Administrative law – Teachers – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Decisions of administrative tribunals – College of Teachers – Judicial review – Compliance with legislation – Procedural requirements and fairness – Delay – Jurisdiction of tribunal
Bhadauria v. Ontario College of Teachers,  O.J. No. 2468, Ontario Superior Court of Justice, June 9, 2004, MacFarland, Swinton and Linhares de Sousa JJ.
A teacher appealed a decision of the Discipline Committee of the Ontario College of Teachers made in March of 2003. The discipline was in respect of two letters which the Appellant teacher had written to the then out-going director of the Toronto Board of Education, with copies to other members of the Board, in 1989. The court described the letters as offensive and unprofessional. The Board terminated the Appellant’s employment as a teacher. A grievance procedure was initiated by the Appellant that proceeded up to the Supreme Court of Canada which ultimately upheld the employer’s decision to terminate the Appellant. That decision was released in February 1997. In July 1999, the Board wrote to the Registrar of the College in relation to the Appellant’s conduct, in accordance with its obligation to report to the College under the Ontario College of Teachers Act. The College notified the Appellant of the complaint against him by letter dated February 23, 2000, to which the Appellant responded in July 2000. Nothing further occurred until May 30, 2002, when a panel of the Investigation Committee of the College met to consider the complaint against the Appellant and directed that the matter be referred to the Discipline Committee. A four-day hearing before the Discipline Committee was held in February 2003, which resulted in a decision, which is the subject of this appeal, released on March 5, 2003. This appeal was brought on the grounds that the College had no jurisdiction to deal with the complaints because they were a matter of “labour relations” and not a matter of discipline, the College was not authorized to deal with discipline matters arising out of conduct which occurred before the College came into existence, and that there had been inordinate delay.
On the first ground of appeal, the court referred to the Supreme Court of Canada’s decision on the appeal of the grievance which stated that the two letters constituted “significant if not extreme misconduct”. Since this issue had been finally determined by the Supreme Court of Canada, there was no doubt that the two letters which the Discipline Committee considered constituted professional misconduct and its decision that they did was entirely reasonable.
As to the second ground of appeal, the court noted that the Act did not specifically authorize the College to deal with discipline matters arising out of conduct which occurred before the College came into existence. The Act specifically provides, in the case of those whose certificates have been cancelled or revoked, for continuing jurisdiction of the College in relation to professional misconduct which occurred at any time the person held a certificate of qualification or letter of standing. It would be an absurd result to hold that the intention of the legislation was not to provide jurisdiction to the College to deal with its members in relation to such matters in a similar way. Additionally, the presumption against retrospective effective legislation is rebutted in circumstances where one of the primary purposes of that legislation is the protection of the public.
As to the third ground of appeal, the most significant delay was on the part of the Board. The College could not be held responsible for that delay; however, it is a contextual factor which must be considered overall. The next delay was on the part of the College’s Investigation Committee which inexplicably took in excess of two full years to refer the matter to discipline. The Act requires the Investigation Committee to use its best efforts to dispose of the complaint within 120 days of it being filed with the Registrar. There was no need for an extensive investigation on the facts of this case, which concerned letters which the Appellant admitted to writing in 1989 and 1990. Discipline matters which place a member’s livelihood at stake call for a strict construction of professional discipline statutes. It was inexcusable for the College to have taken as long as it did to process the complaint against the Appellant. However, the delay did not have any undue impact on the Appellant, nor did it impair the fairness of the hearing and so impugn the disciplinary proceedings. The Appellant was not prejudiced by the delay to the point of abuse of process.
While the delay was not such as to constitute abuse of process on the facts, it was sufficient to disentitle the College to its costs.
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