Administrative law – Decisions of administrative tribunals – College of Teachers – Teachers – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Penalties – Judicial review – Procedural requirements and fairness – Failure to provide adequate reasons – Standard of review – Reasonableness simpliciter – Charter of Rights – Freedom of expression
Kempling v. British Columbia College of Teachers,  B.C.J. No. 173, British Columbia Supreme Court, February 3, 2004, Holmes J.
Between 1997 and 2000, the appellant teacher wrote and published in a local newspaper articles and a series of letters to the editor expressing his views on homosexuals. These writings drew a heated response from readers and resulted in the BCCT issuing a citation and charging him with professional misconduct or conduct unbecoming a BCCT member on the grounds that he had made discriminatory and derogatory statements against homosexuals. Following a hearing before a Hearing Panel of the disciplinary committee of the BCCT, the Panel found the appellant guilty of conduct unbecoming a member and recommended a one-month suspension of the appellant’s teaching certificate as well as other sanctions including notification to various licensing authorities and publication of the appellant’s name and a summary of the case to BCCT members and the public. The penalty was adopted by the BCCT Council. The appellant appealed both the Panel’s finding of conduct unbecoming and the penalty decision.
The Court rejected the appellant’s argument that procedural fairness had been violated because the Hearing Panel gave inadequate reasons for its determination. The Court did not find that the fact the appellant’s private correspondence was presented to the Hearing Panel (which were submitted on the appellant’s own initiative) amounted to procedural unfairness.
With respect to the standard of review, the fact that Charter issues may be implicated in one or more aspects of a decision does not automatically lead to the conclusion that the entire decision will be reviewed on the same correctness standard. It is preferable to determine the appropriate standard of review for each decision, absent Charter issue and, if there are no grounds to disturb the decisions, then consider if the appellant’s Charter rights would nevertheless be infringed and whether the infringement would be justified under s.1.
The standard of review with respect to the decision of conduct unbecoming a BCCT member is, absent Charter issues, reasonableness simpliciter. In applying a “somewhat probing examination”, the Hearing Panel’s finding of conduct unbecoming was reasonable in that the Panel’s findings and conclusions had some basis in the evidence and the reasons as a whole were tenable as support for the decision. The standard of review with respect to the penalty decision by the Council of the BCCT was also reasonableness simpliciter. Again, upon a “somewhat probing examination” of the Panel’s reasons and recommendations which were adopted by Council, the Council’s decision emerged as a reasonable one.
With respect to the Charter issues, there was no bar to the Court adjudicating the appellant’s claims that his rights under ss.2(a), 2(b), 7 and 15 under the Charter had been infringed even though the Charter issues were raised only on appeal.
There was no infringement of the appellant’s rights to freedom of conscience and religion and freedom of thought, belief, opinion and expression under ss.2(a) and ss.2(b) of the Charter. In Walker v. Prince Edward Island, 107 D.L.R. (4th) 69 (P.E.I.S.C. – A.D.), the Court made it clear that the Charter does not protect the right to speak in any given capacity, other than one’s own personal capacity, when one is not authorized to do so. The appellant was at all times free to express his views on homosexuality in a non-violent manner qua private citizen. What he was being sanctioned for was his off-duty expression of personally held discriminatory views purported with the authority or in the capacity of a public secondary school teacher and counsellor, which resulted in harm to the school system.
Likewise, there was no infringement of his rights under s.7. The rights under s.7 do not extend to the right to exercise one’s chosen profession nor was it accepted that the right to practice as a teacher rises to the level of a “fundamental personal choice” going to the root of a person’s dignity as contemplated in Blencoe v. British Columbia (Human Rights Commission),  2 S.C.R. 307.
With respect to the s.15 rights, the appellant has not alleged or provided evidence of differential treatment when compared to the other appropriate comparator group, that is, other public school teachers who are also BCCT members who have been or are being disciplined for similar conduct. Therefore, the s.15 claim was dismissed.
Finally, even if the appellant’s Charter rights were indeed infringed, they would be justified under s.1 of the Charter.
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