Administrative law – Teachers – Professional misconduct or conduct unbecoming – Disciplinary proceedings – Penalties – Public interest – Decisions of administrative tribunals – College of Teachers – Evidenciary issues – Judicial review – Standard of review – Reasonableness simpliciter
Mitchell v. British Columbia College of Teachers,  B.C.J. No. 3056, British Columbia Supreme Court. October 27, 2003, Humphries J.
Mitchell admitted in an agreed statement of facts that she had been guilty of conduct unbecoming a member in having had, while employed as a teacher, a sexual relationship with a 14-year old male student. A Panel of the College found her conduct to be conduct unbecoming a member and professional misconduct. The Panel recommended cancellation of Mitchell’s certificate of qualification and termination of her membership in the College under section 35(1)(c) of the Teaching Profession Act, R.S.B.C. 1996 c. 449. The Council of the College accepted those recommendations. Mitchell appealed the penalty portion of the decision pursuant to section 40 of the Act, as well as the decision to publish her identity.
The court reviewed the facts and noted that Mitchell had entered into a sexual relationship with the 14-year old student in 1984. Approximately 10 years later, in 1995, the student complained to the police about the relationship. Mitchell was suspended from teaching in 1996 and charged with gross indecency and sexual assault. Mitchell was acquitted by a jury in 1998. The student commenced an action for damages which was dismissed by a jury in 2000. During the course of the civil trial, the trial judge addressed the legal question of whether there was a breach of fiduciary duty and noted that Mitchell could not unilaterally exercise any power or discretion over the student’s legal or practical interests as she was no longer his teacher nor would she ever be his teacher again. Mitchell did not teach in the same school or in the same level of school as the student.
With respect to standard of review, it was common ground that the appropriate standard of review for a statutory appeal from a decision of the College is reasonableness simpliciter, as opposed to the less deferential standard of correctness, or the more deferential standard of patent unreasonableness, based on the decisions of the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of B.C. (2003), 223 D.L.R. (4th) 599 (S.C.C.) and Law Society of New Brunswick v. Ryan (2003), 223 D.L.R. (4th) 577 (S.C.C.). The standard of reasonableness involves asking “after a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?”
The court reviewed the factors considered by the Council in their decision with respect to penalty. These included the fact that Mitchell first came into contact with the student as a result of her teaching position, the student was young and vulnerable, and that the relationship was a fully sexual one that was kept secret and maintained over a period of time. The court noted that the Panel’s analysis was pro forma. The Panel did not review the dynamics and nature of the relationship between the two people involved. The student in question did not testify at the disciplinary proceeding. The Panel did not consider the fact that the student’s evidence was not accepted by two juries and a judge and that he was found by a judge to have genuinely consented to the relationship. The Panel did not consider the fact that Mitchell had already been suspended from teaching for five years notwithstanding that there would have been a maximum ban of two years had the case been concluded when she was initially suspended. The court further noted that the events in question occurred over 16 years ago and that the evidence was that in the intervening years, Mitchell had married, had children, and conducted an exemplary and devoted life as a teacher. None of these factors were mentioned by the Panel in the penalty portion of their report.
The court agreed that the Panel’s objective under section 4 of the Act included the paramount objective of protecting the public interest. However, the court stated that the Panel could not ignore most of the evidence of the actual case before it and noted that a decision made on policy, without regard to specific circumstances and in particular to the lack of risk to the public, was unsupportable, citing the decisions in Young v. British Columbia College of Teachers,  B.C.J. No. 1908 (S.C.) and Branigan v. Yukon Medical Council,  Y.J. No. 133 (S.C.).
The court held that the College was required, by its objects, to consider not only the public interest but professional interests of its member and did not do so, as it failed to give any analysis or consideration to the many mitigating factors specific to the case. Therefore, the court held that the decision on penalty was unreasonable and could not stand. The court substituted a penalty of a suspension of two years, effective from the date of the Council’s decision, in place of the penalty imposed by the College. The court further held that upholding the public interests did not require publication of the identity of the teacher as there was no risk of harm, no risk of repetition of the conduct and no risk of the school system being brought into disrepute in the eyes of the community.
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