A teacher (“Aris”) succeeded in setting aside an interim suspension order issued by the Ontario College of Teachers (the “College”) which suspended his teacher’s certificate pending the resolution of a complaint. His judicial review application was granted

Administrative law – Decisions of administrative tribunals – College of Teachers – Teachers – Professional misconduct / conduct unbecoming – Disciplinary proceedings – Penalties – Judicial review – Compliance with legislation – Procedural requirements and fairness – Failure to provide reasons

Aris v. Ontario College of Teachers, [2011] O.J. No. 1400, 2011 ONSC 1202, Ontario Superior Court of Justice Divisional Court, March 18, 2011, K.E. Swinton, H.J. Wilton-Siegel and T.R. Lederer JJ.

Aris was a grade one/two teacher until September 2009 when he was arrested and charged with one count of possessing child pornography. He was released on bail with conditions restricting his ability to work as a teacher, including prohibiting from attending at any school or holding a position of trust relative to a child of less than 14 years old. He was further prohibited from accepting a teaching position with any other employer than the Board by which he was employed at the time.

The school board, relying on Section 170(1) of the Education Act, R.S.O. 1990, c. E.2 (the “Act”), removed Aris from classroom work and placed him on paid home assignment, upon learning of the criminal charge. The College commenced an investigation upon being informed of Aris’ arrest. The College Registrar lodged a complaint against Aris for unprofessional conduct. Aris was given an opportunity to make submissions and provide materials by way of response to the complaint. Information was provided to the College by the London Police Service regarding evidence against Aris, including that the police had identified three videos and more than 100 photographs believed to constitute child pornography. The College’s Executive Committee met and referred the matter to the Discipline Committee. In September 2010, the College Registrar was directed to suspend Aris’ teaching certificate pending final disposal of the complaint by the Discipline Committee. No reasons were provided for the interim suspension order.

Once the interim suspension order was imposed, the superintendent of the Board suspended Aris’ pay, since the Act and its regulations provide that a school board may not appoint an individual whose certificate has been suspended or revoked.

The first issue was whether the Executive Committee breached its duty of procedural fairness to Aris by failing to provide reasons for the interim suspension decision. Where the issue under consideration is the duty to give reasons, there is no standard of review analysis required.  Aris was clearly owed a duty of procedural fairness, and the question is whether that procedural fairness was provided. While the interim suspension order indicated that the Executive Committee had considered various materials, the order did not provide any rationale or basis for the interim suspension decision. The College argued that there was no duty to give reasons when the reasons for determination are “obvious from a review of the issues and the record” (paragraph 23).

Here, the College argued that because the criminal charge was one involving children, a suspension was reasonable on its face.

The court looked to the decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 to determine the content of the duty of fairness required in this particular context. Here, Aris was given an opportunity, under the Act, to make submissions to the Executive Committee, which suggested a concern to provide procedural fairness to the individual and a recognition of the significance of the decision for the teacher. The court held that fairness requires that an individual who loses his qualification to practice his chosen profession through suspension, even if only on an interim basis, is entitled to an explanation for that decision. Without reasons, the teacher could not know the basis for the decision, and a reviewing court would not have the ability to scrutinize the decision to ensure that it was reasonable and made in accordance with the appropriate statutory authority.

However, where an order is interim, less is required to satisfy the requirement for adequate reasons. In this case, the Executive Committee was to determine whether the actions or conduct of Aris exposed or was likely to expose students to harm or injury. The statute here required more than mere speculation on the Committee’s part, and they had to establish probable exposure to harm based on the evidence before them. The Executive Committee should have to consider the criminal charge, and the other evidence before it, to determine whether a suspension was required to protect students. It should have considered evidence about the measures already in place to protect students such as the bail conditions attendant on Aris. Since the reasons did not discuss these factors and contain no explanation of why a suspension of the teaching certificate was necessary in addition to existing measures, more explanation was needed. The Executive Committee should have provided explanation as to why a suspension was required to protect students from exposure or likely exposure to harm or injury.

On the basis of the lack of reasons for the decision the Executive Committee’s decision was set aside due to the breach of the duty of procedural fairness.

The court then moved on to consider whether the Executive Committee’s interim order was unreasonable, on the substantive grounds. The court held that where an administrative tribunal fails to give reasons, where they are required, the appropriate remedy may be to refer the matter to that tribunal. Aris argued that remitting the matter back to the tribunal was not appropriate but that the decision itself was unreasonable in the sense of being outside a range of possible acceptable outcomes. The court held that the relevant provision of the Act establishes a standard of actual or likely harm, and not merely possible harm. The Executive Committee needed additional evidence to support a conclusion that there remained a risk that students would be exposed to harm or would likely be exposed to harm or injury, to warrant an additional restriction, over and above the bail restrictions. There was no such evidence before the Executive Committee for it to reach such a conclusion. Based on the test in Section 29(3) of the Act and the evidence before the Executive Committee at the time of the hearing, the decision was unreasonable on its merits.

The application for judicial review was granted. The interim suspension of Aris’ teaching certificate was set aside, rather than remitted for reconsideration.

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