CITATION: Ellis v. Ontario College of Teachers, 2011 ONSC 4134
DIVISIONAL COURT FILE NO.: DC-10-00000558-0000
DATE: Jun 30, 2011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., THOMAS AND FERRIER JJ.
B E T W E E N:
ELROY ELLIS
Paul R. Krumeh, for the Appellant
Appellant
(Applicant)
- and -
ONTARIO COLLEGE OF TEACHERS
David E. Leonard, for the Respondent
Respondent
HEARD at Toronto: June 27, 2011
BY THE COURT
[1] Elroy Ellis appeals from a decision of the Fitness to Practise Committee of the Ontario College of Teachers (“the Committee”) dated July 30, 2010, which determined that the appellant was incapacitated by a physical or mental condition rendering him unfit to carry on as a teacher.
[2] The Appellant argues that this decision was wrong because the Committee relied on the expert evidence of a psychiatrist who had conducted a document review and provided a provisional diagnosis. Without a proper psychiatric assessment having been conducted the appellant submits that the evidence before the Committee was insufficient to ground its finding. The appellant further argues that there was procedural unfairness because the decision was made without regard to all the facts.
BACKGROUND:
[3] Beginning in 1997, Elroy Ellis was employed as a high school teacher at Turner Fenton Secondary School ("the School") by the Peel District School Board ("the Board"). Beginning in 2005, the appellant's behaviour began to concern the School, the Board and eventually the College. Among other things, he made a series of complaints to the Board that students were being abused at the School (sexually and physically) and that officials at the School were seeking to cover up indictable offences. However, when pressed for basic details on these alleged incidents, Ellis refused to provide identifying information or to respond to questions that were not in writing.
[4] When the appellant refused to provide the names of students allegedly being sexually assaulted, the Board became concerned that the appellant was endangering students at the school and failing to comply with his legal obligation to report such matters under the Child and Family Services Act. The Board therefore wrote a letter of reprimand to the appellant on June 23, 2005. A discipline hearing was held on June 27, 2005, and on July 6, 2005, the Board informed the appellant that he would be suspended with pay.
[5] On July 18, 2005, the Board complied with its obligation to inform the College of the fact that the appellant had been suspended. The College's Investigation Committee then conducted an investigation into the appellant's conduct and directed that the matter be referred to the Fitness to Practise Committee.
[6] A Notice of Hearing was issued by the Registrar of the College on June 28, 2007, which alleged that Ellis "is suffering from a physical or mental condition such that he is unfit to carry out his professional responsibilities or that his Certificate held under the Act should be made subject to terms, conditions or limitations, and he is therefore incapacitated as defined in Section 31(2) of the Act," The Notice also alleged that the appellant has impaired judgment, that he has failed to carry out his professional duties, and that he requires treatment for his condition or disorder.
[7] Pursuant to s. 31(1) of the Ontario College of Teachers Act, 1996, "The Fitness to Practise Committee shall, (a) hear and determine matters directed or referred to it". Section 31(3) provides that the Committee may order the Registrar to revoke or suspend the member's certificate, or to impose specific conditions on the certificate, where the member is found to be incapacitated.
[8] The matter was heard by the Committee over six days between May 2009 and July 2010. On May 4, 2009, the appellant appeared with counsel and the parties agreed that the appellant would undergo a full psychiatric assessment prior to continuation of the hearing. An appointment was set for the assessment but the appellant did not attend.
[9] The hearing was set to continue on March 1 and 2, 2010. On those dates, the appellant did not attend but his counsel did. The College called five witnesses on those dates for examination in chief and cross examination. The witnesses included the Associate Director of the School Board, the Superintendent of Education, the Superintendent of Human Resources and the Principal of the School.
[10] As well, Dr. Jeff McMaster, a forensic psychiatrist employed at the Centre for Addiction and Mental Health, provided a written report and gave opinion evidence concerning the appellant’s mental condition. Dr. McMaster's credentials were not challenged. His report and opinion were based on a review, a "Brief of Documents re Correspondence and related material from/to the Peel District School Board re Elroy Ellis", rather than a direct assessment of the appellant. Dr. McMaster took the view that, without a full psychiatric assessment, the most he could provide would be a provisional diagnosis of the appellant’s condition. In his view, the appellant could be diagnosed with delusional disorder, persecutory type, as defined in the Diagnostic and Statistical Manual IV ("DSM IV”). This disorder is characterized by loss of contact with reality and fixed false beliefs and one or more non-bizarre delusions that persist for at least a month. A non-bizarre delusion is a delusion of something that could actually happen in real life (as opposed to a belief in something that would be objectively impossible).
[11] Dr. McMaster gave evidence that many of the odd statements and guarded behaviour of the appellant could be attributed to paranoid beliefs and a mistrust of the authorities at the Board and the School. Dr. McMaster also suggested that a delusional disorder of this nature might be difficult to treat because it has gone undiagnosed for perhaps up to six years, and because the appellant views the problem as external to himself.
[12] Following receipt of this evidence, the parties agreed that the matter would continue on May 19 and 20, 2010. However, the appellant and his counsel did not attend on those dates and did not present any evidence in defence of the allegations. The Committee rendered its written decision on May 20 finding that the appellant was incapacitated as defined in the Act. The written decision was mailed to the appellant and he was advised that penalty submissions would be heard on July 6, 2010. The appellant was aware of this return date. Neither the appellant nor his counsel attended on July 6. On July 30, 2010, the Committee released its order and reasons, directing the Registrar to revoke the appellant’s certificate. The Committee stated that it was challenged by the fact that the appellant did not view himself as having a disorder. The Committee relied on the evidence of Dr. McMaster in stating that "without significant treatment or medical attention it is likely the [appellant] would continue to engage in problematic behaviour in the workplace”. The Committee also noted appellant had not cooperated with the scheduled assessment and did not believe he suffered from any condition, so it would be unlikely he would comply with conditions or terms imposed on his certificate. Therefore, the Committee concluded; "the only way to adequately protect the public is to direct the Registrar to revoke the [appellant's] certificate of qualification and registration”.
[13] The appellant filed a Notice of Appeal on November 16, 2010
KEY ISSUES:
[14] 1. Did the Committee err in deciding that the appellant is incapacitated and should have his certificate revoked?
[15] 2. Did the Committee afford the appellant procedural fairness?
STANDARD OF REVIEW:
[16] The appellant states that a reasonableness standard applies following Dunsmuir v. New Brunswick. Legal errors, matters beyond a Tribunal’s expertise and questions of jurisdiction are reviewed for correctness. Where matters of procedural fairness are raised, no standard of review analysis is required; the question is whether the rules of procedural fairness have been adhered to.
[17] The respondent agrees that the standard of review should be reasonableness because the Committee is a specialized body composed of members and trained lay people who are best positioned to assess whether an individual poses a threat to the public if he or she continues to practise in the profession. Assessments of capacity are squarely within the mandate of the Committee. As well, the decision of the Committee regarding the appropriate response to the finding of incapacity is a discretionary decision entitled to great deference by a reviewing court.
[18] We are of the view that the standard of review here is indeed reasonableness. This Committee is specialized body and assessments of capacity do fall squarely within the Committee’s mandate. As well deference is owed here with respect to the Committee’s response to the finding of incapacity. Were we to consider procedural unfairness, of course, no standard of review analysis is required. The question then would simply be: were the rules of procedural fairness adhered to?
ANALYSIS:
[19] As to the issue concerning the expert report we are persuaded that the provisional diagnosis in the circumstances was admissible because it was relevant. Even if expert opinion is based on second hand evidence (a document review here) so long as the Committee established as it did here, the underlying facts upon which the expert relied it may be received [see R v. Abbey (1982) 1982 25 (SCC), 2 SCR 24, R v. Lavalleé (1990) I SCR 582]. Expert opinion if based on second hand evidence is admissible evidence so long as it is relevant. It then becomes a question of weight. In R. v. Lavalleé the ratio of R. v Abbey is neatly set out in paragraph 66. In the present case there was some admissible evidence which assisted the Committee in establishing the basis for the expert opinion. Moreover, the Committee, in arriving at its decision that the appellant was incapacitated, relied not just on the expert opinion but also upon the evidence of the fact witness. In our view the decision of the Committee was reasonable in all respects.
[20] With respect to the issue of procedural fairness we are satisfied there was no breach in the present case. Of significance is the fact that the appellant chose not to attend the final days of the hearing or to provide any defence. As the court concluded in Tomaszewska v. College of Nurses of Ontario (2007) OJ 1731 para. 15:
I would not give effect to this ground of appeal. When the Appellant’s counsel did not appear for the hearing, the Committee granted a short adjournment to allow Discipline Counsel to contact him to determine whether he would appear. Had counsel appeared, he could have made known the Appellant’s position on disclosure and asked for an adjournment. He chose not to do so, and the Appellant cannot now complain that there was a denial of procedural fairness because her position was not put to the Committee as she would have liked. As this court stated in Ontario Taxi Association, Local 1688 v. Windsor Airline Limousine Services Ltd. (1980), 1980 1897 (ON SC), 30 O.R.(2d) 732 at 739:
It has for some time been made plain in a number of decisions that one who chooses to leave on the ground that a tribunal is incompetent runs the risk of being foreclosed from any later complaint...
[21] The failure to object to a procedural matter at the first opportunity will constitute a waiver of later complaints [see Sharma vs. British Columbia Veterinary Medical Assessment, (2008) BCJ 329].
[22] For these reasons the appeal is dismissed.
[23] The Respondent shall have its costs which we fix at $5,000 all inclusive.
Cunningham A.C.J.
Thomas J.
Ferrier J.
Released: Jun 30, 2011
CITATION: Ellis v. Ontario College of Teachers, 2011 ONSC 4134
DIVISIONAL COURT FILE NO.: DC-10-00000558-0000
DATE: Jun 30, 2011
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., THOMAS AND FERRIER JJ.
B E T W E E N:
ELROY ELLIS
Appellant
- and –
ONTARIO COLLEGE OF TEACHERS
Respondent
ENDORSEMENT
Released: Jun 30, 2011