Takashima v. Ontario College of Teachers, 2015 ONSC 3125

CITATION: Takashima v. Ontario College of Teachers, 2015 ONSC 3125

DIVISIONAL COURT FILE NO.: 343/14
DATE: 20150514

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

SACHS, LEDERER AND A. J. GOODMAN JJ.

BETWEEN:

TERENCE KAZUO TAKASHIMA

Appellant

– and –

ONTARIO COLLEGE OF TEACHERS

Respondent

Selwyn R. Baboolal, for the Appellant

David E. Leonard and Alexandre Blanchard, for the Respondent

HEARD at Toronto: May 14, 2015

ORAL REASONS FOR JUDGMENT

SACHS J. (ORALLY)

[1] The appellant appeals a decision of the Discipline Committee (“the Panel”) of the Ontario College of Teachers dated May 14, 2014, in which the Panel found the appellant guilty of professional misconduct for engaging in an appropriate sexual relationship with a student.

[2] During the course of the hearing the Panel heard from four witnesses, a caretaker at the school, a secretary at the school, the appellant and the student with whom it was alleged he had the sexual encounter.

[3] The crucial evidence against the appellant came from the caretaker who testified that while he was in the staffroom he heard and observed the appellant and the student engaged in what he believed was oral sex. He drew this inference from the fact what when he entered the staffroom to go to the washroom the room was locked (an unusual occurrence); while he was in the washroom he heard moaning sounds coming from the staffroom. When he came out of the washroom he saw the appellant leaning back in his chair with his leg up on the table. The student was between the appellant’s legs, on his knees, bent towards the appellant. The appellant had his hands on the student’s shoulder. The caretaker testified that when he asked what was going on and asked them to stop what they were doing he was ignored. He went into the hallway to find someone to assist. When he returned to the staffroom (after he was not able to find anyone), he again yelled “Stop.” The student stood up, pulled out his shirt and used it to wipe his face and mouth. The student’s face was red and he had tears in his eyes. The appellant stood up and pulled up the zipper in the front of his pants.

[4] The student and the appellant both denied that any inappropriate sexual contact had occurred. However, they both agreed that the student was kneeling in front of the appellant and that there was physical contact that had occurred between them in the form of a hug.

[5] A video confirmed that the appellant and the student entered the staffroom together. The school secretary confirmed that when she went into the staffroom she saw the caretaker by the sink and the appellant and the student sitting close together by the computer. She was able to see the student’s face and she confirmed what the caretaker had said. It was red and he had “teary eyes”. She also confirmed that the atmosphere in the room was very awkward, an assessment the student agreed with.

[6] The Panel recounted and assessed the evidence of each of the witnesses. In the end it accepted the caretaker’s and the secretary’s evidence as to what occurred. The Panel rejected the appellant’s and the student’s evidence that nothing inappropriate had happened. Its decision turned on findings of fact, which in turn were based on findings of credibility.

[7] The law is clear that considerable deference is owed on appeal to a tribunal’s findings of fact and its assessment of credibility (See Housen v. Nikolaisen, [2002] S.C.C. 33; Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] S.C.C. 19, Liberman v. College of Physicians and Surgeons of Ontario, 2013 ONSC 4066 (Div. Ct.)).

[8] On this appeal the appellant made three arguments:

(a) The Panel disregarded the fact that the caretaker’s evidence was full of inconsistencies and not corroborated;

(b) The Panel disregarded the evidence of the student and the appellant; and

(c) The Panel erred when it drew an adverse inference against the appellant because he refused to answer the school board’s questions while it was investigating the matter.

[9] With respect to the alleged inconsistencies, the Panel was not required to resolve every alleged inconsistency in the evidence when making its credibility findings (See R. v. R.L., 2002 CarswellOnt. 2582 (C.A.). Further, in our view, the alleged inconsistencies either did not exist or were not material. For example, the appellant alleges that the caretaker first testified that when he entered the staffroom he did not see the computer screen. Later he stated that he thought the computer was on. In our view, it is not inconsistent that the caretaker did not see the computer screen, but that he thought the computer was on. This was a legitimate inference to draw since when he entered the staffroom both the appellant and the student were looking at the computer screen. An example of an alleged inconsistency that was not material is the fact that the caretaker and the secretary gave different accounts as to how the student and the appellant exited the school after the events occurred.

[10] It is true that there was no one who corroborated the crucial aspect of the caretaker’s account as to what he saw and heard in the staffroom. It is also true that the caretaker did not actually see the student’s mouth in sexual contact with the appellant’s penis. However, the Panel was entitled to accept the evidence of the caretaker as to what he saw and heard in the staffroom even if it was not corroborated by any other evidence. In its reasons the Panel detailed why it accepted the caretaker’s evidence and among other things, pointed to the fact that the caretaker had no motive to lie and that some aspects of the caretaker’s account were confirmed by other evidence. From the evidence that the caretaker gave, including the moaning sounds he heard (for which there was no other explanation), the position of the student (kneeling between the appellant’s legs) and the actions of the student and the appellant afterwards (the student wiping his mouth and the appellant pulling up his pants zipper) the inference that the student and the appellant were engaged in oral sex was an inference the Panel was entitled to draw.

[11] We found no merit to the appellant’s submission that the Panel disregarded the evidence of the student or the appellant. The Panel did not disregard the student’s or the appellant’s evidence. It reviewed it in detail, weighed it and found that it did not accept it. In doing so it made the credibility findings it was entitled to make and to which we owe considerable deference.

[12] On the question of the Panel’s drawing an adverse inference from the appellant’s failure to