DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Caranfa 2025 ONOCT 41

Date: 2025-07-06

DECISION, REASONS FOR DECISION AND ORDER

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

Fernanda Caranfa, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

FERNANDA CARANFA (REGISTRATION #166372)

PANEL: Lois Figg, Chair

Kirby Chown, OCT

Rachelle Coleman

HEARD: July 3, 2024 and October 10, 2024

Lisa Feinberg and Sarah O’Neill, for the Ontario College of Teachers

No one appearing for Fernanda Caranfa

Rebecca Durcan, 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 July 3, 2024, and October 10, 2024 in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (“Rules”).

2Fernanda Caranfa (the “Member”) did not attend the hearing and did not have legal representation.

3On each of the two hearing dates, College Counsel provided the Panel with affidavits from Amanda Fernandez (a law clerk with Glick Feinberg Stone LLP) (“Ms. Fernandez”) outlining the College’s correspondence with the Member regarding her discipline proceeding. On the first day of the hearing, the Panel was provided with an Affidavit sworn on June 17, 2024 (Exhibit 2), in which Ms. Fernandez outlined her communications with the Member, provided proof of service of all required documents and informed her of the allegations against her as well as the date of the hearing. Further, at the start of the second hearing date, College Counsel provided the Panel with Ms. Fernandez’s Affidavit sworn on September 18, 2024 (Exhibit 6) in which she outlined that the Member was informed of the continuation date of the hearing, the penalty and costs order sought by the College.

4Based on these affidavits, the Panel was satisfied that the Member had been properly served with the Notice of Hearing and all disclosure documents and was aware of each hearing date, the allegations against her, as well as the penalty and costs being sought by the College. Despite the notices sent by College Counsel, the Member did not attend. The Panel therefore heard this matter in the absence of the Member.

A. overview

5This matter concerns allegations that the Member engaged in professional misconduct by posting, replying, tweeting or retweeting certain content on the platform formerly known as Twitter as well as in her communications with the College. On October 10, 2024, the Panel rendered an oral decision and found that the Member engaged in professional misconduct, contrary to subsections 1(18), 1(19) and 1(28) of Ontario Regulation 437/97.

B. PUBLICATION ban

6The 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.

C. THE ALLEGATIONS

7The allegations against the Member in the Notice of Hearing dated December 5, 2023 (Exhibit 1) are as follows:

IT IS ALLEGED that Fernanda Caranfa is guilty of professional misconduct as defined in the Act in that:

(a) she 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);

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

(c) she made remarks or engaged in behaviours that exposed a person or class of persons to hatred on the basis of a prohibited ground of discrimination under Part I of the Human Rights Code, contrary to Ontario Regulation 437/97, subsection 1(28).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. At all material times, Fernanda Caranfa was a member of the College with Inactive/Non-Practising status.

2. From in or about July 2022 to in or about December 2022, the Member posted, replied, tweeted, or retweeted one or more of the following statements (or words to their effect) on her Twitter¹ account:

(a) “God destroyed Sodom and Gomorrah for the very things we are celebrating and teaching in schools”;

(b) “That is because the Freemasons were started by Jews. Also if you check records most communists in the 1917 Russian insurrection were 90% Jews, many of whom changed their names – why? To hide this fact? Many commies in the USA were also Jews.. [sic] it is worth checking these records…”;

(c) “I highly suggest that you read E. Michael Jones. Holocaust denial was a term invented in 1993. Then you have the Zundel trials in Canada. Then you have the Poles admitting the crematoriums were built in 1947. Germans have been abused. Truth is usually unpleasant.”;

(d) “Idiot wake up. The Jews are nobody’s friend. Their only interest is themselves and Satan – thus the need for abortion – to satiate the demon moloch”; and

(e) “Truth is hard. Jews are the enemies of Christ. They are baby killers. Moloch worshippers. Name calling completely proves my point of your ignorance…”

3. On or about December 12, 2022, the College received a complaint from a member of the public about the Member’s tweets from her Twitter account (the “Complaint”).

4. As of April 24, 2023, the impugned content was still published on the Member’s Twitter account. At some point thereafter, the Member’s Twitter account was deleted.

5. Between on or about April 26, 2023, and on or about May 24, 2023, the College made several attempts by email and by phone to notify the Member at the Member’s last known contact information according to the College’s records about the Complaint and to request her preferred and/or updated contact information. The Member did not respond to the College’s emails. The College’s phone calls were disconnected or forwarded to voicemail.

6. On or about May 29, 2023, the College sent the Member a letter dated May 25, 2023, by courier to her last known address according to the College’s records, notifying her of the Complaint and the College’s attempts to contact her, and requesting the Member respond to the Complaint by July 27, 2023. The letter noted that a failure to cooperate with the College investigation may constitute professional misconduct.

7. The College received no reply from the Member to its May 25, 2023 letter.

8. On or about August 17, 2023, a College investigator called the Member regarding the Complaint. The Member stated that she did not wish to speak with the College investigator and the call was disconnected.

9. On or about August 23, 2023, a College investigator sent a letter dated August 21, 2023 to the Member by courier to her last known address according to the College’s records, informing her that the Complaint would now be presented to the Investigation Committee and reminding her that a failure to cooperate may constitute professional misconduct.

10. The Member did not respond to the College’s letter dated Auguust [sic] 21, 2023.

11. On or about October 6, 2023, the College informed the Member by email of the decision of the College’s Investigation Committee to refer the matter to the Discipline Committee.

12. On or about October 7, 2023, the Member replied to the College by email, with a response that included one or more of the following statements (or words to their effect):

(a) the Member will not be attending “any disciplinary meeting”;

(b) the College’s claims are “unjust, ill considered and ill researched”;

(c) it was the Member’s “freedom of speech” to make a statement that “Jews were a danger (or enemy) to society”;

(d) Jews are responsible for fighting for causes that are “dangerous” and “ruinous to society”, including by:

(i) leading the “fight for gay rights” and helping to free “Harvey Milk, a horrid pedophile”;

(ii) fighting “for marriage equality for homosexuals”;

(iii) getting “gay people in the army”; and

(iv) fighting for women’s right to choose, e.g., for abortion, the “deadliest thing that anyone could promote.”

(e) The Member’s statement did not “insight [sic] anyone to negative actions. It was an unexplained opinion, to which I have the right to express, as long as I don’t insight [sic] violence, which I did not.”

(f) “I think I also talked about the Jews killing Christ and that it is in the bible. Well that is history. It is truth. And I make no apologies for truth.”

(g) “Why don’t you go after teachers who tell children they can “transition” (an actual impossibility) and without parental knowledge? Or teachers who bring “drag queen story hour” into schools? Or teachers who insist that boys and girls share the same washrooms? These vile and disgusting things are ruining children’s lives, some permanently.”

(h) “Stop harassing me. Stop trying to phone me. Stop sending letters in the mail. Stop emailing me. I have done nothing wrong. I have not broken any laws or injured anyone or incited violence nor negative action [sic]. Some people don’t like my opinion – too bad. I too don’t like many things, especially the ones I listed about.”

D. PRELIMINARY ISSUE

8At the outset of this hearing, the Panel considered whether the Member was aware that, as per her status noted as Inactive/Non-Practising on the public register of the College, she remained under the jurisdiction of the College. The Panel sought additional submissions from College Counsel to confirm that the Member knew or ought to have known she remained a member of the College and was in fact still subject to the College’s jurisdiction. Based on the evidence put forward by College Counsel, the Panel finds, on a balance of probabilities, that the Member was a retired teacher at the time of the conduct (Exhibit 3, Tab A) and described herself as such on her public social media account.

9College Counsel submitted that pursuant to subsection 14(5) of the Act every person who holds a certificate of qualification and registration, even if it is revoked or cancelled, continues to be subject to the College for any period of time during which the person held a certificate. This statutory reference makes it clear that the Member, irrespective of her subjective beliefs, was within the jurisdiction of the College. College Counsel also referred to the College’s website which states that if a member is retired, has no intention to teach and/or does not pay their annual fees, their membership status changes to Inactive/Non-Practising status. Further, College Counsel submitted that, in addition to subsection 14(5) of the Act, the College’s website indicates that a retired member is still subject to the College’s jurisdiction for any period of time during which the individual held a certificate of qualification and registration. She noted that section 18 of the bylaws states that an inactive member can easily change their status to Active/Practising by paying their annual fee. College Counsel noted that the Member received a copy of the Notice of Hearing (Exhibit 1), and it’s wording confirmed that she was still a member. Finally, College Counsel submitted that the Member’s response to the College did not suggest that she denied being subject to the College’s jurisdiction or that she had questions or concerns about her membership status and the College’s jurisdiction, but rather that she asserted her right to freedom of speech regarding her statements.

10The Panel therefore finds that, on a balance of probabilities, the Member was a member of the College with Inactive/Non-Practising status at all material times and was, in accordance with subsection 14(5) of the Act, subject to the College’s jurisdiction. The Panel relies on the Affidavit of Amanda Fernandez affirmed June 17, 2024 (Exhibit 2 at Tab A), as evidence that the Member was served with the Notice of Hearing. The Notice of Hearing (Exhibit 1) indicates that the Member was a member of the College with Inactive/Non-Practising status and that the Discipline Committee had jurisdiction to hold a hearing and make a finding of professional misconduct where applicable. In addition, the Panel notes that the Member identified herself as a “retired teacher” on her publicly available Twitter account (Exhibit 3 at Tab A). Her status was Inactive/Non-Practising and the Member was holding herself out publicly as a retired teacher. She knew or ought to have known that she was still a member of the College. The Affidavit of Frédérique Arbour (Exhibit 3) demonstrates that the Member was in contact with employees of the College, and at no time in that correspondence did the Member query whether she was still a member of the College. Further, the Affidavit of Amanda Fernandez affirmed September 18, 2024 (Exhibit 6) demonstrates that College Counsel informed the Member, via correspondence dated July 10, 2024, that the College still had jurisdiction over the Member’s matter as she was a member at all relevant times and as such squarely fell under the College’s jurisdiction. Even after being provided updated information on the status of the hearing, the Panel accepts College Counsel’s submission that the Member did not respond or reach out to College Counsel to dispute whether she was subject to the College’s jurisdiction given that she was retired.

11Given the above, the Panel finds that the Member was a member of the College with Inactive/Non-Practising status at all relevant times and therefore was subject to the College’s jurisdiction in this matter.

E. the member’s plea

12As the Member was not present, the Panel proceeded on the basis that the Member had denied the allegations set out in the Notice of Hearing. As the Member chose not to participate in the hearing, no evidence was presented in her defence.

F. THE EVIDENCE

13The College sought and the Panel ordered that any witnesses in this matter be excluded from the hearing until called to give evidence, in accordance with rule 13.12 of the Rules. The College tendered expert evidence from Mr. Bernie M. Farber (“Mr. Farber”) and affidavit evidence from College Investigator Ms. Frédérique Arbour (“Ms. Arbour”) for the Panel’s consideration.

(1) Expert evidence of Mr. Farber

14The College called Mr. Farber as an expert witness to speak on the issues of antisemitism, extremism and hate-motivated crimes. Mr. Farber prepared a report dated April 10, 2024 for the College (Exhibit 5). College Counsel submitted that the Panel should qualify Mr. Farber as an expert witness and that his report be admitted into evidence as an expert report.

(a) Qualification of Mr. Farber as an expert witness

15The Panel found that Mr. Farber was qualified to provide expert opinion on antisemitism, extremism and hate-motivated crimes and admitted his testimony and report as expert evidence on those points.

16The test to determine whether expert opinion is admissible was established in the cases of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9 and R. v. Abbey, 2009 ONCA 624, and later clarified by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 (“White Burgess”). In accordance with White Burgess, the Panel must conduct a two-step inquiry when considering the admissibility of expert evidence. The first step is determining threshold admissibility. The Panel must determine whether the evidence is relevant, necessary, whether there is an exclusionary rule that prevents the witness from testifying, and whether the expert witness is properly qualified. If these threshold requirements are met, the second step is for the Panel to consider their residual discretion to exclude the evidence if it is more harmful than helpful.

17The Panel was satisfied that both steps were met. With respect to the threshold admissibility, the Panel found that Mr. Farber’s expert opinion was relevant as it related to the Member’s statements published on her Twitter account and provided useful background information to the Panel as to her statements.

18The Panel found that Mr. Farber’s opinions were necessary to assist the Panel in understanding the historical and ongoing implications of the Member’s dehumanizing antisemitic comments. The Panel required his assistance in understanding the context and history of antisemitism as well as some of the terminology used by the Member that was not within the knowledge of the Panel. The Panel was also assisted by Mr. Farber’s explanation of the negative cumulative impact of the Member’s statements. Although some of the Member’s comments were clear on their face, Mr. Farber’s testimony was necessary to help the Panel understand some of the more opaque words and concepts used by the Member. The Panel notes that, as per the R. v. Whatcott, 2023 ONCA 536 (“Whatcott”) decision, the assistance of expert evidence is critical in determining “hate speech” (at paragraphs 43 to 45).

19Third, the Panel was satisfied that Mr. Farber’s testimony was not subject to any exclusionary rule.

20Fourth, the Panel was satisfied that Mr. Farber was properly qualified to give expert opinion in the areas of antisemitism, extremism and hate-motivated crimes. Mr. Farber’s extensive experience on the proffered issues were set out in his curriculum vitae (Exhibit 5 at Tab B). Mr. Farber was the founding Chair of the Canadian Anti-Hate Network. Prior to this, he was involved for over 30 years with the Canadian Jewish Congress. He worked with several Jewish organizations across Canada, with school boards, the police, and courts. He also worked as a consultant and developed workshops to help others understand Jewish life and antisemitism. Furthermore, Mr. Farber was previously qualified as an expert in the areas of antisemitism, extremism and hate-motivated crimes by various courts and by the College’s Discipline Committee in Ontario College of Teachers v. Dimarco, 2021 ONOCT 142 (“Dimarco”). The Panel also relies on Mr. Farber’s “Acknowledgment of Expert’s Duty” (Exhibit 5 at Tab C) where he acknowledges and understands his role as an independent expert and to provide expert opinion only within areas of his expertise.

21The Panel then proceeded to the second step to determine if the admission of Mr. Farber’s evidence would be more harmful than helpful. The Panel determined that there was no such risk. The Panel found Mr. Farber’s expert evidence beneficial and accepts that this outweighs any prejudicial effect. As mentioned above, Mr. Farber’s testimony was necessary to assist the Panel in weighing and understanding the antisemitic statements made by the Member. Also, it should be noted that Mr. Farber’s expert report was served upon the Member, and she did not provide any response to the report.

(b) Mr. Farber’s testimony and expert report

22As set out in Mr. Farber’s report (Exhibit 5) and via his testimony, Mr. Farber explained several key concepts at issue in this matter, such as the Holocaust, Holocaust denial, Holocaust minimalization, and antisemitism. He further discussed a number of conspiracy theories and rumors about Jewish people. He then analyzed each of the Member’s statements and provided his opinion on how each of the Member’s statements expose protected groups to hatred, particularly Jewish people and members of the 2SLGBTQ+ community². He testified about the history of tropes and disinformation used to discriminate against Jewish people and also mapped out the process of minimalization and dehumanization and explained how these contribute to the harm or hatred towards protected groups, particularly the Jewish community.

(2) Affidavit of Frédérique Arbour

23The College tendered the Affidavit of Frédérique Arbour affirmed May 14, 2024 (Exhibit 3). Ms. Arbour is a senior investigator at the College. In her affidavit, she gave evidence about the complaint received from a member of the public (the “complainant”) against the Member. She received screenshots of the Member’s Twitter posts from the complainant. Ms. Arbour viewed the Member’s publicly available Twitter account³ on April 24, 2023. She confirmed that the account was in the Member’s name and that she had reviewed the Member’s posts. She described the extensive efforts she made to contact the Member by phone and email, some of which were responded to and others that were not. She noted that some phone calls to the Member were disconnected; her emails to the Member were unanswered, and courier deliveries were not picked up by the Member.

24Further, she noted that the Member responded to an October 6, 2023 email from the College on October 7, 2023 (Exhibit 3 at Tab N) in which she informed the College that she refused to attend any “disciplinary meeting” and asserted her right to “free speech”. She also made a number of statements about Jewish people and members of the 2SLGBTQ+ community. The Member also instructed the College in that email not to contact her again.

G. SUBMISSIONS OF COLLEGE COUNSEL

25College Counsel submitted that the evidence presented to the Panel was credible and reliable and proves each of the allegations set out in the Notice of Hearing, on a balance of probabilities. In particular, College Counsel noted that while the Member did not testify at the hearing, the Panel was provided with her email to the College dated October 7, 2023 where she acknowledged posting certain statements at issue on her Twitter account (Exhibit 3 at Tab N). College Counsel submitted that the Panel should rely on this email as an admission by the Member, admissible for the truth of their contents in accordance with R. v. Foreman, 2002 CanLII 6305 (ON CA).

26College Counsel reviewed each of the particular heads of misconduct and provided the following framework to assess the allegation in the Notice of Hearing that the Member had breached subsection 1(28) of Ontario Regulation 437/97. The College submitted that the Panel must be satisfied that the College has demonstrated three things: 1) that the Member made certain remarks or engaged in certain behaviours; 2) that those remarks or behaviours related to a prohibited ground of discrimination; and 3) that the remarks or behaviour exposed a person or class of persons to hatred on the basis of a prohibited ground of discrimination. College Counsel then referred the Panel to the following cases for guidance on what it means to have “expose[d] any person or class of persons to hatred”: Canada (Human Rights Commission) v. Taylor, 1990 CanLII 26 (SCC), [1990] 3 SCR 832 (“Taylor”) and Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 SCR 467 (“Saskatchewan (Human Rights Commission)”).

27College Counsel also noted that, in her responses to the College’s investigator, the Member made references related to her right to freedom of speech (Exhibit 3 at Tab N). College Counsel acknowledged that a finding of professional misconduct will affect the Member’s right to freedom of expression. College Counsel submitted that because this matter engages a Charter value, the Panel must conduct the proportionality analysis set out in Doré v. Barreau du Quebec, 2012 SCC 12 (“Doré”). The Doré analysis requires the Panel to determine whether it is appropriate to make a finding of professional misconduct, after considering how the Member’s Charter right can be balanced with the College’s statutory objective of protecting the public interest.

H. independent legal Counsel ADVICE

Advice on jurisdiction

28Independent Legal Counsel (“ILC”) advised the Panel that section 14 of the Act sets out the College’s jurisdiction with respect to a member’s status. The section confirms that once a member has a certificate of qualification and registration, they are considered a member of the College. If the member resigns from the College or their certificate is cancelled, the College still has jurisdiction as to conduct over the period of time when they were a member. Even when a member’s status is inactive, they still hold a certificate and therefore are still under the College’s jurisdiction.

Advice on Charter issues

29ILC also indicated that she agreed with College Counsel’s submissions on the Charter issue. She noted that regulated professionals do not lose their Charter rights; however, courts have confirmed, that in certain situations, there may be limitations to a member’s Charter rights (such as the right to freedom of expression) to reflect the mandate of their regulator and the member’s role as a regulated professional. Further, ILC indicated that the Panel should consider the value that underpins the Charter right to freedom of expression which is that Canadians are entitled to speak their minds without state intervention or censorship. Members enjoy this Charter right, but it must be balanced with a member’s obligations to their regulatory responsibilities and the College’s statutory objectives.

I. DECISION ON FINDING

(1) Onus and standard of proof

30The 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 SCR 41, which is proof on a balance of probabilities.

(2) Decision

31Having considered the evidence, onus and standard of proof, and the submissions of College Counsel, the Panel rendered an oral decision on October 10, 2024, finding that the Member engaged in acts of professional misconduct as alleged, contrary to Ontario Regulation 437/97, subsections 1(18), 1(19) and 1(28).

J. REASONS FOR DECISION

32The 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) Factual Findings

(a) The Member made several offensive remarks on her Twitter account- Particulars 2, 3 and 4

33The Panel finds that the College has proven on a balance of probabilities, that from in or about July 2022 to in or about December 2022, the Member posted, replied, tweeted, or retweeted offensive and discriminatory remarks on her Twitter account, as set out in particular 2. Additionally, the Panel finds that the College has proven on a balance of probabilities that the College received a complaint about the Member’s tweets from a member of the public on or about December 12, 2022 and that the impugned content was still published on the Member’s Twitter account as of April 24, 2023 but deleted at some point afterward, as alleged in particulars 3 and 4.

34The Panel relies on the Affidavit of Frédérique Arbour (Exhibit 3) to make these findings. In her affidavit, Ms. Arbour stated that the College received an email on December 12, 2022 from a member of the public who brought forward a complaint about posts that the Member had published on her Twitter account. She provided a copy of the complainant’s December 12, 2022 email (Exhibit 3 at Tab A). This establishes that the College received a complaint about the Member’s tweets from a member of the public on or about December 12, 2022.

35Ms. Arbour also stated that the complainant sent another email to the College on December 15, 2022 with additional screenshots from the Member’s Twitter account. A copy of this email was also provided as part of Ms. Arbour’s evidence (Exhibit 3 at Tab B). Ms. Arbour further stated that she received screenshots of posts on the Member’s account and that on April 24, 2023 (Exhibit 3 at Tab D), she viewed the Member’s account and saw the posts in question were still on the Member’s Twitter account. As stated in her affidavit, when she subsequently attempted to view the Member’s Twitter account on September 7, 2023 and on May 2, 2024, she received the message “This account does not exist”. Ms. Arbour provided the Panel with a copy of a screenshot that she took of this message (Exhibit 3 at Tab K). The Panel accepts this evidence, and not having received any evidence to the contrary, finds that the College has proven on a balance of probabilities that the Member’s Twitter account was deleted at some point after April 24, 2023.

36Finally, the Panel finds that Ms. Arbour’s affidavit, including the screenshots of the Member’s account (Exhibit 3, Tab A, B and D), demonstrates that, as alleged in particular 2, the Member posted, replied or retweeted, in or about July to December 2022, the following:

• “God destroyed Sodom and Gomorrah for the very things we are celebrating and teaching in school”;

• “That is because the Freemasons were started by Jews. Also if you check records most communists in the 1917 Russian insurrection were 90% Jews, many of whom changed their names- why? To hide this fact? Many commies in the USA were also Jews… it is worth checking these records…”;

• “I highly suggest that you read E. Michael Jones. Holocaust denial was a term invented in 1993. Then you have the Zundel trials in Canada. Then you have the Poles admitting the crematoriums were built in 1947. Germans have been abused. Truth is usually unpleasant”;

• “Idiot wake up. The Jews are nobody’s friend. Their only interest is themselves and Satan- thus the need for abortion- to satiate the demon moloch”; and

• “Truth is hard. Jews are the enemies of Christ. They are baby killers. Moloch worshippers. Name calling completely proves my point of your ignorance…”.

37In addition, the Panel finds that the Member’s reply email to the College dated October 7, 2023 (Exhibit 3, Tab N), makes it clear that she believed she had the right to make these statements publicly:

“The statement I made on Twitter was that Jews were a danger (or enemy) to society. I made this statement without explanation. It is my freedom of speech to make such a statement if I wish, without explanation.”

38College Counsel submitted that this was an admission of fact by the Member and is admissible for the truth of its content. The Panel finds that the Member admitted in her email that she publicly stated on Twitter that: “Jews were a danger (or enemy) to Society”. However, the Panel acknowledges there is no clear admission by the Member to the College about the other statements she made on her Twitter account.

39Finally, the Panel relies on Ms. Arbour’s evidence because it is credible and reliable. The affidavit was provided by Ms. Arbour in her professional capacity at the College. She had no interest in the matter. Ms. Arbour’s evidence is supported by documentation, such as the screenshots of the Member’s publicly available Twitter account and the complainant’s email.

(b) The College made several attempts to notify the Member of the complaint- Particulars 5 to 11

40The Panel finds that the College has proven on a balance of probabilities that from April 2023 to October 2023 the College made extensive efforts to contact the Member by email, phone and mail concerning this matter, as alleged in particulars 5 through 11. The Panel makes this finding based on Ms. Arbour’s affidavit and attached exhibits (Exhibit 3). These documents demonstrate that:

• On April 26, 2023, at 8:45 a.m., Ms. Arbour sent an email to the Member’s last known address in the records of the College. She did not receive a response and on May 2, 2023 at 8:56 a.m. she sent a second email to the Member and did not receive a response (Exhibit 3 at Tab E and Tab F) – particular 5;

• Ms. Arbour made nine attempts to contact the Member by phone in May 2023. None of these calls were successful in leading to a conversation with the Member. Most of these calls were unanswered, disconnected or forwarded to voicemail – particular 5;

• In particular, on May 3, 2023 at 3:55 p.m., Ms. Arbour called the Member, the Member answered and identified herself as the Member. During the call, the Member refused to give her email address and when Ms. Arbour tried to confirm her mailing address the call was disconnected – particular 5;

• Ms. Arbour sent a letter by courier to the Member’s last known mailing address on May 29, 2023 to notify the Member of the complaint. This letter also notified the Member of the College’s attempts to contact her, requested that the Member respond to the complaint, and noted that failure to cooperate with the College investigation may constitute professional misconduct (Exhibit 3 at Tab H) – particular 6.

• Ms. Arbour did not receive a response from the Member to this couriered letter - particular 7;

• On August 17, 2023 Ms. Arbour called the Member, the Member answered and Ms. Arbour recognized her voice as the person she had spoken with in May 2023. The Member responded that she did not wish to speak with Ms. Arbour and the call was disconnected – particular 8;

• On August 22, 2023, Ms. Arbour sent a letter to the Member by courier and informed her that the complaint would be presented to the Investigation Committee. Purolator was not able to deliver the letter, and it was returned to the College (Exhibit 3 at Tab I and J) – particular 9 and 10;

• On October 6, 2023, Ms. Arbour confirmed that the College sent an email to the Member informing her of the decision of the Investigation Committee to refer the matter to the Discipline Committee (Exhibit 3 at Tab L and M) – particular 11.

41As noted above, the Panel finds Ms. Arbour’s affidavit to be credible. Her affidavit is supported by documentation (i.e. copies of documents sent to the Member, delivery confirmation/status from Purolator, and email communications) and there is no other evidence which contradicts her evidence. The affidavit provides specific dates and times and details of the efforts she made in trying to communicate with the Member. In the Panel’s view, the College went above and beyond in its efforts to communicate with the Member concerning this matter.

(c) The Member replied to the College by email with a response that included certain statements- Particular 12

42The Panel finds that the College has proven on a balance of probabilities that the Member sent an email around October 7, 2023 where she made the eight statements (or words to their effect) set out in particular 12. The Panel makes this finding based on Ms. Arbour’s affidavit where she noted that the College received an email from the Member on October 7, 2023 refusing to attend any “disciplinary meeting”, referred to “free speech” and made several statements about Jewish people (Exhibit 3).

43In particular, the Panel has carefully reviewed the copy of the Member’s email to the College on October 7, 2023 (Exhibit 3 at Tab N) provided by Ms. Arbour in support of her affidavit and is satisfied that the Member made the following statements:

• “I will not be attending any disciplinary meeting.” – particular 12(a);

• The College’s claims are “unjust, ill considered and ill researched.” – particular 12(b);

• “The statement I made on Twitter was that Jews were a danger (or enemy) to society. … It is my freedom of speech to make such a statement …” – particular 12(c)

• Jews are responsible for fighting for causes that are “dangerous” and “ruinous to society”, including by:

(i) leading the “fight for gay rights” and helping to free “Harvey Milk, a horrid pedophile”;

(ii) fighting “for marriage equality for homosexuals”;

(iii) getting “gay people in the army”; and

(iv) fighting for women’s right to choose, e.g., for abortion, the “deadliest thing that anyone could promote” – particular 12(d).

• “My statement did not insight [sic] anyone to negative actions. It was an unexplained opinion, to which I have the right to express, as long as I don’t insight violence, which I did not” – particular 12(e).

• “I think I also talked about Jews killing Christ and that it is in the bible. Well that is history. It is the truth. And I make no apologies for truth.” – particular 12(f)

• “Why don’t you go after teachers who tell children they can “transition” (an actual impossibility) and without parental knowledge? Or teachers who bring “drag queen story hour” into schools? Or teachers who insist that boys and girls share the same washrooms? These vile and disgusting things are ruining children’s lives, some permanently.” – particular 12(g).

• “Stop harassing me. Stop trying to phone me. Stop sending letters in the mail. Stop emailing me. I have done nothing wrong. I have not broken any laws or injured anyone or incited violence nor negative action [sic]. Some people don’t like my opinion- too bad. I too don’t like many things, especially the ones listed above.” – particular 12(h).

44The Panel finds Ms. Arbour’s affidavit is credible. There is no conflicting information in Ms. Arbour’s affidavit, it is supported by email communications and correspondences, including the Member’s reply email dated October 7, 2023.

(2) Legal Conclusions

The Member did engage in professional misconduct

45The Panel finds that the Member’s conduct set out above supports a finding of professional misconduct. In 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); she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); and she made remarks or engaged in behaviours that expose any person or class of persons to hatred on the basis of a prohibited ground of discrimination under Part I of the Human Rights Code, contrary to Ontario Regulation 437/97, subsection 1(28). Further, the Panel is satisfied that these findings are a proportionate response, balancing the Member’s right to freedom of expression with the College’s mandate to protect the public interest.

(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)

46The Panel finds that the Member’s conduct was disgraceful, dishonourable and unprofessional. As commonly characterized by discipline panels at the College “Disgraceful” conduct is the most severe and can be characterized as conduct that casts serious doubt on a member’s moral ability to perform their duties as a teacher. “Dishonourable” conduct involves a moral failing in that the Member knew or ought to have known that her actions were wrong but is less severe than “disgraceful conduct”. Finally, “Unprofessional” conduct typically refers to misconduct which demonstrates poor professional judgment.

47The Panel finds that the Member’s conduct can be characterized by all three terms. Members must maintain a sense of professionalism at all times in both their professional and personal lives. The Panel finds that the Member knew or ought to have known about her obligations regarding the responsible use of social media by a member given the College’s Professional Advisory Maintaining Professionalism - Use of Electronic Communication and Social Media (which is included in the Tribunals’ Book of Authorities). This advisory reminds members that teaching is a public profession and that society gives teachers a unique position of trust and authority. Accordingly, as a member of the teaching profession, the Member was expected to exercise sound judgement and due care even in her off-duty conduct (page 2). This advisory warns that inappropriate electronic communications include “posting or forwarding content, links or comments that might be considered offensive, discriminatory…” (page 4). The advisory specifically mentions that electronic communications “also includes social media networking platforms such as Facebook, Twitter and YouTube”.

48The Member’s actions were in direct contravention with the guidelines set out in the advisory. She demonstrated poor professional judgment when she posted, replied to and retweeted various statements publicly on her Twitter account that were discriminatory and harmful. The Panel acknowledges that the Member’s statements could offend various groups; however, in its reasons, the Panel will focus primarily on Jewish people and members of the 2SLGBTQ+ community. Members are expected to foster inclusivity and respect for diverse cultures that form part of school communities. There are numerous examples before the Panel of how the Member did not do so, including by her statement on Twitter on December 9, 2022 that stated: “Truth is hard. Jews are the enemies of the Christ. They are baby killers […]” (Exhibit 3, Tab A, B, D). Also, in an email to the College dated October 7, 2023, she stated:

“Why don’t you go after teachers who tell children they can “transition” (an actual impossibility) and without parental knowledge? Or teachers who bring “drag queen story hour” into schools? Or teachers who insist that boys and girls share the same washrooms? These vile and disgusting things are ruining children’s lives, some permanently.” (Exhibit 3, Tab N)

49The Member’s intentional use of social media to publicly espouse discriminatory views against protected groups constitutes disgraceful, dishonourable and unprofessional conduct that sets a poor example for all members of the profession. Moreover, it demonstrates significant moral failings by the Member, such that the Member’s misconduct is properly characterized by all three terms.

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

50The Panel finds that the Member engaged in conduct unbecoming a member of the teaching profession. Though the Member was not teaching at the time of her conduct, and her actions were not associated with classroom activities, members of the profession are required to refrain from unbecoming conduct, even when they are off duty. The Member’s misconduct had a wide-reaching harmful impact, including but not limited to, the reputation of the teaching profession. The Panel notes that the Member identified herself as a “retired teacher” on her Twitter account, a public social media platform. She was a recognizable member of the profession. This is demonstrated by the fact that a member of the public viewed the Member’s posts on her Twitter account, was able to identify her as a member, and made a complaint to the College about the nature of her posts. The Member’s misconduct reflects poorly on the profession. The trust that parents, students and the public place in teachers is undermined when members publicly express discriminatory views.

(c) The Member made remarks or engaged in behaviours that expose any person or class of persons to hatred on the basis of a prohibited ground of discrimination under Part I of the Human Rights Code, contrary to Ontario Regulation 437/97, subsection 1(28)

51The Panel finds that the Member made remarks or engaged in behaviours that expose Jewish people and members of the 2SLGBTQ+ community to hatred based on the prohibited ground of discrimination under Part I of the Human Rights Code, contrary to Ontario Regulation 437/97, subsection 1(28).

52Subsection 1(28) has been in force since November 5, 2020. This is the first time that the Discipline Committee of the College has had to determine whether a member’s conduct constituted a breach of this subsection. In order to establish that the Member breached this head of misconduct the College must demonstrate the following: 1) the member made the remarks or engaged in behaviour at issue in the hearing; 2) those remarks or behaviour relate to a prohibited ground of discrimination; and 3) those remarks or behaviour exposed a person or a class of persons to hatred. From the evidence presented, the Panel is satisfied that the College has met this test.

(i) The Member made remarks or engaged in behaviour

53The remarks or behaviour at issue are the Member’s Twitter posts and the comments she made in her email to the College on October 7, 2023, those of which are outlined in particulars 2 and 12 of the Notice of Hearing. As noted in the Factual findings section above, the Panel is satisfied that the evidence set out in Ms. Arbour’s affidavit (Exhibit 3 at Tab A, B, D and N) establishes that the Member made, replied, tweeted or retweeted the statements at issue in this proceeding.

(ii) The remarks relate to a prohibited ground of discrimination

54The Member’s remarks relate to several prohibited grounds of discrimination under Part I of the Human Rights Code. In particular, the Member made remarks explicitly and implicitly referring to Jewish people, contrary to the prohibition against discrimination on the basis of creed (religion). The Member also explicitly and implicitly referred to members of the 2SLGBTQ+ community, contrary to the prohibition against discrimination based on sexual orientation, gender identity and gender expression.

55Some examples of the Member’s remarks explicitly discriminating against Jewish people include the following statements from her Twitter account:

• “Truth is hard. Jews are the enemies of Christ. They are baby killers, Moloch worshippers […]” (Exhibit 3, Tab A, B and D); and

• “Idiot wake up. The Jews are nobody’s friend. Their only interest is themselves and Satan- thus the need for abortion- to satiate the demon moloch” (Exhibit 3, Tab B and D).

56The Member also made explicit remarks towards members of the 2SLGBTQ+ community, including the following statements in her reply email dated October 7, 2023 to the College (Exhibit 3, Tab N):

• “[…] They fought for marriage equality for homosexuals. That is a danger to society. It is the ruination of the family and the ruination of society. An unfairness and danger to children adopted by same sex couples”; and

• “why don’t you go after teachers who tell children they can ‘transition’ (an actual impossibility) and without parental knowledge? Or teachers who bring ‘drag queen story hour’ into schools? Or teachers who insist that boys and girls share the same washrooms. These vile and disgusting things are ruining children’s lives, some permanently”.

57Further, the Panel accepts Mr. Farber’s evidence that the Member made remarks implicitly relating to Jewish people and members of the 2SLGBTQ+ community. Mr. Farber clearly explained in his testimony and report (Exhibit 5) how some of the Member’s more obscure statements implicitly relate to both Jewish people and members of the 2SLGBTQ+ community.

58For example, the Panel accepts Mr. Farber’s evidence that the Member’s retweet of the post stating “God destroyed Sodom and Gomorrah for the very things we are celebrating and teaching in schools” (Exhibit 3 at Tab B and D) is a reference to both Jewish people and members of the 2SLGBTQ+ community. Mr. Farber explained in his report (Exhibit 5 at paragraph 23) and testified that Sodom and Gomorrah were biblical cities found in Hebrew Scripture where their Jewish citizens were known for lasciviousness. The cities were destroyed by God for their evil (Exhibit 5 at paragraph 23). The Panel accepts Mr. Farber’s explanation that the Member’s reference to “the very things” found in the Member’s email to the College dated October 7, 2023 refers to the “vile and disgusting things” that are being taught in schools that the College should “go after”, including transitioning and drag queens (Exhibit 3, Tab N). The Panel finds that implicitly comparing members of the 2SLGBTQ+ community to Sodom and Gomorrah is discriminatory because it paints an entire protected group as lascivious, dangerous and ruinous to society.

59Further, the Panel accepts Mr. Farber’s explanation that the same retweeted statement implicitly discriminates against Jewish people. In his report, Mr. Farber underscores that, in her email to the College, the Member “asserts that Jews are “responsible for fighting for causes that are ‘dangerous’ and ruinous to society”. The Member pointedly identified Jewish people as being responsible for supporting gay rights, marriage equality, admission of gay people in the army and the adoption of children by same sex couples (Exhibit 5, paragraph 25).

60The Panel also accepts that the Member expressed antisemitic sentiments in her Twitter post:

“That is because the Freemasons were started by the Jews. Also, if you check records most communists in the 1917 Russian insurrection were 90% Jews, many of whom changed their names- why? To hide this fact? Many commies in the USA were also Jews. it is worth checking these records…” (Exhibit 3 at Tab B).

61The Panel accepts Mr. Farber’s explanation that the Member’s comments above refer to a conspiracy theory that Jewish people exert a manipulative power in society because they are behind shadowy organizations such as the Freemasons and political parties such as the communists (Exhibit 5 at paragraph 34).

62Further, the Panel accepts Mr. Farber’s explanation of how the Member’s retweet of a Twitter comment relates to Jewish people:

“I highly suggest you read E. Michael Jones. Holocaust denial was a term invented in 1993. Then you have the Zundel trials in Canada. Then you have the Poles admitting the crematoriums were built in 1947. Germans have been abused. Truth is usually unpleasant.” (Exhibit 3 at Tab B and D).

63The Panel accepts Mr. Farber’s explanation that Mr. Jones is known as a notorious antisemite and public Holocaust denier. The Member’s retweeted comment above that suggests reading Mr. Jones’ works targets Jewish people because it, in effect, refers to Holocaust denial.

(iii) The remarks exposed a class of persons to hatred

64The Panel finds that the Member’s remarks exposed a person or class of persons to hatred; in particular, her remarks exposed Jewish people and members of the 2SLGBTQ+ community to hatred.

The meaning of “expose” and “hatred”

65The Panel has carefully considered the cases provided by College Counsel to determine the meaning of “expose” and “hatred” as it applies to subsection 1(28) of Ontario Regulation 437/97.

66The Panel must consider whether a reasonable person aware of the context surrounding the remarks would view them as exposing a protected group to hatred. The Supreme Court of Canada in Saskatchewan (Human Rights Commission) found that exposure to hatred on the basis of a prohibited ground of discrimination is an objective inquiry that focuses on the effect of an individual’s remarks and/or behaviour in question rather than their intentions (see paragraphs 35 and 36 of Saskatchewan (Human Rights Commission)).

67Taking each part of that analysis in turn, the Panel adopts the definition of “expose” set out by the Canadian Human Rights Tribunal in Schnell v. Machiavelli and Associates Emprize Inc., 2002 CanLII 1887 (CHRT) (“Schnell”). The Panel finds that to “expose” someone to hatred suggests a “more passive” act than “incite” and means “to leave a person unprotected; to lay open to ridicule, censure or danger; creating the right conditions for hatred or contempt to flourish leaving the identifiable group open or vulnerable to ill feelings or hostility or putting them at risk to be hated” (Schnell at paragraph 86).

68While not binding, the Panel finds it appropriate to adopt this definition established by a specialized human rights administrative tribunal, which has carefully considered the issue. Schnell considered subsection 13(1) of the Canadian Human Rights Act (before it was repealed in 2013), which dealt with telecommunications that “expose[s] a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination”⁴. The wording of that provision is similar to subsection 1(28) which considers whether a member has “expose[d] [someone] to hatred on the basis of a prohibited ground of discrimination”.

69Secondly, the Panel accepts the definition of “hatred” that is set out in Taylor, Schnell, and Saskatchewan (Human Rights Commission). Taylor and Saskatchewan (Human Rights Commission) are leading Supreme Court of Canada cases which define “hatred” as “a set of emotions and feelings which involve detestation, extreme ill-will towards another person or group of persons” (Taylor, at page 928).

Application to the Members’ statements

70The Panel acknowledges that the Member believes that she has not done anything wrong. In the Member’s email dated October 7, 2023 (Exhibit 3 at Tab N) to the College, she wrote: “My statement did not insight [sic] anyone to negative actions. […] as long I don’t insight [sic] violence, which I did not”. The Panel notes, however, subsection 1(28) requires the Panel to consider whether the Member’s statement exposed a protected group to hatred, not whether she incited violence. In other words, subsection 1(28) requires the Panel to consider the effects of the statements made by the Member, not the Member’s intentions. Further, exposure to violence is not the threshold for 1(28); the threshold is exposure to hatred. Applying the definitions of “expose” and “hatred” objectively as required by the Supreme Court of Canada, the Panel finds that the effects of the Member’s statements do leave protected groups, specifically Jewish people and members of the 2SLGBTQ+ community, open or vulnerable to ill feelings or hostility, including feelings of detestation and ill-will, and therefore, exposed these protected groups to hatred. The Panel considered several statements in particular from the various Twitter posts and comments to the College collectively.

71The Panel finds that the following statements made by the Member expose Jewish people to hatred:

• “Idiot wake up. The Jews are nobody’s friend. Their only interest is themselves and Satan – thus the need for abortion – to satiate the demon moloch”- (Exhibit 3, Tab B)

• “Truth is hard. Jews are the enemies of Christ. They are baby killers. Moloch worshippers. Name calling completely proves my point of your ignorance…”- (Exhibit 3, Tab A)

72By using hostile language to describe Jewish people as “nobody’s friend” and as “enemies of Christ”, the Member exposes Jewish people to hatred. The Panel accepts Mr. Farber’s evidence that there has been a long history of linking Jewish people with “Satan”, stemming from the myth that Jewish people, collectively, were responsible for the death of Jesus (Exhibit 5 at paragraph 42). The Panel also finds that the references to Jewish people as “baby killers” and association with “Moloch” also expose Jewish people to hate, by exposing them to detestation and feelings of ill-will. Mr. Farber explained that Moloch or Molech was a deity, whose worship involved passing children either between or through flames, resulting in the death of a child (Exhibit 5 at paragraph 44). The Member’s statements suggest that Jewish people are evil – historically having engaged in child sacrifice through Molech-worship.

73Another example of exposing Jewish people to hatred is the Member’s statement:

• “That is because the Freemasons were started by Jews. Also, if you check records most communists in the 1917 Russian insurrection were 90% Jews, many of whom changed their names- why? To hide this fact? Many commies in the USA were also Jews. it is worth checking these records…”- (Exhibit 3, Tab B).

74This statement exposes Jewish people to hatred because, as explained by Mr. Farber, it promotes the notion that Jewish people “manipulate world events for their own (always evil) purposes” which is a “foundation stone of classical (and modern) antisemitism” (Exhibit 5 at paragraph 34). The Panel accepts Mr. Farber’s evidence that while Jewish people were permitted to join the Freemasons and Communist Party, they did not start those organizations and further that non-Jewish people were also part of these organizations. The Panel accepts Mr. Faber’s evidence that Freemasons were not founded by Jewish people (Exhibit 5 at paragraph 29) and that the claim that the communists in Russia were 90% Jewish is baseless (Exhibit 5 at paragraph 32). The Panel finds that the Member’s remark exposes Jewish people to hatred because it foments the historical falsehood that Jewish people were instrumental in creating and operating these organizations that have often been considered malevolent and threatening.

75Further, the Panel finds that the Member’s retweeting of the post below is an endorsement of its content which also exposes Jewish people to hatred:

• “I highly suggest that you read E. Michael Jones. Holocaust denial was a term invented in 1993. Then you have the Zundel trials in Canada. Then you have the Poles admitting the crematoriums were built in 1947. Germans have been abused. Truth is usually unpleasant.”- (Exhibit 3, Tab B).

76The Panel relies on Mr. Farber’s opinion that in this retweet the references of “E. Michael Jones”, the “Zundel trials” and asserting that “the Poles admit[ed] the crematoriums were built in 1947” are references that promote Holocaust denial. According to Mr. Farber, Holocaust denial is the ultimate antisemitic conspiracy theory (Exhibit 5 at paragraph 41). Mr. Farber testified that Holocaust denial promulgated the false belief that Jewish people deliberately manufactured the evidence of the Holocaust to receive undeserved reparations and concessions (Exhibit 5 at paragraph 41). Relying on Mr. Farber’s evidence which was uncontradicted, the Panel finds that the Member’s retweeted post noted above, at the very least, promoting Holocaust denial leaves Jewish people unprotected from extreme ill-will.

77The Panel also relies on R v. Keegstra, 1990 CanLII 24 (SCC), [1990] 3 SCR 697 (“Keegstra”) where the Supreme Court of Canada upheld Mr. Keegstra’s conviction under subsection 319(2) of the Criminal Code for “unlawfully promoting hatred against an identifiable group”. Mr. Keegstra was an Alberta high school teacher, and the problematic statements at issue included that Jewish people “created the Holocaust to gain sympathy” (Keegstra at page 714). The Member’s statements are of a similar nature, and the Keegstra decision provides further support (from the Supreme Court of Canada) that the Member’s statements referencing Holocaust denial exposed Jewish people to hatred.

78The Panel also finds that the Member’s reposting of the statement “God destroyed Sodom and Gomorrah for the very things we are celebrating and teaching in schools” taken together with her statements in her email dated October 7, 2023 (Exhibit 3 at Tab B and D) expose not only Jewish people but also members of the 2SLGBTQ+ community to hatred. The Panel accepts Mr. Farber’s evidence that citizens of Sodom and Gomorrah were considered despicable, and were destroyed because of their evil lifestyle, and that the “very things that we are celebrating and teaching in schools” are references to gender identity and gender expression. The statement suggests that members of the 2SLGBTQ+ community are despicable and therefore exposes members of the 2SLGBTQ+ community to hatred. This comment also exposes Jewish people to hatred because it weaponizes the biblical story of Sodom and Gomorrah to condemn Jewish people as inherently evil.

79The Panel has also considered the Member’s various comments to the College in her email dated October 7, 2023 where she explained her statement on Twitter that Jewish people were a danger to or an enemy of society. The Member explained that she based this statement on a video posted on the website for the World Jewish Congress which said that Jewish people led the fight for gay rights, marriage equality, admission of gay people in the army and abortion rights. She then stated that “All these things are ruinous to society” (Exhibit 3 at Tab N). The Panel accepts Mr. Farber’s evidence that these comments suggest that the Jewish community is “dedicated to a destructive project that aims for the subjugation of the non-Jewish world” (Exhibit 5 at paragraphs 25 and 26). The Panel is of the view that such implications expose Jewish people to feelings of ill-will and hostility.

80By applying an objective inquiry, the Panel finds that a reasonable person aware of the context surrounding the Member’s remarks on Twitter and to the College would view them as contributing, individually and cumulatively, to a lengthy campaign of disinformation with respect to, and hatred against, Jewish people and members of the 2SLGBTQ+ community.

(d) Charter value analysis

81The Panel’s decision engages the Charter as the Member specifically invoked her right to free speech in her email to the College dated October 7, 2023. As an administrative decision-maker, the Discipline Committee must act consistently with Charter values (Doré at paragraph 24). Accordingly, the Panel must consider how the Member’s Charter right can “best be protected in view of the statutory objectives” balancing “the severity of the interference of the Charter protection with the statutory objectives” (Doré at paragraphs 55 and 56) of the College.

(i) The statutory objectives

82The College’s statutory objectives are set out in subsection 3(1) of the Act and include: “regulat[ing] the profession of teaching and to govern its members” and subsection 3(2) of the Act states that the College has a duty to serve and protect the public interest in carrying out its objectives.

(ii) The negative effects of a finding of professional misconduct

83The Panel notes that a finding of professional misconduct relating to comments made about Jewish people and members of the 2SLGBTQ+ community will impact the Member’s freedom of expression in that, by facing disciplinary consequences, it may prevent her from expressing certain views publicly while holding a Certificate of Qualification and Registration. The negative effects of a finding of professional misconduct on a regulated professional’s freedom of expression right was recently considered in College of Physicians and Surgeons of Ontario v. Trozzi, 2023 ONPSDT 22 (“Trozzi”) and also in Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685 (“Peterson”). The Panel also recognizes, as the Ontario Physicians and Surgeons Discipline Tribunal did, that a decision with disciplinary consequences, such as potential revocation of a professional license, is a serious matter (Trozzi at paragraph 86).

(iii) Proportionality

84Having conducted a proportionality analysis, the Panel is satisfied that a finding of professional misconduct appropriately balances the interference of the Member’s Charter protection with the statutory objectives of the Act. The Panel recognizes the fundamental importance of freedom of expression in our society. However, not all forms of expression are afforded the same consideration. The Panel notes that the Supreme Court of Canada has stated that: “Hate speech is at some distance from the spirit of section 2(b) because it does little to promote, and can in fact impede, the values underlying freedom of expression” (see Saskatchewan (Human Rights Commission) at paragraph 114).

85The Panel further notes that the right to freedom of expression is not absolute and that there are justifiable limits to free speech, especially as a regulated professional. This was noted in the Peterson decision where the Divisional Court stated that “When individuals join a regulated profession, they do not lose their Charter right to freedom of expression. At the same time, however, they take on obligations and must abide by the rules of their regulatory body that may limit their freedom of expression” (see Peterson at paragraph 1).

86The Member’s statements, which expose Jewish people and members of the 2SLGBTQ+ community to hate, do little to promote the values underlying freedom of expression. Such speech should be given low value in the proportionality analysis. On the other hand, the effective regulation of teachers in accordance with the standards for the profession and for the protection of the public is very important. The Member’s public statements espouse harmful and discriminatory views and greatly undermine the trust placed in the teaching profession by the public. The Panel would not be fulfilling the objectives noted above if it did not make a finding of professional misconduct against the Member. While the Member is entitled to hold heinous or unpalatable views, she does not have the right to express them publicly as a member of the College. A finding of professional misconduct is an appropriate response to ensure the protection of the public and to demonstrate to the public that the College will effectively regulate its members.

K. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

87College Counsel submitted that the appropriate penalty in this case is a written reprimand and revocation of the Member’s Certificate of Qualification and Registration. College Counsel submitted that revocation is necessary to address the penalty principles of denunciation and deterrence, as such a teacher who publicly exposes Jewish people to hatred is not entitled to continue the privilege of being a teacher. College Counsel provided the Panel with the following cases to establish that revocation is appropriate and falls within the range of penalties ordered for similar misconduct in the past: Dimarco; Ontario College of Teachers v. Kaprusiak, 2022 ONOCT 72 (“Kaprusiak”); Ontario College of Teachers v. Frederick, 2006 ONOCT 17 (“Frederick”); and Ontario College of Teachers v. Suzuki, 2019 ONOCT 75 (“Suzuki”).

88College Counsel submitted that the revocation is appropriate because the Member is ungovernable. College Counsel submitted that the Member displayed a clear lack of remorse when contacted by the College, indicating via email that it was her “freedom of speech” to make the statements on her Twitter account and the Member also demonstrated an unwillingness to be governed by the College. College Counsel referred the Panel to the following case regarding ungovernability: Law Society of Upper Canada v. Sebastiano Cammisuli, 2012 ONLSHP 157 (“Cammisuli”).

89College Counsel also submitted that revocation proportionately balances the Member’s freedom of expression with the College’s statutory objectives.

L. PENALTY DECISION

90On October 10, 2024, the Panel made the following order as to penalty:

1. The Member is directed to receive a reprimand, which will be delivered in writing, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers.

2. The Registrar is directed to revoke the Certificate of Qualification and Registration of the Member.

M. REASONS FOR PENALTY

91In arriving at its decision for penalty, the Panel carefully considered the College’s evidence and submissions. The Panel was also mindful of the principles guiding penalty orders, including specific and general deterrence, remediation (in appropriate cases), and public protection. The Panel also recognizes the principle that like cases should be treated alike. The Panel is satisfied that the penalty in this case falls within the range of penalties ordered in several similar cases before the Discipline Committee, as presented by College Counsel.

92The Panel considered the Member’s circumstances in comparison to the cases provided. The aggravating factors in the Member’s case are that: 1) the Member made several remarks of a discriminatory and harmful nature on a public social media platform; 2) the Member was incalcitrant and made further harmful remarks in her email response to the College; and 3) the Member has demonstrated a lack of insight by her unwillingness to comply with the regulatory requirements and functions of the College and her decision not to attend her hearing. In terms of mitigating factors, the Panel notes that the Member has no prior discipline history with the College.

(1) Reprimand

93The Panel finds that the Member’s abhorrent conduct warrants a written reprimand. Members are expected to act with professionalism in their professional and personal lives. Teachers are expected to foster inclusivity and respect. Members who expose protected groups, such as Jewish people and members of the 2SLGBTQ+ community to hatred with their remarks have no place in the teaching profession. The Member’s harmful and discriminatory remarks made on a public platform reflects poorly on the teaching profession. The Panel notes that the Member had advised the College that “she will not be attending any disciplinary meeting” (Exhibit 3 at Tab N) and did not participate in this proceeding. The Panel is of the view that the Member would similarly be unlikely to attend an oral reprimand. Given this, it is more appropriate to issue a written reprimand. The written reprimand will allow the Panel to directly address its overwhelming concerns with the Member’s harmful remarks 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.

(2) Revocation

94Although revocation is not a mandatory penalty, it is the appropriate order given the circumstances of this particular case. The Panel finds that the Member’s conduct was unacceptable and that the Member is ungovernable. Revocation fulfills the objectives of specific and general deterrence.

(a) Ungovernability

95The Panel finds that the Member is ungovernable, having considered the various factors set out in paragraph 12 of Cammisuli:

• the nature, duration, repetitive character of the misconduct;

• any prior discipline history;

• any character evidence;

• the existence or lack of remorse;

• the degree of willingness to be governed;

• medical evidence that explains (though not excuse) the misconduct;

• the likelihood of future misconduct; and

• ongoing co-operation with the [regulator] in addressing the outstanding matters that are subject of the misconduct.

96Taking each factor in turn, the Panel first finds that the Member’s misconduct was not an isolated incident. She posted, replied to or retweeted multiple harmful and discriminatory statements on her Twitter account over several months. Additionally, the evidence before the Panel demonstrates that the Member affirmed her statements and made similar comments to the College during their investigation of her Twitter activity.

97Second, the Panel is not aware of the Member having any prior discipline history.

98Third, no character evidence was presented about the Member.

99Fourth, the Panel considered the remorse factor and determined that, if the Member had demonstrated remorse, it would have been considered a mitigating factor. However, the lack of remorse does not necessarily amount to an aggravating factor. Here, the Panel was focused on the lack of insight by the Member and how steadfast she was in her comments. The Panel noted through the evidence that she refused to acknowledge the serious and problematic nature of her remarks and behaviour. The Panel relies on the Member’s reply email to the College dated October 7, 2023 (Exhibit 3, Tab N) where she adopts the statements made on her Twitter account and not only reiterates some of those harmful and discriminatory views, but also defends them as her right of freedom of expression.

100Fifth, the Panel has considered the Member’s degree of willingness to be governed by the College. The College demonstrated that they went above and beyond to contact the Member on several occasions and inform her of the complaint against her, the investigation and hearings process, and the potential consequences of not attending her hearing dates (see Ms. Arbour’s affidavit at Exhibit 3 at Tab N and see Ms. Fernandez’s affidavit at Exhibits 2 and 6). The Member was either unresponsive or otherwise uncooperative with the College on all of these instances. The Panel, in particular, noted the Member’s email of October 7, 2023 in which she stated: “But you are not a court of law and I will not participate in this “witch hunt”” (Exhibit 3 at Tab N). Ultimately, the Member chose not to participate in any part of this matter.

101Sixth, the Panel has no evidence, medical or otherwise that explains (though not excuses) the Member’s misconduct.

102Seventh, the Panel finds that there is a high likelihood of future misconduct on the part of the Member. Given her lack of insight as well as her pattern of repeatedly making harmful and discriminatory remarks towards Jewish people and members of the 2SLGBTQ+ community on her Twitter account and via email to the College, the Panel finds that it is likely that the Member will continue to make these or similar remarks. Also, the fact that the Member asserts it as her right to free speech and fails to recognize her obligations as a member of a regulated profession makes it likely, in the Panel’s view, that she will freely express her prejudiced and harmful views again.

103Finally, the Panel notes that the Member was uncooperative with the College in addressing the outstanding matters that are the subject of the misconduct. As noted above, the College tried to contact the Member on multiple occasions and in a variety of ways, but the Member was unresponsive or uncooperative, including when she refused to confirm her contact information with the College Investigator and refused to participate in the investigation and discipline processes.

(b) Caselaw

104The Panel has reviewed the caselaw presented by College Counsel and accepts that revocation is the only appropriate penalty to address this type of misconduct.

105The Dimarco, Frederick, Kaprusiak and Suzuki cases all resulted in revocation. Although every case is distinct and factually different, the underlying conduct in all these cases is of a similar nature to this matter, namely that members publicly shared derogatory, discriminatory and offensive statements. In all these cases, revocation was deemed necessary and appropriate. The Member’s comments on Twitter and to the College were discriminatory and run counter to the values of the education system. The public confidence in the teaching profession would be jeopardized if the Discipline Committee ordered anything short of revocation.

(3) Charter value analysis

106The Panel must also determine whether revocation proportionately balances the Member’s freedom of expression value at section 2(b) of the Charter. The same framework outlined in Doré applies at the penalty stage. The proportionality analysis applies at both the finding stage and penalty stage (Trozzi at paragraph 3). The Panel is satisfied that the penalty proposed by the College is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

107First, the Panel considered the College’s statutory objectives which are outlined in subsections 3(1) and (2) of the Act. These objectives are to regulate the profession and govern its members, and to serve and protect the public interest.

108Second, the Panel balanced the negative effects of the proposed penalty with the Member’s freedom of expression with the statutory objectives of the Act.

109The Panel acknowledges that revocation amounts to a very serious consequence. However, the Panel finds that revocation is the only appropriate penalty to protect the public interest, because it proportionately balances the Member’s freedom of expression with the College’s mandate to protect the public. The Member publicly made discriminatory and harmful remarks through social media that exposed the protected groups she targeted to hatred. In the Panel’s view, any other penalty, such as a suspension or coursework, does not ensure adherence to the College’s statutory objectives. As noted above, revocation and a reprimand are consistent with previous Discipline Committee decisions where members engaged in misconduct of a similar nature as the Member. These orders will ensure the protection of the public and will instill confidence in the ability of the College to regulate such conduct. The proposed penalty prohibits the Member’s ability to make hateful remarks publicly while holding a Certificate of Qualification and Registration. This is a reasonable limit on the Member’s freedom of expression as she is not prevented from expressing her views generally.

N. costs submissions of college counsel

110The College sought $20,000 in costs payable within 90 days of the Decision, Reasons for Decision and Order. College Counsel referred the Panel to Ontario College of Teachers v. Hall, 2019 ONOCT 20 (“Hall”) as guidance on factors to consider when ordering costs. College Counsel submitted the Panel should consider the fact that the Member did not participate in this hearing, the College was successful in proving all allegations of professional misconduct and there is no evidence as to the Member’s inability to pay a costs order.

O. costs decision

111On October 10, 2024, the Panel made the following order as to costs:

1. The Member is ordered to pay costs to the College fixed in the amount of $10,000, which must be paid within 120 days of the date of the Decision, Reasons for Decision and Order of the Discipline Committee.

P. reasons for costs

112A panel may order costs payable by the member to the College where it has found that a member is guilty of professional misconduct (paragraph 4 of subsection 30(5) of the Act). The Panel has considered its authority to order costs as well as rule 16 which sets out the applicable procedure where costs are sought by either party. The Panel also notes that the College is not required to provide evidence of costs of a day of a hearing if the amount claimed is equal to or less than the amount set in Tariff A, which is currently set at $10,000 (rule 16.05(3)).

113In determining the appropriate costs amount, the Panel was guided by the following factors outlined in pages 12 and 13 of the Hall decision:

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.

114The Panel is aware that the College was seeking the amount as set out in Tariff A for two hearing days. However, when considering the Hall factors, the Panel finds that a cost order of $10,000 is appropriate.

115The Panel notes that the College was fully successful in establishing the allegations against the Member.

116The Panel has not considered the “Uncooperative and vexatious conduct” factor, as it relates to the conduct of a member during hearings, because the Member did not participate in this hearing.

117The Panel notes that the “Promotion of good conduct” factor considers a members’ participation and cooperation with the College in the disciplinary process. The Member did not participate in the investigation or disciplinary process (from the moment of the complaint until the hearing). The evidence demonstrated that although the College made extensive efforts to involve the Member, she was either unresponsive or uncooperative.

118When considering the factor of “Apportioning the costs of proceeding”, the Panel finds that $10,000 is proportionate to the circumstances of this case. The Panel notes that this hearing took place over two days. However, as this is the first matter before the Committee to consider an allegation under subsection 1(28) of Ontario Regulation 437/97, the Panel made many inquiries regarding the application of the provision, and at times required additional submissions from College Counsel and advice from ILC. The Panel also required the assistance of expert evidence. The Panel finds that the Member should not fully bear the costs of the two full hearing days in these circumstances.

119Further, the Panel considered the Member’s ability to pay. The Panel was not provided with any evidence regarding the Member’s financial situation or ability to pay a costs order. The College’s evidence demonstrates that the Member is a retired teacher as noted in the Affidavit of Frédérique Arbour (Exhibit 3, Tab A) where screenshots of the Member’s Twitter account identified her as a “retired teacher”. Also, the Panel has reviewed the Member’s registered information (Exhibit 4) where it indicates that the Member’s certificate was issued in 1981 and changed to Inactive/Non-Practising in April 2016. A revocation order is relevant information as it may impact the Member’s ability to pay a costs order of $20,000 as originally sought by College Counsel.

120The Panel is satisfied that an order of $10,000 of costs payable by the Member to the College within 120 days of the Decision, Reasons for Decision and Order is just and appropriate in the circumstances.

Footnotes

1. 1This social media application was renamed X in July 2023.
2. 2This terminology adheres to the College’s style guide.
3. 3The Member’s Twitter account refers to a publicly viewable Twitter account.
4. 4RSC 1985, c H-6.