The British Columbia College of Teachers (the “College”) was unsuccessful on appeal from the Supreme Court judge’s decision to reduce the penalty for a teacher (“Mitchell”) who had engaged in a sexual relationship with a former student

26. April 2005 0

Administrative law – Teachers – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Penalties – Appeals – Decisions of administrative tribunals – College of Teachers – Judicial review – Standard of review – Reasonableness simpliciter – Publication ban

Mitchell v. British Columbia College of Teachers, [2005] B.C.J. No. 269, British Columbia Court of Appeal, February 16, 2005, Finch C.J.B.C., Southin and Huddart JJ.A.

Before the Discipline Committee of the College, Mitchell admitted that her sexual conduct with a 14-year-old former student in 1984 and 1985 was conduct unbecoming. However, Mitchell argued that the behaviour did not constitute professional misconduct because she was not teaching the student when the conduct occurred. The panel found her guilty of professional misconduct and imposed a sanction of the loss of Mitchell’s qualification to teach and her membership in the College. Mitchell appealed this penalty to the Supreme Court pursuant to section 40 of the Teaching Profession Act, R.S.B.C. 1996, c.449. Humphries J. allowed the appeal of the penalty decision and substituted a penalty of a two-year suspension.

At the Court of Appeal, the College argued that the decision as to penalty at the hearing stage had been based on a reasoned analysis of the evidence and that the reasons in support of the decision when taken as a whole were tenable to support the decision. The Court of Appeal agreed that reasonableness simpliciter was the appropriate standard of review as applied by Humphries J. to the decision of the College hearing panel.

The Court of Appeal noted that Humphries J. was correct in determining that the penalty decision was unreasonable because it was not linked to the Respondent’s conduct and no explanation as to why a lesser penalty would not suffice was provided.

The Court of Appeal turned to the issue of the prior criminal and civil proceedings against Mitchell where two juries of citizens and a trial judge found consent to the sexual activity, a lack of vulnerability by the former student, and pursuit on that student’s part of Mitchell. In addition, the Court of Appeal noted that the penalty of cancellation of the licence to teach in British Columbia was imposed for misconduct which had occurred three years before the College of Teachers was even established, at a time when that misconduct was not sanctioned by the criminal law and over 15 years before the penalty hearing actually took place.

The Court of Appeal concurred with the reasoning of Humphries J. in review of the hearing panel decision:

[36] It is a basic principle of decision-making in the professional self-government regime that each case must be decided on its own facts. The reasons should be tenable, grounded in the evidentiary foundation and able to withstand a somewhat probing examination. Here it appears that the panel decided upon a principle first and then selected only the facts that fit it. In my view, this is not a reasonable approach, and the reasons for penalty do not withstand a somewhat probing examination.

[37] The College is required, by its objects, to consider not only the public interest but the professional interest of its members. It did not do so here when it failed to give any analysis or consideration to the many mitigating factors specific to this case, in particular, failing to consider the uncontradicted evidence that the appellant will not re-offend, poses no risk to the public, and in view of her unblemished record since these long-past events, is not in need of rehabilitation. Its decision cannot stand and the appeal is allowed.

The Court of Appeal also agreed with the penalty imposed by Humphries J. of a two-year suspension effective from the date of the Council’s decision.

The Court of Appeal also commented on the panel’s findings in relation to the previous civil and criminal proceedings:

While the College may be entitled to find that a sexual relationship with a former student constituted professional misconduct, once it chose to describe the professional duty as arising from a continuing relationship of “trust and authority”, it ought to have addressed the verdicts of the juries and the findings of the trial judge, or to have explained its different use of those terms or to have demonstrated otherwise in its reasons respect for their contradictory findings of fact. Anything less diminishes the integrity of the courts’ adjudicative function, especially in this case, the authority of jury verdicts.

Shortly after the release of the appellate judge’s reasons, the Supreme Court of Canada examined the obligation of a regulatory decision-maker when considering a guilty verdict following a criminal trial on a charge of sexual assault. In Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, Arbour J. commented (at para. 51):

 … if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

 The discussion surrounding that comment suggests that it is in the public interest that regulatory decision-makers give considerable deference to findings of fact made in earlier public proceedings, whether they be criminal or civil. This must be particularly so where those earlier proceedings were before a jury.

The Court of Appeal affirmed the order of Humphries J. in respect of the penalty decision of the College.

An appeal was also brought by the College on the issue of the decision of Humphries J. to overturn the hearing panel’s determination that a publication ban was unnecessary. Humphries J. found that the reasons supported a decision to publish a case summary but not a decision to publish the Respondent’s name. Humphries J. held that the long delay in reporting the incident, Mitchell’s exemplary record in the intervening 10 years, six years since the report and the lack of the risk of recurrence justified non-publication of Mitchell’s name.

The Court of Appeal found no error in the appellate judge’s finding.

The appeal of the College both on the publication ban issue and the issue of penalty was dismissed.

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