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Education - Ontario College of Teachers Act (OCTA)

. Ontario College of Teachers v Merolle [for numbered case cites see the main link]

In Ontario College of Teachers v Merolle (Div Court, 2023) the Divisional Court considered a s.35(4) Ontario College of Teachers Act appeal by the OCT against the decision of the 'OCT Discipline Committee' [a "statutory committee" under OCTA s.1(1)], which had disregarded a joint submission (between the teacher and the OCT) regarding penalty [SS: the OCT was a party to an OCT Discipline Committee proceeding, apparently making the Committee effectively a tribunal].

In these quotes the court considers the tribunal test for accepting a joint penalty submission:
[14] In its 52 paragraph submissions, the College reviewed the facts leading to the guilty plea and reviewed the test for interfering with a joint submission on penalty as set out by the Supreme Court of Canada in R. v. Anthony-Cook[7], as followed by the British Columbia Court of Appeal in R. v. Cheema[8] and, in the regulatory context, as followed by Law Society of Upper Canada v. Archambault[9] and, in this court, by Bradley v. Ontario College of Teachers[10].

....

The Decision of the Discipline Committee

[17] In their reasons rejecting the joint submission for a three month suspension, the Majority of the Discipline Committee reviewed Anthony-Cook , Bradley and other decisions and noted that they did not reject the joint submission on penalty “lightly”. The Majority stated that they had “carefully reviewed the public interest test set out in Anthony-Cook and applied it to the present case[12]”. The Majority concluded:
[47] The Majority finds that in the circumstances of this case a penalty providing for a suspension of three months is unduly harsh and inappropriate and would bring the administration of the discipline process of the College justice into disrepute. Such a term is also contrary to the public interest since (1) the Member's inappropriate comments fall on the lower end of the scale of objectionable comments and consequently do not rise to the level of seriousness required to warrant a suspension; and (2) the cases provided by Counsel in support of a suspension of three months are not analogous to the facts in the within matter. As noted above, they involve more serious fact situations than are present in the within matter which would support the suspension penalty ordered in those cases. They are easily distinguishable on the facts and are therefore of no assistance to the Majority in reaching its decision.
[18] The dissenting member of the Discipline Committee disagreed stating:
[76] I find that a three-month suspension is reasonable and appropriate in the circumstances of this case. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature in that they all relate to inappropriate conduct towards colleagues and/or subordinates. The cases confirm that a suspension is reasonable. The Discipline Committee in those cases ordered suspensions in the range of two to five months, in addition to reprimands and coursework. A summary of these cases is set out below.

...

[84] After carefully considering these cases, I find that a three-month suspension is appropriate and reasonable since it falls within the range of what has been ordered by other panels in the past for similar misconduct. The suspension will serve as a specific deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable. In relation to the timing of the suspension, I accept the unopposed submissions of Member's Counsel that the suspension should start retroactively on May 5, 2022 and would order accordingly.

...

[86] I am satisfied that the high threshold for rejecting the Joint Submission on Penalty has not been met in the circumstances. The penalty jointly proposed is not so unhinged from the circumstances of this case that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. The penalty jointly proposed also meets the principle of serving and protecting the public interest.
....

[27] However, when a joint submission on penalty is presented decision makers, whether courts or administrative tribunals[16] must exercise restraint, “rejecting joint submissions only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.”[17]

[28] The Supreme Court of Canada described this as a “undeniably high threshold”[18]. As the court noted:
Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.[19]
[29] This stringent public interest test is required because when plea resolutions are properly conducted the parties, witnesses, counsel, and the administration of justice all benefit. For many, “maximizing certainty as to the outcome is crucial.”[20]....

Analysis

[30] I agree with the submission of the College that the Majority applied a “fitness test” when the majority deemed the penalty as “unduly harsh and inappropriate” and that this application of the wrong test is an error of law.

[31] The Majority’s summary of its conclusions described the suspension as “unduly harsh and inappropriate” and contrary to public interest because Mr. Merolle’s comments were at the “lower end” of objectionable and the cases relied upon the parties were not analogous.

[32] When assessing a joint submission, the tribunal must consider factors beyond the typical sentencing principles and should not “reverse engineer” a joint submission by determining the sentence that it would have imposed. The analysis should begin with the basis for the joint submission, including the important benefits to the administration of justice and ask whether there is something apart from the length of the sentence that engages the public interest or repute of the justice system[21]. Consideration of the fitness of the proposed penalty must be coupled with a “demonstrated consideration” of the benefits of the joint submission process[22].

[33] The majority’s reasons following its summary paragraph at paragraph 47 of the decision represent a “reverse engineer” of the penalty arrived at by the parties. There was no “demonstrated consideration” of the benefits of the joint submission process other than a passing reference to “certainty” and “smooth functioning of the justice system” at paragraph 63 of the decision. Thus, the wrong test was applied.
. Grimstead v. Ontario College of Teachers

In Grimstead v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered 08 December 2020 statutory amendments to the Ontario College of Teachers Act, 1996 which retrospectively revoked member’s 'certificates of qualification and registration' on being "found guilty of an act of professional misconduct consisting of or including sexual abuse of a student or a prohibited act involving child pornography".

. Cann v. Ontario College of Teachers

In Cann v. Ontario College of Teachers (Div Court, 2022) the Divisional Court considers an Ontario College of Teachers Act (OCTA) appeal from the revocation of a teacher's "certificate of qualification and registration". In this quote to court sets out it's jurisdiction and scope for the appeal:
[17] Section 35(4) of the Ontario College of Teachers Act provides for a full right of appeal to this court on questions of fact, or law, or both. The parties agree on the appropriate standard of review. Questions of law are reviewed on a correctness standard, while questions of fact, or questions of mixed fact and law (without an extricable question of law) are reviewed for palpable and overriding error: Bradley v. Ontario College of Teachers, 2021 ONSC 2303, at para. 7.
. Cann v. Ontario College of Teachers

In Cann v. Ontario College of Teachers (Div Court, 2022) the Divisional Court considers an Ontario College of Teachers Act (OCTA) appeal from the revocation of a teacher's "certificate of qualification and registration". In these quotes the court orders a statutory publication ban:
Preliminary Matter – Publication Ban

[14] In the proceedings before the College of Teachers, the Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12, which provides that “no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.”

[15] At the hearing of the appeal, counsel for both parties indicated that they sought an order extending the publication ban granted by the Panel. However, neither party had given notice to the media of the publication ban request, as is required by section F of Part V of the Superior Court of Justice’s Consolidated Provincial Practice Direction.

[16] The court granted an order extending the publication ban ordered by the Panel. In the circumstances, given the nature of the allegations in this case and the mandatory nature of s. 32.1(3) of the Ontario College of Teachers Act, the court did not require a formal motion record for a publication ban to be brought. However, it ordered the parties to provide notice to the media pursuant to the Practice Direction to ensure the media has been notified of the publication ban should any media outlet wish to take any steps in relation thereto.


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Last modified: 13-06-23
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