2023 ONSC 3453, 2023 ONSC 3453

CITATION : Ontario College of Teachers v. Merolle, 2023 ONSC 3453 DIVISIONAL COURT FILE NO.: 521/22 DATE: 20230609 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Sachs, Stewart, and Newton JJ. B E T W E E N: ) ) Ontario College of Teachers ) ) ) C. Zayid, A. Arbuck, A.

Kanji for the Appellant Appellant ) ) - and - ) ) Roberto Merolle ) ) ) Self Represented Respondent Respondent ) ) ) HEARD: April 11, 2023 in Toronto, Ontario via Zoom WARNING PUBLICATION BAN : Pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 , no person shall publish the identity of, or any information that would disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing. Newton J.

Reasons on Appeal Overview [ 1 ] The Ontario College of Teachers (the “College”) appeals from the decision of the Discipline Committee of the Ontario College of Teachers (the “Discipline Committee”).

A majority of the Discipline Committee (the “Majority”) hearing this matter rejected a joint submission on penalty and, instead, ordered a penalty it deemed fit. [ 2 ] The College argues that the Majority failed to apply the correct legal test (the “public interest test”), applied a “fitness test”, and considered only whether the penalty was too harsh and not any of the factors relevant to the “public interest test”. [ 3 ] For the reasons that follow. I would allow the appeal and impose the joint submission with the suspension of registration to commence effective May 5, 2022. Background [ 4 ] Mr.

Merolle was the principal at a Catholic High School during the 2018-2019 school year.

[ 5 ] Between September 2018 and February 2019, Mr. Merolle made inappropriate comments [1] to and/or in the presence of a female vice-principal at his school. [ 6 ] In December 2020, the College served a Notice of Hearing upon Mr. Merolle alleging that he was guilty of professional misconduct. [ 7 ] In August 2021, the College, Mr.

Merolle and his counsel attended a Pre-Hearing Conference and, as a result of discussions held at that conference, the parties negotiated a resolution consisting of an Agreed Statement of Facts and Guilty Plea and a Joint Submission on Penalty. [ 8 ] At the hearing before the Discipline Committee on April 20, 2022, Mr. Merolle pleaded guilty to the allegations against him by way of an Agreed Statement of Facts and Guilty Plea [2] and acknowledged that the Admitted Facts constitute conduct which was professional misconduct. The Discipline Committee found that Mr.

Merolle had engaged in acts of professional misconduct. It was admitted that Mr. Merolle resigned his employment with the Board effective June 30, 2019 and was not employed by any public school board in the province. [ 9 ] The College and Mr. Merolle, who was represented by counsel, presented a written joint submission on penalty [3] which included a reprimand, a three month suspension of registration, and a requirement of course work. [ 10 ] Both counsel for the College and for Mr.

Merolle also made oral submissions in support of the joint submission on penalty, emphasizing that it was a joint submission, and reviewed appellate authority favouring the adoption of joint submissions. [ 11 ] Counsel for the Discipline Committee also reviewed the appellate authority favouring the joint submissions and advised the Discipline Committee that their role was confined “to determining only whether the proposed penalty was so unreasonable that it would bring the administration of the discipline process into disrepute, or would otherwise be contrary to the public interest.” [4] [ 12 ] At the conclusion of the hearing,, the Discipline Committee advised the parties that the panel had concerns regarding the joint submission on penalty and later, on May 20, 2022, the Discipline Committee wrote to the parties, seeking further submissions, advising that the majority of the Discipline Committee had concerns that: Based on the submissions of the parties and the cases presented, the Panel is concerned that accepting the penalty proposed would bring the administration of justice into disrepute since: (

a) the Panel is concerned that a three-months suspension would bring the administration of the discipline process into disrepute; and (

b) the cases provided by the parties are not analogous and they provide little guidance to the Panel in determining whether the proposed penalty falls within the range of what has been ordered by other panels in the past for similar conduct [5] . [ 13 ] Counsel for the College and for Mr.

Merolle provided detailed written submissions in support of the negotiated joint submission on penalty and the basis for it, noting that the Panel did not advise the parties whether the Panel considered the three month suspension “too low” or “too high” [6] . [ 14 ] In its 52 paragraph submissions, the College reviewed the facts leading to the guilty plea and reviewed the test for interfering with a joint submission on penalty as set out by the Supreme Court of Canada in R. v. Anthony- Cook [7] , as followed by the British Columbia Court of Appeal in R. v.

Cheema [8] and, in the regulatory context, as followed by Law Society of Upper Canada v. Archambault [9] and, in this court, by Bradley v. Ontario College of Teachers [10] . [ 15 ] Counsel for Mr. Merolle adopted the submissions of the College “in full” and made the following additional submissions that: a. the delay in accepting the joint submission on penalty was further penalizing Mr.

Merolle; b. the suspension should begin on May 5, 2022, the date agreed to in the joint submission on penalty; and c. certainty as to penalty includes when penalties should start [11] . [ 16 ] On August 10, 2022, a Majority (2) of the Discipline Committee rejected the joint submission on penalty and imposed all the terms of the joint submission on penalty, except the three month suspension. The dissenting member of the panel would have imposed the joint submission on penalty, finding that the high threshold for rejecting a joint submission on penalty was not met.

The Decision of the Discipline Committee [ 17 ] In their reasons rejecting the joint submission for a three month suspension, the Majority of the Discipline Committee reviewed Anthony-Cook , Bradley and other decisions and noted that they did not reject the joint submission on penalty “lightly”. The Majority stated that they had “carefully reviewed the public interest test set out in Anthony-Cook and applied it to the present case [12] ”. The Majority concluded:

[47] The Majority finds that in the circumstances of this case a penalty providing for a suspension of three months is unduly harsh and inappropriate and would bring the administration of the discipline process of the College justice into disrepute.

Such a term is also contrary to the public interest since (1) the Member's inappropriate comments fall on the lower end of the scale of objectionable comments and consequently do not rise to the level of seriousness required to warrant a suspension; and (2) the cases provided by Counsel in support of a suspension of three months are not analogous to the facts in the within matter. As noted above, they involve more serious fact situations than are present in the within matter which would support the suspension penalty ordered in those cases.

They are easily distinguishable on the facts and are therefore of no assistance to the Majority in reaching its decision. [ 18 ] The dissenting member of the Discipline Committee disagreed stating: [76] I find that a three-month suspension is reasonable and appropriate in the circumstances of this case. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature in that they all relate to inappropriate conduct towards colleagues and/or subordinates. The cases confirm that a suspension is reasonable.

The Discipline Committee in those cases ordered suspensions in the range of two to five months, in addition to reprimands and coursework. A

summary of these cases is set out below. … [84] After carefully considering these cases, I find that a three-month suspension is appropriate and reasonable since it falls within the range of what has been ordered by other panels in the past for similar misconduct. The suspension will serve as a specific deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable.

In relation to the timing of the suspension, I accept the unopposed submissions of Member's Counsel that the suspension should start retroactively on May 5, 2022 and would order accordingly. … [86] I am satisfied that the high threshold for rejecting the Joint Submission on Penalty has not been met in the circumstances.

The penalty jointly proposed is not so unhinged from the circumstances of this case that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. The penalty jointly proposed also meets the principle of serving and protecting the public interest. Positions of the Parties [ 19 ] The College identifies two issues on this appeal: a.

Did the Majority error in law by applying a fitness test rather than the public interest test in deciding to reject the joint submission on penalty? b.

Did the Majority error in principle by failing to appreciate and apply the stringent nature of the public interest test? [ 20 ] The College submits that, although the Majority purported to apply the correct legal test – the public interest test, the majority applied a “fitness” test as the Majority substituted their own opinion as to what an appropriate penalty should be. [ 21 ] The College submits that the question of whether the Majority selected and applied the appropriate legal test in deciding to reject the joint submission on penalty is a question of law, which attracts a standard of correctness. [ 22 ] Further, the College submits that the failure to apply the public interest test in a stringent manner is an error of principle requiring the reviewing court to determine whether the joint submission should have been accepted. [ 23 ] Mr.

Merolle, who represented himself on this appeal, submitted that the Majority of the Discipline Committee applied the correct legal test and considered all relevant factors in coming to its decision to reject the joint submission on penalty. The Law [ 24 ]

Section 35 of the Ontario College of Teachers Act,1996 [13] provides for an appeal of a decision of the Discipline Committee to the Divisional Court. Subsection 35(4) sets out the broad powers of the Court:

(4) An appeal under this

section may be made on questions of law or fact or both and the court may affirm or may rescind the decision of the committee appealed from and may exercise all powers of the committee and may direct the committee to take any action which the committee may take and that the court considers appropriate and, for the purpose, the court may substitute its opinion for that of the

committee or the court may refer the matter back to the committee for rehearing, in whole or in part, in accordance with such directions as the court considers appropriate. [ 25 ] Determination of the correct legal test is a legal issue for which the standard of review is correctness [14] . [ 26 ] Ordinarily, penalty decisions of a tribunal are owed great deference [15] . [ 27 ] However, when a joint submission on penalty is presented decision makers, whether courts or administrative tribunals [16] must exercise restraint, “rejecting joint submissions only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.” [17] [ 28 ] The Supreme Court of Canada described this as a “undeniably high threshold” [18] .

As the court noted: Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. [19] [ 29 ] This stringent public interest test is required because when plea resolutions are properly conducted the parties, witnesses, counsel, and the administration of justice all benefit.

For many, “maximizing certainty as to the outcome is crucial.” [20] Analysis [ 30 ] I agree with the submission of the College that the Majority applied a “fitness test” when the majority deemed the penalty as “unduly harsh and inappropriate” and that this application of the wrong test is an error of law. [ 31 ] The Majority’s

summary of its conclusions described the suspension as “unduly harsh and inappropriate” and contrary to public interest because Mr. Merolle’s comments were at the “lower end” of objectionable and the cases relied upon the parties were not analogous. [ 32 ] When assessing a joint submission, the tribunal must consider factors beyond the typical sentencing principles and should not “reverse engineer” a joint submission by determining the sentence that it would have imposed.

The analysis should begin with the basis for the joint submission, including the important benefits to the administration of justice and ask whether there is something apart from the length of the sentence that engages the public interest or repute of the justice system [21] . Consideration of the fitness of the proposed penalty must be coupled with a “demonstrated consideration” of the benefits of the joint submission process [22] . [ 33 ] The majority’s reasons following its

summary paragraph at paragraph 47 of the decision represent a “reverse engineer” of the penalty arrived at by the parties. There was no “demonstrated consideration” of the benefits of the joint submission process other than a passing reference to “certainty” and “smooth functioning of the justice system” at paragraph 63 of the decision.

Thus, the wrong test was applied. [ 34 ] As the wrong test was applied, this court can look at this case “afresh using the correct test to determine whether the joint submission on sentence should have been accepted.” [23] [ 35 ] The dissenting member of the Discipline committee applied the proper test in the following paragraph: [86] I am satisfied that the high threshold for rejecting the Joint Submission on Penalty has not been met in the circumstances.

The penalty jointly proposed is not so unhinged from the circumstances of this case that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. The penalty jointly proposed also meets the principle of serving and protecting the public interest. [ 36 ] The joint submission on penalty was arrived at, after receiving submissions from the pre-hearing officer, by counsel with the agreement of the parties.

The submissions from counsel, both at and subsequent to the hearing, set out the aggravating and mitigating factors in support of the joint submission on penalty and provided finality and certainty to the parties. For Mr. Merolle that certainty included the completion of the suspension by August 5, 2022. [ 37 ] The analysis undertaken by the dissenting member represented a proper application of the public interest test and I would impose the joint submission.

Conclusion [ 38 ] The appeal is allowed. [ 39 ] The joint submission as to penalty is accepted and shall be imposed with the suspension of registration commencing effective May 5, 2022. [ 40 ] The College does not seek costs. There shall be no order as to costs.

______________________________ Newton J. I agree _______________________________ Sachs J. I agree _______________________________ Stewart J. Released: June 9, 2023 CITATION : Ontario College of Teachers v. Merolle, 2023 ONSC 3453 DIVISIONAL COURT FILE NO.: 521/22 DATE: 20230609

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT B E T W E E N: Ontario College of Teachers Appellant - and - Roberto Merolle Respondent REASONS FOR DECISION Newton J. Released: June 9, 2023 /lvp