Bouragba v. Ontario College of Teachers, 2018 ONSC 6935

DIVISIONAL COURT FILE NO.: DC 16-2174

DATE: 20181122

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ahmed Bouragba, Applicant

AND:

Ontario College of TEachers, Respondent

BEFORE: Swinton, Thorburn and Copeland JJ.

COUNSEL: Ahmed Bouragba, self-represented

Christine Lonsdale and Charlotte Malischewski, for the Respondent

HEARD at Ottawa: November 19, 2018

ENDORSEMENT

Background

[1] The Applicant, Ahmed Bouragba, has brought this application for judicial review of a decision of the Investigation Committee of the respondent Ontario College of Teachers (the “College”) dated December 10, 2014. In that decision, the Committee dismissed a complaint dated January 29, 2014 that was brought by Diane Lamoureux, principal of the high school that his son attended. The Applicant is a member of the College and teaches at another school.

[2] Ms. Lamoureux alleged that the Applicant had acted in a manner that was offensive, degrading and threatening in his communications with her after she had initiated disciplinary action against his son that resulted in a suspension. Following an investigation, the Committee decided not to refer the complaint to the Discipline Committee, given the divergent nature of the information about what had occurred. However, it issued a written caution to the Applicant pursuant to s. 26(5)(d) of the Ontario College of Teachers Act, S.O. 1996, c.12 (the “Act”) because of concerns about the way in which the Applicant had expressed himself and his tone in his communications with the complainant.

[3] The Applicant has brought another application for judicial review, DC 16-2199, which challenges the decision of a different panel of the Investigation Committee concerning complaints that he had brought against Ms. Lamoureux, as well as two administrators of the school board, on October 5, 2014. On April 14, 2015, a panel of the Committee exercised its discretion pursuant to s. 26(2) of the Act and determined that certain allegations would not be sent to investigation. On October 29, 2015, a differently constituted panel determined that it was unable to determine with certainty what had occurred, and that it would be inappropriate to take disciplinary action against the three members.

Issues in File DC 16-2174

[4] The Applicant alleges that he was denied procedural fairness, and that the Committee’s decision was unreasonable, particularly because it imposed a caution upon him when he was acting in his role as a parent, defending his son’s interests. He also argues that there is a double standard, because there was no caution imposed by the Committee when it dealt with the three members against whom he had complained.

Analysis

[5] There is no merit to the allegation that the Applicant was denied procedural fairness. The Committee followed the procedure set out in the Act. The Applicant was aware of the allegations against him, given ample opportunity to respond, and provided with written reasons for the decision.

[6] The Applicant argues that the Committee should not have dealt with the complaint, because he was acting as a parent, not a teacher. However, the Act allows for complaints against teachers because of behaviour outside of the work setting. In this case, the Committee had conducted a screening hearing in accordance with s. 26(2) and determined that the allegations, if proven, would constitute professional misconduct, incompetence or incapacity.

[7] The panel of the Committee was properly constituted. There is no evidentiary basis to support any allegation of reasonable apprehension of bias, and the reasons were adequate.

[8] With respect to the merits of the decision, the standard of review is reasonableness.

[9] The Applicant suggests that the caution imposed is a reprisal, because he filed a complaint against the three other members of the College, and that a double standard has been applied in the outcomes of the two matters before the College. He also argues that the caution is unreasonable, given he was acting as a parent, and given the damage to his reputation that will result.

[10] There is no evidence to support a claim of reprisal. The caution was imposed by a panel of the Committee based on the panel members’ review of the record before them.

[11] The Applicant also argues that there has been a double standard applied. We note that one of the panel members who made the decision in issue here participated in the decision respecting the subsequent complaint brought by the Applicant. However, the two other members did not. Each panel made its decision on the basis of the record before it, and our task is to determine whether the Committee’s decision respecting the complaint against the Applicant was reasonable.

[12] Pursuant to s. 26(5)(d), a Committee may take such action as it considers appropriate in the circumstances, including issuing a caution, reminder, advice or admonishment. A caution is not a disciplinary action, and is not made public. It is not based on any finding of wrongdoing. Rather, it is meant to express the Committee’s concern about conduct and to provide guidance for the future.

[13] The task of this Court, on judicial review, is not to substitute our view as to the appropriate disposition of the complaint. Rather, it is to determine whether the Committee’s decision falls within a range of possible, acceptable outcomes, based on the facts and the law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).

[14] The Applicant is a teacher, but he was acting as a parent and in an emotional and no doubt stressful context. While another panel of the Investigation Committee might have come to a different conclusion as to the utility of a caution, the panel that made the decision before this Court concluded that a written caution was warranted, given that the Applicant is a member of the College. The Committee chose to remind him to be professional and polite in his communications.

[15] Deference is owed to such decisions by professional regulatory bodies. In the circumstances, the written caution falls within a range of reasonable outcomes.

[16] Accordingly, this application for judicial review is dismissed. Costs to the respondent College fixed at $3,500.00, an amount that is reasonable in the circumstances.

Swinton J.

Thorburn J.

Copeland J.

Date: November 22, 2018