McIntyre v. Ontario College of Teachers
CITATION: McIntyre v. Ontario College of Teachers, 2012 ONSC 5957
DIVISIONAL COURT FILE NO.: 22/11
DATE: 20121012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LAX, HAMBLY AND LEDERER JJ.
B E T W E E N :
GILBERT McINTYRE
Appellant
– and –
ONTARIO COLLEGE OF TEACHERS
Respondent
Osborne G. Barnwell, for the Appellant
Caroline Zayid and Shane C. D’Souza, for the Respondent
HEARD: October 12, 2012
ORAL REASONS FOR JUDGMENT
LEDERER J. (ORALLY)
[1] This is an appeal of a decision made by the Discipline Committee of the Ontario College of Teachers. After declining a written request for an adjournment, the hearing before the Discipline Committee proceeded in the absence of the appellant. The appellant was found to have committed professional misconduct. The appeal is from the failure to grant the adjournment.
[2] The appellant seeks to have the matter returned to the College for a hearing in which he would be permitted to participate. The complaint that was the subject of the hearing was made some time before December 8, 2004. On that date, a pre-hearing conference was held, and despite the absence of the appellant, a Discipline Hearing was scheduled for the fall of 2005. Subsequently, a final date of December 1, 2005, was agreed to between the parties. Through the intervening six years, various dates were set and adjourned as a result of the appellant’s health or as a result of other proceedings that he was involved with. Ultimately, it was agreed that the hearing would commence on January 27, 2010. On that date, the appellant sought a further delay. The hearing was adjourned to July 26, 2010. Terms were set. Among them was the following:
Within a period of four weeks from January 27, 2010, the parties will agree to a mutually acceptable date in July 2010 for the resumption of the hearing.
Within two weeks from January 27, 2010, the member will make a written request to his former lawyer, Susan Ursel, for return of his file.
[3] The hearing was made peremptory with the following conditions to apply:
- The member and/or his counsel will come prepared to proceed with the hearing on its merits at the appointed date, subject to the circumstances specified in subparagraphs (a) and (b) below:
(a) a request for a further extension will only be considered on specific medical grounds satisfactory to the Committee and must be supported by documentation from the member’s treating physician specifying the nature of the condition, the reason the member cannot participate and a reasonable estimate of when the member will be able to participate in the hearing. Along with this written documentation, the member has the option of providing a release in favour of this Committee allowing his treating physician to communicate directly with the Committee regarding the medical issues relevant to the request;
(b) any request for an extension, including the documentation referred to in paragraph (a) above, must be received by the Hearings Officer and College counsel no later than two weeks (14 days) prior to the appointed date for the hearing.
[4] On July 5, 2010, the appellant wrote to the College requesting a further adjournment. It enclosed two letters. The first is from a psychiatrist. It recorded the dates on which the appellant attended counselling sessions and provided a clinical diagnosis of “reactive depression”. It said nothing to suggest that the appellant was unable to attend and take part in the Discipline Hearing.
[5] The second letter is from the appellant’s family doctor. It states he is “medically unable to attend the hearing”. It advises that he is “currently taking cipralex (an anti-depressant) and has a heart condition that is being investigated by a cardiologist”.
[6] There is no explanation provided as to when the appellant would be able to be present and participate in a Discipline Hearing. The letter written by the appellant presumes the adjournment would be granted.
[7] On July 7, 2010, the Hearing Coordinator at the College wrote to the appellant. Among other things, she pointed out certain shortcomings in the material provided. The letter says, in part:
I note that you have not presented medical documentation as to your treatment and prognosis and no indication as to when you might be able to attend the hearing, as outlined in my letter to you of June 14, 2010. Should you wish me to provide further information to the Committee on your behalf on July 26, 2010, please deliver it to me by July 16, 2010.
[8] No further information was provided by the appellant. He did not attend at the hearing on July 26, 2010. The decision of the Committee was released on December 20, 2010. It reveals that the Committee gave careful consideration to the adjournment request. It heard submissions from “College counsel” and “independent legal counsel”. It determined:
… that there were insufficient reasons to grant a second adjournment. In granting the previous adjournment the Committee considered the health issues of the member, the member’s intention to seek legal representation and the need of the member to retrieve evidence filed from his previous counsel. The Committee attached specific conditions including time lines to the granting of this adjournment. The member had indicated his agreement to the terms. These conditions were not met. The medical letters submitted by the member (exhibit 7) did not provide a link between the member’s medical condition and his ability to attend the hearing or a reasonable estimate as to when the member might be able to attend the hearing. Despite the letter sent to the member by Ms. Pelky (exhibit 8) requesting the additional information required as per conditions of the order no further detail was provided. In addition, no evidence was presented to the Committee indicating that the member had made any effort to obtain legal counsel or to retrieve his evidence from his previous counsel.
[9] This is the decision the appellant seeks to have set aside. The application today began with a motion for the filing of fresh evidence. It was based on the unequivocal assertion of the appellant that he never received the letter dated July 7, 2010, from the Hearing Coordinator, outlining the shortcomings to the medical information that had been provided.
[10] The affidavit suggests that the appellant never saw this correspondence until December 2011. If he had seen the letter, the evidence he now seeks to produce would have been delivered. This does not deal with the fact that, in the first instance, the appellant did not comply with the terms on which the adjournment of January 27, 2010, was granted. More importantly, it transpires that the appellant did receive the letter. This is established by the fact that, on July 12, 2010 (two weeks before the hearing was scheduled to re-commence), the appellant sent a letter to the Hearing Coordinator advising that he had filed a complaint with the Information and Privacy Commissioner of Ontario against the Ontario College of Teachers. Enclosed with this letter was a copy of the letter of July 7, 2010, with a date stamp indicating that it had been received by the Office of the Information and Privacy Commissioner on July 12, 2010.
[11] A necessary pre-condition to the receipt of fresh evidence is that there must be some reason other than the lack of diligence that explains why the evidence was not tendered at, in this case, the hearing that was scheduled to begin on July 26, 2010 (see Sengmueller v. Sengmueller, 17 O.R. (3d) 208 at paragraph 10).
[12] In this case, there is no such reason. The appellant knew, both from the terms of the adjournment granted on January 27, 2010 and the letter of July 7, 2010, that he had to provide information from a doctor as to when he would be available. He did not respond. The only available reason is a lack of diligence. It is too late now.
[13] It is also apparent that the appellant did not fulfill a second term of the adjournment. He did not write his lawyer “within two weeks from January 27, 2010” asking for return of the file. Counsel for the appellant advised that the appellant was unhappy with his relationship with his prior counsel and did not wish to contact her directly. Rather, he approached the Law Society and relied on it to procure the information. This information is contained in the affidavit filed in respect of the motion seeking the acceptance of fresh evidence. It says “What I did was that I went to the Law Society to seek their help. I then had to wait to get the file which came in 2010”.
[14] There is no indication as to when this request was made and counsel was uncertain, but suggests that it could have been after July 5, 2010.
[15] The appellant now seeks to have admitted as evidence the information concerning his reliance on the Law Society. There is no explanation as to why this could not have been provided before July 26, 2010.
[16] The terms of the adjournment are clear. The appellant did not abide by them, and until now, he has made no effort to explain the situation. Again, so far as we can see, there is no explanation beyond lack of diligence.
[17] The application for fresh evidence is dismissed.
[18] We turn now to the merits of the application. In short, the appellant’s submission is that, by failing to grant the adjournment, the appellant was denied a hearing. He was not heard. As counsel sees it, this amounts to a denial of natural justice. We see it differently. There was no denial of natural justice. Rather, the appellant tried to shape the process to his own needs as he perceived them.
[19] On January 27, 2010, he could have had a hearing. He asked and received an adjournment. This was an indulgence. It was granted in the face of six years in which the appellant was either unwilling or unable to proceed. In the face of this history the adjournment came with conditions which were entirely reasonable.
[20] The appellant failed to abide by them. The letter he wrote presumes the adjournment would be granted. He received the letter of July 7, 2010, used it as part of a complaint to the Privacy Commissioner, but did not provide a response to the Committee.
[21] The reason the appellant was not heard is his own failing, not that of the Committee. It considered the situation and properly exercised its discretion, not to grant the adjournment.
[22] This appeal is dismissed. Costs of $1,000 payable within six months.
LAX J.
HAMBLY J.
LEDERER J.
Date of Reasons for Judgment: October 12, 2012
Date of Release: November 9, 2012
CITATION: McIntyre v. Ontario College of Teachers, 2012 ONSC 5957
DIVISIONAL COURT FILE NO.: 22/11
DATE: 20121012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LAX, HAMBLY and LEDERER JJ.
B E T W E E N :
GILBERT McINTYRE
Appellant
– and –
ONTARIO COLLEGE OF TEACHERS
Respondent
ORAL REASONS FOR JUDGMENT
LEDERER J.
DATE OF REASONS FOR JUDGMENT: October 12, 2012
DATE OF RELEASE: November 9, 2012