COURT FILE NO.: 217/03

DATE: 20040308

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, KEALEY AND SWINTON JJ.

B E T W E E N:

ONTARIO COLLEGE OF TEACHERS

Appellant

• and -

JULIA ANN WEBB

Respondent

David E. Leonard, for the Appellant College

Maurice A. Green and

David A. Wright, for the Respondent Teacher

HEARD: March 8, 2004

O’DRISCOLL J.: (Orally)

1The Appellant, the Ontario College of Teachers, appeals to the Divisional Court from the penalty decision of a panel of the Discipline Committee of the Ontario College of Teachers, dated March 21, 2003, made at Toronto, in which the Discipline Committee, after having found the respondent guilty of professional misconduct, under ss.1(5), (7), (14), (15) and (18) of the Professional Misconduct Regulation 437/97, pursuant to the Ontario College of Teachers Act, 1996, on January 2, 2003, directed the Registrar, Ontario College of Teachers to suspend the Respondent’s Certificate of Qualification and Registration for a period of one year, seven months of which to run concurrent with a suspension imposed by the respondent’s employer [August 1998] and the remaining five months suspended if the respondent fulfills certain conditions.

2We have heard full argument from counsel this morning and then retired and considered the matter. With the concurrence of my colleagues, our decision follows.

3The standard of review of the Discipline Committee’s decision on penalty is reasonableness. That was decided by the decision of the Supreme Court of Canada in Law Society of New Brunswick v. Ryan (2003), 2003 SCC 20, 223 D.L.R. (4th) 577. The Discipline Committee directed its mind to whether revocation was an appropriate penalty and decided otherwise. On the facts of this case, that determination was reasonable. As Chief Justice McEachern stated for the British Columbia Court of Appeal in Y.(D.M.) v. British Columbia College of Teachers (2001), 2001 BCCA 164, 198 D.L.R. (4th) 292, 298:

17…“But the imposition of the maximum penalty cannot be an invariable rule. If it were, there would be no need to have a hearing to impose a penalty when this kind of misconduct is established. The statutory regime, however, is for there to be a hearing on such matters with a right of appeal by the teacher. …”

4It appears to us that the intent of the Committee was to impose a penalty that removed Ms. Webb from the classroom for a period of one (1) year. However, the Committee was faced with the situation that she had, in 1998, been kept out of the classroom for a period of seven (7) months, pursuant to the discipline proceedings held by the School Board. In order to accomplish its purpose, the panel crafted the penalty recorded.

5It could perhaps be argued that the wording of the penalty is unhappy. We would vary the penalty to read: “Suspended for five months, but that period is suspended if Ms. Webb carries out the conditions that are set out at p.9 of the Reasons of the Committee, numbers 1, 2, 3 and 4.” Number 5 is not included in this list because we are advised by counsel that the reprimand has already taken place.

6The Appeal Book and Compendium is endorsed as follows: “This appeal is dismissed except that the wording of the penalty is varied as recorded in the oral reasons. We have heard submissions as to costs. Costs of this appeal are fixed at $7,500, all inclusive, payable forthwith, by the appellant to the respondent.”

O’DRISCOLL J.

KEALEY J.

SWINTON J.

Date of Reasons for Judgment: March 8, 2004

Date of Release: March 12, 2004

COURT FILE NO.: 217/03

DATE: 20040308

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT