DISCIPLINE COMMITTEE

OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Byam 2022 ONOCT 20

Date: 2022-02-28

DECISION AND REASONS FOR DECISION ON MOTION

IN THE MATTER OF the Ontario College of Teachers Act, 1996 and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Bernadette Yolande Byam, OCT, a member of the Ontario College of Teachers.

BETWEEN:

ONTARIO COLLEGE OF TEACHERS

– and –

BERNADETTE YOLANDE BYAM (REGISTRATION #519305)

PANEL: Rebecca Forte, OCT, Chair

Sara Nouini, OCT

Jonathan Rose

HEARD: November 18 and December 2, 2020

Andrew Matheson and Vincent DeMarco, for the Ontario College of Teachers

Olanyi Parsons, for Bernadette Yolande Byam

Julie Maciura, Independent Legal Counsel

PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) of the Ontario College of Teachers Act, 1996, 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, or the person who was allegedly sexually abused, or the subject of sexual misconduct, a prohibited act involving child pornography, or a prescribed sexual act.

Per: Rebecca Forte and Sara Nouini (“The Majority”)

1This matter was heard before a panel of the Discipline Committee (the “Panel”) on November 18 and December 2, 2020 at the Ontario College of Teachers (the “College”). With the consent of the parties, and in accordance with section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched 3, this matter proceeded by way of an electronic hearing.

2Bernadette Yolande Byam (the “Member”) attended the hearing and had legal representation.

A. Publication Ban

3The Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996 (the “Act”), which makes such an order mandatory. Accordingly, 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.

4Additionally, a publication ban was ordered pursuant to subsection 32.1(4) of the Act for Student 1, who was allegedly sexually abused. Accordingly, no person shall publish the identity of, or any information that could disclose the identity of Student 1.

B. The ALLEGATIONS

5The allegations against the Member in the Notice of Hearing dated February 27, 2019 (Exhibit 1) are as follows:

IT IS ALLEGED that Bernadette Yolande Byam is guilty of professional misconduct as defined in the Ontario College of Teachers Act, 1996 (the “Act”) in that:

(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) she abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;¹

(c) she abused a student or students physically, contrary to Ontario Regulation 437/97, subsection 1(7.1);

(d) she abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(e) she abused a student or students sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;

(f) she failed to comply with the Act, or the regulations or the by-laws, and specifically section 32 of the by-laws, contrary to Ontario Regulation 437/97, subsection 1(14);

(g) she failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);

(h) she committed acts that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18);

(i) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS

1. Bernadette Yolande Byam is a member of the Ontario College of Teachers.

2. At all material times, the Member was employed by the Toronto District School Board as an educational assistant at [XXX]Institute (the “School”) in Toronto, Ontario.

3. In or about September 1, 2001 to June 30, 2004, Student 1 was a male student at the School.

4. In or about the period between September 1, 2001 to September, 2004, the Member:

(a) engaged in an inappropriate personal relationship with Student 1;

(b) engaged in inappropriate physical contact with Student 1;

(c) engaged in sexual touching with Student 1.

C. THE MOTION

6The Member brought a motion to dismiss the proceedings against her for lack of jurisdiction. The Member relied on section 4.6(1)(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 (“SPPA”), for the premise that the Committee may dismiss a proceeding without a hearing if the proceeding relates to matters outside of its jurisdiction. In her Notice of Motion dated September 14, 2020 the Member made a motion for:

1. A declaration that the commencement of the proceeding was unwarranted for the reason that the Committee lacks jurisdiction to hear the matter before it;

2. An order dismissing this proceeding without a hearing on jurisdictional grounds;

3. An order that the Ontario College of Teachers be required to pay the Member’s costs; and

4. Such further and other relief as this Committee may advise and permit.

D. SUBMISSIONS OF THE MEMBER

(1) The Committee does not have Jurisdiction

7The Member provided the Panel with both written and oral submissions in support of her motion. As part of the motion, Member’s Counsel made certain admissions about the Member’s conduct with respect to Student 1. At the time of the alleged misconduct, the Member was an educational assistant. She had sexual intercourse with Student 1 on one occasion after he became 18 years old. Student 1 called the Member in 2016 and recorded their telephone conversation in which she admitted to having engaged in “sexual stuff” with Student 1 in the past. Subsequently, the Member was criminally charged in 2016 with two counts of sexual exploitation and two counts of sexual assault of Student 1. On September 9, 2018, the Member was found not guilty and acquitted of all the criminal charges against her.

8While the Member cannot recall with certainty when she had intercourse with Student 1, the precise timing of the sexual activity in question is irrelevant. The parties agree that the event occurred prior to the Member receiving her certificate of qualification and registration on July 6, 2007. Member’s Counsel also acknowledged that, had the Member been convicted criminally, the Discipline Committee (“Committee”) would have had jurisdiction to hear allegations against the Member on the basis of that conviction.

9In the absence of a criminal conviction, the Member believes that the Committee does not have the jurisdiction to discipline the Member for conduct that occurred prior to her membership with the College. Member’s Counsel suggested that the discipline proceeding is being used by the College as an opportunity to prosecute the Member on the basis of the public perception of her behaviour. College Counsel had submitted two expert opinions: one prepared by Brian Serafini regarding the Member’s pre-registration conduct while an educational assistant as it relates to current suitability as a member of the College (Tab 3 of the College’s Responding Motion Record)² and the other by Dr. Hy Bloom on the subject of delayed disclosure of sexual victimization (Tab 4 of the College’s Responding Motions Record)³. Member’s Counsel stated that the Member did not respond to the expert opinions provided by the College because they are irrelevant to the issue of jurisdiction, as is the issue of whether the Member is remorseful for her actions, and the expert reports would be more properly considered in submissions on penalty. Member’s Counsel submitted that contrary to what the College suggests, the Member has shown remorse for her conduct.

10Member’s Counsel made three broad submissions in support of his position that the Act does not give the Committee the ability to find a member guilty of professional misconduct for conduct that occurred prior to membership. First, the wording in the Act points to the fact that the legislature did not intend for the Discipline Committee to deal with pre-registration conduct. Second, the case law on this issue in Ontario has made it clear that pre-registration conduct can only constitute professional misconduct in certain exceptional circumstances, which are not present in the Member’s case. Third, the public interest mandate of the College is not served by proceeding with a hearing on the merits in this case.

11Member’s Counsel submitted that the Committee has a broad discretion to interpret its own legislation, see: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”). However, Member’s Counsel cautioned that it is not the role of the Committee to read in provisions that are not in its statute. The role of the Committee is to apply the law as it is written, keeping in mind its role outlined in section 3(1) of the Act to “govern its members” in accordance with its broad public interest mandate.

12Member’s Counsel directed the Panel to several sections of the Act including sections 3(1), 14(1), 14(5), 18, and 30(2). These sections state, in part:

3 (1) The College has the following objects:

1. To regulate the profession of teaching and to govern its members.

14 (1) Every person who holds a certificate of qualification and registration is a member of the College, subject to any term, condition, or limitation to which the certificate is subject.

(5) A person whose certificate of qualification and registration is revoked or cancelled continues to be subject to the jurisdiction of the College for professional misconduct, incompetence or incapacity referable to any time during which the person held,

(a) a certificate of qualification and registration under this Act; or

(b) an Ontario Teacher’s Certificate or a letter of standing as a teacher under the Education Act.

18 (1) The Registrar shall issue a certificate of qualification and registration to a person who,

(a) applies for the certificate in accordance with the regulations;

(b) fulfils the requirements specified in the regulations for the issuance of the certificate; and

(c) successfully completes any prescribed examinations relating to proficiency in mathematics that are required for the issuance of the certificate.

(2) The Registrar may refuse to issue a certificate of qualification and registration where the Registrar has reasonable grounds to believe that,

(a) the past conduct or actions of the applicant afford grounds for belief that the applicant will not perform his or her duties as a teacher in accordance with the law, including but not limited to this Act, the regulations and the by-laws; or

(b) the applicant does not fulfil the requirements specified in the regulations for the issuance of the certificate.

30 (2) A member may be found guilty of professional misconduct by the Discipline Committee, after a hearing, if the member has been guilty, in the opinion of the Committee, of professional misconduct.

13According to Member’s Counsel, these provisions together show that the legislature contemplated a distinction between individuals holding a certificate of qualification and registration (i.e., ‘members’ in section 3(1), 14(1), and 30(2) of the Act), and those who do not (i.e., ‘applicants’, as contemplated in section 18 of the Act and ‘persons’ who were former members but no longer holding a certificate of qualification and registration as contemplated in section 14(5) of the Act). Member’s Counsel referred to the presumption of consistent expression set out by the Supreme Court of Canada in Agraira v. Canada, 2013 SCC 36, which refers to the principle that when different terms are used in a single piece of legislation, Parliament (or the legislature) did so intentionally to indicate different meanings. Member’s Counsel argued that the legislature made the conscious and deliberate decision to restrict the Discipline Committee’s powers to hearing matters involving current and previous members of the College.

14Further, pursuant to section 30(2) of the Act, the Discipline Committee is empowered to make determinations of whether a member (or former member) is guilty of misconduct of a particular kind – “professional misconduct” – which necessitates a restriction to conduct during an individual’s tenure as a professional and which therefore limits that conduct to the time period during which the individual was a member of the College. This can be distinguished from the power of the Registrar to consider “past conduct or actions” during the registration process, in accordance with section 18(2) of the Act. Since the legislature did not specify that the Discipline Committee should review conduct that occurred prior to membership, the Panel should not read into the Act authority for the Discipline Committee to review problematic pre-registration conduct. Allegations of misconduct committed by the Member while an educational assistant should properly be considered by that profession’s governing body, the Ontario College of Trades, and could also be subject to criminal or civil liabilities.

15Member’s Counsel largely relied on Association of Professional Engineers of Ontario v. Leung, 2018 ONSC 4527 (“Leung”) to support their argument. In Leung, the Divisional Court of Ontario upheld an order by the Discipline Committee of the Association of Professional Engineers (“APEO”) dismissing allegations of professional misconduct by a member corporation for acts that occurred prior to it obtaining a certificate of authorization from the APEO. The Professional Engineers Act, R.S.O. 1990, c. P. 28 did not explicitly address the Committee’s jurisdiction over pre-registration conduct. However, the Divisional Court considered the wording of the Professional Engineers Act in its entirety and reasoned that the legislature made a conscious and deliberate decision to limit the Discipline Committee’s jurisdiction to members or holders of a certificate of authorization, having provided other statutory channels for dealing with pre-registration conduct (namely, through the licensing process, or provisions to prosecute offences under the Professional Engineers Act through provincial court). The Divisional Court held that professional discipline legislation should be construed in favour of the professional being disciplined, and that any gaps in the legislation could be addressed by amending the Professional Engineers Act.

16Member’s Counsel argued that Leung is persuasive as it is a recent decision by an appellate or review court, regarding the jurisdiction of another Ontario regulator, whose legislation holds similarities to the Act. Accordingly, the Panel should adopt the approach of the Divisional Court and grant the Member’s motion for an order that the Discipline Committee lacks jurisdiction over the Member for her pre-registration conduct.

17Member’s Counsel suggested the Panel should not be persuaded by the cases presented by College Counsel as many of them pre-date Leung, are from other jurisdictions and other regulatory bodies with different regulatory schemes or were instances where the members in question admitted they were guilty of professional misconduct and therefore the issue of jurisdiction was not argued before the relevant discipline committees.

18In particular, Member’s Counsel submitted the Panel should not be persuaded by Ontario College of Social Workers and Social Service Workers v Kline, 2019 ONCSWSSW 3 (“Kline”). In Kline, the member brought a motion to quash the Notice of Hearing on the basis that the discipline committee lacked jurisdiction over pre-registration conduct. The discipline committee determined that, while the governing legislation was not clear on its face, it had jurisdiction over pre-registration conduct. Member’s Counsel distinguished Kline on the basis that the wording of the relevant provision in the Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31 gives that discipline committee the authority to determine whether a member “has engaged” in certain conduct and this gives that discipline committee the authority to look at both pre-registration conduct and conduct that occurs while a member holds a license of that College. Member’s Counsel submitted this is different from the wording of the Professional Engineers Act (in Leung) and the Ontario College of Teachers Act which require their respective discipline committees to determine whether a member is guilty of professional misconduct. Given that the relevant legislation in Kline allowed that discipline committee to look broadly at the conduct that a member has “engaged in” and such wording is absent in the Act, and that Kline was decided by another administrative body, not a reviewing court, Member’s Counsel argued Kline is not binding on the Panel.

19The Member’s second submission was that Leung has outlined the circumstances under which the Committee can consider pre-registration conduct in a professional discipline prosecution. These circumstances are: if the pre-registration conduct continues into the time of membership or if the conduct resulted in the fraudulent procurement of membership.

20Member’s Counsel stated that neither circumstance applies to this case. The allegations are limited to the years 2001-2004; there are no allegations in the Notice of Hearing of continuing conduct or similar conduct while a member; and the Member has no prior disciplinary history with the College. Additionally, the Member has requested disclosure of materials relating to the Member’s registration application, and College Counsel has maintained that is irrelevant to this matter. Therefore, the Panel can assume there are no issues with respect to the Member’s procurement of her certificate of qualification and registration.

21Member’s Counsel submitted that the College’s arguments that the Discipline Committee can look to pre-registration conduct on the basis that this informs her current suitability to teach is incorrect. Member’s Counsel asserted that suitability on the basis of pre-registration conduct should not be considered when determining a Discipline Committee’s jurisdiction.

22Member’s Counsel also argued that proceeding with a discipline hearing does not advance any public interest. Member’s Counsel argued that there are no allegations of misconduct of a sexual nature or of breaches of trust by the Member while she held her certificate of qualification and registration. There is no obvious risk of danger to the public necessitating a discipline proceeding, and the allegations of other inappropriate behaviours in the Notice of Hearing are, in the opinion of Member’s Counsel, spurious.

23The Member has already been publicly shamed, put under judicial scrutiny through both criminal and civil proceedings against her, and has also suffered financially, resulting from loss of employment. She has already been harshly punished, and the public interest would not be protected by continuing discipline proceedings against her. While the Member acknowledges it was an act of indiscretion, she maintains that she engaged in sexual intercourse with Student 1 on only one occasion when he had reached the age of majority. The criminal court acquitted the Member of the charges against her for lack of evidence; the trial judge was not satisfied that Student 1’s testimony in the criminal proceedings was reliable. Member’s Counsel suggested that Student 1 would embellish his story to seek retribution against the Member if the Committee decided to proceed with a hearing.

(2) The Member’s Alternative Arguments if Jurisdiction is Established

24Member’s Counsel made two further arguments for the Panel’s consideration in the case that the Panel determines it has jurisdiction. The first argument was regarding the wording of the Notice of Hearing against the Member. The second argument was regarding the applicability of the mandatory penalty provisions in section 30.2 of the Act.

(a) Improper Referral

25Member’s Counsel argued that the Discipline Committee can only consider the acts referred to it in the Notice of Hearing and the Notice of Hearing did not properly particularize the allegations of professional misconduct against the Member. In particular, the Notice of Hearing does not allege that the Member is guilty of an offence relevant to her suitability to practice; or that she failed to honestly answer questions about her application to the College; or that she is incompetent or that her misconduct carried over into the period of registration, which are the only instances where the Discipline Committee might consider pre-registration conduct. Additionally, the particulars of the Notice of Hearing make no reference to the 2016 telephone call between Student 1 and the Member (which according to Member’s Counsel was an attempt by Student 1 to entrap the Member, the content of which is about sexual comments that Student 1 had made, and was not accepted, in any case, by the trial judge as support for the allegations in the criminal proceedings). According to Member’s Counsel the Notice of Hearing as currently worded restricts the Panel to only considering whether the Member engaged in acts of sexual abuse against Student 1 between 2001 and 2004 and whether this warrants a finding of profession misconduct.

(b) Principle Against Retrospectivity

26Further, Member’s Counsel submitted that if the Committee determines that the Member indeed sexually abused Student 1 and is therefore guilty of professional misconduct, it cannot apply the mandatory revocation provisions set out in section 30.2, despite the transitional provisions in the Act. Member’s Counsel submitted that the College could apply section 30.2 to conduct that occurred while an individual was a member of the College and prior to the coming into force of the Safe and Supportive Classrooms Act¸ 2019, S.O. 2019, c. 3 – Bill 48, but the principle of retrospectivity prevented its application to conduct that occurred prior to an individual being a member of the College.

27Member’s Counsel referred to Ontario (College of Physicians and Surgeons of Ontario) v. Kunynetz, 2019 ONSC 4300 (“Kunynetz”). In that case, a member appealed a decision by the discipline committee of the College of Physician and Surgeons of Ontario to revoke his licence to practice after finding that he sexually abused a patient, pursuant to mandatory penalty provisions that came into effect after the misconduct had occurred. The Divisional Court reviewed the law on retrospectivity and determined that there is a general presumption against the retrospective operation of legislation to avoid unfairness. The Divisional Court referred to another of its decisions, Kalin v. Ontario College of Teachers, (2005) 2005 CanLII 18286 (ON SCDC), 75 O.R. (3d) 523 (“Kalin”), wherein it said at paragraph 83 that “[a] punishment cannot be more severe than the potential punishment to which the perpetrator was liable at the time of the misconduct”. Therefore, the Divisional Court held that the College of Physicians and Surgeons of Ontario could not retrospectively apply the mandatory revocation provision, which came into effect in 2017, for the Member’s misconduct which occurred in 2008.

28Taking into consideration the principles set out in Kunynetz and Kalin, the Member would not have been liable to the College at the time of the alleged misconduct because she was not yet a member of the College. Therefore, if the Discipline Committee determines it has jurisdiction, and finds the Member guilty of professional misconduct for sexually abusing Student 1, the Committee cannot apply the mandatory penalty provisions in section 30.2.

E. SUBMISSIONS OF COLLEGE COUNSEL

(1) The Committee has Jurisdiction

29College Counsel disagreed with Member’s Counsel that the Discipline Committee could rely on section 4.6(1)(b) of the SPPA to dismiss the hearing for lack of jurisdiction, not only because the Discipline Committee has jurisdiction, but also because section 4.6(6) of the SPPA requires the Discipline Committee to have made rules regarding dismissals before granting dismissals and there are none in the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee.

30With respect to the question of jurisdiction, College Counsel submitted that, even though the alleged misconduct occurred prior to the Member’s registration with the College, the discipline hearing must proceed for three reasons. First, the Act authorizes the prosecution of members for pre-registration conduct. Second, the Committee’s broad statutory duty of serving and protecting the public interest requires that this matter proceed to a hearing. Finally, the alleged conduct is related to the current suitability of the Member to practice the profession.

31College Counsel agreed that the Act is silent on whether or not pre-registration conduct can be the subject of a professional misconduct prosecution; however, they argued that this therefore allows the Committee to hear this matter. According to College Counsel, section 30 of the Act states that the Discipline Committee “shall” hear and determine matters regarding its members, including whether a member is guilty of professional misconduct. The reference to “members” in section 30 of the Act means that the Discipline Committee does not have authority over any person other than those who hold certificates of qualification and registration.

32It does not mean that the misconduct allegedly perpetrated by the Member necessarily had to have occurred during the time of membership with the College. College Counsel argued that the legislature would have provided for such a temporal limit when it defined “professional misconduct” in section 1 of the Act, if it intended to impose a temporal limit to the Committee’s jurisdiction. Instead, section 1 of the Act lists specific conduct constituting professional misconduct and a reference to “any other act or conduct prescribed by the regulations”, without requiring any such acts be committed after becoming a member of the College. Similarly, the professional misconduct regulation, Ontario Regulation 437/97, specifies acts constituting professional misconduct for the purposes of section 30 of the Act without a restriction on when these acts occurred. Therefore, the Discipline Committee cannot read-in a temporal restriction in applying and hearing matters under section 30 of the Act.

33College Counsel submitted that section 14(5) of the Act does not support a conclusion that the Discipline Committee has jurisdiction over pre-registration conduct and the College is not basing its argument about jurisdiction on that particular provision. That provision merely extends the Discipline Committee’s jurisdiction to not only current members, but individuals who formerly held a certificate of qualification and registration with the College. While it is speculative, College Counsel suggested that the Discipline Committee could even be asked to consider the allegations of professional misconduct concerning pre-registration conduct of a former member, if such allegations were referable to any time during which the individual held membership with the College.

34College Counsel argued that a broad interpretation of the statute is required by the College’s duty, set out in section 3(2) of the Act, to serve and protect the public interest. Section 64(1) of the Legislation Act, 2006, SO 2006, c 21, Sch F, requires the liberal interpretation of statutes in accordance with their objects.⁴ College Counsel also referred to several cases where the courts have held that the legislation governing self-regulating bodies should be interpreted widely and purposively bearing in mind the paramountcy of public protection: Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360 (“Green”); The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (“The Christian Medical and Dental Society of Canada”); and Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513 (“Binet”).

35College Counsel submitted that disallowing this prosecution would be contrary to the public interest, as the conduct deals with breaches of trust. Breaches of trust go to the heart of the College’s public protection mandate provided in section 3(2) of the Act. College Counsel referred to a report prepared by Brian Serafini regarding the Member’s pre-registration conduct while an educational assistant as it relates to current suitability as a member of the College (Tab 3 of the College’s Responding Motion Record)⁵ to show that the Member was an educator in a position of trust and authority of students. Mr. Serafini noted that educational assistants are often assigned to helping the most vulnerable students in a school – those with exceptionalities, behaviour, or social/emotional challenges, who may be very susceptible to the influence of authority figures. Further, educational assistants are held to the same expectations regarding maintaining boundaries and avoiding breaches of trust as are teachers, and it was Mr. Serafini’s opinion that the Member failed to adhere to these expectations.

36College Counsel argued that the Panel should not rely on Leung. According to College Counsel, it deals with different legislation, different circumstances, and therefore does not bind the Committee. College Counsel submitted that Leung dealt with a specific legislative scheme which allows for the quasi-criminal prosecution of pre-registration conduct through the provincial offences regime. The Act does not have equivalent provisions providing for alternative recourse to the Discipline Committee for the pre-registration misconduct alleged in this matter. Additionally, despite dismissing the matter against the member corporation for lack of jurisdiction, that discipline committee still achieved public protection by proceeding with the allegations against Mr. Leung (a member of the APEO at all material times who had been providing engineering services through the member corporation when it was not certified). On the other hand, if the Discipline Committee does not proceed to hear the matter against this Member, it would lead to impunity for the serious misconduct committed by the Member.

37College Counsel rejected the Member’s argument that the legislature intended pre-registration conduct to be considered only at the time of registration. College Counsel referred the Panel to a report by Dr. Hy Bloom on the subject of delayed disclosure of sexual victimization (Tab 4 of the College’s Responding Motions Record).⁶ Dr. Bloom explained that only a small proportion of victims of sexual abuse report their victimization to authorities. Further, there will often be a delay in reporting by victims. Dr. Bloom outlined some of the reasons for delayed and incomplete disclosure of sexual abuse and noted that the effect and impact of sexual abuse becomes more complicated when the victimization occurs within a relationship of trust. Given the prevalence of delayed disclosure, College Counsel said it would be absurd to limit the College’s jurisdiction over pre-registration conduct during the period of registration with the College. The College may not learn about allegations of sexual abuse during registration. They may only learn of such allegations years after someone has acquired a certificate of qualification and registration and the registration committee’s jurisdiction has become functus. Therefore, if the Discipline Committee cannot consider pre-registration conduct, there is a prospect that highly unsuitable teachers, who have broken the trust of students and inflicted significant harm on them, will have impunity. According to College Counsel, the Member’s interpretation of the law and Leung results in significant risks being posed to students, contrary to the College’s public protection mandate.

38In addition, College Counsel submitted that the only appropriate forum to deal with allegations of professional misconduct is through this particular Committee. The Member was not a member of the Ontario College of Trades at the time of the alleged misconduct; that body had not yet come into existence. Prosecution in the provincial offences court is not available with respect to the allegations made in this matter. College Counsel also argued that professional regulation is a specialized area of law, the administration of which has been specifically provided to the different regulatory bodies within the province, each with its own expectations, standards, and public protection concerns. As such, neither the criminal nor civil courts can make determinations of professional misconduct. It is the College’s Discipline Committee that is tasked with determining allegations of professional misconduct regarding the Member.

39College Counsel argued that the exception in Leung allowing for the consideration of pre-registration conduct when such conduct continues into the time of membership should be interpreted broadly as giving the Committee the jurisdiction to consider pre-registration conduct when it raises ongoing concerns about the Member’s suitability for current membership with the College.

40According to College Counsel, such a broad interpretation is supported by the Member’s concession that the Discipline Committee would have had jurisdiction if the Member had been criminally convicted for an offence relating to the Member’s suitability to hold a certificate of qualification and registration. There are many reasons why a criminal prosecution may not be successful. The Discipline Committee’s jurisdiction should not be dependent and limited by the results of a separate and an independent prosecution. Additionally, College Counsel referred, in its factum, to Ontario College of Teachers v. Stelpstra, 2014 ONOCT 98 (“Stelpstra”), where a member was criminally charged for possession of child pornography and granted a stay of proceedings due to a violation of his section 11(b) Charter rights. There was no criminal finding of guilt, but the Discipline Committee found that the member lost the trust of the public, was not suitable to be in a position of trust and authority over children, and that he brought the profession into disrepute. The Discipline Committee therefore revoked the certificate of qualification and registration of the member.

41College Counsel referred to the report of Brian Serafini (Tab 6 of the College’s Responding Motion Record), which identified several “red flags” about the Member's suitability as a current member of the College, and took the Panel to several excerpts of the Member’s testimony from the certified transcripts from the criminal proceedings held on September 11, 2018 (Tab 7 of the College’s Responding Motion Record) to demonstrate numerous ways in which the Member breached her position of trust over Student 1. According to College Counsel, the Member formed a relationship with Student 1 and breached her position of trust and authority over him not only by having sex with him but also by: communicating with him by cell phone, lending him $3,000 to pay [XXX], labelling him as [XXX], and not reporting his [XXX] to anyone. Additionally, while the Member made some admissions in her criminal trial,⁷ College Counsel submitted that Student 1 would provide evidence demonstrating more serious and prolonged breaches of trust than the conduct that was admitted by the Member in her criminal proceedings, to establish the allegations of professional misconduct against the Member and to demonstrate her unsuitability as a member of the profession.

42It is the opinion of College Counsel that the Member does not show insight into her misconduct and this speaks to her suitability as a member of the College. College Counsel also referred the Panel to the apparent contradiction in the Member’s recollection of the timing of events in her testimony at trial, and to an affidavit subsequently sworn by the Member on July 31, 2020 (Tab 3 of the Member’s Motion Record) and noted the need for a hearing to determine the Member’s honesty.

43Rather than adopting Leung, College Counsel argued that the Committee should follow the approach in Kline. Although it deals with different legislation, College Counsel favoured Kline for its purposive approach to statutory interpretation. College Counsel noted that Kline was decided after Leung, and specifically rejected Leung on the basis that it would lead to absurd results. College Counsel submitted it could not have been the intention of the legislature, in enacting the Act with its public interest mandate, to allow for immunity for pre-registration conduct, no matter how serious, simply because that conduct had not been revealed at the time of registration. As in Kline, the purpose of the Act is public protection, and this allows the Discipline Committee to consider pre-registration conduct where it reflects on a member’s suitability to practice.

44College Counsel also directed the Panel to Ontario College of Social Workers and Social Service Workers v. Ackermann (10 June 2003, “Ackermann”) and College of Early Childhood Educators v. Mallais, 2013 ONCECE 7 (“Mallais”) as examples where other discipline committees assumed jurisdiction over problematic pre-registration conduct. In Ackermann, the pre-registration conduct in question was an intimate sexual relationship with a client to whom the member was providing client services. The member resigned from the Ontario College of Social Workers and Social Service Workers before the start of the discipline hearing. The Committee determined the misconduct was sufficiently serious to call into question her suitability to practise the profession, that it had jurisdiction despite the member’s resignation because it was a matter referable to a time where the member held registration, and the member was found guilty of professional misconduct on the basis that the conduct would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. In Mallais, the member sexually abused children under his care. These events took place before he became registered with the College of Early Childhood Educators. The Discipline Committee determined that the public interest exempted them from the presumption against retrospectivity, and provided the Committee with jurisdiction, as the allegations, if proven, could have implications for the public and would reflect the member’s suitability to practice as an early childhood educator.

(2) Mandatory Revocation and Retrospectivity

45College Counsel submitted that it would be premature to consider the question of retrospectivity of section 30.2 of the Act because the Committee has not yet heard the matter and made any findings. Section 30.2 is not triggered yet. College Counsel also noted that the transitional provisions in section 63.2 of the Act expressly allows the Discipline Committee to apply the mandatory penalty provisions to findings of sexual abuse, where the sexual abuse pre-dated April 3, 2019,⁸ if a panel has not yet made an order under section 30(4) of the Act. This is the first time the Discipline Committee will be considering allegations of sexual abuse by the Member. Therefore, any findings by the Committee that the Member is guilty of professional misconduct consisting of sexual abuse will engage section 30.2.

46In addition, College Counsel submitted the Member offered Kalin for the principle that members should be judged in light of what was prohibited conduct at the time it occurred, but this does not assist the Member as sexual abuse and all the other heads of misconduct alleged in the Notice of Hearing existed at the material time.

47Finally, College Counsel noted that revocation is a discretionary penalty that existed before section 30.2 was enacted, and that the Discipline Committee can order revocation for findings of professional misconduct other than sexual abuse by the Member. College Counsel will seek revocation if the Committee finds the Member is guilty of any head of professional misconduct.

F. ADVICE OF INDEPENDENT LEGAL COUNSEL

48Independent Legal Counsel (“ILC”) advised that the law on the issue of jurisdiction over pre-registration conduct has evolved through the years. In considering the cases presented to it, the Panel would be bound by decisions of the Supreme Court of Canada that dealt with similar legislation to the Act, as well as decisions by Ontario courts dealing with the Act. Cases that are decided by other tribunals, or that are from other jurisdictions, or which deal with different statutory schemes may be helpful to, but are not binding on, the Committee.

49Independent Legal Counsel advised that even though Leung does not deal specifically with the Act, it is a recent decision by a court dealing with legislation that was similar to the Act and as such, the Panel should be guided by Leung when making their decision regarding jurisdiction. ILC’s advice was that Leung makes it clear that, unless there is specific language that grants jurisdiction, the Committee cannot discipline a member for pre-registration conduct other than in three exceptional circumstances. These exceptions are:

1. If the Member was untruthful in the registration process, or otherwise failed to declare something in the course of their registration, the Committee can discipline the Member for this failed declaration;

2. Where the allegation relates to incompetence or incapacity that relates to the Member’s current status, the Committee can look to pre-registration conduct to establish this incompetence or incapacity; or

3. Where the conduct involves a course of behaviour that began prior to registration and continued after the Member was granted membership.

50Independent Legal Counsel also advised that pursuant to the Supreme Court of Canada in Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289 (“Tran”) and Brosseau v. Alberta Securities Commission, 1989 CanLII 121 (SCC), [1989] 1 S.C.R. 301 (“Brosseau”), as referred to in Kunynetz, there is a general presumption against retrospectivity, unless expressly required by legislation or if required to ensure public protection. The public protection exception allowing a statute to be applied retrospectively is a limited exception and it was ILC’s opinion that it would not give the Discipline Committee the jurisdiction to hear concerns regarding the Member’s pre-registration conduct as currently alleged in the Notice of Hearing.

51Independent Legal Counsel distinguished the Notice of Hearing in the present matter from that issued in Kline. Unlike in the Member’s case, the Notice of Hearing in Kline alleged that the member did not disclose circumstances relating to her suitability to practice as a registered social worker at the time of registration, and that she had contravened a law relevant to her suitability to practice as a social worker.

52ILC also referred to two prior decisions by the Discipline Committee to show that the College has long taken the approach that the Discipline Committee does not have jurisdiction over pre-registration conduct except in limited circumstances. In Ontario College of Teachers vs. Brown, 2007 ONOCT 8 (“Brown”) and in Ontario College of Teachers v. Couture, 2019 ONOCT 71 (“Couture”) the members’ alleged misconduct took place before the members were registered with the College, and they were subsequently convicted criminally for offences relating to their pre-registration conduct. The Notices of Hearing issued against those members contained allegations that the members were guilty under various head of misconduct, including that the members had contravened a law relevant to their suitability to hold a certificate of qualification and registration (per subsection 1(16) of Ontario Regulation 437/97). The prosecution in both cases proceeded solely on the basis of the members’ criminal convictions which occurred after registration. The Discipline Committee in both instances determined it had jurisdiction to consider the members’ pre-registration conduct because the criminal convictions occurred after the members became registered with the College, and further, were of a nature that called into question the members’ suitability to continue teaching.

53Independent Legal Counsel's advice was that a decision to decline jurisdiction in this instance would not set a precedent preventing the College from determining in the future whether an individual is unsuitable as a teacher based on any pre-registration conduct and regardless of how serious that conduct is, as the facts of each case and the wording of the allegations in each case will always be relevant and determinative. Jurisdiction can be established depending on the particular facts and wording of a Notice of Hearing. On a going forward basis, the College can also change its registration form to include a basket clause question regarding pre-registration conduct that would then enable the College to assert jurisdiction when it found out, post-registration, about troubling behaviour that had not been disclosed during the registration process.

54The parties were given an opportunity to respond to ILC’s advice. The Panel granted College Counsel’s request to make further written and oral submissions on the issue of retrospectivity as it applies to the question of the Committee’s jurisdiction to hear this matter.

G. college response to independent legal counsel

55The College disagreed with the advice of Independent Legal Counsel. College Counsel argued that the principle against retrospectivity only arises when a new law has been enacted, and there have been no changes to section 30 of the Act. Since there have been no material changes to the Act, the question before the Committee is whether the definition of professional misconduct can include considerations of pre-registration conduct. College Counsel argued that public protection requires a broad interpretation of the legislation that gives the Discipline Committee jurisdiction over pre-registration conduct. This case raises issues of public protection, and there is a prima facie case that the Member’s pre-registration conduct is continuing and that her complete lack of insight and contrition call into question her suitability as a member of the teaching profession.

56According to College Counsel, Tran and Kunynetz demonstrate that the presumption against retrospectivity is a principle that is only engaged when there is a change to legislation or the enactment of new legislation. These were instances where tribunals wanted to apply new penalties brought on by changes to the law to conduct occurring before the new penalties were enacted.

57In Tran, the Supreme Court of Canada had to determine which mandatory penalty provision should apply to an individual for an offence under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, for the purposes of his permanent residency status. The legislation changed between the time the individual was charged and when he was convicted, to increase the maximum penalty allowable that could be imposed for the offence in question. The Supreme Court of Canada decided that the appropriate provision to consider was the one that was in effect at the time of the offence. The Supreme Court of Canada explained the presumption against retrospectivity as “protect[ing] acquired rights and to prevent a change in the law from “look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction”” (at paragraph 43).

58In Kunynetz, the Divisional Court had to consider the applicability of changes to the penalty provisions of the Health Professions Procedural Code,⁹ which required mandatory revocation for specific findings of sexual abuse. Such a penalty did not exist at either the time of the member’s misconduct or at the time of his discipline hearing. The legislative change was introduced approximately a month after the member was found guilty of sexual abuse. The Divisional Court decided the mandatory penalty provisions could not apply retrospectively, commenting that “Legislation is retrospective if it provides new consequences for past conduct. The issue was whether the amendment to impose a mandatory penalty had retrospective effect. In order to protect vested interests, there is a presumption against retrospectivity” (at paragraph 130).

59College Counsel submitted that the Discipline Committees in Kline, Ackermann and Mallais erred in considering the presumption against retrospectivity because there were no legislative changes at issue in those cases. Similarly, College Counsel argued that it would be an error for this Committee to apply the presumption against retrospectivity because section 30(2) of the Act was in force and has not changed in any material respects between the time of the Member’s alleged misconduct in 2001 through 2004, and now. The heads of misconduct alleged in the Notice of Hearing, have in substance, have not changed.¹⁰

60In addition, College Counsel noted that the presumption against retrospectivity can be rebutted if there are public protection concerns at hand. College Counsel referred to the Supreme Court of Canada’s decision in Brosseau to uphold the application of new securities legislation to conduct that occurred before its enactment on the basis that the presumption against the retrospective effect does not apply when the legislation in question intended to protect the public. College Counsel also referred to the decision of College of Teachers (Ontario) v. Bhadauria, 2004 CanLII 16867 (ON SCDC), [2004] O.J. No. 2468, in which the Divisional Court determined it was appropriate to apply the Act to misconduct pre-dating its enactment because the Act serves the public interest, as was the case in Brosseau, and the Act does not change the status of the conduct that the member had engaged in; the heads of professional misconduct alleged in the Notice of Hearing have existed since 1997, without any material change.

61College Counsel reiterated for the Panel that section 3(2) clearly frames the Act as public interest legislation. As such any statutory interpretation done by the Committee should be done broadly with a view to protecting the public given that, as the Supreme Court of Canada recognized at paragraph 36 of Binet, the primary objective of a self-regulatory body, such as the College, is not to provide services to its members, but rather, to protect the public. This approach was endorsed by the Ontario Court of Appeal in Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727 (“Sazant”) and affirmed by the Supreme Court of Canada’s recognition in Vavilov that decision makers like members of this Discipline Committee, who are empowered to act in the public interest have great flexibility in interpreting the limits of their authority (see paragraph 110). In accordance with Abdul v. Ontario College of Pharmacists, 2018 ONCA 699 (“Abdul”), the Discipline Committee has to balance procedural fairness to members with the public interest.

62As such, it was the College’s submissions that the Member’s arguments for a strict interpretation in favour of the Member, based on Leung, cannot stand. Leung was decided before Abdul and Vavilov. Further, Leung concerns a different statutory and factual context which allowed that Discipline Committee to protect the public interest despite deciding it did not have jurisdiction over the corporate defendant by: first, proceeding on the allegations of professional misconduct against the individual member who had provided engineering services through the corporation while the corporation was unregistered; and second, allowing for prosecution of pre-registration conduct by the corporation through provincial offence charges. These avenues are not available to the College in this matter. College Counsel argued that the fact that both the Professional Engineering Act and the Act refer to “past conduct” with respect to the registration process but not in the provisions regarding professional misconduct does not preclude section 30(2) from considering pre-registration conduct; all allegations of professional misconduct relate to past conduct. College Counsel submitted the Panel should not follow ILC’s advice with respect to Leung.

63College Counsel also disagreed that Leung created two narrow exceptions for considering pre-registration conduct, namely fraud in a member’s registration application and misconduct “continuing” into the time of membership. Nevertheless, College Counsel argued that the “continuing” conduct exemption is met in this case. College Counsel first noted that Leung did not elaborate on the meaning of “continuing” misconduct and referred to the decision of the Alberta Court of Appeal in Ho v. Alberta Association of Architects, 2015 ABCA 68 (“Ho”) for guidance. In Ho, the Alberta Association of Architects made several allegations of professional misconduct against Mr. Ho, including that he practiced architecture without being registered. Mr. Ho claimed immunity on this allegation because the activities occurred prior to registration. The Alberta Court of Appeal noted that the misconduct carried through to the time of his registration with the Association and, therefore, the court did not need to consider the question of whether jurisdiction extended to conduct occurring entirely and exclusively prior to registration. In any case, the Court of Appeal rejected Mr. Ho’s immunity argument, inferring that the Discipline Committee had addressed the substance of the allegation of unauthorized practice on the basis of determining Mr. Ho’s qualifications, capacity, eligibility or character as a member.

64College Counsel then submitted that despite not using the word “suitability”, the Notice of Hearing issued against the Member properly detailed the case against the Member so as to allow the Discipline Committee to hear the matter. College Counsel referred to Brooks v. Ontario Racing Commission, 2016 ONSC 1136, for the proposition that a Notice of Hearing should put a member on sufficient notice of the allegations against them. College Counsel reminded the Panel that the Notice of Hearing alleges the Member not only sexually abused Student 1 but also contravened sections 1(5), 1(7.2), 1(14), 1(15), 1(18) and 1(19) of Ontario Regulation 437/97. College Counsel argued that suitability to practice is a relevant consideration for several of these heads of misconduct, especially the allegation that the Member committed acts, that having regard to all of the circumstances, would reasonably be regarded as disgraceful, dishonourable or unprofessional (i.e., section 1(18)). College Counsel submitted that the Notice of Hearing was sufficient, given the admonishment by the trial judge at the end of the Member’s criminal proceedings that her conduct (which was referred to by the trial judge as an “abuse of trust”) will be dealt by professional regulators.

65Further, the College has repeatedly asserted throughout the proceedings that the Member’s pre-registration conduct bears on her current suitability. College Counsel reiterated the Member’s telephone conversation with Student 1 occurred while she was a member of the College in 2016 and showed a lack of insight by the Member about her conduct, which speaks to her suitability, character, and professional judgment as a member of the College.

66College Counsel referred to Stelpstra again to show that this Discipline Committee can make determinations of professional misconduct without a criminal conviction or allegations mentioning suitability against the member. College Counsel submitted that, contrary to ILC’s advice, Brown does not assist the Committee because the College’s decision to proceed only on the criminal convictions was an exercise of prosecutorial discretion to simplify the hearing. The member’s breaches of trust in Brown (having committed sexual offences against students) were considered by the Discipline Committee as conduct that was disgraceful, dishonourable and unprofessional, and unbecoming a member, as well as other heads of misconduct.

H. Member’s response to independent legal counsel

67Member’s Counsel generally agreed with the advice of ILC. In their further written and oral submissions, Member’s Counsel stated there was a material change to the legislation after the events underlying the Notice of Hearing occurred, namely the enactment and revision of section 30.2 of the Act. Therefore, the presumption against retrospectivity is engaged. Member’s Counsel then discussed the case law and circumstances of this matter to argue that the Discipline Committee is precluded by the presumption against retrospectivity from considering the Member’s pre-registration conduct.

68Member’s Counsel also referred to Tran and Kunynetz but adopted a different interpretation of these cases. According to Member’s Counsel, the Supreme Court of Canada was clear in Tran to characterize the presumption against retrospectivity as a rule of statutory interpretation, the objective of which is to allow individuals to know in advance what the consequences of a particular course of action will be (at paragraph 45). Said another way, retrospectivity applies to acquired rights. Further, the presumption against retrospectivity can only be rebutted in the limited circumstances that there is a clear expression by the legislature to allow retrospectivity or if it is clear that the legislature has determined that the public interest outweighs the prejudice that the Member will suffer from the retrospective application of the legislation. Kunynetz properly applied these principles in deciding not to apply the mandatory penalty provisions against the member. Kunynetz was decided after Kline and should therefore be given more consideration by the Panel than Kline.

69Member’s Counsel argued that based on Tran, the law should only apply to an individual from the date its powers get enshrined. An individual may not know, when engaging in particular acts, that their actions are misconduct under legislation to which they were not subject at the time of the acts. The Member would not have known that her actions of having sexual intercourse with an adult (Student 1) would be punished by the Ontario College of Teachers since she was not a member of this College at that time. The Act and regulations should only apply to an individual once they become a member of the College and are aware of the potential consequences that any actions they take may have.

70Member’s Counsel reiterated that the Discipline Committee did not have jurisdiction over this matter because the Member was not a member of the College at the time of the alleged conduct and the Act does not contain specific wording giving the Discipline Committee jurisdiction over pre-registration conduct. The Act should be narrowly interpreted in favour of the Member, as was done in Leung, because the Discipline Committee’s authority to revoke, cancel or suspend the Member’s certificate of qualification and registration is a penal authority. Member’s Counsel again submitted that the public interest does not favour prosecution and the College has not properly particularized its allegations over the Member in its Notice of Hearing as it does not make allegations of continuing misconduct and does not refer specifically to events after 2004. Accordingly, Member’s Counsel submitted that the College cannot rely on the 2016 telephone conversation between the Member and the student, and a supposed lack of remorse exhibited in that conversation somehow reflecting unsuitability for the profession, as grounds for a hearing. Rather, the wording of the Notice of Hearing would limit the Discipline Committee to determining whether the Member is guilty of professional misconduct for engaging in sexual abuse of Student 1 between September 2001 and June 2004.

I. DECISION

71Having considered the submissions of the parties as well as the relevant jurisprudence and legislation, the Majority of the Panel denies the Member’s motion to dismiss this proceeding on jurisdictional grounds. The Majority further denies the Member’s motion for a declaration that the commencement of the proceeding was unwarranted. As such, this matter will proceed to a hearing on the merits and the Member’s request for costs is denied.

J. REASONS FOR DECISION

(1) The Committee has Jurisdiction

72The Majority finds that the Committee has jurisdiction to proceed with the Member’s prosecution based on the Notice of Hearing as worded. In coming to this decision, the Majority has considered the wording and the purpose of the Act, as well as the case law relied on by both parties.

73The crux of the issue as to whether the Committee has jurisdiction over pre-registration conduct requires the Committee to interpret section 30(2) of the Act, which states that: “A member may be found guilty of professional misconduct by the Discipline Committee, after a hearing, if the member has been guilty, in the opinion of the Committee, of professional misconduct.” Both parties agree that to be found guilty of professional misconduct, an individual has to be a member (as defined in section 14 of the Act) at the time of the prosecution, and Ms. Byam was indeed a member of this College at the time of the prosecution.

74However, the parties differed as to how section 30(2) should be interpreted as it relates to the timing of the alleged misconduct that the Discipline Committee may consider in finding a member guilty of professional misconduct. On the one hand, the Member suggests that the legislature intended to limit section 30(2) to misconduct committed by a member in the course of their membership. In other words, the Discipline Committee may consider “if the member has been guilty [while they were a member], in the opinion of the Committee, of professional misconduct”. The second interpretation, favoured by the College, is that the legislature did not intend to place such a limit and intended the section to be construed broadly. Said another way, this would mean that the Discipline Committee may consider “if the member has [ever] been guilty, in the opinion of the Committee, of professional misconduct”.

75The Majority takes the advice of Independent Legal Counsel under advisement and notes that, as of the date of this decision, a higher court has not specifically ruled on whether the sections of the Act that speak to professional misconduct can be applied retrospectively to pre-registration conduct. Having considered the parties’ submission, the Majority finds that section 30(2) is silent about timing, and therefore is equally capable, on its face, of both interpretations suggested by the parties. Because these two interpretations are equally possible by simply reading the plain wording of the section, the Majority must now look to the context in which the section appears, the scheme and purpose of the legislation, and consider the relevant case law.

76The modern principle of statutory interpretation, which guides the Majority, is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, as cited in Tran v. Canada, 2017 SCC 50, [2017] 2 S.C.R. 289 at para. 23). It is long held that statutory interpretation must be done in the context of the statute as a whole and the purpose of that statute, and should not simply be an analysis of sections of a statute in isolation: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1.S.C.R. 27.

77The Discipline Committee is a statutory body established under section 15 of the Act. The duties and powers of the Discipline Committee are conferred and limited by the Act, and in particular, section 30 of the Act. The object of the Discipline Committee, in exercising its powers is to serve and protect the public interest, in accordance with section 16(1)(a) of the Act. The Supreme Court of Canada has long emphasized a broad, purposive approach to the interpretation of the legislation governing self-regulatory professions, given their paramount objective of serving and protecting the public interest (see Green, The Christian Medical and Dental Society of Canada, and Binet).

78The Majority is persuaded by the submissions of College Counsel, and in particular, the reasons of the Discipline Committee of the Ontario College of Social Workers and Social Service Workers in Kline. The Majority appreciates that Kline is a decision of another regulatory body and therefore deals with different legislation. However, the mandate of both the College in Kline and of this Committee is to ensure public protection. The reasoning and rationale in Kline are consistent with the public protection purposes of the Act.

79As held in Kline, the Majority does not believe that the reference to and authority of the Registrar to consider the past conduct or actions of an individual during registration precludes pre-registration conduct from being considered during the discipline process. It is possible for section 18 and section 30 of the Act to “co-exist harmoniously” (Kline at paragraph 80). The registration process cannot guarantee that all problematic pre-registration conduct will be revealed, especially in the case of allegations of sexual abuse where there may be delayed reporting by the victim. This could lead to an absurd result where certain members who have inflicted serious harm to others are shielded from scrutiny.

80The public interest necessitates the consideration of pre-registration conduct in this instance. Without determining the issue of the retrospectivity of section 30.2 of the Act (as the Majority believes it is premature to deal with this issue), the Majority agrees with Ackermann and Brosseau that the presumption against retrospectivity does not apply where public protection and the public interest are paramount. The Majority disagrees with Member’s Counsel that the discipline process is punitive. The mandate of the Discipline Committee in considering allegations of professional misconduct and in making orders under 30(4) is not to punish a member for their misconduct, but to ensure public protection.

81The Majority’s approach in denying the Member’s jurisdiction motion and deciding that the Discipline Committee can proceed to hear the allegations against the Member is consistent with the Committee’s duty to serve and protect the public interest outlined in section 16(1)(a) of the Act. As the Supreme Court of Canada’s stated at paragraph 110 of Vavilov:

If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrowing language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language – for example, “in the public interest” – it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language.

82The fact that pre-registration conduct is not specifically included in the Act or the misconduct regulation, Ontario Regulation 437/97, is not a signal that pre-registration conduct can never be considered by the Committee. Instead, it allows the Committee to consider on a case-by-case basis whether the pre-registration conduct is a relevant consideration of the current suitability of the Member to be a member of the teaching profession, given the seriousness of the allegations. The scope of the protection of the presumption against retrospectivity and consideration of pre-registration conduct will be “aligned with the specific risks posed by persons who have engaged in specific harmful conduct and is tailored to preventing those risks prospectively” (paragraph 50 of Tran).

83The Majority disagrees with the submission of Member’s Counsel that the issue of whether professional misconduct can include pre-registration conduct was dealt with in Leung. This Committee is not bound by Leung as it did not specifically deal with the Act. The Majority believes that proceeding on the advice of Independent Legal Counsel that the Discipline Committee can consider pre-registration conduct in only three particular circumstances is contrary to the Committee’s mandate and duty to serve and protect the public interest. As stated in Abdul at paragraph 16:

“The interpretetive [sic] principle of strict compliance with and construction of professional discipline legislation to ensure procedural fairness to accused members is not exclusive or overriding. The Discipline Committee is required to interpret its enabling statute with a view to protecting the public interest in the proper regulation of the profession … A balancing of these interests are required.”

84In balancing fairness to the Member and the public interest, the Majority believes the public interest requires consideration of the Member’s pre-registration conduct. In this case, the Notice of Hearing alleges the Member had engaged in an inappropriate personal relationship with Student 1, in inappropriate physical contact with Student 1, and in sexual touching with Student 1 while holding a position of trust over him. These are serious allegations, raising concerns about the Member’s suitability to continue to hold a position of trust and authority over students, as a member of the teaching profession. As the College’s decision in Stelpstra demonstrates, a criminal conviction is not required to prove allegations that a member committed serious breaches of trust that disqualify the member from holding a position of trust and authority over students. Rather, according to paragraph 33 of Kline, “conduct before and at the time of admission to a profession may be found to constitute professional misconduct in the present on the basis that the conduct is of a continuing nature or evidences an ongoing unsuitability to practise” (quoting paragraph 34 of Psychologist Y v. Nova Scotia Board of Examiners in Psychology, 2005 NSCA 116).

85Accordingly, the Majority denies the Member’s motion for a declaration that the commencement of the proceeding was unwarranted.

(2) It is Premature to Determine the Retrospective Application of section 30.2(1) of the Act

86Finally, Member’s Counsel made submissions regarding the retrospective application of section 30.2(1) of the Act. This section addresses the mandatory order that the Committee must make if it finds a member guilty of an act of professional misconduct consisting of or including sexual abuse of a student, a prohibited act involving child pornography, or a prescribed sexual act. The Majority finds that it is unnecessary to make a finding regarding whether this section applies at this stage of the hearing. If the Member is found guilty of professional misconduct, we will hear submissions regarding section 30.2 at the penalty stage.

Date: February 28, 2022

Rebecca Forte, OCT

Chair, Discipline Panel

Sara Nouini, OCT

Member, Discipline Panel

Per: Jonathan Rose (Dissenting):

87The Notice of Hearing sets out particulars and allegations that are serious in nature, and if proven, could lead to very serious consequences for the Member, including possible revocation of her certificate of qualification and registration. While the Member was not registered with the College at the time of the events in question, she was in a position of trust and authority, as an educational assistant, at the time of the alleged misconduct.

K. DECISION

88Having considered the submissions of the parties as well as the relevant jurisprudence and legislation, I would allow the Member’s motion to dismiss this proceeding on jurisdictional grounds. I do not think that the Member’s request for costs against the College is warranted because of the complexity of the case and the novelty of the issues it raises.

L. REASONS FOR DECISION

89I agree with the Majority that it is premature to hear the Member’s motion on the applicability of section 30.2(a) of the Act. The Panel has not yet made a decision that the Member is guilty of professional conduct or that the professional misconduct consists of sexual abuse of a student, a prohibited act involving child pornography, or a prescribed sexual act. It would be speculative to determine whether section 30.2(a) applies until such a finding has been made.

90I further agree with the Majority that the determination of whether the Discipline Committee has jurisdiction over the pre-registration conduct of a current member must be determined in accordance with the language of the Act. However, I disagree that the Committee has jurisdiction to hear this matter. Instead, I adopt the advice provided by Independent Legal Counsel that the silence in the Act with respect to the timing of a member’s conduct does not provide this Committee with jurisdiction to consider pre-registration conduct.

91Both parties have presented case law in support of their respective positions. Many of these cases are not binding on the Panel but help to inform the Panel’s decision. I accept the advice of ILC that the Discipline Committee should adopt the approach in Leung. Leung is a recent decision by the Ontario Divisional Court that deals with similarly worded legislation, and as such, should be given significant consideration in determining the Member’s motion. I agree with ILC’s advice that Leung establishes that the Discipline Committee does not have jurisdiction over pre-registration conduct except in the three specific circumstances ILC outlined, and none of which apply to this case. This is not a proceeding about incompetence or incapacity. There are no allegations of fraud in obtaining the Member’s certificate of qualification and registration. There are no allegations of continued misconduct after the Member was granted membership with the College.

92Accordingly, the Panel should take the approach endorsed by Leung, which interpreted the distinctions in the Professional Engineers Act between members, persons, and applicants, to mean that the Discipline Committee did not have jurisdiction over pre-registration conduct, and that pre-registration conduct can be properly considered during registration. In the same way, the Act has provisions that deal with ‘applicants’ to the College (section 18), ‘persons’ not complying with the Act (section 49), ‘members’ facing disciplinary proceedings (section 30), and ‘persons’ who are former members facing disciplinary proceedings (section 14(5)). It appears that when the legislature drafted the Act, they made a conscious and deliberate decision to use different terms and therefore distinguish between these categories of persons.

93Moreover, the legislature decided to limit the Discipline Committee’s jurisdiction to members and former members. Without determining the issue of the retrospectivity of section 30.2 of the Act, I accept ILC’s advice that according to Kunynetz there is a presumption against retrospectivity that can only be rebutted by express provisions in the legislation providing for retrospectivity; or if required for public protection. The legislature could have defined professional misconduct in the Act and in Ontario Regulation 437/97 to refer to pre-registration conduct, if they intended for the Discipline Committee to have jurisdiction over pre-registration conduct generally. However, they did not. Section 14(5) of the Act and the extension of the Discipline Committee’s jurisdiction to former members clearly demonstrates that the legislature had turned its mind to the issue of retrospectivity. The silence on pre-registration conduct was therefore intentional, which leads to the conclusion that the Discipline Committee does not have jurisdiction over members whose misconduct occurred before they were members of the College, other than in the three exceptional circumstances set out in Leung. If there is a gap in the current legislation, then the legislature can amend the Act to provide the Discipline Committee with jurisdiction over pre-registration conduct generally.

94In addition, while the Divisional Court in Kunynetz recognizes that public protection may also require retrospectivity, as in Brosseau, it also accepts that, in accordance with Tran, this exception to the presumption against retrospectivity will not be triggered every time there are public protection concerns. In this instance, the Notice of Hearing sets out serious allegations of misconduct against the Member while she was an educational assistant, but the College does not allege that this behaviour continued while she was a member or that there were any concerns about the Member’s suitability as a member of the teaching profession. The Discipline Committee is bound by the wording of Notices of Hearing as issued against members. Where a Notice of Hearing is deficient or the evidence does not support the allegations made against a member, the College may ask the Committee to withdraw it. Likewise, the College may issue a new or supplementary Notice of Hearing as required to address allegations of misconduct by a member. On the basis of the current Notice of Hearing, the Discipline Committee does not have jurisdiction over the Member’s pre-registration conduct. The Panel was not provided with any case law positing that the Discipline Committee’s jurisdiction depends on the seriousness of the allegations. That is not enough to extend the Discipline Committee’s mandate beyond what the legislature intended.

95Finally, I do not find that the Kline case favoured by the Majority is helpful in determining this matter. Kline falls into one of the exceptions noted in Leung, as the Notice of Hearing in that case made reference to circumstances relating to suitability to practice that were not disclosed or known to that College at registration. It is not a decision of a reviewing court, but a decision of a discipline committee of another regulatory body. It was decided before Kunynetz, which clarified the limited exceptions to the presumption against retrospectivity. This motion for an order dismissing the proceeding without a hearing on jurisdictional grounds should be granted on the basis of the law as outlined in Leung and Kunynetz.

Date: February 28, 2022

Jonathan Rose

Member, Discipline Panel

64 (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects. (2) Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act.

Footnotes

1. 1Paragraph (b) of the Notice of Hearing refers to provisions of the Act and Ontario Regulation 437/97 as previously enacted. Subsection 1(7) of Ontario Regulation 437/97 was amended to its current form on May 5, 2008, after which time the various types of abuse were separated into a distinct subsection for each type of abuse (i.e., verbal – 1(7); physical – 1(7.1); psychological or emotional – 1(7.2); and sexual – 1(7.3). The College can make allegations under the historical provisions for acts occurring during the time these provisions were still in place.
2. 2The College did not formally tender Mr. Serafini as an expert witness for this motion and the Member did not make submissions regarding Mr. Serafini’s qualifications or his report.
3. 3The College did not formally tender Dr. Bloom as an expert witness for this motion. The Member did not make any submissions regarding Dr. Bloom’s qualifications or his report.
4. 4Section 64(1) of the Legislation Act provides:
5. 5The College retained Mr. Serafini to formulate an expert opinion regarding pre-registration conduct and its relation to one’s current suitability to be a member of the College. Mr. Serafini is a retired member of the College with over 30 years’ experience in various roles as an education, including as a teacher, vice-principal and principal at various schools.
6. 6The College retained Dr. Bloom to prepare an expert opinion on the prevalence of delayed disclosure of sexual abuse, with particular relation to sexual abuse occurring with a breach of trust. Dr. Bloom is a forensic psychiatrist with over 30 years of experience in the field. He is also a trained lawyer and member of the Law Society of Ontario. He provides consultations services and has consulted for both plaintiffs and defendants in civil actions involving allegations of sexual abuse, as well as in professional regulatory matters involving physicians and teachers. Dr. Bloom is a part-time staff member in the Complex Mental Disorders Program at the Centre for Addition and Mental Health, is an Assistant Professor in the Department of Medicine at the University of Toronto, and an Assistant Clinical Professor in the Department of Medicine at McMaster University. The College did not formally tender Dr. Bloom as an expert witness for this motion. The Member did not make any submissions regarding Dr. Bloom’s qualifications or his report.
7. 7College Counsel noted these admissions are admissible in a discipline hearing per the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22.
8. 8The mandatory penalty provisions in section 30.2 of the Act came into force on December 5, 2016. At time, they were triggered only by specific frank acts of sexual abuse listed in the Act. On April 3, 2019, section 30.2 was repealed and amended to its current form, to apply to findings of sexual abuse, in accordance with the broad definition of sexual abuse in section 1 of the Act.
9. 9Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
10. 10College Counsel noted that subsection 1(7) of Ontario Regulation 437/97 was amended on May 5, 2008 to separate allegations of “abusing a student physically, sexually, verbally, psychologically or emotionally” into distinct heads of misconduct, now found at subsections 1(7), 1(7.1), 1(7.2), and 1(7.3). While the College maintains this is an immaterial change, the College has made allegations of sexual abuse by the Member under both subsection 1(7) of Ontario Regulation 437/97 as enacted at the time of the events at issue and under 1(7.3) of the current form of the regulation.