COURT FILE NO.: 377/03
DATE: 20040531
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MACFARLAND, SWINTON and LINHARES DE SOUSA JJ.
B E T W E E N:
JAGDISH BHADAURIA Defendant (Appellant)
- and -
ONTARIO COLLEGE OF TEACHERS Plaintiff (Respondent)
- and –
THE ATTORNEY GENERAL OF ONTARIO Intervenor
In Person David E. Leonard, for the Respondent Mark Crow, Intervenor
HEARD: May 31, 2004
MACFARLAND J.: (Orally)
[1] While we have a discretion to hear Charter issues raised for the first time on appeal, in our view it would be inappropriate to do so on the facts of this case.
[2] The appellant is aware of his obligation to serve Notice of Constitutional Question. He attempted to raise this issue before the Discipline Committee for the first time in oral argument. No notice had been given as required by rule 12.01 of the Ontario College of Teachers’ Rules of Procedure and the Discipline Committee refused to hear this issue by reason of that failure.
[3] Further, the appellant in January of 1998 commenced an application in the then General Division, wherein he challenged the constitutional validity of s.264(1)(c) of the Education Act. In that proceeding, some expert evidence was filed by the Attorney General and the appellant cross-examined the witness. That proceeding was adjourned sine die and remains outstanding to this date. In this proceeding, Notice of Constitutional Question was served May 13, 2004, after the appeal had been perfected and the respondent’s factum filed.
[4] In our view, the appellant was well aware of his obligation to notify the Attorney General, both by reason of his own application earlier commenced, and the refusal of the Discipline Committee to deal with the issue raised late in the day before them by reason of his failure to notify.
[5] We are satisfied that the Attorney General would be prejudiced in this case by reason of his inability to provide an evidentiary record. Further, this Court is without any adjudicative findings by the Discipline Committee dealing with this issue.
[6] In all of the circumstances, this is not an appropriate case for us to exercise our discretion to hear the question and that aspect of the appeal is dismissed.
MACFARLAND J.
SWINTON J.
LINHARES DE SOUSA J.
Date of Reasons for Judgment: May 31, 2004
Date of Release: June 8, 2004
COURT FILE NO.: 377/03
DATE: 20040531
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MACFARLAND, SWINTON and LINHARES DE SOUSA JJ.
B E T W E E N:
JAGDISH BHADAURIA Defendant (Appellant)
- and -
ONTARIO COLLEGE OF TEACHERS Plaintiff (Respondent)
- and –
THE ATTORNEY GENERAL OF ONTARIO Intervenor
ORAL REASONS FOR JUDGMENT
MACFARLAND J.
Date of Reasons for Judgment: May 31, 2004
Date of Release: June 8, 2004