Administrative law – Decisions of administrative tribunals – College of Teachers – Appeals – Evidence – Teachers – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Penalties – Charter of Rights – Freedom of expression – Judicial review – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter – Correctness
Kempling v. British Columbia College of Teachers,  B.C.J. No. 1288, British Columbia Court of Appeal, June 13, 2005, Donald, Huddart and Lowry JJ.A.
Kempling taught at a secondary school in the Quesnel School District. He was both a teacher and a registered clinical counsellor and had been a member of the College since 1980. In 2001, Kempling was cited for professional misconduct arising out of an article and letters to the editor he wrote expressing his views on homosexuality, published in a local newspaper between 1997 and 2000, in which he associated homosexuals with immorality, abnormality, perversion and promiscuity. A year later, the citation was heard by a Panel of the Disciplinary Committee of the College. Kempling chose not to appear. The Panel found the writings to be discriminatory and that Kempling had failed to accommodate the core values of the education system. The Council of the College adopted the Panel’s recommendations, including the penalty recommendation that Kempling’s teaching certificate be suspended for one month.
Kempling appealed the two decisions of the Panel and the decision of the Council to the Supreme Court of British Columbia. He contended that there was procedural unfairness on the part of the Panel and also contended that his rights under the Charter had been infringed, including his right to freedom of religion as protected by section 2(b) of the Charter. The appeal was dismissed by the Supreme Court. Kempling then appealed this decision to the Court of Appeal.
In determining the appropriate standard of review, the Court of Appeal agreed that individual standards of review were necessary for the separate administrative decisions at issue in the case, including: 1) the Panel’s findings on conduct unbecoming; 2) the Panel’s recommendations as to penalty; and 3) the Council’s decision to adopt the Panel’s recommendations. Based on the pragmatic and functional approach set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R. 982, the Court concluded that the appropriate standard of review for the decisions was reasonableness simpliciter, with the exception of the panel’s decision as to whether Kempling’s writings were discriminatory. On this point, the Court held that a determination of whether Kempling’s writings were discriminatory must be based upon an analysis of those writings in light of human rights principles. This was a question of law, as decided by the Supreme Court of Canada in TWU v. British Columbia College of Teachers,  1 S.C.R. 772.
On reviewing the decision of the court below, the Court of Appeal held that the court had made no error that undermined its upholding of the administrative decisions. The Court further held that it was not open for Kempling to raise section 2(a) of the Charter as he failed to appear before the Panel at the first hearing and laid no evidentiary basis upon which an infringement of his religious freedom could be assessed.
The Court agreed that the College’s one-month suspension of Kempling’s teacher’s certificate constituted a violation of his section 2(b) rights (freedom of expression). However, the Court held that this violation was demonstrably justified pursuant to section 1 of the Charter. The Court noted that Kempling’s writings fell somewhere outside of the core values underlying freedom of expression, as they at times crossed the line of reasoned debate into discriminatory rhetoric. The Court agreed that the one-month sanction represented an appropriate penalty.
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