A teacher appealed the College’s decision finding him guilty of conduct unbecoming a member of the profession, for off-duty conduct in which the teacher fired a shot over the heads of his sons during a domestic dispute. The Court allowed the appeal, finding that the panel had failed to address how the impugned conduct had any effect on the school system or on the teacher’s ability to carry out his professional obligations, and that the College’s reasons did not address his conduct that led to the conclusion that discipline was warranted.

Administrative law – Teachers – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Criminal charges – Decisions of administrative tribunals – College of Teachers – Appeals – Judicial review – Standard of review – Reasonableness simpliciter – Correctness – Evidence – Off-duty conduct

Fountain v. British Columbia College of Teachers, [2007] B.C.J. No. 1260, British Columbia Supreme Court, June 8, 2007, Ross J.

The Appellant, a teacher and a member of the Respondent College, lived on a farm in rural British Columbia with his wife and their children. In August 2001, a domestic dispute arose between the Appellant and his wife and two of the Appellant’s sons. The Appellant was seriously beaten by his two sons. At the conclusion of the dispute, as his sons were walking away from the property, the Appellant fired a shot from his rifle, at a forty-five degree angle, over the heads of his sons.

The Appellant was charged with using a firearm in a careless manner and storing a firearm in a careless manner, pursuant to s. 86 of the Criminal Code. The Appellant was ultimately acquitted of both charges.

In 2003, the College issued a citation against the Appellant, in connection with the incident and held a hearing in 2005.

The College ultimately found the Appellant guilty of conduct unbecoming a member of the profession. The Panel concluded that the Appellant’s confrontation with one of his sons had unnecessarily provoked the situation and contributed to the further events. They found that the Appellant had fired the shot after the beating had ended and the boys had withdrawn in circumstances in which there was no immediate threat and no need to fire the weapon in self-defence. While it accepted the Appellant’s evidence that he had used the gun to send a message, the Panel concluded that a reasonable teacher would not have communicated with a gunshot in the circumstances.

On appeal, the Court found the standard to be applied to an appeal of a decision of the College in relation to a finding of professional misconduct or conduct unbecoming a member to be reasonableness, except for questions of law, in which case the standard is correctness.

The Appellant argued that the College had failed to disclose the case to be met since the wording of the citation did not match the Panel’s ultimate conclusion. The Court held that an allegation of professional misconduct need not have the precision required in a criminal prosecution. However, the charge must give reasonable notice of the allegations that are made and must contain sufficient particulars, so that the person charged can properly prepare his defence. The person accused of professional misconduct must know with reasonable certainty what conduct is alleged to have amounted to professional misconduct. In this case, it was clear what conduct was being alleged to have amounted to misconduct. The citation did disclose the case that was to be met.

The Appellant argued that the Panel had mistakenly concluded that his acquittal on the criminal charges was based on technical evidence with respect to how and when he aimed the weapon. The Court had agreed that the Panel had been mistaken in this respect. However, the decision of the tribunal must be reviewed as a whole, and this error was not material to the decision it reached.

The Appellant argued that the College had failed to apply the appropriate standard of proof. The Court held that the authorities established that the appropriate standard of proof is less than the criminal standard of beyond a reasonable doubt, but higher than the balance of probabilities. This was the standard of proof specifically identified and acknowledged by the Panel. The Court also rejected the Appellant’s argument that the Panel had failed to address the standard against which his conduct was to be measured. The Panel had specifically identified and acknowledged that the standard to be applied was that of the reasonable teacher.

The Appellant argued that the Panel had erred in concluding that based upon the facts it had found, the conduct constituted conduct unbecoming a member. The authorities indicate that the standard of review with respect to the question of whether the conduct was unbecoming a member is reasonableness.

The Court reviewed the authorities and held that it was well settled that off-duty conduct can give rise to discipline when the conduct has a negative impact on the teacher’s ability to carry out his obligations as a teacher or where the conduct has a negative impact on the school system. The case law establishes that in appropriate circumstances it is permissible to draw an inference of direct impairment or of impairment in the wider sense in the absence of direct evidence. The relevant factors to be considered include (a) the nature of the conduct at issue, (b) the nature of the position, (c) whether there is evidence of a pattern of conduct, (d) evidence of controversy surrounding the conduct, (e) evidence that the private conduct has been made public, and (f) evidence that the private conduct has been linked by the member to the professional status of the member.

In summary, the framework for the analysis of off-duty conduct that arises from the case law is:

(a)  some, but not all off-duty conduct can give rise to discipline for professional misconduct or conduct unbecoming;

(b)  in considering whether the particular conduct at issue is such as to give rise to discipline, the Panel should consider whether the conduct evidences direct impairment of the ability to function in the professional capacity or impairment in the wider sense as described in the case law; and

(c)  direct evidence of the impairment is not always required.

In an appropriate case, impairment can be inferred. In the absence of direct evidence of impairment, the Panel will need to consider whether it is appropriate to draw an inference of impairment in the circumstances.

The Court concluded that, having reviewed the reasons of the Panel, there was no line of analysis within them that reasonably led from the evidence before it to the conclusion it arrived at. There was nothing in the reasons to suggest that the Panel took what is the necessary next step and consider whether the off-duty conduct that fell below the standard was such as to constitute impairment of the Appellant’s ability to fulfil his responsibilities as a teacher, or whether the conduct would harm the education system. The Panel had overlooked the fact that not all off-duty conduct, even if it falls below the standard of the reasonable teacher, serves as a basis for discipline. The Court referred the matter back to the College for reconsideration in light of its reasons.

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