Judicial Review is not a venue for vindication

The Ontario Supreme Court of Justice reaffirmed that unless a statue expressly provides otherwise, a complainant in a professional discipline case has no standing to challenge reasonableness; however the complainant may challenge the decision on procedural fairness.

Administrative law – Decisions reviewed – College of Teachers – Judicial review – Standing – Procedural requirements and fairness – Standard of review – Reasonableness – Teachers – Professional misconduct or conduct unbecoming

Fuchigami v Ontario College of Teachers (Investigation Committee), [2024] O.J. No. 73, 2024 ONSC 106, Ontario Superior Court of Justice, January 9, 2024, D.L. Corbett, F.B. Fitzpatrick and P.L. Hebner JJ.

The Applicant sought judicial review of three decisions of the Investigation Committee of the College of Teachers (the “respondent”) not to refer complaints made by him about three of his colleagues (the “Respondent Members”) to the Discipline Committee of the College of Teachers.

The Applicant’s complaints were with respect to a play presented to grade eight students on bullying and school violence. The complaints were made against the drama teacher, Ms. Wilson, who selected and produced the play, the school principal, Mr. Harris, who was involved in the organization of the play, and the superintendent, Mr. Lehman, who did not require the principal to notify the parents of the nature of the play once it was known that it had triggered the Applicant. The Applicant’s position was that the play ought not to have been presented as it was, or at all, and that the communication to and consent sought from the parents did not meet professional standards.

The Respondent found that it was not competent, nor equipped to assess a potential link between the member’s alleged conduct and the psychological consequences it may have on others, there was insufficient evidence to suggest professional misconduct on the part of the members. The Respondent found that Ms. Wilson had appropriately followed the School Board policy, that Mr. Harris’ role did not require him to assess instructional material content and his approval of the play was not contrary to his professional obligations. The Respondent also found that Ms. Wilson acted appropriately when communicating about the play and its content. The panel also found that she acted appropriately when she learned about the Applicant’s concerns and that she cooperated with the Superintendent to address the complainant’s concerns. The panel found Mr. Lehman also took immediate actions to address the Applicant’s concerns.

At issue was whether the Applicant had standing to bring the application for judicial review and whether the Respondent complied with the duty of procedural fairness. The Applicant argued that the standard of review on all issues was correctness. It was found to be correctness with respect to procedural fairness; however, the other issues were subject to the presumptive standard of review of reasonableness.

With respect to whether the Applicant had standing to bring the application, it was noted that unless a statute expressly provides otherwise, a complainant in a professional discipline case has no standing to challenge the substantial reasonableness of a decision not to refer a complaint to a discipline hearing; however, the Applicant did have limited standing to challenge the decision on grounds of procedural fairness. This principle is widely recognized in Canadian jurisdictions.

The Applicant alleged that the decision was not procedurally fair because his complaints would not be forwarded to the discipline committee if the investigation committee did not find that anything in the compliant was untrue. The Applicant argued that he had this expectation because the complaint was referred to investigation because “the allegations, if proven true, [relate] to professional misconduct, incompetence or incapacity on the part of the Member[s] …”

The argument regarding procedural fairness was bound to fail because the allegations of misconduct were not proven true, the decision on intake is a screening process, and once an investigation is undertaken, the respondent determines whether the complaint should be referred to a discipline hearing based on the results of the investigation. It was also pointed out that the Applicant’s allegation more properly was an allegation of unreasonableness. It was found that there was no issue of procedural fairness.

With respect to reasonableness, the Court found that the Applicant appeared to have brought the application at least in part to obtain confirmation of the injuries he alleges to have suffered by watching the play. The Respondent had found that the play was within the range of curriculum for grade eight students and had not made a finding regarding whether the play had triggered the Applicant. It was found that these conclusions were reasonable and the impact of the play on the Applicant was not the responsibility of the Respondent Members. In any event, it was found that the Applicant did not have standing to raise the issue of reasonableness.

The Applicant argued that the Respondent erred in law in coming to the conclusion that it was not competent or equipped to assess the potential causal link between the Members’ alleged conduct and the psychological consequences it may have on others, and that it was not appropriate for the committee to take any action against the Members. It was found that while the reasons were not clearly articulated, there was no error in law.

Lastly, the Applicant argued that the Respondent erred by making contradictory decisions, first by concluding that the allegations are untrue that they amount to professional misconduct, and by subsequently arriving at a decision which failed to send the matter to the Discipline Committee, despite there being no indication that any of the allegations had not been made out or were somewhere untrue. It was found that this was simply a restatement of the Applicant’s error of law argument and was dismissed.

This case was digested by Deanna C. Froese, 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 Deanna C. Froese at dfroese@harpergrey.com.

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