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	Conducting Discipline Hearings: It’s Not as Easy as it Looks
	by Bernard C. Leblanc
	September, 2005 - Vol 6 No 12

	One of the most important functions of any regulator is dealing with complaints and, in appropriate cases, disciplining its members. Discipline hearings in most cases are quite formal, and tend to resemble courtroom trials (although not trials as seen on television). To someone unfamiliar with the process, it may appear that it is easy to conduct a hearing into allegations of professional misconduct. However, the reality is that it is very difficult to do so. The recent case of Kalin v. Ontario College of Teachers (2005), 85 O.R. (3d) 423 is a good example. In that case, the teacher, Kalin, allegedly had inappropriate sexual contact with R, a seventeen-year-old former student, in 1991. Interestingly, Kalin was also charged criminally with sexual assault and sexual exploitation. He was acquitted following his criminal trial. His lawyer made the tactical decision not to challenge R’s evidence as to whether there actually was sexual activity. Instead, the defense strategy, which succeeded, was to argue that R was capable of consenting and did in fact consent. In addition, Kalin successfully argued that he was not in a position of authority, which would otherwise have vitiated consent. However, Kalin’s troubles were not over because R also complained about the same activity to the Ontario College of Teachers. The complaint was made in 2000 and it was referred to the Discipline Committee in May, 2002. When counsel attended before the Chair of the Discipline Committee in November 2002 to set a date for the hearing, the College asked for the first available date, which was January, 2003. Kalin’s lawyer indicated that Kalin was in Asia but that he would be returning for five weeks. He therefore asked that the hearing be scheduled for July 2003, so that Kalin could be present. For reasons that were not clear, the Chair refused the request to adjourn the hearing to July, and set the hearing date for January 20, 2003. Just prior to the hearing, R indicated that he did not wish to testify. Instead, he said that his testimony at the criminal trial was accurate and that he had nothing further to say. At the beginning of the hearing in January 2003, Kalin’s lawyer again asked for an adjournment to July, 2003 so that he could be present. Kalin apparently wished to deny R’s allegations and wished to testify. Once again, the request for an adjournment was denied. However, the Discipline panel did not issue reasons for refusing the adjournment request. In terms of the hearing itself, no witnesses were called. Instead, the College introduced into evidence a transcript of R’s testimony at Kalin’s criminal trial as well as the findings of the trial judge. It is important to note that the lawyer for the College argued that the Discipline Committee should draw an adverse inference from the fact that Kalin did not challenge R’s evidence at the criminal trial that sexual contact took place. The Tribunal accepted this argument, and found Kalin guilty of professional misconduct and revoked his license to practice teaching in Ontario. Kalin then brought an application for judicial review. The Divisional Court made a number of observations in the course of reversing this decision. First, the Divisional Court held that while the Tribunal is entitled to control its own process, and is therefore not obliged to grant an adjournment merely to accommodate the convenience of a party, the Tribunal cannot act arbitrarily. The Divisional Court held that the Tribunal did, in fact, act arbitrarily by scheduling the hearing for January and then refusing to grant an adjournment later until July. The Court found that while the charges were serious, Kalin maintained his innocence throughout and asserted a desire to testify in his own defense. The Court also noted that Kalin was out of the country and that fourteen years had passed since he was R’s teacher, and that nearly twelve years had passed since the alleged incidents occurred. The court also noted that R only reported this incident five years ago and that Kalin had not taught in Ontario for the same length of time. The court therefore held that it was difficult to imagine what prejudice it would be to the College, or to the general public, if an adjournment of a further five or six months was granted in order to permit Kalin to appear and defend himself. The court also expressed concern about the Tribunal relying on the transcript of the criminal trial. While the court agreed that the Tribunal could accept the evidence, the Tribunal should also have considered all of the relevant circumstances before doing so. In particular, credibility would obviously be a significant issue in the case, because Kalin was denying that the sexual activity took place. Because of the tactic Kalin took at the criminal trial of not denying, for the purposes of the trial, that the sexual activity took place, R was not cross-examined. The court held, therefore, that to permit the transcript of the evidence in the criminal trial to be admitted, when R was not cross-examined, prejudiced Kalin in proceedings before the Ontario College of Teachers. Instead, the College should have called R to testify. Most concerning in many ways, the court held that it was wrong for the College to argue that it was appropriate to draw an adverse inference from the fact that Kalin did not challenge R’s evidence at the criminal trial. The court pointed out that an accused at a criminal trial is presumed to be innocent, and need not testify in his own defense. Therefore, an adverse inference cannot be drawn from his failure to deny the allegations at the criminal trial, particularly as Kalin was in fact acquitted of the charges at the criminal trial. The court then pointed out that the Tribunal did not give any reasons for any of its rulings, such as denying the adjournment, admitting the transcript at the criminal trial into evidence, and apparently accepting the proposition that an adverse inference should be drawn by Kalin not challenging R’s evidence at the criminal trial. The court noted that the governing legislation provides a right of appeal from decisions of the Discipline Committee of the College, but without reasons for the Tribunal’s decisions, there is no meaningful right of appeal. The court said that it is insufficient simply to summarise the positions of the parties and then baldly state its conclusions. Instead, reasons must be just that, an explanation as to why the Tribunal accepted one argument over another. There must be some analysis to explain why they reached their decisions. The court concluded that the failure to provide meaningful reasons was itself a breach of the “principles of natural justice”, which justified reversing its decision. This decision raises a number of practical issues for Discipline Committees. First, while Discipline panels can control their own processes, they must be very careful how they exercise their discretion, particularly in relation to procedural matters such as adjournments and accepting evidence. It is also important to ensure that Discipline Committees proceed in a manner that is entirely fair to the member who is facing allegations of misconduct. Finally, when making decisions of any significance during the course of a hearing, Discipline panels would be well advised to provide at least some reasons for their decisions. [Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com. Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome. ]



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	Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.