CITATION: Saba v. Ontario College of Teachers, 2012 ONSC 1734
DIVISIONAL COURT FILE NO.: 272/11
DATE: 20120416
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
K.E. Swinton, P.C. Hennessy and A.L. Harvison Young JJ.
BETWEEN:
Christel Saba
Appellant
– and –
Ontario College of Teachers
Respondent
Lorne Waldman, for the Appellant
Lai-King Hum and Adam D.H. Chisholm, for the Respondent
HEARD at Toronto: March 1, 2012
REASONS FOR DECISION
Hennessy J.:
[1] This is an appeal from a refusal of the Ontario College of Teachers Accreditation Committee (the “Committee”) to grant a certificate of qualification and registration to Ms. Saba who was trained and qualified as a teacher outside of Ontario.
[2] The appeal is made pursuant to s. 35(1) of the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12 (the Act).
Overview
[3] Ms. Saba is a native of France. Upon her arrival in Canada, she applied to the College for registration. At the first level, her application was refused by the Registrar. The Committee upheld in part the decision of the Registrar and also refused certification.
[4] Registration is governed by two Regulations made under the Act: the Accreditation of Teacher Education Programs, O. Reg. 347/02 (the Accreditation Regulation), and the regulation respecting Teachers’ Qualifications, O.Reg. 176/10 (the TQR). There are three categories of requirements for internationally educated teachers: academic requirements, professional requirements and language requirements. Therefore, Ms. Saba was required to show inter alia, satisfactory evidence that
She held an acceptable post secondary degree. (TQR, s. 6(a))
She had successfully completed a program of professional education that is acceptable to the College and not substantially different from a program accredited in Ontario. (TQR, ss. 4(e), 6(a) and 11(2)(b)(ii))
She met the linguistic requirements. (TQR, s. 6(e))
[5] The Committee found that Ms. Saba had met the linguistic and degree requirements. The Committee upheld the decision of the Registrar with respect to the requirement for a program of professional education. They were not satisfied that Ms. Saba had met the program of professional education requirement. The Registrar had advised Ms. Saba that in order to meet the admission criteria, she was required to follow a one year teaching training program, for example a Bachelor of Education program in a Faculty of Education in Ontario.
[6] In explaining its reasons for refusing to grant the review, the Committee focused on the evidence provided by Ms. Saba which described the process she followed to obtain her certificate to teach in France. That process included a program of distance education consisting of 700 hours of course work administered by the Centre national d’enseignement à distance (CNED). The last step in the process was successful completion of the Certificat d’aptitude au professoriat de l’enseignement du second degré (CAPES). A candidate like the appellant was required to have three years of teaching experience before she could proceed to this stage. CAPES includes a written exam, a three part oral exam that includes a teaching exercise and is followed by a one year teaching probation period evaluated by an inspector from the Ministère de l’ Éducation nationale after in class observation and an interview.
[7] It is important to note that while successful completion of the CAPES exams is required for all applicants for a teaching certificate in France, there are at least two paths to the exams. One path is the one followed by Ms. Saba, the CNED program. Another path to the exams is a program offered by an Institut universitaire de formation des maîtres (IUFM) which is integrated within French universities. In the past, the College has accepted the IUFM program as satisfactory evidence of the program of professional education for certification in Ontario.
[8] The Committee was not satisfied that the CNED program was the “equivalent” of a professional program accredited in Ontario.[^1] They also appeared to be influenced by the fact that the CNED program did not lead to a diploma. For these reasons, the Committee found that Ms. Saba had not met the requirements of the TRQ, particularly clause 4(e). They further stated in their decision that they were not permitted to depart from those requirements.[^2]
Standard of Review
[9] The standard of review on this appeal is reasonableness. The Committee is a specialized body composed of trained individuals who are in the best position to assess teacher training. Assessments of the training of teacher applicants are squarely within the mandate of the Committee. Deference is owed with respect to the Committee’s findings on teacher training: see Ellis v. Ontario College of Teachers, 2011 ONSC 4134 (Div. Ct.), at para. 18, Dunsmuir v. New Brunswick, 2008 SCC 9, and Alliance Pipeline Ltd. v. Smith, 2011 SCC 7.
[10] A decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling: see Law Society of New Brunswick v. Ryan, 2003 SCC 20, at para. 55. The reasons as a whole must be able to stand up to a somewhat probing examination as to their basic adequacy: see Law Society of New Brunswick v. Ryan, at para. 56.
Law and Analysis
[11] For the following reasons, I find that the Committee’s reasons, taken as a whole, do not stand up to a probing examination, justifying their decision.
[12] The appellant submits that the decision of the Committee is unreasonable. She states that by simply providing a technical and formulaic explanation for its decision and failing to look at whether the CNED program was substantially different from a program of professional education as set out in s. 11(2) of the TQR, they have not considered the question before them. The appellant further submits that the Committee ignored its authority to exercise its discretion with respect to the requirements for registration of teachers trained outside of Ontario pursuant to s. 21(9) of the Act.
[13] The College argues that the substance of the Committee decision on the whole shows that the Committee did reasonably consider all of the oral and documentary evidence of the teacher training program provided by Ms. Saba and reasonably concluded that the CNED program did not warrant granting certification to Ms. Saba.
[14] The College further submits that the Committee did not fetter its discretion, but that it simply applied the regulatory framework and exercised its discretion in considering whether the CNED program met the required standard of a program of professional education. The College argues that the Committee has no discretion to ignore the requirement for a program of professional education.
[15] With respect to the program of professional education requirement the Committee found that although the CNED program covered teaching methods (méthodes pédagogiques), foundations of education (fondements de l’éducation) and the teachable subject of English (didactique de l’anglais), it did not meet the minimum requirements. The decision focused on two factors: the fact that the CNED program was delivered “en ligne” and the facts that CNED did not grant a diploma, nor was it associated with a diploma granting institution. The Committee noted that Ms. Saba had provided evidence of several years of teaching experience. However, this evidence did not permit the Committee to depart from the requirement in the TQR.
[16] The Committee was required to assess Ms. Saba’s dossier against the requirement that she demonstrate that she had successfully completed a program that is “acceptable to the College and not substantially different from a program” that is described in the Accreditation Regulation, ss. 1 (2)2. A program of professional education provided in Ontario must include:
i. Studies in education, including learning and development throughout the primary, junior, intermediate and senior divisions,
ii. Teaching methods designed to meet the individual needs of pupils,
iii. The Acts and regulations respecting education,
iv. A review of the curriculum guidelines issued by the Minister relating to all of the divisions and a study of curriculum development, and
v. A minimum of 40 days of practical experience in schools or in other situations approved by the College for observation and practice teaching.
[17] The Committee’s decision does not address these issues in their explanation for denying the application. There is nothing in the decision which shows that the Committee considered the practical experience of the applicant or reviewed the curriculum. Nor is there any discussion or tenable explanation of how the CNED course did or did not cover teaching methods or learning and development (especially given the fact that the Committee did overturn part of the Registrar’s decision by finding that the appellant’s CNED program covered teaching methods, educational foundations and the teachable subject of English). Although the transcript from the hearing shows that the Committee discussed these matters and asked questions of Ms. Saba on some of these topics, the decision is silent on them.
[18] The Committee concluded without reference to the substantive requirements set out in the regulations that the CNED course was not equivalent to the required program. This is circular reasoning. The purpose of the review was presumably based on the premise that the CNED course was not equivalent. The task of the Committee was to determine whether the CNED course and the CAPES process were “not substantially different” from a program of professional education offered in Ontario.
[19] A tenable and reasonable explanation for the decision of the Committee was required. Instead the Committee focused on extraneous issues including whether the CNED program lead to a diploma, whether it was offered on line or by distance, and whether it was associated with a degree granting institution. Taken as a whole, the reasons do not stand up to a probing examination, justifying the decision. They give no consideration for the requirement of three years teaching experience prior to writing the CAPES or content of the 700 hours of instruction in the CNED or the similarity to the first year of the IUFM, which is accepted in Ontario. Therefore, the decision must be set aside, as it does not provide a tenable explanation for refusing the certificate.
[20] With respect to the second issue raised by the appellant, the exercise of discretion granted to the Committee in s. 21(9) of the Act, we do not find it necessary to comment on this issue. The Committee clearly has discretion to issue a variety of orders. The Committee’s decision makes no reference to any consideration of the possibilities of issuing a certificate subject to terms, conditions or limitations. However, in light of our finding above, that the Committee did not provide a tenable explanation for its decision, there is no need to further address the second issue.
[21] Pursuant to s. 35(4) of the Act, the appeal is allowed and the matter is referred back to the Committee on one issue only. The Committee shall assess the CNED and CAPES program and process to determine if Ms. Saba has successfully completed a program of professional education that is acceptable to the College and not substantially different from a program accredited in Ontario.
Costs
[22] We understand that counsel for the appellant acted on a pro bono basis. In these circumstances the appellant is still entitled to costs (1465778 Ontario Inc. v. 1122077 Ontario Ltd. (2006), 2006 35819 (ON CA), 82 O.R. (3d) 757 (C.A.), at para. 37). Costs to the appellant are fixed at $5,000 inclusive of HST and disbursements.
P.C. Hennessy J.
K.E. Swinton J.
A.L. Harvison Young J.
Released: April 16, 2012
CITATION: Saba v. Ontario College of Teachers, 2012 ONSC 1734
DIVISIONAL COURT FILE NO.: 272/11
DATE: 20120416
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
K.E. Swinton, P.C. Hennessy and
A.L. Harvison Young JJ.
BETWEEN:
Christel Saba
Appellant
– and –
Ontario College of Teachers
Respondent
REASONS FOR DECISION
P.C. Hennessy J.
Released: April 16, 2012
[^1]: “… que la formation préparatoire du CNED est équivalente à un programme de formation professionnelle au sens du Règlement 347/02”. (Motifs)
[^2]: « Toutefois, cette preuve additionnelle ne permet quand même pas au Comité de déroger de ses obligations en vertu du Règlement 176/10 ».