A teacher (“Fox”) appealed from the decision of the BC College of Teachers (the “College”) to proceed with a formal inquiry where the complaint by the school board which instigated the report to the College was rescinded after a grievance. The court dismissed the appeal, holding that the provisions of the Teaching Professions Act, R.S.B.C. 1986, c. 449 (the “Act”) indicated that the legislature did not intend that the jurisdiction of the College would be ousted if a grievance procedure was successful.

Administrative law – Teachers – Disciplinary proceedings – Decisions of administrative tribunals – College of Teachers – Judicial review – Jurisdiction of tribunal – Compliance with legislation – Statutory interpretation – Standard of review – Correctness

Fox v. British Columbia College of Teachers, [2004] B.C.J. No. 2322, British Columbia Supreme Court, November 8, 2004, Ehrcke J.

Fox was employed by a local school board and was subject to local discipline by the school board. Pursuant to s. 16(1) of the School Act, R.S.B.C. 1996, c. 412, the school board was required to make a report to the College whenever it dismissed, suspended or otherwise disciplined a teacher employed in its district. Under the Act, when such a report is made, the College may conduct preliminary investigation into the conduct or competence of the member. If a grievance has been taken with respect to the school board’s disciplinary action, then the discipline committee of the College is not to proceed with the preliminary investigation until the grievance procedure has been concluded. In this case, Fox was successful in his grievance against the discipline imposed by the school board. Notwithstanding the successful grievance, the College proceeded with preliminary investigation and issued a citation against Fox. Fox appealed the College’s decision to proceed with an investigation.

The court reviewed the decision of the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 to determine the appropriate standard of review a court should apply when reviewing the decisions of a disciplinary tribunal. The court noted that the standard is to be determined by applying a pragmatic and functional approach.

The question of whether it was appropriate to issue a citation in the circumstances was one of law, involving the proper construction of the relevant legislation. Based upon these factors, the court found that the appropriate standard was one of correctness.

Fox argued that the foundation of the College’s jurisdiction to investigate his conduct depended on the report submitted by the school board under s. 16 of the School Act. He further argued that a correct interpretation of s. 28(4) of the Act would indicate that there must be a valid and current report or complaint from a school board at the time that the College determined to proceed against a member. If the discipline report was rescinded by the school board and became a nullity, then that rescission of discipline by the school board was, in law, the same as if the discipline had never been imposed.

The court reviewed the wording of s. 28(4) of the Teaching Profession Act and found that there was no explicit requirement that a school board’s act of discipline must be continuing and valid at the time the College investigates the conduct or competence of a member. All that is required, according to the terms of the subsection, is that prior to embarking upon an investigation or preliminary investigation, the College must have received in respect of a member, a report from their school board under s. 16 of the School Act. In the case of Mr. Fox, that requirement was met. The court noted that the considerations which governed the outcome of labour arbitrations and grievances were not identical to the concerns of a body like the College which must consider the broader public interest. The court concluded that the legislature had no intention of making the outcome of the grievance binding upon the College. In the result, the court concluded that the jurisdiction of the College to proceed with an investigation was not ousted because Fox’s grievance procedure was successful and dismissed Fox’s appeal on this point.

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