a similar nature as the Member’s case, as they all include instances of verbal, psychological, and physical abuse of students. However, the misconduct in the cases on the higher end of the range was significantly more serious than that exhibited by the Member, as it often involved multiple incidents of hitting, as well as continuous inappropriate behavior by members, as opposed to discrete instances of misconduct as in the Member’s case. In particular, in MacAdam, the member was found to have committed four incidents of physical abuse of a student and was found to have consistently yelled at students for two years. Similarly, in Hall, the member was found to have physically abused four students and verbally abused six individual students, in addition to generally yelling at her classroom. These members received a received a six-month suspension for their misconduct. The Panel finds that it would be inappropriate to order a longer penalty in this case as the Member’s misconduct was not as severe as that of the members in MacAdam and Hall.
40As such, the Panel finds that a five-month suspension is reasonable in this case. This length of suspension is within the length of suspensions previously ordered for the kind of misconduct exhibited by the Member, and it is appropriate given the seriousness of the misconduct and the number of incidents of misconduct exhibited by the Member. In coming to this conclusion, the Panel placed a significant emphasis on the vulnerability of the Member’s students, all of whom had exceptionalities or special needs, and the frequency with which the misconduct occurred. The Member’s conduct was at odds with her obligations as a teacher, and particularly her obligations as a teacher of students with special needs. The suspension will serve as a specific deterrent to the Member and a general deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable. The Member’s suspension will begin on September 24, 2024, which is thirty days after the date of the Panel’s Penalty Decision and Reasons for Decision.
(3) Coursework
41Panel finds requiring the Member to successfully complete a pre-approved course or courses2 of instruction regarding anger management and classroom management with a focus on effective workplace relationships and special needs students is appropriate. It is essential that the Member gain the tools to regulate herself, particularly in the presence of vulnerable students with exceptionalities and special needs. The courses will assist in the rehabilitation and remediation of the Member. The Panel agrees with College Counsel that the coursework will remind the Member of her obligations as a teacher and will equip her with the tools and strategies to help her to make better decisions in the classroom going forward.
G. costs submissions of college counsel
42College Counsel submitted that the Panel ought to order the Member to pay costs in the amount of $80,000, payable over five years. College Counsel summarized the Committee’s statutory authority to order costs when it finds a member guilty of professional misconduct and the Rule that permits the College not to provide evidence regarding costs incurred. Additionally, College Counsel directed the Panel to the Hall case to demonstrate the factors that should be considered in determining an appropriate costs order. These factors are: apportioning the costs of a proceeding, any uncooperative or vexatious conduct, the promotion of good conduct, the relative success of the parties, and the Member’s ability to pay.
43College Counsel submitted that there are four main factors applicable to this case that make such a significant cost order appropriate. First, everything in this hearing was contested by the Member. This necessitated that the College call nine witnesses, all of whom were required due to the disparate nature of the allegations and the variety of facts that were required to prove; and required a total of 13 hearing days for the hearing of the merits (though two of those were half-days). Second, College Counsel noted that some of the evidence could have been more streamlined but was not due to the Member’s objections (for example, her objection to the admissibility of hearsay evidence). Third, the College had provided notice to the Member from the outset of the contested hearing that they would be seeking costs at the tariff rate if successful. Fourth, the issues in this case largely came down to whether or not the Member’s actions constituted professional misconduct, and not to factual issues.
44College Counsel also pointed the Panel to some authorities to demonstrate that other colleges have made significant costs awards in the past, which amounted to two thirds of the regulators’ actual costs (See: College of Childhood Educators v. McKenzie, 2017 ONCECE 9 and Robinson v. College of Early Childhood Educators, 2018 ONSC 6150).
45Finally, College Counsel submitted evidence of the Member’s salary between 2020 and 2022 according to the Province of Ontario Public sector salary disclosure. In those years, the Member earned approximately between $101,000 and $106,000 per year. As such, College Counsel submitted that the Member was capable of paying the proposed costs order over five years.
H. Member’s submission on costs
46The Member’s submissions regarding the appropriate costs to be ordered can be summarized as four main submissions. First, the Member submitted that $80,000 is too high of a costs order because most of the hearing days were used by the College to present their case and not by the Member to defend her case. Second, the Member submitted that the gravity of the misconduct that she committed does not merit an $80,000 costs order. Third, the Member renewed her submission that a more appropriate costs order would be $35,000 as this was the costs order that the College was willing to agree to if she had abandoned her appeal. Finally, the Member submitted that she did not have the ability to pay this costs order. However, the Member did not otherwise make any submissions or provide any evidence about the details of her ability to pay the order.
I. COSTS ORDER
47The Panel makes the following order as to costs:
- The Member is directed to pay costs of this matter to the College fixed in the amount of $60,000.00, which must be paid within six (6) years of the Committee’s Penalty Decision and Reasons for Decision.
J. REASONS FOR COSTS ORDER
48The Committee is empowered by subsection 30(5) at paragraph 4 of the Act to order costs payable by a member to the College where it has found that member guilty of professional misconduct.
49Rule 16 of the Rules sets out the applicable procedure where costs are sought by either party. Pursuant to subrule 16.05(3), where the College requests costs, it is not required to provide evidence of the costs of a day of hearing if the amount claimed is equal to or less than the amount set out in Tariff A. Tariff A is currently set at $10,000 per day.
50Hall provides the panel with guidance as to the factors to be considered when making a costs order. These factors are:
Apportioning costs of proceeding: Costs orders are compensatory, rather than punitive, in nature. Their purpose is to apportion the financial burden of a discipline proceeding between the parties fairly. The nature or severity of a member’s misconduct is not a factor that should be considered when determining whether costs should be ordered or the quantum of any order.
Uncooperative and vexatious conduct: Uncooperative or obstructionist conduct in the course of the litigation process will be a significant factor in the costs determination. Conduct that unnecessarily lengthens the duration of the proceeding ought to be sanctioned, as should vexatious or improper conduct. Consistent with the principle of apportionment, the College and, through their licensing fees, cooperative members of the teaching profession, ought not bear fully the costs of discipline proceedings against uncooperative members.
Promotion of good conduct: Members of the profession are not required to admit all or part of their professional misconduct because the College always bears the burden of proof. However, participation in the disciplinary process, cooperation and conduct that shortens or reduces the complexity of the proceeding ought to be encouraged. Engagement in efforts to settle all or part of a proceeding should be encouraged when considering whether costs ought to be ordered. Costs orders should not be so large as to discourage members from raising reasonable defences to allegations of professional misconduct.
Success of the parties: The relative success of the parties will be relevant in determining and apportioning costs. For example, if the College is only partially successful in establishing the allegations against a member, this will be relevant in determining whether and what amount of costs should be ordered. If significant hearing time is spent receiving evidence on allegations that are ultimately not established, the member ought not be liable for those costs.
The member’s ability to pay: Evidence or submissions about the member’s ability to pay a costs order may be relevant to the Committee’s decision. This factor may also be relevant to the Committee’s decision about how much time the Member is given to pay the costs order. The impact of other penalties imposed (for example, revocation) may be relevant to this factor: Hall at pp. 12-13.
51After considering the factors in Hall, the Panel finds that it is appropriate to order costs against the Member in the amount of $60,000, payable within six years of this Penalty Decision and Reasons for Decision. In determining the quantum of costs, the Panel considered the length of the hearing, the need to apportion costs appropriately between the Member and the College membership, the success of the parties, and the Member’s ability to pay. The Panel did not consider the severity of the misconduct or even the facts of the misconduct in determining the appropriate costs order.
52This hearing was extremely lengthy and proceeded over 14 days in total (12 full hearing days for the hearing on the merits and two days for the penalty hearing). Significant hearing time was spent to establish the allegations against the Member. However, the Panel is mindful that this significant hearing time was required due to the number of allegations and the nature of the allegations, and not necessarily due to the conduct of the Member. The Panel notes that, while the Member could have admitted some of the facts at issue, she did not lengthen this hearing through uncooperative or vexatious conduct. While the Member made some legal arguments that were not ultimately successful (i.e. challenging hearsay evidence that was ultimately found to be admissible and requesting to admit documents ultimately found inadmissible), the Panel notes that she was also successful in challenging the expertise of one of the College’s witnesses. Simply challenging the College’s case or refusing to admit elements of professional misconduct is not sufficient to show vexatious or uncooperative conduct. The Member was entitled to mount a defence, which she did. The Panel therefore cannot find that the Member’s conduct in this case was uncooperative or vexatious. The costs of this significant hearing time should not be borne entirely by the College membership but should be apportioned fairly between the College and the Member.
53The Panel notes that the College succeeded in establishing all of the allegations against the Member. Moreover, the Member was put on notice by the College regarding potential cost consequences. Throughout the prosecution, the College advised the Member that it would be seeking costs if it was successful in obtaining findings of professional misconduct.
54The Panel also considered that, while the Member is currently working as a teacher and earning just over $100,000 per year, the five-month suspension ordered by the Panel will hinder her ability to make costs payments. Therefore, it is appropriate to permit the Member to pay the costs order at a rate of $10,000 per year.
55Considering all the factors above, the Panel is satisfied that an order of costs that reflects an apportionment of costs at half of the Tariff amount for each day of the findings stage of the hearing is fitting in this case. Overall, the Panel finds that a costs order in the amount of $60,000 payable by the Member to the College is just and appropriate in the circumstances.
Date: August 25, 2024
Irene Dembek, OCT Chair, Discipline Panel
John Hamilton, OCT Member, Discipline Panel
Marlène Marwah Member, Discipline Panel
Footnotes
- see: Losenno v Ontario (Human Rights Commission), 2005 CanLII 36441 (ON CA), [2005] O.J. No. 4315 (Ont. C.A.) as cited in R. v. Manfredi, 2009 ONCJ 288, at para 32.
- If a course provider is able to create one course that deals with the subject matters ordered, this condition may be fulfilled by one course. Otherwise, the Member is permitted to take more than one course if necessary.