CITATION: Robinson v. College of Early Childhood Educators, 2018 ONSC 6150
DIVISIONAL COURT FILE NO.: 474/17
DATE: 20181019
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Marrocco A.C.J.S.C., Thorburn and D. Edwards JJ.
BETWEEN:
BRYAN ROBINSON
Appellant
– and –
COLLEGE OF EARLY CHILDHOOD EDUCATORS
Respondent
Sheilagh Turkington and Robyn White, for the Appellant
Jill Dougherty and Jordan Stone, for the Respondent
HEARD at Toronto: September 17, 2018
THE COURT
OVERVIEW OF THE PROCEEDING:
[1] The Appellant, Bryan Robinson appeals the order of the Discipline Committee of the College of Early Childhood Educators (“the Discipline Committee”) that he pay costs of the discipline hearing to the College in the amount of $257,353.76. The Appellant challenged the jurisdiction to order costs but not the quantum of costs itself.
[2] The Appellant was an early childhood educator and member of the College of Early Childhood Educators (“the College”). While working as an early childhood educator, he was found to have put his hands into the front of a child’s pants, rubbed on her vaginal area, and/or put his finger(s) into her vagina. After an 18-day hearing, the Discipline Committee found the Appellant guilty of professional misconduct for abusing physically, sexually, verbally, psychologically or emotionally a child under his professional supervision.
[3] The Committee held that, “The Panel accepts the Member did not act in a manner that was unreasonably frivolous, vexatious or in bad faith in the conduct of the hearing.”
[4] After a further one-day hearing on penalty and costs, the Discipline Committee reprimanded the Appellant, revoked his certificate of registration and ordered him to pay two thirds of the costs incurred by the College for the hearing. The Committee ordered costs against him in the amount of $257,353.76.
[5] The Committee held that,
Section 33(5)4 of the Act permits the discipline committee to fix costs to be paid by the member and the Rules of Procedure of the Discipline Committee and of the Fitness to Practice Committee of the College of Early Childhood Educators set out that costs of a discipline hearing can be awarded against the member upon a finding of guilt. The College of Early Childhood Educators bears the cost of hearings as they are funded through membership fees. The Panel feels that the Membership should not have to pay for an individual member’s professional misconduct.
Members are entitled to pursue a vigorous defense. In this hearing, however, in most instances, the Panel ruled against the Member and ultimately found the Member guilty of professional misconduct. The College was fully successful on all allegations in the Notice of Hearing. Additionally, during the hearing the Member testified that he understood that the College would be seeking costs during the penalty phase if he was found guilty.
[6] The costs order represents over five times what the Appellant earned in his final year of employment and over fourteen times what he earned in 2016.
[7] The central issue in this case involves the interpretation of the discretion to fix costs in section 33(5)4 of the ECEA, the restrictions in section 17.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) and Rule 16 of the Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee, 2014 (“the Rules”) which addresses the issue of costs.
[8] The Appellant claims the Committee had no jurisdiction to award costs of the hearing against him as the Committee found that his behaviour at the hearing was not frivolous, vexatious, unreasonable, or in bad faith. The Appellant suggests that in any event, it is unreasonable for the Committee not to follow its own Rules.
[9] The Respondent claims that the Committee properly ordered the Appellant member to pay two thirds of the costs of the proceeding as the ECEA provides that, after a finding of misconduct, the Committee may fix costs to be paid by the member. The ECEA prevails over the Rule 16.04 that limits the ability of the Committee to order costs. Moreover, Rule 16.04 and section 33(5)4 of the ECEA were designed to apply in different circumstances: Rule 16.04 governs cost awards prior to a finding of professional misconduct whereas section 33(5)4 governs cost awards after a finding of professional misconduct. Whereas section 33(5)4 of the ECEA governs (and only permits) costs awards against a member following a finding of professional misconduct, Rule 16.04 allows for a costs order against any party “at any stage of the proceeding.”
[10] The issues are:
a) Can the discretion of the Discipline Committee to award costs be limited by the implementation of Rules and has this been done?
b) Was the decision to order the Appellant to pay costs in the amount of $257,353.76, reasonable?
COURT’S JURISDICTION:
[11] Section 38 of the ECEA establishes a broad right of appeal to the Divisional Court from decisions of the Discipline Committee. In accordance with that provision, this court has the right to hear this Appeal.
STANDARD OF REVIEW:
[12] The standard of review for the Discipline Committee’s interpretation of the cost provisions in its home statute is reasonableness. (Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 at paras. 9 and 222 (Div Ct.), aff’d Reid v. College of Chiropractors of Ontario, 2016 ONCA 779 at para. 25.)
[13] In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 34, Rothstein J. stated that there is a presumption that reasonableness is the standard of review to apply to the exercise of a tribunal’s power under its home statute.
[14] The courts have applied the standard of reasonableness to decisions of the Board when the questions of law under appeal involved the interpretation of the Board’s enabling statute and the exercise of its costs powers. (London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.) at para. 7; Toronto (City) v. Home Depot Holdings Inc., 2010 ONSC 6071, 2010 ONSC 6071 (Div. Ct.) at paras. 31-32; and Clark (c.o.b. Barrie Paintball Adventure Club Inc.) v. Essa (Township) (2007), 223 O.A.C. 72 (Div. Ct.) at para. 34).
[15] In McLean v. British Columbia (Securities Commission), 2013 SCC 67 at para. 33, the Supreme Court of Canada explained that deference is owed to a tribunal that interprets its enabling legislation because the tribunal is in the best position to understand and apply the policy considerations that are often involved in the interpretation of a tribunal’s home statute. On an appeal, a court will defer to any reasonable interpretation applied by the tribunal even if there are other interpretations the statutory language can reasonably support.
[16] In this case, the SPPA and the Rules contain provisions respecting the ordering of costs and the ECEA grants the Board the authority to fix costs. These are matters within the core function of the Board. The standard of reasonableness therefore applies.
[17] A reasonable decision is one that is transparent and intelligible and one that “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at para. 47). The same test has been applied on statutory appeals (Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3 at para. 29).
ANALYSIS:
A. The Legislative Provisions
[18] The SPPA, the ECEA and the Rules all address the issue of costs of a Disciplinary Hearing.
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22
[19] Section 3(1) of the SPPA provides that the Act “applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision.”
[20] The SPPA applies to this proceeding as the member had a right to a hearing before a decision was made.
[21] Section 17.1(1) of the SPPA provides that, “a tribunal may, in the circumstances set out in rules made under subsection (4), order a party to pay all or part of another party’s costs in a proceeding.” Section 17.1(4) provides that,
(4) A tribunal may make rules with respect to,
(a) the ordering of costs;
(b) the circumstances in which costs may be ordered; and
(c) the amount of costs or the manner in which the amount of costs is to be determined.
[22] The exception to this general authority to order costs is set out in section 17.1(2) which provides that,
(2) A tribunal shall not make an order to pay costs under this section unless,
(a) the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith; and
(b) the tribunal has made rules under subsection (4).
[23] The SPPA thereby prevents a tribunal from ordering costs except where the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or a party has acted in bad faith.
Early Childhood Educators Act, SO 2007, c. 7, Sched. 8
[24] Section 33(5)4 of the ECEA provides that “if the Discipline Committee finds a member guilty of professional misconduct”, it “may make an order… fixing costs to be paid by the member.”
[25] Section 55 of the ECEA provides that “if there is a conflict between this Act, the regulations or the by-laws and the Statutory Powers Procedure Act, the provisions of this Act, the regulations and the by-laws prevail.”
[26] The ECEA thereby changes the effect of the SPPA by allowing a tribunal to order costs of a hearing after a member has been found guilty of professional misconduct.
Rules of Procedure of the Discipline Committee and of the Fitness to Practise Committee, 2014
[27] The Rules, enacted in 2014, stipulate the rules to be followed in a hearing before The Discipline Committee and the Fitness to Practice Committee of the College of Early Childhood Educators
[28] Rule 1.03 provides that “these rules apply to all proceedings before the Discipline Committee.”
[29] Rule 16 addresses the issue of costs. Rule 16 provides as follows:
16.01: Where the Committee is entitled to order the payment of costs by a party, the Committee may consider as a factor in its decision the failure of a party to comply with these rules.
16.02: Where the member seeks costs against the College pursuant to subsection 33(9) or subsection 34(7) of the Act, the Committee may direct that the issue be dealt with by a motion conducted separately from the hearing under rule 5 with any necessary modifications.
16.03: Where the College seeks costs against the member pursuant to subsection 33(5) of the Act, the Discipline Committee may direct that the issue be dealt with by a motion conducted separately from the hearing under rule 5 with any necessary modifications.
16.04: The Committee may at any stage of the proceeding order a party to pay costs where the conduct of the party has been unreasonable, frivolous or vexatious, or a party has acted in bad faith.
16.05: (1) A member requesting an order for costs shall deliver a detailed written explanation of the basis upon which the costs or expenses requested are calculated.
(2) Where the request for costs includes disbursements or out-of pocket expenses, these may, subject to any order of the Committee, be proved by an affidavit attaching a copy of any invoice or receipt.
(3) Where the request for costs includes the cost or expense to the College of conducting a day of hearing, no evidence of the cost or expense of a day of hearing is needed if the request is equal to or less than the amount set out in Tariff A. This subrule applies only to hearings before the Discipline Committee.
[30] The Rules do not require costs to be ordered but they advert to section 33(5)4 of the ECEA and specifically permit the tribunal to order costs where a party’s behaviour at the hearing has been unreasonable.
B. Was it Reasonable in this case for the Committee to Award Costs of the Hearing against the Member?
Provisions respecting Costs
[31] Section 33(5)4 of the ECEA gives the Committee the broad discretion to fix costs against a member after a finding of misconduct. It does not require that costs be fixed. Nothing in the ECEA limits the authority of the Committee to enact rules.
[32] Section 17.1 of the SPPA authorizes the Discipline Committee to “make rules with respect to… the circumstances in which costs may be ordered” and rules were enacted.
[33] Rule 16.03 provides that where the College seeks costs against a member pursuant to subsection 33(5)4 of the ECEA, the Discipline Committee may direct that the issue of costs be dealt with by a motion. There is no mention of when such costs may be ordered.
[34] Rule 16.04 provides that at any stage of the proceeding, costs may be ordered where a party’s behaviour was frivolous, vexatious, unreasonable or in bad faith.
The Rules are not in Conflict with the ECEA
[35] If one provision negates the operating effect of another, the two provisions are in conflict with one another. The two provisions are then said to be “at cross purposes… repugnant to one another.” (Ontario (Attorney General) v. Mississauga (City) (1981), 1981 1860 (ON CA), 33 O.R. (2d) 395 at p. 410 as cited in Superior Propane Inc. v. York, 1995 23 O.R. 93d) 161 per Morden J.A. at paras 4-8.)
[36] However, as explained in Sullivan and Driedger on the Construction of Statutes, 4th Ed, by Ruth Sullivan (Markham: Butterworths Canada Ltd. 2002) at p. 263, the courts presume that provisions of legislation are not at cross purposes and are meant to work together with the parts functioning as a coherent whole. Only if the two provisions cannot both apply without conflict will the courts resort to express solutions provided by the legislature or conflict resolution techniques such as paramountcy. Two provisions are in conflict if and only if it is impossible to comply with both. (Friends of the Oldman River v. Canada (Minister of Transport) 1992 110 (SCC), [1992], 1 S.C.R. 3 at 39.)
[37] “Two enactments may be seen to overlap in their application to the facts of the case, and may be seen to be free of conflict in the narrow sense in which conflict is defined for this purpose.” (Platana v. Saskatoon (City) 2006 SKCA 10 at para 48.)
[38] Rules may be enacted to modify a provision in a statute respecting procedure. In determining whether the modification in the Rule should apply, the court will consider the intention of the legislators. Where rules are enacted after a statute, it must be taken that the legislation was aware of the general provision in the statute at the time the more restrictive provision in the Rules was enacted (Platana at paras. 100-102).
[39] The Appellant submits that in Graff v. 1960 Queen Street East Ltd., 2017 ONSC 629, the Divisional Court held that the Rules were the code adopted by the College to establish the criteria for awarding costs and suggests that in this case, the tribunal was unreasonable as it ignored its own rules.
[40] We do not agree. The Rules were enacted in April of 2014. They advert to section 33(5)4 of the ECEA regarding the fixing of costs after a finding of misconduct and they specifically allow for costs where a party’s behaviour has been unreasonable. The provisions in Rule 16 can be read together with the ECEA.
The Decision on Costs was not unreasonable
[41] The Appellant submits that Rule 16.04 limits the otherwise broad general discretion to fix costs against either party to situations where “the conduct of the party has been unreasonable, frivolous or vexatious, or a party has acted in bad faith.”
[42] The Appellant also notes that the Tribunal’s own practice until 2017 was not to order costs of the hearing against a member where the member’s conduct during the hearing was reasonable.
[43] Moreover, on the basis of identical legislative provisions and Rules (including a provision that the legislative provision prevails in the event of a conflict between the legislative provision and the SPPA), the tribunal in Ontario College of Teachers v. Riccardi, 2015 ONOCT 67, 2015 LNONCTD 7, refused to order costs of the hearing as the member’s conduct at the hearing was not unreasonable or frivolous. The Tribunal denied a request to impose costs on the member because the member’s behaviour at the hearing was not unreasonable.
[44] The Appellant therefore submits that it was reasonable for his member to expect not to have costs of the hearing ordered against him.
[45] Rule 16.04 provides that, the Committee may “at any stage of the proceeding, order a party to pay costs where the conduct of the party has been unreasonable, frivolous or vexatious or a party has acted in bad faith.” However, unlike the wording in the SPPA, it does not provide that “a tribunal shall not make an order to pay costs under this section unless the conduct… has been unreasonable, frivolous or vexatious or a party has acted in bad faith”. (Emphasis added.)
[46] Moreover, Rule 16.03 adverts to subsection 33(5)4 of the ECEA by stipulating that, “Where the College seeks costs against the member pursuant to subsection 33(5) of the Act, the Discipline Committee may direct that the issue be dealt with by a motion conducted separately from the hearing.”
[47] When Rules 16.03 and 16.04 are read together with section 33(5)4 of the ECEA, one possible acceptable interpretation is that costs may be awarded against a member at any stage of the proceeding where behaviour at the hearing was frivolous, vexatious, unreasonable or in bad faith but, even where a member behaved reasonably during the conduct of the hearing, Rule 16.03 envisages that costs can be entertained where a member is found guilty of misconduct.
[48] We understand that this is not the interpretation given to identical provisions in the OCTA Rules but OCT decisions are not binding on this tribunal or this court.
[49] The interpretation given by the OCT tribunal and prior decisions of the ECE tribunal suggest that the Appellant’s interpretation of the provisions is reasonable.
[50] However, the issue before us is not whether the Appellant’s suggested interpretation is reasonable but rather, whether the interpretation of this Committee comes within a range of possible, acceptable outcomes. Where there is more than one reasonable interpretation, the court must defer to any reasonable interpretation adopted by the administrative decision maker even if another reasonable interpretation exists. (Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at para 56-58.)
Possible Adverse Effects of the ECEA’s Decision
[51] The Appellant claims that this decision will have a chilling effect on members as a whole. Members with valid claims may feel the cost consequences of proceeding to challenge claims and being faced with hundreds of thousands of dollars in costs is simply too high and will thereby be prevented from challenging those allegations.
[52] We share this concern and we agree that there is a serious risk that this will have a chilling effect on members whose livelihood and reputations are at stake because:
a. The Committee concluded that, “The Panel feels that the Membership should not have to pay for an individual member’s professional misconduct”. This seems to suggest that the Committee not only may but should always award costs after a finding of misconduct; and
b. The reasonable expectation of members in the past (based on the past practice of this tribunal and the OCT tribunal with the same provisions) has been that costs of the hearing will only be ordered where the member’s conduct at the hearing was unreasonable. That is no longer the case.
[53] These concerns however, should be brought before the tribunal or the legislators as it is not up to the court to make policy decisions.
SUMMARY OF REASONS FOR CONCLUSION THAT THE DECISION WAS REASONABLE:
[54] In summary, we find that one possible reasonable reading of the provisions in the ECEA and Rule 16 as a whole, read together, is the one arrived at by the Committee for the following reasons:
a) The SPPA does not permit a tribunal to award costs unless the conduct of a party has been unreasonable;
b) However, the ECEA permits the tribunal to fix costs against a member after a finding of misconduct has been made without any express restrictions;
c) Section 55 of the ECEA provides that where there is a conflict between a provision in the SPPA and the ECEA, the provision in the ECEA prevails;
d) Rule 16.04 of the Discipline Committee’s Rules provides that, at any stage of the proceeding, costs of the hearing may be ordered against a party where the member behaved in a way that was frivolous, vexatious, unreasonable or in bad faith during the hearing;
e) Rule 16.03 provides for a process to be followed where the College seeks costs against the member pursuant to subsection 33(5)4 of the Act after a finding of misconduct;
f) Nothing in the Rules expressly states that proceeding in accordance with the provision in subsection 33(5)4 of the ECEA is no longer open to the College;
g) Rule 16 can be read together with the ability to fix costs against a member after a finding of misconduct;
h) While the OCT decision involves identical provisions and a finding by the tribunal that costs cannot be ordered where conduct during the hearing was reasonable, this is indicative of the reasonableness of the Appellant’s proposed interpretation and is not, alone, sufficient to enable us conclude that the Respondent’s interpretation was not reasonable; and
i) The concerns about a “chilling effect” of cost consequences on members is an important and valid consideration. However, this is a matter to be addressed by the legislature.
[55] For these reasons, the decision to award costs was reasonable. Accordingly, the appeal is dismissed.
[56] Given that prior to this decision this tribunal chose not to order costs of the hearing where a party’s conduct was not unreasonable at the hearing, the recent change in the Committee practice, and the reasonable expectation of the member, we feel it is appropriate in this case to make no order as to costs.
Thorburn J.
I agree
Marrocco A.C.J.S.C.,
I agree
D. Edwards J.
Date of Release: October 19, 2018
CITATION: Robinson v. College of Early Childhood Educators, 2018 ONSC 6150
DIVISIONAL COURT FILE NO.: 474/17
DATE: 20181019
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Marrocco A.C.J.S.C., Thorburn and
D. Edwards JJ.
BETWEEN:
BRYAN ROBINSON
Appellant
– and –
COLLEGE OF EARLY CHILDHOOD EDUCATORS
Respondent
REASONS FOR JUDGMENT
THE COURT
Released: October 19, 2018