Court File and Parties

Court File No: 107/08 Date: 2008-10-21 SUPERIOR COURT OF JUSTICE - ONTARIO DIVISIONAL COURT

Re: JOANNE MARIE SYLVIA LÉGER-LEGAULT Applicant

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ONTARIO COLLEGE OF TEACHERS Respondent

Before: THEN, R.S.J., LEDERMAN and KARAKATSANIS JJ.

Counsel: Joshua Phillips, for the Applicant Caroline Zayid & Jeffrey Feiner, for the Respondent

Heard at Toronto: September 17, 2008

ENDORSEMENT

Nature of Proceeding

[1] The Applicant, Joanne Marie Sylvia Léger-Legault, brings this application for judicial review to set aside a decision by the Investigation Committee of the Respondent, the Ontario College of Teachers (the “College”) to refer a compliant regarding the Applicant’s conduct to the Discipline Committee.

[2] The Applicant is alleged to have interacted inappropriately with her male students. By letter dated April 30, 2007, the College advised the Applicant that she was the subject of a complaint alleging professional misconduct as follows:

[D]uring the school years 2004-2005 and 2005-2006 [the Applicant] … acted in an unprofessional and inappropriate manner in that she:

1. had a sexual relationship with 18-year [old] male student, R.H.;
2. met male students R.H., M.M.1, M.M.2, and J.B. in restaurants and cafés;
3. took a walk along a bicycle path with male student M.M.1;
4. talked on the telephone about inappropriate non-education matters with male students R.H. and M.M.1; and
5. engaged in inappropriate e-mail and text message communications with male students M.M.1 and M.M.2.

[3] After considering all of the information and documents at the College related to the complaint, the Investigation Committee decided to refer this matter to the Discipline Committee of the College.

[4] On this application the Applicant submits that she was not given sufficient particulars of the complaint and argues that she was denied procedural fairness as a result. The Applicant seeks an order quashing the decision of the Investigation Committee or alternatively, that the matter be referred back to it to provide appropriate particulars.

[5] A second ground for the application is that the complaint and decision of the Investigation Committee ought to be set aside on the basis of delay, but this claim was not pursued at the hearing before the Court.

Position of the Applicant

[6] Sections 26(3)(b) and 26(4) of the Ontario College of Teachers’ Act, 1996 S.O. 1996 c.12 (“OCTA”) prohibit the Investigation Committee from referring a complaint to the Discipline Committee unless the member has been given notice of the complaint that includes “reasonable information about any allegation contained in the complaint” and given 30 days to make written submissions to the Investigation Committee.

[7] The Applicant submits that there has been an abject failure to provide sufficient particulars of the allegations as required by these statutory provisions and by the common law duty of procedural fairness such that the process before the Investigation Committee was fatally flawed and accordingly, its decision to refer the matter to the Discipline Committee should be quashed.

The College

[8] The College is a self-governing professional body which regulates the profession of teaching in Ontario. Its membership is composed of all certified teachers in Ontario. The functions and roles of the College are set out in the OCTA and in carrying out its functions, the College has a duty to serve and protect the public interest. One of those functions is to receive and investigate complaints against members of the College and to deal with discipline and fitness to practice issues.

The Investigation Committee

[9] The Investigation Committee itself is not a disciplinary body and does not have the power to issue disciplinary orders. Rather, it is a screening committee that investigates complaints, before any full disciplinary proceeding is initiated.

[10] The function of the Investigation Committee, as set out in s. 26(1) of the OCTA, is to “consider and investigate complaints regarding the conduct or actions of a member of the College”.

[11] The powers of the Investigation Committee are set out in s. 26(5) of the OCTA and include the power to refer, or not refer, the matter in whole or part to the Discipline Committee. It may also require the person complained against to appear before it to be cautioned or admonished. It may also take such action as it considers appropriate in the circumstances and that is not inconsistent with the OCTA regulations or the bylaws.

[12] The requirements of procedural fairness owed by the Investigation Committee are more limited in scope than in the context of full disciplinary hearings. These requirements include:

a) that the teacher be notified of the complaint and given at least 30 days in which to submit in writing to the Investigation Committee any explanations or representations the teacher may wish to make concerning the matter (s. 26(3)(b));

b) that the Investigation Committee has examined or made every reasonable effort to examine all the information and documents that the College has that are relevant to the complaint (s. 26(3)(c));

c) that notice of the complaint include reasonable information about any allegations contained in the complaint (s. 26(4));

[13] However, the requirements of procedural fairness are not as comprehensive as in an adjudicative proceeding. For example, s.26(8) provides that the Investigation Committee need not hold a hearing or afford to any person an opportunity for a hearing or an opportunity to make oral or written submissions before making a decision or giving a direction under this section. Moreover, the OCTA does not provide for an appeal from decisions of the Investigation Committee. Nor is the Investigation Committee required to provide written reasons if it decides to refer the matter to the Discipline Committee.

[14] It should be noted that the Investigation Committee does not make any findings of professional misconduct. That is within the purview only of the Discipline Committee. With respect to its power to cause a member to appear before it, to be cautioned or admonished, the Investigation Committee’s role is in the nature of an educational or advisory body warning a teacher that his or her conduct may be bordering on the improper. Therefore, this power which is not exercised in public does not carry the same implications as a formal disciplinary sanction by the Discipline Committee.

[15] In Silverthorne v. College of Social Workers and Social Services Workers (Ontario) (2006), 2006 10142 (ON SCDC), 264 D.L.R. (4th) 175 (Div. Court), Swinton J., in considering the statutory framework pertaining to complaints against social workers, that includes a committee similar to that of the College’s Investigation Committee, stated at paragraphs 15-16 as follows:

15. Turning to the nature of the decision being made, this a case where the Committee investigates complaints and disposes of them by referring them to another process or by determining that they should not be referred. The Committee does not make findings of fact nor determine whether discipline is warranted; rather it weighs the evidence to determine whether there is sufficient evidence to refer the matter to the Discipline Committee or the Fitness to Practise Committee. It is those bodies which will make findings of fact.

16. While the Complaints Committee can itself caution a member, a caution is not a sanction. It is advisory in nature and intended to be remedial (Modi v. Ontario (Health Professions Board) (1996), 1996 11773 (ON SC), 27 O.R. (3d) 762 Ont. Div. Ct.) at p. 780). A caution is not recorded in the public registry of the College nor publicized by it.

[16] The content of the duty of fairness on the Investigation Committee is limited, therefore, given the nature of the decision that it makes and the statutory context. The degree of procedural fairness that the Investigation Committee must extend was appropriately described by Swinton J. in Silverthorne, supra, at para. 17 when considering a similar statutory scheme:

17. The second consideration in determining the scope of the duty of procedural fairness is the statutory scheme. Here the Act contemplates a level of procedural fairness in the complaints screening process, in that it requires notice to the member of the substance of the complaint against him or her and an opportunity for the individual to respond. However, it is noteworthy that s. 24(4) requires disclosure of “reasonable information about any allegations” in the complaint so that the member can respond. It does not require disclosure of all the information obtained during the course of the investigation of the complaint.

“Reasonable Information” About the Allegations

[17] With respect to the allegations, the Investigation Committee has provided information with respect to the particular school years involved. It also has provided the Applicant with the names of the students (even though only initials are set out in the Notice) allegedly involved and the nature of the conduct in question.

[18] In the enclosures that accompanied the Notice of Complaint further details were given including names and information that the allegations in the College’s complaint are the very same ones that were investigated by the school board which resulted in a 75 day suspension of the Applicant and with which the Applicant is familiar.

[19] The Applicant submitted that allegations two and three relating to meeting students in restaurants, cafés and taking a walk on a bicycle path, were completely devoid of particulars. The Applicant submitted that the alleged conduct, if proven, would not even constitute professional misconduct in that, on their face, such activities are totally innocuous. However, these activities coupled with inappropriate telephone calls and emails (copies of which have been provided to the Applicant) with the same students may well constitute professional misconduct. These are matters within the expertise of the Investigation Committee. Conduct that may appear to be innocuous for other people may be found to be inappropriate for teachers.

[20] The standard of review in this case is one of reasonableness. The Investigation Committee considers and disposes of complaints by referring them to another process, the Discipline Committee, or by not referring them. As the Investigation Committee is a screening committee that does not make any final determination of fact, the appropriate standard of review of its decision ought to be reasonableness. The question of what constitutes “reasonable information” under s.26(4) of the OCTA is a question going to the College’s process for screening complaints against its members. Issues relating to the College’s processes are certainly within its expertise and, therefore, invite a reasonableness standard. Although the OCTA does not contain a privative clause with respect to the Investigation Committee, it does not provide for an appeal of its decisions either. This contrasts with s. 35 of the OCTA which provides that decisions of the Discipline Committee may be appealed to the Divisional Court. This factor also favours a reasonableness standard.

[21] In our view the Investigation Committee has met its duty of fairness in the circumstances of this case and provided reasonable information as required. In particular, the Applicant was given the complaint and enclosures wherein she was informed of the substance of the allegations against her and given sufficient information as to the “who, where and when” of the events. In light of all this information, it is reasonable to conclude that she had received reasonable information about the allegations contained in the complaint.

[22] For these reasons the application is dismissed.

[23] The parties have agreed that costs of the application should be fixed at $5,000. and accordingly, the respondent is entitled to such costs from the applicant.

THEN R.S.J

LEDERMAN J

KARAKATSANIS J.

Released: October , 2008