CITATION: Spence v. Ontario College of Teachers, 2018 ONSC 3335

DIVISIONAL COURT FILE NO.: 133/17 DATE: 20180530

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

C. Horkins, Thorburn, Pomerance JJ.

BETWEEN:

CHRISTOPHER MICHAEL SPENCE

Appellant

– and –

ONTARIO COLLEGE OF TEACHERS

Respondent

Christopher Edwards and Zach Flemming-Giannotti, for the Appellant

Caroline Zayid and Charlotte-Anne Malischewski, for the Respondent

HEARD at Toronto: May 14, 2018

C. HORKINS J.

overview

1The appellant, Christopher Michael Spence, was a member of the Ontario College of Teachers (the “College”) and was employed by the Toronto District School Board (the "Board") as the Director of Education from April 2009 to January 2013.

2The College brought disciplinary proceedings against the appellant for allegations of plagiarism that came to light when he was the Director of Education at the Board. It was alleged that the appellant published and orally delivered plagiarized material as his own, between 2002 and 2013.

3The appellant, appeals decisions of the Discipline Committee dated November 11, 2016 and February 23, 2017. On November 11, 2016 the Discipline Committee rejected the appellant’s request to adjourn the hearing. The Discipline Committee proceeded in the appellant’s absence and found him guilty of professional misconduct. Reasons for these decisions were released on February 23, 2017.

4On December 19, 2016, the penalty hearing proceeded. The Discipline Committee directed the Registrar of the College to immediately revoke the appellant’s Certificate and Qualification and Registration.

5The appellant appeals on the basis that the College denied him procedural fairness in the adjudication of the disciplinary proceedings. He states that procedural fairness was denied for three reasons:

(i) The Discipline Committee did not consider the appellant’s medical evidence.

(ii) The Discipline Committee reached a conclusion with no supporting medical evidence.

(iii) The Discipline Committee did not give the appellant an opportunity to respond to the internet search evidence before proceeding in his absence.

The Procedural Fairness Test

6On this appeal, it is not necessary to engage in a standard of review analysis. Rather the court must decide if the requisite level of procedural fairness has been met taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration) 1999 699 (SCC), [1999] 2 S.C.R. 817: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the agency.

7As stated in London (City) v. Ayerswood Development Corp 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.) at para. 10, the Court is “required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly”.

factual background

8I start with a review of the factual background that led to College’s decisions. This will inform the question of whether procedural fairness was provided to the appellant.

Events Leading to Setting the Hearing Dates for August 24 and 25, 2016

9A Notice of Hearing in this matter was issued on April 8, 2015. By letter dated November 19, 2015, the College provided the appellant with options for a hearing and proposed to schedule the hearing of the matter on the merits by the end of 2015 or early in 2016. The appellant responded by e-mail and said he would be in touch. Numerous emails followed as the College tried to set a date for the hearing.

10The College followed up with the appellant by email and telephone to move the matter forward and schedule a hearing date on January 5, February 12, February 29, March 7, or March 18, 2016.

11On March 21, 2016, the appellant emailed the College inquiring if hearing dates in July or August 2016 were available. On March 22, 2016, the College provided a list of available hearing dates during those months.

12On April 15, 2016, the appellant indicated that he would like to set a date in July or August 2016 and would confirm in the next two to three weeks.

13On May 3, 2016, the College emailed the appellant and gave him possible dates for a hearing in July or August 2016.

14On May 12, 2016, the appellant sent the College an email stating that he had retired. Attached to the email was a medical note. This note is not part of the record on the appeal.

15On May 13, 2016, the College emailed the appellant acknowledging his retirement and the medical note attached to the May 12 email. Once again the appellant was asked to confirm his availability for a hearing on the dates provided. The appellant was told that if he did not reply, the College would fix a date at the “set date” hearing on May 17, 2016.

16On May 15, 2016, the appellant provided the College with additional details about this medical note. These details are not part of the appeal record.

17On May 17, 2016 the “set date” hearing proceeded and the hearing was set for August 24-25, 2016.

18On May 25, 2016, College counsel, Ms. Zayid, wrote to the appellant to advise him that the hearing was scheduled for August 24-25, 2016. In particular the letter stated:

If a medical condition prevents you from attending the hearing on the scheduled dates, you must provide a sufficient medical report from your treating physician well in advance, so that the College has an adequate opportunity to consider any request for an adjournment of the hearing to a later date. Please note that we may seek confirmation of the authenticity of any report you provide directly from the author.

19Later that day, the appellant emailed College counsel stating that he was "unable to commit to a hearing date or participate in these proceedings at this time” and that a “follow-up doctor note” was coming.

20On June 6, 2016, the College Hearings Coordinator wrote to the appellant confirming the hearing dates of August 24-25, 2016.

21On July 4, 2016, College counsel wrote to Mr. Spence about the upcoming hearing. This letter provided information about the rules of procedure and hearing matters. The letter did not mention the appellant’s May 25th communication that he was unable to participate in the hearing. The letter did state that if the appellant failed to attend the hearing that the College would proceed in his absence.

22On July 25, 2016, the appellant emailed College counsel and provided a medical note dated May 30, 2016 from Dr. Zizzo, his family doctor. This note states that the appellant has been under this doctor’s care for many years. Further the doctor stated:

[d]ue to [the appellant’s] current state of precarious mental health I advise that he should not participate in any disciplinary hearings/proceedings at this time. A psychiatric assessment is pending. Over the next couple of months he will undergo this psychiatric assessment and I will continue to offer mental health support and treatment [emphasis added].

23On July 28, 2016, College counsel wrote to the appellant. This letter acknowledged the “very brief letter” from Dr. Zizzo, informed the appellant that the College wished to proceed with the discipline hearing and told the appellant what he had to do to request an adjournment. The letter states:

If you intend to seek an adjournment you must provide us notice as soon as possible as well as any medical or other evidence you intend to rely upon to support your request. You or your representative will need to attend on August 24, 2016 to request an adjournment and to provide the Discipline Committee with the reasons for the request and the proposed alternative dates.

24On July 29, 2016, College counsel sent the appellant a package of further disclosure.

25The College did not hear further from the appellant until August 21, 2016, when he wrote to College counsel and requested an adjournment of the hearing on the merits. In this letter the appellant stated that he would be providing the College with a medical report following a psychiatric assessment on September 13, 2016.

26On August 22, 2016, College counsel emailed the appellant to inquire if he would be attending the hearing scheduled for August 24, 2016. There was no response to this email.

The First Adjournment on August 24, 2016

27On August 24, 2016, the Discipline Committee convened to hear the appellant’s matter. Neither he nor anyone representing him was in attendance.

28College counsel filed an affidavit from her law clerk that reviewed their communications with the appellant. This affidavit also stated that the appellant had provided a “medical note” that said he “should not participate in any disciplinary hearings/proceedings at this time”. This is a quote from Dr. Zizzo’s letter. The affidavit did not attach a copy of Dr. Zizzo’s letter and made no reference to the rest of this letter.

29College counsel informed the Discipline Committee about the appellant’s August 21, 2016 correspondence and indicated that the College was prepared to consent to an adjournment in the circumstances.

30Given the “procedural history”, the Discipline Committee decided to grant a short adjournment with conditions. In written reasons dated September 2, 2016, the Discipline Committee explained that there were sufficient reasons to support the request for an adjournment and noted that the inconvenience to the College was outweighed by the importance of giving the appellant "the opportunity to present medical information which may be relevant to his ability to participate in the disciplinary proceedings."

31The Discipline Committee specified that the adjournment had "not been granted on an indefinite basis" and outlined three conditions to be met: that by October 14, 2016 the appellant provide the College with the report from the physician who was assessing him on September 13, 2016; that he provide the College a signed consent allowing them to communicate directly with that physician; and that the Discipline Committee reconvene no later than October 31, 2016 to proceed with the matter.

Events leading to the Hearing on October 21, 2016

32On September 2, 2016, College counsel emailed the appellant. This email provided the appellant with a copy of the Discipline Committee’s adjournment decision and asked him to return a signed consent to allow the College to speak to the psychiatrist that was assessing the appellant on September 13, 2016. The appellant was told that the Discipline Committee was scheduled to reconvene on October 21, 2016.

33The appellant provided the College with a signed consent permitting the College to speak to the psychiatrist.

34On October 14, 2016, the appellant emailed College counsel and attached a copy of Dr. Ahmed Jehaan Illyas’ Psychiatric Consultation Report dated September 13, 2016. The report was addressed to Dr. Zizzo. In his email, the appellant states:

I am drowning in depression and doing my best to respond to this invasive scrutiny of the most intimate and private details of my mental health. I have attached the confidential psyc assessment. I am unable to participate in these proceedings.

35Dr. Illyas’ report provided the following information. Dr. Zizzo referred the appellant to Dr. Illyas for the purpose of “diagnostic clarification and treatment recommendations”. Dr. Illyas recorded the appellant’s symptoms:

He describes significant vegetative symptoms of depression with profound hopelessness, worthlessness and guilt as well as chronic passive SI related to the fallout of these major life transitions which has led to significant financial stress, relational stress, ongoing legal stress, loss of his supports and loss of his living situation.

Was not able to find work initially and was working odd jobs and feels “absolutely lifeless”. Stated he feels “such a deep sense of hopelessness” which has continued since 2013. Stated this started with the loss of his marriage and then the loss of his job. Stated “every day seems harder than the last”. Feels he is “the walking dead…detached” since all this happened. Feels his mood has been down since and he doesn’t get any joy out of life anymore, feels consumed by the stress of this loss.

36Dr. Illyas states that symptoms of depression were noted to have “magnified and grown in intensity” with stressors related to the loss of his marriage and job. He remained at an elevated risk for “SI attempts” (suicidal ideation).

37Dr. Illyas described the appellant feeling like he was at “rock bottom”. The investigation and the College hearing was a “stress for him”. The report noted that the appellant had been staying in a hostel and at times sleeping in his car. The appellant reported that “he struggles daily” and feels like he is “just treading water every day”.

38The appellant told the doctor that he had recently moved to Chicago where he was living with a friend and working. The report notes that the appellant is “currently employed for a social service organization as a consultant full-time - doing this for the last couple of months”. He described “getting enjoyment and pleasure out of work and since setting up a mentoring program this has been very helpful for him and he enjoys it”.

39Dr. Illyas described his findings as follows:

He appeared sad throughout and was appropriately tearful when discussing his stress and the impact of his situation…. Speech was slow rate and volume was low…. Overall, he was cooperative with all questions asked. He endorsed passive suicidal thoughts but denied any active ideation/intent/plan… [t]hought form showed blocking and poverty of speech and content.. There was no evidence of formal thought disorder. There were no perceptual abnormalities noted. He was oriented to time, place and person. Immediate recall, recent and remote memory appeared to be intact. Insight and judgment appeared to be moderate.

40Dr. Illyas states that in his opinion the appellant’s “depression has significantly impacted his functioning and he has only recently started to work on improving his symptoms and trying to get his life on track”. Looking forward, the doctor hopes that with the recommended treatment, the appellant “will be able to overcome his depressive episode and return back to a level of functioning that will be acceptable”.

41As a result of the mental health examination, Dr. Illyas diagnosed the appellant with a “Major Depressive Disorder”. For treatment, Dr. Illyas recommended various medications and psychotherapy “[g]iven the severity of [the appellant’s] symptoms”.

42On October 18, 2016, College counsel wrote to the appellant and stated that based on their review of Dr. Illyas’ medical report, "the College does not agree that the hearing should be adjourned to a later date" and that they would "ask the Panel to proceed with the hearing regardless of whether [the appellant] was present”.

43On October 20, 2016, the law clerk assisting College counsel conducted an internet search to see if the appellant was working. The law clerk found a website for an organization listing the appellant as the Director of Youth Engagement of an organization in Chicago. The search revealed no information about this role. The fact of this search and the results were not disclosed to the appellant. As a result he says that he had no opportunity to respond.

44On October 20, 2016, the day before the hearing, the appellant emailed College counsel. Referring to his October 14, 2016 communication, the appellant stated that “due to my unstable mental health my doctor has advised me not to participate in any disciplinary proceedings as it is a trigger for deterioration of my mental health. Thank you for your continued compassion”.

45Although the appellant gave the College a consent to contact Dr. Illyas, the College did not do so.

Discipline Committee’s decisions

46The Discipline Committee reconvened on October 21, 2016. The appellant did not attend and made no written request for an adjournment. No one appeared on his behalf.

47College counsel told the Discipline Committee that she understood the appellant believed himself unable to participate in the proceeding. The correspondence between College counsel and the appellant was provided to the Committee. College counsel invited the Discipline Committee to consider what she described as an "indirect request for a further adjournment”. She provided arguments in favour of the College's position that the hearing should proceed.

48The Discipline Committee denied the “indirect” adjournment request and proceeded with the hearing. The Discipline Committee proceeded on the basis that the appellant had denied the allegations set out in the Notice of Hearing. Two witnesses testified at the hearing.

49A decision was released on November 11, 2016. That decision denied the second adjournment and found Mr. Spence guilty of committing acts of professional misconduct, and breaching Ontario Regulation 437/97 subsections 1(5), 1(12),1(15), 1(18) and 1(19). The reasons followed on February 23, 2017.

50The Discipline Committee hearing resumed on December 19, 2016 to deal with penalty. The appellant did not attend. Two representatives appeared on his behalf, but not as legal counsel.

51The Discipline Committee directed the Registrar of the College to immediately revoke the appellant’s Certificate and Qualification and Registration, that the appellant immediately surrender his Certificate to the Registrar, and that there be a publication of the findings and Order of the Committee in summary form with the appellant’s name in the official publication of the College.

The Adjournment Decision

52The focus of this appeal is the alleged procedural unfairness that arose when the second adjournment was refused. I now consider the reasons for this decision.

53The Discipline Committee reviewed Dr. Illyas’ medical report and the results of the law clerk’s internet search. It is not clear from the reasons if the Discipline Committee considered Dr. Zizzo’s letter dated May 30, 2016. This letter was not attached as an exhibit to the law clerk’s affidavits and the Discipline Committee does not refer to it in the reasons.

54The Discipline Committee found that a further adjournment was "not supported by the evidence presented by the Member" and "it would unduly prejudice the College, and would not be in keeping with the public's interest in having the Member's disciplinary hearing adjudicated in a timely fashion”.

55The Discipline Committee noted its discretion to adjourn a hearing pursuant to Section 21 of the Statutory Powers Procedure Act and pursuant to Rule 14 of the Rules of Procedure of the Discipline Committee and the Fitness to Practise Committee (the “Rules”).

56In arriving at its decision to deny the adjournment, the Discipline Committee considered the factors in rule 14.01(2) as follows.

The sufficiency of the reasons for the adjournment

57The Discipline Committee acknowledged the appellant’s email that he was unable to participate in the hearing, but found that there was “no evidence” in Dr. Illyas’ report that the appellant was unable to participate in the proceedings because of medical issues. The Discipline Committee noted that according to this medical report, the appellant “was currently employed full-time with a social service organization”. This was “a factor” that the Discipline Committee considered “to be inconsistent with a claim that the Member was unable to attend the hearing”. As a result, the Discipline Committee was of the view that there was insufficient support for an adjournment based on medical issues.

The timeliness of the request

58The request was not timely. The appellant indicated he was “unable to participate in these proceedings”, which was deemed to be a request for a second adjournment. This communication was received only one week before the date scheduled for the hearing. An earlier request was not made to the Discipline Committee.

Resources of the Committee, scheduling related issues and previous adjournment

59On August 24, 2016, the Discipline Committee adjourned the hearing and ordered the hearing to be held no later than October 31, 2016. The College received the medical report from the appellant on October 14, 2016. The Discipline Committee was prepared to proceed with the hearing on October 21, 2016 as scheduled, and the appellant had been informed of this fact.

Any prejudice to the parties

60The College had scheduled two witnesses to appear on October 21, 2016 (who were present) and had prepared its case for that date. The Discipline Committee found that a delay would have prejudiced the College and required further cost to reschedule.

The consent of the parties and any other relevant factor

61The College did not consent to a second adjournment.

62The Discipline Committee noted the lengthy process of trying to secure a hearing date with the appellant. The steps in this process were set out in a detailed chart that was attached to the reasons. The Discipline Committee also relied on the appellant’s April 15, 2016 email, where he stated “I desperately want this to be resolved, as I find it unbearably stressful”.

63Based on these factors, the Discipline Committee denied the second adjournment. It found that a second adjournment was “not supported by the [appellant’s] evidence…it would unduly prejudice the College, and would not be in keeping with the public’s interest in having the Member’s disciplinary hearing adjudicated in a timely fashion”.

analysis

64As noted, the appellant argues that procedural unfairness occurred for three reasons: the Discipline Committee did not consider his medical evidence; the Discipline Committee reached a conclusion with no supporting medical evidence; and the Discipline Committee did not give him an opportunity to respond to the internet search evidence before proceeding in his absence.

65The appellant states that a mental illness that prevents participation in a hearing, presumptively necessitates an adjournment. Based on the medical evidence that he had provided, he says that he had a legitimate expectation that an adjournment would be granted.

66Applying the factors in Baker, I find that the appellant was denied procedural fairness.

67I accept that the College kept the appellant informed throughout most of the process. This is apparent from the numerous emails and letters between the parties. The appellant was given an adjournment of the first hearing date, even though he did not attend.

68I recognize that the Discipline Committee has the power to control its own procedures. When faced with an adjournment request, it is not bound to accede to the request or required to refuse it.

69As described in Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560 at pp. 568-69, a tribunal’s discretion is broad:

We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. Adjournment of their proceedings is very much in their discretion.

70This broad discretion is always subject to the rules of fairness. As I stated at the outset, the factual background informs the question of whether procedural fairness was provided to the appellant. An important element of this background is the fact that the appellant was diagnosed with a major depressive disorder that left the appellant at an elevated risk for “SI attempts” and “significantly impacted his functioning”.

71Dr. Zizzo, who had cared for the appellant for several years described the appellant’s mental state as “precarious” and for this reason advised against participating in the disciplinary hearings “at this time”. This family doctor referred the appellant to Dr. Illyas for a psychiatric assessment.

72The Discipline Committee did not consider the totality of the medical evidence describing the appellant’s mental health.

73The Discipline Committee considered the psychiatrist, Dr. Illyas’ report and found that there was “no evidence” that the appellant was unable to participate in the proceedings. This was not accurate because Dr. Zizzo, the family doctor, recommended that he not participate in the proceedings at that time. The family doctor’s concerns are not even mentioned in the Committee’s reasons and there is no evidence that the Discipline Committee considered Dr. Zizzo’s letter.

74Dr. Illyas’ 10 page report detailed symptoms, concerns and treatment and yet the Discipline Committee focused on two points. First, the fact that Dr. Illyas did not say that the appellant could not attend the hearing and second the appellant’s employment in Chicago. This included the internet search that College counsel did not disclose to the appellant. Providing the internet search results to the Discipline Committee without disclosure to the appellant, was procedurally unfair to him.

75Dr. Illyas’ report was a consultation report prepared for the family doctor. This report provided the mental health diagnosis that supported Dr. Zizzo’s concerns and advice not to attend the hearing. Dr. Illyas did not write the report to explain why the appellant could or could not attend the hearings before the Discipline Committee. As such, it did not specifically address whether he was able to attend the hearing. I acknowledge that it would have been helpful for Dr. Illyas to specifically address whether it was medically advisable for the appellant to attend the hearings. However, it is apparent that this is not what Dr. Illyas was asked to consider.

76If College counsel required additional information from Dr. Illyas about the appellant’s ability to attend the hearing, the College could have contacted Dr. Illyas. This was not done.

77It was a term of the first adjournment that the appellant provide the College with a copy of Dr. Illyas’ medical assessment report. He complied with the request. In these circumstances there was credible evidence to suggest that the appellant was unable to attend the hearing.

78Dr. Illyas knew that the appellant had found a job and yet it was his still his opinion that the appellant’s “depression has significantly impacted his functioning”. He hoped that with treatment the appellant could overcome the depression and return to an acceptable level of functioning.

79The Discipline Committee describes Dr. Illyas’ report as indicating that the “Member is currently employed full-time with a social service organization” a fact that they found to be inconsistent with the claim he was unable to attend the hearing. The Discipline Committee had scant information about the appellant’s employment and yet they relied on this employment without considering all of the medical evidence, to support their decision to proceed. The Discipline Committee did this in the face of a serious mental health diagnosis and Dr. Illyas’ opinion that the appellant’s depression significantly impacted his functioning.

80This discipline proceeding was critically important to the appellant. He was facing a request for revocation, the most serious penalty possible. The appellant had resigned from his position at the Board and so he posed no risk to the school community if the hearing was adjourned again. Fairness required that this further adjournment be allowed.

81In summary, based on the Baker factors, I conclude that it was procedurally unfair for the Discipline Committee to proceed in the appellant’s absence, given the undisputed serious mental health diagnosis that impaired the appellant’s ability to function.

82The appeal is granted. The orders of the Discipline Committee dated November 11, 2016 and February 23, 2017 are set aside and the matter is remitted back to the Discipline Committee for a new hearing.

83The College shall pay the appellant costs of $13,000 all inclusive.

C. Horkins J.

I agree

Thorburn J.

I agree

Pomerance J.