The appellant high school teacher appealed a finding of professional misconduct made against him, and the resulting penalty, arising from interactions that he had with students and health unit staff at a school immunization clinic; court dismissed the appeal and affirmed the misconduct finding and penalty

Administrative law – Decisions reviewed – College of Teachers – Teachers – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Penalties – Appeals – Judicial review – Standard of review – Reasonableness

Sullivan v. Ontario College of Teachers, [2018] O.J. No. 705, 2018 ONSC 942, Ontario Superior Court of Justice, February 7, 2018, W.M. Matheson, B.T. Glustein and J.F. Diamond JJ.

The appellant is a high school teacher and a member of the Ontario College of Teachers. This case deals with the appellant’s appeal of a finding of professional misconduct made against him, and the resulting penalty, arising from interactions that he had with students and health unit staff at a school immunization clinic.

The school was hosting an immunization clinic operated by Ontario Public health nurses under the public health protection legislation. The appellant apparently had his own views about the value of the immunizations. Indeed, the appellant had a history with the subject of vaccines, and had been warned about his behaviour prior to the clinic starting. Despite this, on the date of the clinic, the appellant confronted nurses about the vaccines and questioned whether the staff were telling the students that one of the side effects of the vaccine was death. He also apparently confronted a number of students in line to receive the vaccine about the same issues. He was alleged to have shouted at some of the students about the possible side effect. He also left his class unattended to confront the nurse staff operating the clinic.

As a result of his conduct, a hearing took place in front of the Discipline Committee. The Committee heard from three witnesses, including nurses and staff. The Discipline Committee found that the appellant abused a student emotionally; failed to supervise students; and breached his duties under the Education Act, such as the general breach of engaging in conduct unbecoming of a member of the Ontario College of Teachers. The appellant received a reprimand and a one month suspension, remedial coursework, and was prohibited from attending any health clinic conducted at a school for a period of two years.

The appellant appealed this order. The court considered two issues: (1) whether the Discipline Committee’s findings of the appellant’s misconduct were reasonable; (2) whether the Discipline Committee’s penalty was reasonable.

On the first issue, the court applied the standard of reasonableness and relied on this deferential standard throughout its analysis. This was especially so in this case because viva voce evidence was presented to the Committee at the hearing. It was in a better position to assess such evidence. Further, the court noted that the appellant was essentially rearguing his case before the court, rather than presenting a position as to why the Discipline Committee’s findings were unreasonable. On the second issue, the court once again resorted to the “expertise” of the Discipline Committee. It stated that the penalty ordered was deserving of “substantial deference”. The court found that all of the key factors of deterrence, rehabilitation and protection of the public were considered and the Committee made no error in doing so. The court held that variation of the penalty should only be made where it is “clearly unreasonable”, which it said was not the case here.

Accordingly, the court dismissed the appellant’s appeal.

This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Adam R. Way at away@harpergrey.com.

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