Ontario College of Teachers v. Baldwin, 2025 ONOCT 62

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Baldwin 2025 ONOCT 62

Date: 2025-10-02

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

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

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

KENNETH GRANT BALDWIN (REGISTRATION #251388)

PANEL: Emile Ramlochan, Chair Anthony Jeethan, OCT

HEARD: November 5, 2024

Jordan Glick and Karen Heath, for the Ontario College of Teachers Kirsty Niglas-Collins and Adam Veenendaal for Kenneth Grant Baldwin Erica Richler, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

1This proceeding was heard electronically before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Teachers (the “College”) on November 5, 2024, in accordance with rule 8.01 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee (the “Rules”), this matter proceeded by way of an electronic hearing.

2On May 31, 2024, the Panel found that Kenneth Grant Baldwin (the “Member”) engaged in professional misconduct. In particular, the Panel found that the Member misused his sick time when he performed at a concert during the school day in Sarnia, Ontario on April 11, 2019, while he was on sick leave. Furthermore, the Member misused his sick time when he used substantial amounts of his allotted sick time from 2016 to 2019 and returned to work each June to ensure a renewal of sick time allocations for the next academic year. Based on this conduct, the Panel found that the Member contravened subsections 1(18) (dishonourable and unprofessional only) and 1(19) of Ontario Regulation 437/97, as alleged in the Notice of Hearing dated October 2, 2020. The Panel found that there was insufficient evidence to prove that the Member had performed at a concert in Montreal, Québec while on sick leave (particular 3(b)) or acted contrary to his limitations and restrictions set out in his medical leave with respect to driving a vehicle (particular 4(a)) and standing (particular 4(b)).

3The Panel reconvened on November 5, 2024 to hear submissions with respect to penalty and costs. The Member was represented, and he was in attendance for this phase of the hearing. Following the parties’ submissions on November 5, 2024, the Panel reserved its decision. The Panel finds that the appropriate penalty order in this case is a reprimand, coursework and a twelve-month suspension. The Panel also finds that it is appropriate to make an order for costs in the amount of $30,000 to be paid within one year.

A. PUBLICATION BAN

4The Panel ordered the mandatory publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”). Accordingly, no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.

B. PENALTY SUBMISSIONS OF COLLEGE COUNSEL

5The College submitted that the appropriate penalty in this case is a reprimand, a fourteen-month suspension and coursework on professional ethics and that this proposed penalty would achieve the principles of general and specific deterrence, rehabilitation, maintenance of public confidence in the profession and public protection.

6The College submitted that it is mitigating that the Member has no discipline history. However, the College submitted that this is offset by the serious aggravating factors present in this case. First, the misconduct was deliberate and for personal gain and second, the misconduct was repeated and occurred over a prolonged period of time. Third, the misconduct had a widespread impact. Mr. Baldwin’s misuse of sick leave benefits was to the detriment of students, parents, the school and the Thames Valley District School Board (the “Board”) who all had the reasonable expectation that the Member would fulfill his obligations as a teacher in each school year. Fourth, the Member has led no evidence that he has made any restitution of the monies paid to him while he abused sick leave benefits.

7College Counsel presented six cases to the Panel in support of its proposed penalty: Ontario College of Teachers v. Mackenzie, 2019 ONOCT 22 (“Mackenzie”); Ontario College of Teachers v. Ibbott, 2022 ONOCT 11 (“Ibbott”); Ontario College of Teachers v. Paik, 2019 ONOCT 83 (“Paik”); Ontario College of Teachers v. Syed, 2020 ONOCT 138 (“Syed”); Ontario College of Teachers v. Dorcin, 2023 ONOCT 28 (“Dorcin”) and Ontario College of Teachers v. Tchoreret-Mbiamany, 2024 ONOCT 21 (“Tchoreret-Mbiamany”).¹ According to College Counsel, these cases illustrate that the penalty order sought by the College is appropriate and within the range of penalties ordered in similar cases.

8The College submitted that the range of cases provided by the Member is not appropriate and that these cases are not factually aligned with the Member’s behaviour in this case. If the hearing had been about the Member missing one day of work, then the range put forth by Member’s Counsel might be appropriate, but the Member’s conduct involved hundreds of days over three academic years (123 days in 2016-2017, nearly 125 days in 2017-2018 and 128 days in 2018-2019).

C. PENALTY SUBMISSIONS OF MEMBER’S COUNSEL

9The Member agreed that the penalty should include a reprimand and coursework on ethics. Member’s Counsel submitted that the Panel should decline to make an order for suspension of the Member’s Certificate of Qualification and Registration.

10Member’s Counsel generally agreed with the College regarding the relevant sanctioning principles but submitted that the cases provided by the College have very different facts and are highly distinguishable from the case of the Member. Mackenzie, Ibbott, Paik, and Syed were concerned with falsified benefits claims and resulted in large sums of fraudulent benefit money being paid out to members over significant time frames. The Member’s conduct does not relate to falsified claims to his insurance company. Dorcin and Tchoreret-Mbiamany are cases which attracted revocation and are significantly different from the Member’s case because each related to ungovernable members given the conduct they demonstrated.

11Member’s Counsel presented five cases to the Panel in support of the Member’s proposed penalty: Ontario College of Teachers v. Thanase, 2023 ONOCT 49 (“Thanase”); Ontario College of Teachers v. Feldman, 2021 ONOCT 8; Ontario College of Teachers v. Snider, 2020 ONOCT 176 (“Snider”); Ontario College of Teachers v. Roloson, 2018 ONOCT 60 (“Roloson”) and Ontario College of Teachers v. Kopylov, 2016 ONOCT 29 (“Kopylov”). Member’s Counsel submitted that the conduct in these cases more closely matches the conduct of the Member, and these cases have far lower penalties than that sought by the College. These cases involved members engaging in other activities or doing other work during the time they were on sick leave and resulted in 2-month suspensions or no suspensions. Member’s Counsel submitted that the Member’s actions lack the clear intent to defraud which is found in the College’s cases, many of which attracted criminal penalties. The Member’s actions relate only to one concert in Sarnia rather than a pattern of using sick time for personal gain as the College’s cases demonstrated.

12Member’s Counsel submitted that the mitigating factors in the Member’s case include that the Member has no discipline record, is an individual with a disability and was self-represented for the majority of his hearing.

D. PENALTY DECISION

13The Panel makes the following order as to penalty:

1. The Member is directed to appear before the Discipline Committee within 90 days of the date of the Penalty Decision and Reasons for Decision, on a date to be arranged by the Member and the Tribunals’ Office, to receive a reprimand which will be delivered electronically, and the fact of the reprimand shall be recorded on the Register of the Ontario College of Teachers (the “Register”);

2. Directing the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of 12 months commencing on the 15^th calendar day following the date of the Penalty Decision and Reasons for Decision of the Discipline Committee relating to this matter; and

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

(a) Within 90 days of the issuance of the Penalty Decision and Reasons for Decision of the Discipline Committee, the Member shall enrol in and successfully complete, at his own expense, coursework of instruction pre-approved by the Registrar regarding professional ethics, subject to the following conditions:

(i) The Member shall provide the course practitioner approved by the Registrar a copy of the Decision on Finding and Reasons for Decision, dated May 31, 2024, as well as the Penalty Decision and Reasons for Decision;

(ii) Upon review of the documents at paragraph 3(a)(i) above, the course practitioner shall provide to the Registrar, for approval, a syllabus for the proposed course which specifically addresses the Discipline Committee’s concerns regarding the Member’s professional misconduct. The syllabus proposed by the course practitioner shall also specify the length of the course to be undertaken by the Member and the assignments to be completed by the Member; and

(iii) Within 30 days of his completion of the course outlined in paragraph 3(a) above, the course practitioner shall provide to the Registrar a report from the course practitioner stating that the Member has successfully completed the course and reporting on the progress of the Member with respect to addressing the outlined goals of the course.

E. REASONS FOR PENALTY DECISION

14The Panel carefully considered the submissions of the parties with respect to penalty and reviewed the relevant jurisprudence provided. The Panel believes that the order set out above satisfies the penalty objectives of deterrence, rehabilitation, transparency, and protection of the public interest, and that it is proportionate to the misconduct committed by the Member.

15The penalty is also within a reasonable range. While the Panel did not find that any of the cases presented by College Counsel and Member’s Counsel were very similar to the present matter, the cases were used by the Panel to inform benchmarks. The cases provided by Member’s Counsel involved behaviour that was less serious with penalties that were much more lenient whereas the cases provided by the College involved more serious behaviour and penalties. The Panel also noted that many of the cases provided by the parties were based on agreed statements of facts and guilty pleas or statements of uncontested facts and pleas of no contest and joint submissions on penalty which is not the case here. Dorcin and Tchoreret-Mbiamany involved members who had not participated in the discipline process which is also not the case here.

16The Panel considered the Member’s circumstances in comparison to the cases provided. There are three aggravating factors in the Member’s case. First, the misconduct was deliberate and for personal gain. Second, the misconduct was repeated and occurred over a prolonged period of time. Third, the misconduct was to the detriment of students, parents, the school and Board who all had the reasonable expectation that the Member would fulfill his obligations as a teacher in each school year. College Counsel also submitted that it was aggravating that the Member has led no evidence that he has made any restitution for the monies paid to him while he misused his sick time. The Panel does not accept this submission. The Panel agrees with the advice of Independent Legal Counsel (“ILC”) that a lack of restitution by the Member is a lack of a mitigating factor, as opposed to an aggravating factor. There is one mitigating factor in the Member’s case - the Member has no prior discipline history. The Panel did not agree with the Member’s submission that it was mitigating that the Member has a disability or because he was self-represented for the majority of the hearing but finds these considerations are relevant with respect to the issue of costs.

17The Panel finds that the Member’s inappropriate pattern of behaviour warrants a reprimand. The Member misused his sick time when he performed at a concert during the school day while on sick leave. Though the Member did not participate in activities that day which were inconsistent with his medical restrictions and limitations, the Member did not make reasonable efforts to return to work or engage in the accommodations process. This ensured that he would remain on disability leave and benefited him personally, including financially. The Member also misused his sick time when he used substantial amounts of his allotted sick time from 2016 to 2019 and returned to work each June to ensure a renewal of sick time allocations for the next academic year. The Member’s pattern of absences was deliberate and dishonest. 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.

18Given the serious and repeated nature of the Member’s misconduct, the Panel finds that a 12-month suspension is reasonable and appropriate. The Panel agreed with the submission of College Counsel that the Member’s misconduct occurred over the course of multiple years. The Panel did not accept Member’s Counsel’s submission that the Member’s case is similar to the cases presented involving no suspension or two-month suspensions. For example, the Roloson case involved three days of misused sick leave and the Thanase case involved 12 days of misused sick leave over a 3-month period, whereas the Member’s misconduct spanned hundreds of days over three academic school years. In both Syed and Paik, 12-month suspensions were ordered where members involved in insurance fraud had been criminally convicted for their conduct, made full restitution and agreed to joint submissions on penalty. While the Panel did not find that the Member’s case is analogous to Syed or Paik, the Panel finds that a 12-month suspension is suitable. The Panel is of the view that going beyond a 12-month suspension to the 14-month suspension sought by the College is inappropriate as the Member has not been criminally convicted for his behaviour and there were no comparable cases presented in this range. The Panel finds that a 12-month suspension is also appropriate given how much the Member financially benefited from his misuse of sick time. A 12-month suspension will serve as both a general and specific deterrent and ensure public protection as it communicates a strong message to the public, the Member and other members of the profession that this type of behaviour will not be tolerated. Recording the fact of the suspension on the Register will serve as a general deterrent to other members of the profession and accountability to the public. A 12-month suspension will also encourage public confidence in the discipline process. The Member’s suspension will begin on October 17, 2025, which is 15 days after the Panel’s Penalty Decision and Reasons for Decision.

19The Panel finds that the course of instruction regarding professional ethics will assist in the rehabilitation and remediation of the Member. The coursework will remind the Member of his obligations as a teacher and will help him to make better professional and ethical decisions in the future. The written submissions of the Member set out that the order for coursework should apply within 60 days of the Member returning to a position that requires a Certificate of Qualification and Registration. However, during the oral submissions, Member’s Counsel submitted that the coursework should be in line with that requested by the College. As a result, the Panel is satisfied that it is appropriate to order that the coursework be completed within 90 days of this decision in accordance with the submission of College Counsel.

20The Panel is satisfied that the penalty is appropriate in the circumstances and meets the principle of serving and protecting the public interest.

F. COST SUBMISSIONS OF COLLEGE COUNSEL

21College Counsel sought an order for costs in the amount of $90,000 payable by the Member to the College pursuant to subsection 30(5) of the Act. College Counsel noted that the proceedings lasted 11 days plus two half days which would entitle the College to seek $120,000 in costs pursuant to rule 16.05(3) and Tariff A of the Rules. The College is seeking 75 percent of the tariff amount.

22College Counsel presented the Panel with the Affidavit of Christine Le Dressay dated October 24, 2024 (Exhibit 1-P) outlining the timeline of the proceedings and explaining that the Member had been advised on numerous occasions of the College’s intention to seek costs in the amount of $10,000 per hearing day in the event that the Member was found to have committed professional misconduct.

23College Counsel presented seven cases to the Panel in support of its proposed costs order: Ontario College of Teachers v. Hall, 2019 ONOCT 20 (“Hall”); Ontario College of Teachers v. Spence, 2022 ONOCT 37; Ontario College of Teachers v. Weglarz, 2022 ONOCT 77; Ontario College of Teachers v. Oliver, 2022 ONOCT 81; Ontario College of Teachers v. Arsenault, 2022 ONOCT 39 and Ontario College of Teachers v. Paterson, 2023 ONOCT 5 (“Paterson”); Aziz v. College of Veterinarians of Ontario, 2017 ONSC 2746 (“Aziz”).

24College Counsel submitted that the Panel should consider the factors outlined in Hall in determining an appropriate costs order, but also noted that as set out in Hall, there is not a lot of Discipline Committee jurisprudence regarding costs. The College submitted that the Discipline Committee is still in its infancy in determining how the Hall factors should be evaluated. College Counsel made detailed submissions regarding each of the Hall factors and submitted that the College’s proposed costs order of $90,000 is reasonable in the circumstances. $90,000 represents 75 percent of the tariff amount based on the College’s success or 75 percent of the tariff amount because 75 percent of the hearing time was added due to the Member’s conduct.

25College Counsel submitted that this ought to have been a three-day hearing. Multiple pre-hearing conference chairs said this was a two-to-three-day hearing and the parties agreed it was a two-to-three-day hearing. College Counsel submitted that the Member’s conduct added nine days of hearing. In particular, College Counsel submitted that the Member caused the hearing to be adjourned twice, resiled from settlement on multiple occasions, engaged in disproportionately long cross-examinations of the College’s witnesses on redundant and irrelevant issues, and presented a defence involving witnesses that were largely irrelevant to the issues before the Panel. The College also alleged that the Member brought six unmeritorious motions which were all dismissed and attempted to tender two expert witnesses who were not accepted by the Panel as experts.

26College Counsel submitted that the College tends not to seek costs even in contested hearings where matters have been conducted efficiently and effectively. By contrast, most other regulators seek costs as a matter of course and in those regulatory proceedings, costs become a huge factor in the fairness of the proceeding. The College has always been very cognizant of the idea that members should be entitled to put forward a strong and vigorous defense “without feeling like they are going to get nailed with a costs order”. The College is not asking the Panel to set a precedent that every case going forward will be a case involving costs. In its reply, the College submitted that the proposed costs order will not create a tremendous chill as alleged by Member’s Counsel. The Member’s case is a unique and unusual case and it is unfair for the membership to pay for the additional hearing time caused by the Member’s conduct in this case.

G. COST SUBMISSIONS OF MEMBER’S COUNSEL

27Member’s Counsel submitted that if the Panel were to make an order for costs in this case, then the Panel should make a costs award in the region of $5,000.

28College Counsel relied on the affidavit of the Member dated November 4, 2024 (Exhibit 2-P). In the affidavit, the Member outlined among other things that he is on a fixed income and has been unable to work since his termination in 2019, he lacks the ability to pay the “substantial costs that are being sought in this matter” and he was not represented at the merits hearing “because [he] was unable to afford counsel for the entirety of the proceedings before the College”. The Member also stated “[a]s is well-known through these proceedings and the materials submitted on the merits, [he has] multiple mental and physical health diagnoses which contribute to [his] ability to function both as an individual and a self-represented member” (Exhibit 2-P). The Member identified that one of his conditions is obsessive compulsive disorder (Exhibit 2-P). Further, the Member states that he has “been disabled for the past three decades, which has had a significant effect on [his] ability to comprehend and participate effectively in the proceedings against the Board and the matters before the College” (Exhibit 2-P).

29Member’s Counsel highlighted that costs are a relatively new occurrence at the Discipline Committee of this College and that the vast majority of awards by the Discipline Committee do not include costs, even for contested hearings. Member’s Counsel agrees with College Counsel that the College is entitled per Tariff A to seek $10,000 without producing any evidence in terms of legal costs, but it is an extraordinary amount of money for most working people. Member’s Counsel submitted that there is value in like cases being treated alike so that members have an idea of how the College deals with costs, which is helpful to members in assessing their choices. The Panel has discretion to determine whether to order costs and if so, the quantum of the costs order.

30Member’s Counsel presented a number of cases to the Panel in support of its position on costs: Hall; Ontario College of Teachers v. Fox, 2021 ONOCT 34 (“Fox”); Ontario College of Teachers v. Fazl, 2020 ONOCT 222 (“Fazl”); Dorcin; R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 SCR 204 (“Anthony-Cook”); Hirtle v. College of Nurses of Ontario, 2022 ONSC 1479 (“Hirtle”); Ontario College of Teachers v. Caine, 2020 ONOCT 150; R. v. Lyttle, [2004] 1 SCR 193, 2004 SCC 5; Paterson; Ontario College of Teachers v. Stan, 2023 ONOCT 61 (“Stan”); College of Nurses of Ontario v. Leclair, 2012 CanLII 100087 (ON CNO); College of Physicians and Surgeons of Ontario v. Garcia, 2018 ONCPSD 35. Member’s Counsel submitted that while Hall is the leading case on costs, it is persuasive and not binding on the Panel. College Counsel made detailed submissions regarding each of the Hall factors.

31Member’s Counsel disagreed with College Counsel’s submission that the hearing should have been three days and submitted that the way that a prosecutor sees a potential length of a hearing is different than how long defense counsel will see as a reasonable amount of time for a hearing. Member’s Counsel submitted that much of the Member’s conduct pointed to by the College was fully explainable because of the challenges the Member faced due to disability and because he was self-represented and that in the circumstances, those costs should not be borne by the Member.

32Member’s Counsel submitted that this case raises concerns about access to justice. Member’s Counsel submitted that as per Hall “[c]ost orders should not be so large as to discourage members from raising reasonable defences to allegations of professional misconduct”: at page 13 and that the cost order sought by the College in this case is exactly the kind of large award that was contemplated in Hall. Member’s Counsel raised concern that a cost award of this magnitude would set a clear precedent out of line with other case law that by participating in the process, members who have disabilities or who are self-represented risk their and their family’s entire financial security. Such a decision would have a serious chilling effect on members of the College, particularly those with disabilities and less wealthy members, signalling that members should not and cannot contest the College’s allegations against them. A significant portion of the costs should be borne by the College in matters where the member is self-represented to ensure access to justice.

33Member’s Counsel clarified that the Member is not asserting that he was not adequately accommodated during his hearing. Member’s Counsel’s submission is that the accommodations provided by the College to the Member took more resources and that cost should be borne by the College as a part of an accommodation rather than by the Member as an individual with a disability.

H. COSTS DECISION

34The Panel makes the following order with respect to costs:

1. The Member shall pay costs of this proceeding to the College, fixed in the amount of $30,000, which must be paid within one year of the date of this order.

I. REASONS FOR COSTS DECISION

35The hearing on the merits and penalty hearing, which had originally been scheduled for two days took 11 days. There were two other half days of hearing before the hearing on the merits began on October 27, 2022, bringing the total number of hearing days to 12 days.²

36The Panel has the jurisdiction and authority to order costs payable by a member to the College where it has found that member guilty of professional misconduct, according to paragraph 4 of subsection 30(5) of the Act. Pursuant to rule 16.05(3) of the Rules, the College is not required to provide evidence of the costs of a day of hearing if the amount is equal to or less than the amount set out in Tariff A.

37The Panel considered the factors outlined in the Hall decision carefully. As noted at pages 12 and 13 of that decision, Hall provided guidance as to the factors to be considered when making a costs order as follows:

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

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

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

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

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

38After considering the factors in Hall, the Panel finds that it is appropriate to order costs against the Member in the amount of $30,000, payable within one year of this Penalty Decision and Reasons for Decision.

(1) Apportioning Costs of Proceeding

39The Panel is of the view that a $30,000 costs order appropriately apportioned the costs of the proceeding. As set out in Hall, the purpose of a costs order is not to punish the member. Its purpose is to compensate the College, so that the membership of the teaching profession is not held entirely responsible for proceedings where a member has been found guilty of professional misconduct. The College has a statutory duty to regulate the behaviour of its members and can request that the Panel exercise its discretion to make a costs order under the Act and Rules.

(2) Uncooperative and Vexatious Conduct

40With respect to uncooperative and vexatious conduct, the Panel agrees with Member’s Counsel’s submission that the Member’s case is not in the same category as those cases where a member did not participate in the discipline process: Fox; Fazl; and Dorcin. However, in some respects the Member’s conduct in this case increased the costs of the hearing even more. Not only was the Member’s conduct uncooperative, but the Member was uncooperative on purpose to frustrate and delay the hearing process. For example, the Panel considers the Member’s cross-examinations of Ms. Nicholls and Ms. Tozer to be vexatious attempts to lengthen the hearing time. As outlined below, the Panel finds that the extra time it took to complete the hearing was not due to the fact that the Member was self-represented during the merits hearing and there is insufficient evidence that it was as a result of a disability. The Member’s lengthy cross-examinations are a relevant example of how the Member unnecessarily lengthened the hearing time.

(a) Disability

41There is insufficient evidence before the Panel that the hearing took longer because the Member’s disability or disabilities impacted his ability to participate in the hearing or comprehend the proceedings. The Member stated in his affidavit that he has “multiple mental and physical health diagnoses which contribute to [his] ability to function both as an individual and a self-represented member” and that “[o]ne of those longstanding conditions is obsessive-compulsive disorder” (Exhibit 2-P). The Member also stated that, “[he has] been disabled for the past three decades, which has had a significant effect on [his] ability to comprehend and participate effectively in the proceedings against the Board and the matters before the College” (Exhibit 2-P). The Member’s hearing on the merits was about the Member’s sick leave for low back pain and the Member did not raise obsessive-compulsive disorder as a condition or a concern about his ability to participate in the hearing or comprehend the proceedings due to a medical condition until the penalty stage of the hearing. The Member has presented no medical evidence regarding obsessive-compulsive disorder. The Panel notes that there is evidence that the Member had an “anxiety disorder” in 2016 (Exhibit 44A), was taking “triflu[o]perazine”³ in 2016 (Exhibit 44A) and that the Member testified that he has taken medications for probably more than 20 years that are of a similar class as trifluoperazine. However, there was no medical evidence before the Panel that the Member experienced impairments or restrictions as a result of obsessive-compulsive disorder, an anxiety disorder or any other disability that impacted his ability to participate in his hearing or comprehend the proceedings. In addition, an abilities form completed by Dr. Potter in 2019 indicated “N/A No impairments” under cognitive in the Member’s abilities form on June 18, 2019 (Exhibit 23). Furthermore, a medical record from an August 16, 2016 visit to the Parkwood Clinic noted that the Member “is not known to have any chronic health condition” and “he is not on any medications” (Exhibit 48).

(b) Self-representation

42The Panel believes that a significant amount of the extra time it took to complete this hearing was a direct result of the Member’s lack of cooperation and went far beyond what would have been reasonable in the circumstances to account for the fact that the Member was self-represented. The Panel agrees with Member’s Counsel that there is a heightened obligation on tribunals and prosecutors with respect to self-represented members as is set out in the Canadian Judicial Council’s 2006 Statement of Principles on Self-Represented Litigants and Accused Persons (“Statement of Principles”). However, based on the evidence before it, the Panel finds that these obligations have been more than met in the circumstances.

43The Panel recognizes that the Member was self-represented for portions of his hearing, including the entire hearing on the merits and it is reasonable that some amount of additional hearing time could have been anticipated because the Member was self-represented, had no legal training and had never represented himself at a contested Discipline Committee hearing (Exhibit 2-P). The Panel agrees with the submission of College Counsel that this should have been a three-day hearing.⁴ It should not have taken over twice the number of hearing days to complete the hearing because the Member was self-represented.⁵ While the Member was self-represented during the merits hearing, the Member was provided with a great deal of information about the process from the Panel and Independent Legal Counsel during the hearing. The Panel also observed that College Counsel demonstrated flexibility to the Member as a self-represented litigant during the hearing when the Member presented evidence or tried to introduce witnesses and drew the Member’s attention to relevant rules in email correspondence (see Exhibit E of Exhibit 1-P for an example). Furthermore, though the Member was not represented at the merits hearing, the Member testified in cross-examination at the penalty hearing that he “had a lawyer all along”, including during the merits portion of the hearing, although a lawyer did not attend the merits hearing with him.

44ILC advised that self-represented parties also have obligations under the Statement of Principles to be aware of the hearing process and to be informed about the hearing process. This was also set out in Hirtle v. College of Nurses of Ontario, 2022 ONSC 1479 at para 64. The Panel finds that the Member did not discharge his obligations as a self-represented party during the hearing. An example of this is with respect to following the rules regarding expert evidence. At a minimum, the Member was told that he needed to comply with rule 7.04 regarding expert evidence by the panel overseeing his adjournment motion in its decision: Ontario College of Teachers v. Baldwin, 2021 ONOCT 102 at para 24 (“Baldwin”); in a pre-hearing conference on July 14, 2021 (Exhibit D of Exhibit 1-P); and by College Counsel in an email dated August 18, 2021 (Exhibit E of Exhibit 1-P). The Member was also, as a condition of his adjournment, required to serve and file an expert report and any associated documents 60 days before the first-scheduled hearing date: Baldwin at para 13. However, at the hearing on the merits, the Member still attempted to call Mr. Vreman as an expert witness, despite not having complied with the Rules. He also failed to deliver an expert report for Mr. Vreman in accordance with the condition of his adjournment.

(c) The Member’s Cross-examinations

45An example of how the Member unnecessarily lengthened the hearing time was with respect to the cross-examinations that he conducted. The Panel agrees with Member’s Counsel that the right of cross-examination, “without significant and unwarranted constraint — is an essential component of the right to make full answer and defence”: Lyttle at paras 1-2. It is an important part of the adversarial justice system. Pursuant to the Statutory Powers Procedure Act, RSO 1990, c. S. 22 (“SPPA”), proceedings must be conducted expeditiously (see section 2) and, a tribunal may make orders or give such directions to prevent an abuse of its processes (see subsection 23(1)) and reasonably limit further examination or cross-examination of a witness where it is satisfied that the examination or cross-examination has been sufficient to disclose fully and fairly all matters relevant to the issues in the proceeding (see subsection 23(2)). When conducting cross-examination, the Member asked the witnesses irrelevant questions, was repetitive, and used cross-examination as a way to advance his own evidence over and over again. This occurred even though the process had been explained to him by ILC at the direction of the Chair and the Chair issued multiple reminders to the Member. The Member’s failure to follow this guidance resulted in unnecessary delays. When the Member engaged in improper cross-examination, time needed to be spent removing the witness from the hearing room to hear College Counsel’s objection, ruling on the objection, issuing reminders to the Member and returning the witness to the hearing room. Some of the College’s witnesses had to be recalled on future hearing dates so that the Member could finish cross-examining them as a result of the delays caused by the Member’s behaviour during cross-examination. The Panel is of the view that the Member’s behaviour could not only be explained by the fact that the Member was self-represented and believes that the Member intended by his behaviour to extend the time of the hearing. The Panel was put into the position of having to restrict the Member’s cross-examination by imposing time limits and stopping the Member’s cross-examination of Ms. Tozer. The Panel is of the view that the Member’s cross-examinations of Ms. Tozer and Ms. Nicholls were vexatious due to the way in which the Member asked them repetitive questions and asked them hypothetical questions that allowed him to give an opinion and introduce his own testimony, despite having been provided frequent guidance not to do so. This was over and above what was necessary to disclose fully and fairly all matters relevant to the issues in the proceeding and required significant intervention by the Panel to prevent the Member’s conduct from abusing the hearing process as per subsections 23(1) and 23(2) of the SPPA. It is not fair that the membership should have to bear the cost of the Member’s unnecessarily long cross-examinations.

(d) The Member’s Medical Professionals

46Member’s Counsel submitted that the Panel should consider the fact that the Member did not call all of his medical professionals to testify as an example of his cooperation in the hearing process as this would have added significant hearing time. The Panel disagrees. This is neither an example of cooperative nor uncooperative conduct. While the Panel did not draw an adverse inference from the Member’s decision not to call his medical professionals, it could have been time well-spent if the medical professionals could have provided relevant information for the Panel’s consideration.

(3) Promotion of Good Conduct

47With respect to the promotion of good conduct, the Panel agrees with the submission of College Counsel that while the Member participated in the process and was generally communicative to the College, his conduct lengthened the proceedings and increased its complexity. For example, the Member was not organized with respect to his witnesses, despite having been provided with guidance by the Chair and by ILC at the request of the Chair. He also brought repetitive motions, told stories and testified during cross-examination. All of this lengthened the hearing because the Member needed to be provided with redirection. The Member through his actions, also gave the Panel the impression that he did not take the process seriously and he seemed intent on delaying the process as long as he could. For example, the Member made an adjournment request to go to Tahiti.

48Member’s Counsel made submissions under the promotion of good conduct that the case largely turned on whether the Member’s conduct was justifiable in light of his medical conditions at the time. Member’s Counsel submitted this was a complex factual issue and is not as clear-cut as cases where a member claimed sick leave while working for another board, got paid twice while working at their own company or claimed to be sick to go to Costa Rica: Kopylov; Roloson; Snider. Member’s Counsel submitted that the complexity was compounded by the role of the Member’s treating physician at the time who has subsequently had issues with his own professional regulator, including restrictions on his license. A summary of the Decision of the Inquiries, Complaints and Reports Committee for Dr. Chong was submitted as an exhibit to the Member’s affidavit (Exhibit 2-P). The Panel disagrees with the submission of Member’s Counsel. Though the Member’s restrictions were themselves complex, these were not outside the realm of what could have been accommodated in the workplace. The issue concerning whether the Member had failed to participate in the accommodation process was not a complex factual issue. As is set out in the Decision on Finding and Reasons for Decision, the Member engaged in a pattern of using almost his full allotment of sick time, returning to work in June each year to ensure renewal of his sick time allocations: para 121. However, the Member presented no explanation regarding this pattern of absences or evidence demonstrating that he “was diagnosed with a medical condition or disability whose natural history and symptomatology mirrored his pattern of absences or coincided with his expected work cycle in the academic year”: at para 126. In addition, the Panel does not find that Dr. Chong’s regulatory issues are relevant to the issue of costs. While the Panel recognizes that Dr. Chong has been subject to issues with his regulator, the Panel has received no evidence or submissions which point specifically to how the Member was impacted by Dr. Chong’s regulatory issues.

(4) Success of the Parties

49In setting the amount of the costs, the Panel has also considered the relative success of the parties. The College was successful in proving both heads of misconduct under Ontario Regulation 437/97, subsections 1(18) and 1(19). The College failed, however, to prove the factual allegations regarding the Montreal concert (particular 3(b)) and that the Member had engaged in activities which were inconsistent with the restrictions and limitations set out in his medical leave, including relating to driving a vehicle (particular 4(a)) and standing (particular 4(b)). The Panel does note that the College’s failure to prove these allegations was a result of the College’s failure to present sufficient evidence and not as a result of any evidence or submissions advanced by the Member with respect to these particulars. In essence, the Panel is of the view that it would have made these findings even if the Member had chosen not to appear. Overall, based on the success of the parties it is appropriate that the Member should pay a portion of the costs.

(5) The Member’s Ability to Pay

50With respect to ability to pay, the Member has presented insufficient evidence to the Panel that he would be prejudiced as a result of a costs award. As a result, the Panel is unable to weigh this factor in favour of the Member to reduce the costs award.

51In his affidavit evidence, the Member indicated that he is on a fixed income, that he has been unable to work since his termination in 2019, and that he financially supports his spouse and three adult children including one “who lives with [him] and is dependent on [him] for support” (Exhibit 2-P). The Member also stated in the affidavit that there are times that his “disability prevents [him] from working, even with accommodations” and that he has “significant medical expenses due to medication costs and seeing several medical specialists which are not covered by OHIP” (Exhibit 2-P).

52The College submitted that it is insufficient for the Member to simply state in an affidavit that he cannot pay without providing other supporting evidence. The College submitted that in Aziz, even an unaudited financial statement was insufficient evidence of inability to pay.

53The Panel agrees with College Counsel that the Member’s affidavit evidence regarding his inability to pay is insufficient, though the Panel would not go so far as to say that an audited financial statement was required. In this case, the Member provided no financial documentation. The Member did not provide any records such as bank statements, records of disability or other payments, T4s or other financial records. The Member also did not provide any records to substantiate his significant medical expenses, or the expenses involved in supporting his family members and dependents. The Member has also not provided any medical documentation or other documentation to support the Member’s position that he cannot afford to pay a costs order because he is too disabled to work. In its Decision on Finding and Reasons for Decision, the Panel held that “[t]here was no evidence led by the Member that he was catastrophically impaired with limitations that would have precluded him from being accommodated or collaborating with the Board to explore suitable accommodations”: para 115. The Member has presented no evidence during the penalty stage to displace the Panel’s finding. Based on the evidence before it, the Panel does not find that the Member is unable to work due to a disability. While the Panel recognizes that Member’s Counsel was recently retained in this matter, the Panel required additional financial documentation or evidence to understand whether the Member would have in fact have faced prejudice as a result of a costs order. In the absence of this evidence, the Panel cannot make a finding that the Member has an inability to pay and cannot weigh this factor in favour of the Member to reduce the costs award.

(6) The Amount of the Costs Order

54The Panel has decided that the Member should be responsible for paying costs associated with (1) the half day of further settlement discussions on October 27, 2022, of $5,000; (2) $5,000 towards the motions brought by the Member on December 21, 2022 and April 26, 2023; and (3) an additional $20,000 towards the remaining hearing time.

(a) Settlement Discussions

55The Member will be responsible to pay $5,000 in costs for a half day of hearing on October 27, 2022. The matter was originally scheduled to proceed by way of an uncontested hearing on April 11, 2022. However, the Member resiled from the agreement when the proceeding began on April 11 (Exhibits M of Exhibit 1-P; Ontario College of Teachers v. Baldwin, 2022 ONOCT 46). Then, on the first day of the merits hearing on October 27, the Member indicated that he wished to resolve the matter, and a break was taken for the parties to discuss this. When the parties returned and indicated that they had reached a settlement, the Member failed to provide a voluntary plea to the agreement and so the contested hearing resumed. The Member will not be responsible for paying costs associated with settlement discussions prior to the start of the merits hearing on October 27, 2022, or for the half day of hearing on April 11, 2022, where the Member resiled from the settlement agreement. The Panel agrees with the submission of Member’s Counsel that all parties bear responsibility to encourage settlement, including College Counsel and Member’s Counsel⁶, and that settlement is essential to a functioning justice system⁷. The Panel is concerned that requiring members to pay for settlement costs generally would not be in the public interest. Doing so, would unfairly put pressure on members to accept terms of a settlement agreement, which could even render an agreement void and because a member may be discouraged from challenging the allegations against them. It is important to ensure that members are encouraged to enter into settlement discussions freely. Furthermore, due to settlement privilege, it would be inappropriate for the Panel to determine the cause of failed settlement discussions and make a costs order on that basis. Despite this, the Panel finds it is appropriate for the Member to pay $5,000 towards the half day of additional time spent in settlement discussions on October 27, 2022. Though the Panel did grant hearing time towards settlement discussions, the Panel was unaware that the Member had already resiled from a settlement agreement at the time. Despite having resiled from settlement once before on April 11, 2022, the Member spent hours negotiating again only to not provide a voluntary plea for a second time.

(b) Motions

56On September 20, 2021, prior to the hearing on the merits, the Member brought two motions: (1) an adjournment motion, and (2) a motion for the production of third party records. The Member’s adjournment motion was granted in part with certain conditions and the Member’s motion for the production of third party records was denied: Baldwin.

57The Member also brought six motions during the hearing on the merits: (1) a motion alleging apprehension of bias heard on October 27, 2022; (2) a motion to exclude members of the public from the hearing heard on October 27, 2022; (3) a motion to adjourn the hearing heard on December 21, 2022; (4) a motion to dismiss the allegations and terminate the proceedings heard on February 2, 2023; (5) a motion seeking to resolve the matter heard on April 24, 2023 and (6) a motion to close the hearing to the public heard on April 26, 2023. All six motions were dismissed.

58The Panel finds the Member should be responsible for paying for $2,500 towards the motion heard on December 21, 2022, and $2,500 towards the motion heard on April 26, 2023 (the second request to close the hearing to the public), totalling $5,000. While the Member was generally entitled to bring these motions, the motions were unsuccessful and repetitive as the issues raised by the Member had already been dealt with by the Panel in previous motions. It is not fair that hearing time was spent to argue these repetitive motions. $2,500 represents half of a half day which reflects a fair apportionment of the motion costs without being unduly prejudicial to the Member or to generally discourage members from bringing motions should this serve as an example to others. Similarly, the Panel will not grant any costs towards any of the other motions due to a concern that this may be unduly prejudicial to the Member and potentially serve as an unintended deterrent to members from bringing motions in the future.

(c) Costs Associated with the Remaining Hearing Time

59The Member will be responsible for paying an additional $20,000 towards his uncooperative and vexatious behaviour that took place during the remaining hearing time, including but not limited to his unnecessarily long cross-examinations, his failure to follow the rules regarding expert evidence and lack of organization in presenting his witnesses. This brings the total costs award to $30,000.

(d) Appropriateness of the Costs Award

60The Panel finds that $30,000 is an appropriate costs award in the circumstances. A costs award of this magnitude is not intended to have a chilling effect on members, including those who are self-represented or those with disabilities. The Panel agrees with College Counsel’s submission that this is a unique and unusual case. In this case, the Member intentionally frustrated the hearing process, and this justifies a higher costs award. Furthermore, the Member provided insufficient financial evidence regarding his inability to pay, insufficient evidence that he cannot work due to a disability, and insufficient evidence that a disability impacted his ability to participate in his hearing. The Panel was also not convinced that the substantial amount of additional hearing time in this case was attributable to the fact that the Member was self-represented. The Panel gave the Member tools that he could use to self-advocate. He did not utilize these tools, and he did not accept or integrate any feedback provided to him by the Panel. In addition, the cases of Stan and Paterson are distinguishable from the Member’s case. In both of those cases, more detailed financial evidence (i.e. monthly or biweekly income) was provided to the panels. While the panel noted that ability to pay was not determinative of costs in the Stan case, that case is also distinguishable as the panel described the member’s behaviour as “cooperative throughout the hearing process”: para 32.

61While the Panel has ordered a higher costs award than that requested by the Member, the costs award also does not reflect the total costs award requested by the College. The Panel is of the view that the $30,000 costs award is appropriate given the relative success of the parties without being too high as to generally discourage members, especially those who are self-represented, from bringing motions, engaging in settlement discussions or otherwise advocating for themselves due to concerns about costs.

62Given the circumstances of this case and its consideration of the Hall factors, the Panel is satisfied that an order of $30,000 in costs payable by the Member to the College within 1 year of the date of the Panel's order, is just and appropriate and represents a fair allocation of the costs of the hearing.

Footnotes

1. 1The College presented the Panel with the unpublished Tchoreret-Mbiamany decision at the penalty hearing. The citation is currently available and has been used in this decision and reasons.
2. 2On September 20, 2021, a half day was spent hearing two motions brought by the Member. The panel granted the Member’s adjournment motion subject to conditions and denied the Member’s motion for third party records (Ontario College of Teachers v. Baldwin, 2021 ONOCT 102). There was also a half day of hearing on April 11, 2022. The parties had originally planned to resolve the hearing on that date through a statement of uncontested facts and plea of no contest and a joint submission on penalty (Exhibits L and M of Exhibit 1-P). However, the panel did not accept the statement of uncontested facts and plea of no contest because when the Member attempted to take the plea, “the Member made statements to the [p]anel which raised concerns about the validity of the plea and agreement between the parties” (Ontario College of Teachers v. Baldwin, 2022 ONOCT 46).
3. 3The Panel notes that there is a typographical error in the medical note at Exhibit 44A and that this should have read trifluoperazine.
4. 4The three days total here includes the hearing on the merits and the penalty hearing but not any of the hearing days prior to October 27, 2022.
5. 5The fact that the Member’s grievance has been scheduled for eight days is irrelevant and does not represent a benchmark for an expeditious hearing before this Discipline Committee.
6. 6College Counsel and Member’s Counsel have special obligations to advise and encourage settlement under rule 3.2-4 of the Law Society of Ontario’s Rules of Professional Conduct.
7. 7Anthony-Cook at paras 40, 44.