The Court dismissed a teacher’s application for judicial review of a decision by the College of Teachers awarding costs against the teacher for a disciplinary hearing. The Court held that the decision to award costs against the teacher may have marked a change in the College’s attitude concerning costs, but that the College was entitled to modify its position concerning collection of costs.

Administrative law – Decisions of administrative tribunals – College of Teachers – Regulatory powers of tribunals – Costs – Right to award costs – Hearings – Conduct of hearings – Judicial review – Procedural requirements and fairness – Natural justice – Failure to provide reasons – Standard of review – Reasonableness simpliciter

Adolphe v. British Columbia College of Teachers, [2007] B.C.J. No. 596, British Columbia Supreme Court, March 22, 2007, Rogers J.

The BC College of Teachers issued a citation against the Petitioner alleging that he had had inappropriate relationships with students, made inappropriate comments to students, and that he failed to maintain a proper professional distance from senior students by befriending them and treating them as peers. Prior to the hearing, counsel for the Petitioner and the College agreed upon a statement of facts, and made a joint recommendation for penalty. The joint submission accepted that the Petitioner should have his membership and certificate suspended for a period of two months during the summer of 2004, and that his name be released to the public along with a summary of the circumstances of the case. Both counsel also submitted that no costs should be awarded against the Petitioner. A Hearing Panel considered the agreed statement of facts and concluded that those facts supported a finding that the Petitioner was guilty of professional misconduct and of conduct unbecoming a member of the College. As to penalty however, the Panel did not wholly follow the joint submission, and instead of waiving costs, levied costs against the Petitioner in the sum of $500.00. This decision was referred to the College’s Council and lawyers for both the Petitioner and the College made submissions urging that no order of costs be made against the Petitioner. The Petitioner’s lawyer further submitted that the Panel’s cost order was a departure from precedent and that adopting the Panel’s recommendation would erode the member’s legitimate expectation that the College’s disciplinary proceedings would comply with the principles of predictability and consistency.

The Court first considered the appropriate standard of review based on the pragmatic and functional approach set out in Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] S.C.J. No. 2. The Court concluded that while the Teaching Profession Act does not contain a privative clause, a factor which suggests little deference should be given to the Tribunal’s decision, that the expertise of the Tribunal was considerable and that this militates in favour of deference to the College’s decision. After reviewing decisions in appeals of a similar nature, the Court concluded that the proper standard of review in this case was reasonableness, and that to review the exercise of discretion to award costs on any lowered standard would be to intrude too far into the particular and specific areas of discipline that the legislature had entrusted to the College.

The Court found that at all material times, the Hearing Panel had authority under its bylaws to order costs against a member, but in previous cases of a similar nature, it had not exercised that discretion. The Court further found that in the Petitioner’s case, the Panel did levy costs and gave its reasons for doing so. The Hearing Panel observed that the purpose of the cost bylaw was to recover Hearing-related expenses from members whose conduct gave rise to the need for a hearing. The Panel also observed that the bylaws contemplated an award of costs geared to the relative success the member achieved in the hearing, and that since the Petitioner had been found guilty, he had achieved no success in the hearing. The Panel said that although the College’s counsel was engaged in the process for at least one half of a day, the actual hearing took only one quarter of a day, and the Panel assessed costs for that one quarter of a day and fixed the number at $500.00.

The Petitioner alleged that the Hearing Panel denied him natural justice because the Panel did not invite additional submissions after it decided not to accept the joint submission but before it decided to impose costs. He further alleged that the counsel erred by failing to give reasons for not accepting his submissions relating to the value of precedent, consistency and predictability.

The Court concluded the Hearing Panel was entitled to be the master of its own process, and that at all material times, the Hearing Panel had authority to award costs against the Petitioner. The Court further concluded that costs were not a critical component of the Hearing Panel’s responsibility to act, but rather were an ancillary issue. The major question the Hearing Panel had to decide was whether the agreed facts could support a finding of professional misconduct against the Petitioner, and if so, whether he should be suspended, for how long and whether his name and the particulars of his misconduct should be released to the public. The Court reviewed the decision in College of Physicians and Surgeons of Ontario v. Petrie (1989), 68 O.R. (2d) 100 where it was held that “when there is a joint submission on a critical point, while a panel may reject such a submission, it is an error to fail to take the step of notifying counsel that the joint submission may not be accepted and giving them an opportunity to make submissions”.

Having found that the cost issue in the Petitioner’s case was in no way critical to the process before the Hearing Panel, and given the extremely modest size of the cost award, it was not incumbent for the Hearing Panel to reconvene the process or to invite further submissions on an ancillary issue. The failure to do so did not render the process unfair to the Petitioner. The Court concluded that the Panel’s action and the Council’s adoption of it, was both correct and reasonable and passed either standard of review without difficulty.

The Petitioner’s second submission was that the Council erred by not providing reasons for supporting the Hearing Panel’s decision. The Court concluded that the Panel did, by adopting the Hearing Panel’s reasons, give reasons. The Hearing Panel’s reasons gave a fulsome explanation of why it thought the Petitioner should pay some costs and why it made a very modest award against him.

The Petitioner’s final ground for appeal was that the decision to award costs was arbitrary and a departure from precedent. While the Court accepted that the Council’s decision adopting the Panel’s award of costs against Mr. Adolphe may have marked a change in the College’s attitude concerning costs, that change was accompanied by reasons and cannot be said to have been arbitrary. The Court further found that it was indisputable that the College was entitled to modify its position concerning collection of costs from misbehaving members. The Court concluded that the Petitioner may not like the fact that his case was the first in a new regime, but being first is no reason to be excused from the new regime.

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