The Discipline Committee of the Ontario College of Teachers acted arbitrarily and breached principles of natural justice and fairness in first scheduling a hearing during a time when it knew the Respondent would be out of the country and, second, in then refusing an adjournment of the hearing

26. July 2005 0

Administrative law – Decisions of administrative tribunals – College of Teachers – Hearings – Judicial review – Adjournment of hearing application – Natural justice – Procedural requirements and fairness – Public interest

Kalin v. Ontario College of Teachers, [2005] O.J. No. 2097, Ontario Superior Court of Justice, May 24, 2005, G.D. Lane, P.H. Howden and A.M. Molloy JJ.

The Appellant was a member of the Ontario College of Teachers and had been a high school teacher for 30 years. He was charged with various counts pertaining to alleged sexual impropriety with a former student. The hearing before the Discipline Committee took place in the Appellant’s absence after his adjournment request had been refused. The Appellant was found guilty, and an appeal was then commenced.

The court reviewed the facts. It noted that the Notice of Hearing set June 2002 as an initial appearance date for the discipline proceeding. This appearance was for the purpose of scheduling a hearing date. The Appellant’s lawyer had advised the College that the Appellant was in Asia but he agreed to facilitate matters by accepting service on the Appellant’s behalf and tentatively scheduling a hearing date in October 2002. Sometime between June and October, the Appellant obtained new counsel. His new counsel advised the College that the Appellant was still in Asia and asked for an adjournment of the October hearing date. The matter was adjourned by consent to November 6, 2002 to set a new hearing date. On that day, counsel for the College asked for the next available hearing date, which was January 20-22, 2003. The Appellant’s counsel advised that the Appellant was still in Asia but would be returning in July for five weeks and asked that the hearing be scheduled for that time, so that the Appellant could be present.

The Committee held that in the absence of evidence that either the expense of travel or the loss of employment were an issue, the hearing would be scheduled for January 2003. In the week prior to the January 20 hearing date, counsel for the Appellant again advised counsel for the College that the Appellant was in Asia and would not be able to attend the hearing. The Appellant himself provided a letter denying the accusations and indicating that he would be out of the country until the last week of June 2003 and that he wanted to give evidence on his own behalf.

At the opening of the hearing in January, counsel for the Appellant requested an adjournment of the hearing to July 2003. He advised the Tribunal that the Appellant was in Asia and was therefore unable to attend. Counsel for the Appellant advised that the Appellant was working as a teacher in Asia, that his travel plans were not vacation plans and that he believed he had contractual obligations in Asia that did not permit him to leave.

The Tribunal rejected the adjournment request, holding that it was satisfied that the Notice of Hearing was properly served and allowed the Appellant sufficient time to make arrangements to be present.

The Court held that matters such as scheduling and deciding whether or not to grant an adjournment involved an exercise of discretion. Generally speaking, such decisions were entitled to considerable deference provided that the discretion was exercised judicially and in accordance with the principles of fairness and natural justice. However, in exercising its discretion as to whether to grant an adjournment, a tribunal was not permitted to act arbitrarily. The tribunal may take into account the public interest and the interest of the tribunal itself in having matters moved expeditiously, but it must also take into account all of the relevant factors including the reasons for the request, the implications of not granting the request and whether the public interest may be adequately protected by alternate means.

The Court held that the Tribunal in this case acted arbitrarily both with respect to the scheduling of the hearing for January 2003 and then in refusing to adjourn the hearing date. The Court noted that the implications of the disciplinary proceeding on the Appellant, personally and professionally, were extreme. The Court noted that the Appellant cooperated with the College from the time the complaint was first filed, maintained his innocence of the charges and stated his desire to testify in his own defence. It was also clear that the Appellant was in fact out of the country. The Court held that these were factors that the Tribunal ought to have taken into account. There was no reasonable basis for the Tribunal’s insistence that the hearing proceed in January 2003, especially when the Tribunal knew that the Appellant was in Asia and would not be returning to Canada until the end of June 2003.

The reasons of the Tribunal for refusing the adjournment were sparse. Given that many years had passed since the events at issue occurred, the Court could not see what prejudice there could be to the Court or to the general public if an adjournment of five or six months was granted in order to allow the Appellant to defend himself on the charges.

The Tribunal in this case did not weigh the interests of justice and fairness in the balance before electing to proceed with the hearing and the Appellant was therefore denied natural justice and fairness. The Tribunal’s decision was therefore set aside and a re-hearing ordered.

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