COURT FILE NO.: 538/01

DATE: 20030120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BLAIR R.S.J., LANE AND CAPUTO JJ.

B E T W E E N:

ANNIE MARY MARKSON

Appellant

• and -

ONTARIO COLLEGE OF TEACHERS

Respondent

William W. Markle, Q.C. and Leanne De Filippis, for the Appellant

L. Thomas Forbes, Q.C. and Awanish Sinha, for the Respondent

HEARD: January 20, 2003

BLAIR R.S. J.: (Orally)

1Ms. Markson appeals from the penalty decision of the Decision Committee of the Ontario College of Teachers dated July 16, 2001. After having found the appellant guilty of professional misconduct under ss.1(5), (14), (15), (18) and (19) of the Professional Misconduct Regulation at an earlier hearing, the Committee directed the College's Registrar to revoke Ms. Markson's Certificate of Qualification and Registration. She is entitled to apply for reinstatement after one year and the Committee suggested that prior to doing so she undergo a psychiatric assessment.

2The professional conduct of which the appellant was convicted consisted of a failure to maintain the standards of the profession; failure to comply with the Education Act; engaging in conduct that would reasonably be regarded by members as disgraceful, dishonourable and unprofessional; and conduct unbecoming a member. She was not found guilty of the offence of abusing a student physically, sexually, verbally, psychologically or emotionally.

3The background facts are that Ms. Markson was a teacher in the York Region Separate School Board. It was found that she had engaged in an inappropriate relationship with a 14 year old male student wherein she permitted personal contact, telephone communications and the exchange of e-mails and other correspondence of a sexually suggestive nature. She continued this activity after having been warned by the student's mother that the boy had a crush on her and was in "the galloping hormone" stage of life, and after having assured the mother that she (the teacher) would not allow anything inappropriate to happen.

4We are all of the opinion the appeal must be dismissed.

5It would have been preferable in this case - as it would be generally in cases of this nature- if the Committee had spent some time in its Reasons analyzing why it came to the conclusion it did on the evidence rather than simply reviewing the evidence. However, an appeal is from the decision of the tribunal and not from its reasons.

6Here, there was ample evidence to support the Committee's decision as to penalty. We can find no error in the Committee's decision to admit expert testimony at the penalty phase, nor can we conclude that it applied the evidence in a way that was irrelevant or unnecessary.

7It was submitted to us that the Committee, having acquitted the member of actual abuse (s.1(7)), could not consider evidence respecting the concept of "grooming" of the student by the member at the penalty stage. We do not agree, since "grooming" includes preparation for abuse rather than necessarily being abuse itself. That grooming was an issue was inherent on the facts. It became overtly an issue on the submissions of the College in the liability phase. There was then a several month adjournment before the penalty hearing, during which counsel for the member decided not to call evidence on the point, knowing in advance that the College would be calling Dr. Collins to give expert evidence in that regard.

8It was also submitted that the Committee ought to have adverted expressly to the public interest and the extent of the risk represented by the appellant if allowed to continue to teach. It would, as already noted, be preferable for the analysis to be set out in the Reasons. However, it is clear that the committee was alive to this aspect because it required the appellant to undertake psychiatric assessment before applying for reinstatement.

9The law is clear that Discipline Committees of professional peers are peculiarly well-placed to decide issues of professional misconduct and penalty, and that their decisions in that regard are entitled to considerable deference: See Patel v. College of Pharmacists (Ont.) (1999), 130 O.A.C. 291 (Div. Ct.); and McKee v. College of Psychologists (B.C.) 1994 1404 (BC CA), [1994] 9 W.W.R. 374 (B.C.C.A.).

10The standard for our review of the Committee's decision is "reasonableness", and in our opinion the Committee's decision as to penalty was reasonable and not disproportionate in the circumstances.

11The appeal is therefore dismissed.

12The respondent is entitled to its costs, fixed at $5,000.

BLAIR R.S. J.

LANE J.

CAPUTO J.

Date of Reasons for Judgment: January 20, 2003

Date of Release: January 23, 2003

COURT FILE NO.: 538/01

DATE: 20030120

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT