CITATION: Headrick v. Ontario College of Teachers, 2011 ONSC 1687
COURT FILE NO.: 155/10
DATE: 20110401
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
aston, SWINTON AND hambly JJ.
B E T W E E N:
JAN SCOTT HEADRICK
Applicant
- and -
ONTARIO COLLEGE OF TEACHERS
Respondent
Salvatore Guerriero, for the Applicant
George Waggott and Mark Wiffen, for the Respondent
HEARD at Toronto: March 1, 2011
Swinton J.:
Overview
[1] The applicant, Jan Scott Headrick, brings this application for judicial review of a decision of the Registrar of the Ontario College of Teachers (“the College”) dated January 13, 2010 which referred his application for a Certificate of Qualification and Registration to the College’s Disciplinary Committee.
[2] The central issue in this application is whether the applicant can apply as a new member of the College under s. 18 of the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12 (“the OCTA”) or whether his application must be referred to the Discipline Committee pursuant to s. 33 of the Act. For the reasons which follow, I conclude that he was not eligible to apply as a new member.
Factual Background
[3] The applicant obtained an Ontario Teachers’ Certificate (also referred to as a “Certificate of Qualification”) on June 30, 1983. He was employed as a teacher in Ottawa until he resigned from his teaching position in 1994. On March 29, 1995, he pleaded guilty to sexual exploitation of a former female student, contrary to s. 153(1) of the Criminal Code, R.S. 1985, c. C-46.
[4] The Relations and Discipline Committee of the Ontario Teachers’ Federation recommended cancellation of the applicant’s certificate. On April 7, 1997, the Minister of Education wrote to the applicant advising him that the recommendation was accepted, and his Certificate of Qualification was cancelled under paragraph 13 of s. 8(11) of the Education Act.
[5] Since that decision, the system for the regulation of teachers has changed in Ontario. The College is a self-governing regulatory body for teachers in Ontario, created and governed by the Ontario College of Teachers Act. That Act came into force on July 5, 1996.
[6] Pursuant to s. 18 of the OCTA, the Registrar of the College must grant a Certificate of Qualification and Registration to any individual who meets the requirements under the Act’s regulations unless there are grounds for refusal pursuant to s. 18(2). If a certificate is denied or granted with terms, the individual may have the matter reviewed by the Registration Appeals Committee of the College.
[7] The College maintains a Discipline Committee, responsible for hearings relating to professional misconduct or incompetence, as well as a Fitness to Practice Committee, responsible for hearings on any allegations of incapacity. Pursuant to s. 18(3) of the OCTA, the Registrar must refuse to issue a certificate to an applicant who previously held a certificate that was revoked as a result of a decision of the Discipline Committee or the Fitness Practice Committee and that was not reinstated under ss. 33 and 34 of the Act.
[8] Transitional provisions were adopted to address the change in the regulatory framework from the oversight by the Minister of Education to the College. For example, pursuant to s. 62(1) of the OCTA, every person who, on a date to be specified in a regulation, held an Ontario Teacher’s Certificate or a letter of standing under the Education Act would be deemed to hold a Certificate of Qualification and Registration under the OCTA. The person would thereby become a member of the College. The effective date was May 20, 1997.
[9] A regulation was also adopted to deal with transitional matters relating to discipline (Transitional Matters – Discipline, O. Reg. 276/97). In general, any discipline matters referred before January 1, 1997 were to be dealt with under the earlier regime (governed by the Minister), and matters arising after January 1, 1997 were to be dealt with under the College regime. Subsection 3(1) of the Regulation provided:
Section 33 of the Ontario College of Teachers Act, 1996 applies, with necessary modifications, to a person whose certificate of qualification or letter of standing was suspended or cancelled by the Minister before May 20, 1997 under paragraph 13 of subsection 8(1) of the Education Act.
[10] Subsection 33(1) of the OCTA provides:
A person who has had a certificate revoked or suspended as a result of a proceeding before the Discipline Committee may apply in writing to the Registrar to have a new certificate issued or the suspension removed.
Pursuant to s. 33(5), the Registrar must refer an application under subsection (1) to the Discipline Committee.
[11] In April 1999, the applicant applied for reinstatement to the College. However, his application was rejected by the Discipline Committee on November 2, 2000.
[12] In 2006, the Education Statute Law Amendment Act, 2006, S.O. 2006, c. 10 was enacted. It removed transitional or spent provisions no longer considered necessary in light of the 10 years that had passed since the OCTA was enacted. Section 60 removed the provision of the OCTA authorizing regulations “providing for such transitional matters as the Lieutenant Governor in Council considers necessary or advisable”. The applicant takes the position that the 2006 legislation took away the authority for O. Reg. 276/97.
[13] In December 2009, the Good Government Act, 2009, S.O. 2009, c. 33, Sched. 13 was enacted. It added s. 33(15) to the OCTA, which now reads:
This section applies with necessary modifications to,
(a) a person whose certificate of qualification or letter of standing was suspended or cancelled by the Minister before May 20, 1997 under paragraph 13 of subsection 8(1) of the Education Act, as it read immediately before its repeal; and
(b) a person whose certificate of qualification or letter of standing was suspended or cancelled as a result of a decision of the Minister under paragraph 2 of subsection 2(2) of Ontario Regulation 276/97 (Transitional Matters — Discipline) made under the Act that was deemed by paragraph 4 or 5 of that subsection to be a decision of the Discipline Committee.
[14] Prior to the enactment of the Good Government Act, 2009, the applicant had begun the process of applying for a new Certificate of Qualification and Registration. The date on which he completed his application is disputed by the parties. The applicant submits that he completed the application on line on October 30, 2009, while the College claims that he did not complete it until early January 2010.
[15] On January 13, 2010, the Registrar wrote to the applicant and indicated that he was referring the application to the Discipline Committee pursuant to s. 33(5) of the OCTA. He explained that he relied on s. 33(15) of the Act, since the applicant’s Certificate of Qualification had been cancelled by the Minister before May 20, 1997. This led the applicant to launch this application for judicial review.
The Issues
[16] This application raises the following issues:
Did the Registrar err in referring the application to the Discipline Committee?
Did the Registrar owe the applicant a duty of fairness and, if so, was it breached?
[17] The College also submits that this application for judicial review is premature because the applicant has not exhausted his available remedies before proceeding to Court. The College argues that the Discipline Committee should first determine whether or not it has jurisdiction to deal with the application for membership.
[18] Given that the issue of prematurity was closely linked to the other issues raised in the application, the Court exercised its discretion to hear the application and has decided to deal with the merits of the application.
The Standard of Review
[19] Insofar as the applicant raises issues of procedural fairness, it is not necessary to consider the standard of review. It is for the Court to determine if the requisite level of procedural fairness was accorded.
[20] With respect to the interpretation of the provisions of the OCTA by the Registrar, the College accepts that the standard of review is correctness. There is no indication in the material that the Registrar brings specialized expertise to the interpretation and application of the statutory provisions in issue.
Did the Registrar err in referring the application to the Discipline Committee?
[21] The applicant’s certificate had been cancelled in April, 1997. He submits that he has never been a member of the College, and for this reason, he applied for a Certificate of Qualification under s. 18 of the OCTA, rather than making an application for reinstatement under s. 33. Had his application been refused by the Registrar pursuant to s. 18(3), he would have had a right to appeal to the Registration Appeals Committee of the College, rather than having to appear before the Discipline Committee. He argues that the Registrar erred in failing to process his application under s. 18 of the Act, and the Registrar was without jurisdiction to refer it to the Discipline Committee.
[22] With respect to s. 33(15) of the OCTA, the applicant argues that his application for a certificate was complete before the amendment to the Act was passed in December 2009, and the amendment should not be given retrospective effect.
[23] The College argues that the Registrar was correct in refusing to process the application under s. 18 and in referring the application to the Discipline Committee pursuant to s. 33(5). The application was not completed until after the enactment of s. 33(15), and, therefore, the Registrar had no authority to deal with it under s. 18. However, in the alternative, the College argues that if the application was completed before the amendment was passed, s. 33(15) should be given retrospective effect, and again, the Registrar acted properly in refusing to process the application under s. 18.
[24] Assuming, without deciding, that the application for a certificate was complete in October, 2009, it is my view that s. 33(15) of the Act applies to the applicant, and the Registrar properly refused to deal with his application under s. 18 of the Act.
[25] If the amendment passed in December 2009 applies retrospectively, the language of s. 33(15)(a) captures the situation of the applicant. Subsection 33(15)(a) provides that s. 33 is to apply with necessary modifications to a person whose Certificate of Qualification was cancelled by the Minister of Education before May 20, 1997 under s. 8(1)13 of the Education Act, as it read before repeal. The applicant is such a person, as his certificate was cancelled under that section in April 1997.
[26] Where s. 33(15) applies, it follows that s. 33(1) also applies. It provides that a person who had his certificate revoked as a result of a proceeding before the Discipline Committee may apply in writing to the Registrar to have a new certificate issued. Pursuant to s. 33(5), the Registrar “shall” refer such an application to the Discipline Committee. Reading s. 33(1) with necessary modifications, as s. 33(15) instructs, the applicant’s application must be referred to the College’s Discipline Committee, because his certificate was cancelled for disciplinary reasons by the Minister on the recommendation of the Relations and Discipline Committee of the Ontario Teachers’ Federation.
[27] The applicant argues that the December 2009 amendment cannot have retrospective effect. I disagree.
[28] It is a rule of statutory construction that laws should not be construed as having retrospective effect unless such a construction is required expressly or by necessary implication. Nevertheless, a law can impose penalty on a person related to a past event if the purpose of the law is not to punish, but rather to protect the public (Brosseau v. Alberta Securities Commission, 1989 121 (SCC), [1989] 1 S.C.R. 301 at paras. 47-49, 51).
[29] Applying these principles, this Court held in Bhadauria v. Ontario College of Teachers, 2004 16867 (ON SCDC), [2004] O.J. No. 2468 that in situations where the primary purpose of legislation includes the protection of the public, the presumption against retrospective effect is rebutted (at para. 24). There, the College was held to have the authority to discipline a current member for conduct that occurred prior to the establishment of the College.
[30] In my view, the presumption against retrospective effect does not apply in the case of s. 33(15) of the OCTA. The purpose of the December 2009 amendment was to correct a possible gap in the OCTA relating to the transition from the prior regime to the College regime. This gap was created by the 2006 amendments to the Act, which the applicant argues have removed the legislative authority for O. Reg. 276/97.
[31] The language of s. 33(15) is functionally identical to the language in s. 3(1) of O. Reg. 276/97. By necessary implication, s. 33(15) is meant to apply retrospectively in order to fill a possible gap in the legislative regime and to ensure there is a seamless transition between the prior and current regulatory regimes.
[32] Moreover, the purpose of the amendment was not to punish the applicant, but rather to protect the public. The effect of the provision was procedural, directing that his application for membership be considered by the Discipline Committee, rather than under s. 18, because of the circumstances in which he had lost his earlier Ontario certificate.
[33] While the applicant argues that he is being treated unfairly because he is not treated like a new applicant, I see no unfairness if s. 33(15) applies to his case. The applicant is not someone new to registration in Ontario. He has held a certificate in Ontario, which he lost for disciplinary reasons, and he was previously denied a certificate by the College’s Discipline Committee. It is reasonable to treat him like other teachers who have lost their certificate because of a decision of the Discipline Committee under the current regulatory regime. Indeed, it is consistent with the public interest mandate of the College, set out in s. 3(2) of the OCTA, that his application for a certificate be scrutinized by the Discipline Committee to ensure that the interests of students are adequately protected.
[34] This is not a case like Cressman v. Ontario College of Teachers, 2005 1406 (Div. Ct.), where the Divisional Court held that the Discipline Committee of the College had no jurisdiction to proceed with discipline against Mr. Cressman, an individual who had retired as a principal and given up his teachers’ certificate before the date at which he would have been deemed to be a member of the College. The College brought proceedings against him under a regulation governing professional misconduct and penalties that had not been in effect at the time of his alleged misconduct. In the circumstances, the Court concluded that the presumption against the retrospective operation of legislation had not been rebutted.
[35] The case of Ordre des enseignantes et des enseignants de l’Ontario c. Arbour, 2009 26350 (Ont. Div. Ct.) is also distinguishable. There, Mr. Arbour had resigned his membership as part of a settlement of a complaint against him respecting sexual activity with a student. The terms of the settlement required him to wait at least one year before applying for a new certificate and allowed the Registrar to consider the terms of the agreement (at para. 2). He subsequently applied for membership under s. 18 of the OCTA. When the Registrar refused the application, Mr. Arbour appealed to the Registration Appeals Committee, which allowed his appeal.
[36] The difference between Mr. Arbour’s case and the present one lies in the fact that Mr. Arbour had resigned his certificate. It had not been revoked for disciplinary reasons. In contrast, the applicant here lost his certificate because of a disciplinary decision. Because of s. 33(15) of the Act, he must apply to the Discipline Committee to obtain a new certificate.
Did the Registrar owe the applicant a duty of fairness and, if so, was it breached?
[37] The applicant argued that the Registrar breached a duty of fairness by failing to give adequate reasons and by failing to comply with the Fair Access to Regulated Professions Act, 2006, S.O. 2006, c. 31 (“FARPA”). He also invoked the Ontario Human Rights Code, R.S.O. 1990, c. H.19, s. 6 (“the Code”), which prohibits discrimination respecting membership in a self-governing profession on a list of prohibited grounds.
[38] There is no merit to these arguments. The letter from the Registrar adequately conveys the reasons for the refusal to process the application and the reason for the referral. There was no need to explain why the referral was to the Discipline Committee rather than the Fitness to Practice Committee. Given that there is no issue of incapacity raised, there was no basis for a referral to the Fitness to Practice Committee.
[39] The Human Rights Code does not apply here, as the applicant has not identified any discriminatory treatment on the enumerated grounds set out in s. 6.
[40] It is premature to discuss the application of the FARPA, as no decision about the applicant’s membership has yet been made by the College.
[41] The applicant also argued that there was unfairness because the Registrar delayed over several months in providing him access to an on-line application form. Had the applicant had the form earlier, he argues that he could have had a decision by the Registrar on his application before the enactment of the December 2009 amendment and at a time when the Transition Regulation was no longer in force. In my view, there is insufficient evidence before this Court to support a claim that the Registrar unfairly delayed in providing access to an application form.
[42] Finally, the applicant argues that the Registrar had no jurisdiction to refer his application to the Discipline Committee because his application was made pursuant to s. 18 rather than s. 33. Section 18 contains no provision for referral to the Discipline Committee, only s. 33.
[43] I see no reason to interfere with the action of the Registrar, as there is no prejudice to the applicant because of the referral. If the applicant does not wish to proceed before the Discipline Committee, he can withdraw his application. The Registrar should not be faulted for showing flexibility in allowing the application to continue as one for reinstatement, rather than rejecting it outright.
Conclusion
[44] For these reasons, the application for judicial review is dismissed.
[45] The applicant submitted that if he did not succeed, there should be no order of costs against him, as this matter should be considered to be public interest litigation. In my view, costs should follow the event. This application does not raise issues of general public importance. Rather, it raises a series of technical arguments in order for the applicant to try to obtain a purely personal result. Therefore, costs to the College are fixed at $7,500.00 inclusive of HST and disbursements.
Swinton J.
Aston J.
Hambly J.
Released: April 1, 2011
CITATION: Headrick v. Ontario College of Teachers, 2011 ONSC 1687
COURT FILE NO.: 155/10
DATE: 20110401
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, SWINTON AND HAMBLY JJ.
B E T W E E N:
JAN SCOTT HEADRICK
Applicant
- and -
ONTARIO COLLEGE OF TEACHERS
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: April 1, 2011