Bujacz v. Ontario College of Teachers, 2026 ONSC 1265

Court File and Parties

CITATION: Bujacz v. Ontario College of Teachers, 2026 ONSC 1265

DIVISIONAL COURT FILE NO.: 157/25 and 255/25

DATE: 20260424

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

R.S.J. Newton, Backhouse and Matheson JJ.

BETWEEN:

LEE ALLAN BUJACZ Appellant

– and –

ONTARIO COLLEGE OF TEACHERS Respondent

Counsel: Christopher Perri and Kaley Duff, for the Appellant Andrew Matheson, Noam Uri and Foti Vito, for the Respondent Emily Owens and Ravi Amarnath, for the intervener Attorney General of Ontario

HEARD at Toronto: February 9, 2026, followed by written submissions

PUBLICATION BAN

Pursuant to ss. 32.1(3) and 32.1(4) of the Ontario College of Teachers Act, 1996, and the order of this Court, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing, or the person who was allegedly sexually abused or the subject of sexual misconduct, a prohibited act involved child pornography, or a prescribed sexual act. No person shall publish the identities of, or any information that could disclose the identities of Student 1, Student 2, or her mother.

REASONS FOR DECISION

The Court:

1The appeals before this Court challenge the decisions of the Ontario College of Teachers dated February 10, 2023 (the Discipline Decision), dated June 20, 2023 (the Penalty Decision) and dated March 3, 2025 (the Charter Decision) (together, the appeal).

2The appellant was found to have made remarks of a sexual nature to a student on Facebook, resulting in a finding of sexual abuse of a student as defined in the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12. Under the Act, a finding of sexual abuse of a student, by a teacher, results in mandatory revocation of the teacher’s certificate of qualification and registration.

3In addition to defending the allegations of misconduct on the merits, the appellant unsuccessfully challenged the constitutionality of mandatory revocation for making remarks of a sexual nature to a student. The appellant argued that mandatory revocation was an unjustified infringement of his freedom of expression protected under s. 2(b) of the Canadian Charter of Rights and Freedoms. The Attorney General of Ontario intervened in the discipline proceedings and in this Court, defending the constitutionality of the legislation. The Discipline Panel held that the appellant’s s. 2(b) rights were infringed, which was justified under s. 1 of the Charter.

4For the reasons set out below, the appeal is dismissed.

Background

5The appellant was employed as an elementary school teacher. He was the subject of professional discipline proceedings that resulted in findings that he did the following:

(i) in class, he discussed rape, miscarriage and vaginal tearing during childbirth with the students in his Grade 5 class;

(ii) during a field trip, he consumed alcohol at a local restaurant while waiting for pizza to take back to his students; and

(iii) he sent a series of messages via Facebook to one of his former students (Student 1), who was 17 and in high school at the time of the messages.

6The Facebook messages are the subject of the findings of sexual abuse and the main focus of this appeal. Student 1 had been in the appellant’s class in Grades 5 and 8, and he had known her and her family for many years. The Discipline Panel found that the appellant sent multiple messages to Student 1, spanning the course of more than a week, including messages sent very late at night. The messages to Student 1 included the following:

(1) “ur bf must love that ur smart and normal”;

(2) “u make me smile”;

(3) “Awake or Netflix talk play???”;

(4) “How's ur nite u have some high needs lol”;

(5) “How can one b happy if they don't know ur a beautiful young woman with a plan u need to know what u would waste ur time for in a man there are many great ones out there”.

The appellant also sent messages asking for information, including the following:

(6) “That a girl ur doing grade [XXX] right?”

(7) “Same but m old ur young what r u [XXX] u should be howling at moon”.

(8) “Funnplans tonight” at 8:51 p.m. after Student 1 had indicated she was going out and another message at 1:21 a.m. that said “Done partying already”;

(9) “What’s new keepingnoutta trouble” and “Same how is the best of u dear”;

(10) “Hope u r doing well what’s up tonight”;

(11) “U must have some fun what makes [Student 1] smile” followed by “Well what makes u happy”;

(12) an exchange where he asked Student 1 “So what u do for fun on a Monday” and “[…] U ever get bored”, and when Student 1 responded that she has distractions, further asked Student 1 “Such as do share”, “Lol what distracts ya”, “I’m curious”, “U still up”.

7Student 1 told her mother about the messages shortly after receiving them. Student 1 testified that she understood the messages as attempts to probe her for her age, whether she had a boyfriend and as sexual innuendo and insinuations of wanting to pursue some type of sexual encounter with her. Student 1’s mother felt that the appellant was grooming and preying on Student 1.

8Student 1’s mother reported what she saw as highly inappropriate messages to the Principal of the school. There was then a meeting with the appellant and other steps were taken, ultimately resulting in the College’s allegations of professional misconduct against the appellant. Over the course of those steps, the appellant gave conflicting responses regarding whether he had sent the messages, sometimes acknowledging it and sometimes questioning it. Before this Court, the appellant does not challenge the finding that he sent the Facebook messages.

9Then and now, the appellant disputes having a sexual purpose for sending the Facebook messages and argues that they do not amount to sexual abuse under the Act. His position in the discipline process was, therefore, that mandatory revocation for sexual abuse did not arise. However, the appellant also sought to challenge the constitutionality of mandatory revocation for remarks of a sexual nature towards a student. That challenge was heard and decided after the findings of professional misconduct and the penalty decision, on the basis that it was otherwise premature.

Statutory Regime

10The relevant statutory regime was first introduced in 2002. Since that time, under s. 1(1) of the Act, “sexual abuse” of a student has been defined as follows:

“sexual abuse” of a student by a member means,

(a) sexual intercourse or other forms of physical sexual relations between the member and the student,

(b) touching, of a sexual nature, of the student by the member, or

(c) behaviour or remarks of a sexual nature by the member towards the student;

[Emphasis added.]

11Mandatory revocation for the first two categories of sexual abuse, (a) and (b) above, was in force as of December 2016.

12In 2018, Bill 48 (introducing the Safe and Supportive Classroom Act) was introduced to the Ontario Legislature. Bill 48 proposed stricter provisions. At the time, the Minister of Education noted that “[m]ore stringent provisions are being proposed due to the unique nature of the profession of teachers and early childhood educators. Namely, such educators are in a position of trust and authority and work with a vulnerable sector of society”: Ontario, Legislative Assembly, Official Report of Debates (Hansard), 42-1, no. 46 (12 November 2018), at 2171.

13Once in force in 2019, the Safe and Supportive Classrooms Act, 2019, S.O. 2019, c. 3 amended the legislation such that mandatory revocation would apply to all findings of sexual abuse of a student, including for remarks of a sexual nature under category (c) in the above definition. Specifically, s. 30.2 provides as follows:

(1) If, under section 30, the Discipline Committee finds a member guilty of an act of professional misconduct consisting of or including an act listed in subsection (2) of this section, the Committee shall, in addition to anything else the Committee may do under subsection 30 (5),

(a) make an order requiring that the member be reprimanded by the Committee;

(b) make an interim order directing the Registrar to suspend the member’s certificate of qualification and registration until the committee makes an order under clause (c); and

(c) make an order directing the Registrar to revoke the member’s certificate of qualification and registration.

(2) The acts of professional misconduct referred to in subsection (1) are the following:

1. Sexual abuse of a student.

2. A prohibited act involving child pornography.

3. A prescribed sexual act.

[Emphasis added.]

14There remains a distinction between a finding of sexual abuse under category (a) and (b) of the definition of “sexual abuse” and a finding under category (c). For a finding under (c), a teacher is permitted to apply for reinstatement after five years, as set out in s. 33(4.1) of the Act.

15The Act also includes provisions regarding “sexual misconduct”, defined in s. 1(1) as follows:

“sexual misconduct” means inappropriate behaviour or remarks of a sexual nature by the member that is not sexual abuse of a student, where,

(a) one or more students are exposed to the behaviour or remarks, or the member knows or ought to know that one or more students are likely to be exposed to the behaviour or remarks, and

(b) a reasonable person would expect the behaviour or remarks to have the effect of,

(i) causing distress to a student exposed to the behaviour or remarks,

(ii) being detrimental to the physical or mental well-being of a student, or

(iii) creating a negative environment at a school for a student exposed to the behaviour or remarks;

[Emphasis added.]

16There is no mandatory revocation for a finding of sexual misconduct. Revocation is one of the penalties that may be imposed after a finding of sexual misconduct is made.

17A broad definition of “student” applies to both sexual abuse and sexual misconduct. As set out in s. 1(2), for purposes of the definitions of “sexual abuse” and “sexual misconduct”, a student includes any of the following:

1. A student who, at the time the behaviour, remarks or conduct occurred or were made, was enrolled in a school or private school in Ontario, within the meaning of the Education Act [R.S.O. 1990, c. E.2] and was under 18 years old or, in the case of a student who had special needs, was under 22 years old.

2. A student of any age who, at the time the behaviour, remarks or conduct occurred or were made, was enrolled in a school or private school in Ontario, within the meaning of the Education Act if, at that time,

i. the member was one of the student’s teachers,

ii. the member was the principal or vice-principal of the school in which the student was enrolled,

iii. the member assisted in extracurricular activities, including coaching in a sport, and the member and the student dealt with each other directly in the course of the extracurricular activities, or

iv. the member provided any other school-related service, including a support service directly to the student.

3. Any other child who, at the time the behaviour, remarks or conduct occurred or were made, was under 18 years old or, in the case of a child who had special needs, was under 22 years old.

18In Ontario College of Teachers v. Walker, 2022 ONOCT 29, the Discipline Panel of the College discussed the difference between sexual abuse and sexual misconduct arising from remarks of a sexual nature. In that case, the teacher had been messaging with a student on a dating platform. The student had created a false persona on the platform, including the false older age of 18. However, part-way through the online dialogue the teacher learned that the person was a high school student. They discussed other people and views on sex, but the exchanges did not target the student.

19In Walker, the discipline proceedings gave rise to an agreed statement of facts and plea agreement. The allegation of sexual abuse was withdrawn by the College and the hearing proceeded regarding sexual misconduct on the basis that it was better supported by the evidence. The Discipline Panel found that the agreed facts showed sexual misconduct.

20In Walker, the Discipline Panel discussed the difference between sexual abuse and sexual misconduct at para. 13, noting as follows:

“Sexual abuse” typically involves targeted behaviour or remarks of a sexual nature, which reveal a member’s feelings or desires towards a particular student. “Sexual misconduct”, by contrast, typically involves sexual behaviour or remarks of a more generalized nature, where a particular student does not become the object of a member’s desires. [Emphasis added]

21In Walker, the Discipline Panel found that the teacher discussed sexual topics with a student and gossiped about the physical attractiveness of students they both knew, which did not amount to “sexual abuse”. The Panel found that the teacher exposed the student to sexual behaviour or remarks but did not target the student directly. As a result, mandatory revocation did not apply. The Discipline Panel suspended the teacher for 22 months.

22In the case before this Court, the allegation before the Discipline Panel was sexual abuse. The College withdrew an allegation of sexual misconduct, which the Discipline Panel permitted because the definition was not in force at the time that the remarks were made to the Grade 5 class. There were other allegations that included the remarks to the class and consumption of alcohol, such as a failure to maintain the standards of the profession, verbal, psychological and emotional abuse, a lack of professional judgment, breach of teaching duties, and acts that would be reasonably regarded as disgraceful, dishonourable or unprofessional.

Decisions under Appeal

23Merits Decision: The Discipline Panel heard evidence from numerous witnesses over a seven-day merits hearing and gave lengthy reasons for the Merits Decision.¹ We focus on the reasons that are central to the issues on this appeal.

24The Panel found at para. 127 that the Facebook messages were “behaviour or remarks of a sexual nature by the member towards the student” – specifically, Student 1 – which is sexual abuse under s. 1(1) of the Act.

25On its approach to deciding whether the remarks were of a “sexual nature”, the Panel accepted the advice from the independent legal counsel to follow the decision of the Supreme Court of Canada in R. v. Chase, [1987] 2 S.C.R. 293. The Panel acknowledged that Chase was a criminal case. The Panel concluded, at para. 129, that it was appropriate to adopt its approach, “applying an objective, reasonable observer test to determine whether a person’s conduct is of a sexual nature”. The appellant does not take issue with the Discipline Panel’s use of the “reasonable observer” test from Chase.

26The Discipline Panel held at para. 129, following Chase at p. 302, that the analysis involved considering various factors including “the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct”.

27The Panel gave lengthy reasons for its analysis of the relevant circumstances.

28The Panel first addressed the question of whether the appellant had sent the Facebook messages, finding that the appellant had exchanged the messages with Student 1. In doing so, the Panel considered the copies of the message exchanges and the evidence of the College witnesses (Student 1, her mother, the Principal at the time, Dr. D. Hawes (who had met with the appellant and conducted an investigation after the report to the Principal), the police officer who met with the appellant about the Facebook messages and the appellant.

29The Panel found that the College witnesses were generally credible and reliable and noted when some of those witnesses did not have a clear recollection or had other difficulties. On the other hand, the Panel found the appellant’s evidence inconsistent and confusing, leading to a finding that his testimony was not credible.

30The Panel found that the appellant was inconsistent regarding whether he sent the messages. The Panel noted that he denied sending the messages to Student 1; that his phone (which he no longer had) may have been hacked, that he did not recall sending the messages possibly due to changes in his medication, that he could not have sent them because his medication made him fall asleep by 10:30PM, that they were poorly written, as if by someone not fluent in English, that he did not know what some of the messages meant, that he took ownership for the messages, that he did not dispute sending them because he had no proof otherwise, and that he seemed to acknowledge the possibility that he sent them. No evidence about the medication he was taking was tendered. Other evidence, including evidence about the meeting with the Principal and others the following month and discipline letters, was inconsistent with not sending the messages. That evidence showed that the appellant initially denied sending the messages but eventually accepted that he did and agreed that the messages were inappropriate and unprofessional.

31The Panel found at para. 106 that the inconsistencies “were significant, selective, uncorroborated, and established a self-serving pattern of unreliability that diminished the [appellant’s] credibility with respect to this allegation.” The Panel found that the appellant sent the messages as shown on those documents. Further the Panel found at para. 108 (and the appellant agreed) that the messages were sent late at night, were of a personal nature, were ambiguous and open to a sexually suggestive interpretation, and were inappropriate.

32Among other circumstances relevant to whether the messages were of a sexual nature, the Panel discussed the age of the appellant and Student 1 at the time, the frequency of the messages and the times they were sent, the use of a private social media platform, the informal nature of the messages, the fact that they did not relate to school work – they were personal in nature, and that they contained sexual innuendo and suggestions of Student 1’s maturity.

33The Panel also noted that the Facebook messages were probing Student 1 for personal information including about her personal life and interests and that they used language that had sexual connotations. The Panel acknowledged that the comments were arguably less explicit and overt than those made in cases presented by the parties. However, “after carefully reviewing the entirety of the Facebook exchange, including the time of day or night when the messages were sent and the factors set out in Chase,” the Panel found that the Facebook messages were remarks of a sexual nature made by the appellant to Student 1 and therefore sexual abuse as defined in s. 1 of the Act.

34The evidence of Dr. Hawes about sexual abuse is the subject of a ground of appeal. Dr. Hawes was tendered by the College as an expert regarding the standards of practice expected of teachers. Since she had participated in the investigation into the appellant’s conduct, Dr. Hawes was accepted as a participant expert. The focus of the issue on this appeal relates to her opinion on sexual abuse, which the Panel declined to accept.

35In her cross-examination, Dr. Hawes said that while she thought that the appellant’s Facebook comments were professional misconduct and were sexually suggestive, she did not find them overly sexual and therefore did not report to the College that the appellant had engaged in sexual abuse. The College objected to the cross-examination on sexual abuse on the basis that it was outside her expertise. The Discipline Panel permitted the cross-examination because cross-examination may be broad and the issue could be raised and addressed in final submissions. In the Merits Decision, the Panel gave its reasons for rejecting that evidence, as discussed below.

36After the lengthy discussion of the evidence and relevant circumstances as set out in the Merits Decision, the Panel found that the appellant’s remarks to Student 1 were of a sexual nature. The Panel therefore found that the appellant had engaged in sexual abuse as defined in s. 1 of the Act.

37The Panel proceeded to make other findings of professional misconduct arising from the Facebook messages and the other two courses of conduct mentioned above, as well as dismissing certain of the allegations.

38Penalty Decision: Given the finding of sexual abuse of a student, the Panel applied the mandatory penalty provisions in s. 30.2(2) of the Act, requiring a reprimand and revocation.

39Charter Decision: The Discipline Panel proceeded to hear the appellant’s motion regarding the Canadian Charter of Rights and Freedoms.² The appellant argued that the sections of the Act³ regarding mandatory revocation, when read together with the definition of “sexual abuse” and “student” in s. 1 of the Act, violated his right to freedom of expression under s. 2(b) of the Charter and are therefore of no force and effect.

40In addition to the record from the merits hearing, both the appellant and the College submitted evidence on the Charter issues. Two expert reports were admitted. The appellant’s expert, Dr. Anthony Doob, a Professor Emeritus of Criminology at the University of Toronto, opined on whether mandatory minimum sentences have a deterrent effect based on the criminal justice system. The College’s expert, Dr. Mary Louise Arnold, an Associate Professor Emerita in the Department of Applied Psychology and Human Development at the University of Toronto, opined on the particular dangers and harms of sexual abuse arising in the context of teacher-student interactions.

41The appellant challenged the scope of the impugned sections because they require mandatory revocation for remarks of a “sexual nature” that are not explicitly sexual. The appellant agreed that deterring all forms of sexual abuse to protect children is a pressing and substantial objective, however, he argued that the impugned provisions were not proportionate or minimally impairing. He argued that the impugned provisions prevented teachers from exercising their freedom of expression and stopped them from teaching even if the misconduct was minor, not explicitly sexual, unintentional and without harm to the students.

42The College submitted that being a teacher was a privilege, not a right, that sexually abusive expression is inherently harmful, and that sexual abuse of a student by a teacher is the opposite of what s. 2(b) of the Charter is meant to protect. The College submitted that mandatory revocation is rationally connected to the objective of protecting students because it ensures that teachers found to have committed sexual abuse are no longer able to teach, which also sends a strong message of denunciation by the teaching profession. Further, the College submitted that legislators are given latitude for the protection of vulnerable groups and a “bright line” policy is needed to prevent sexual abuse of a vulnerable population.

43The Attorney General focused on s. 1 of the Charter, submitting that context is a key including the following:

(i) the importance of professional regulation and the lack of a right to practice as a teacher free from regulation;

(ii) the low value of the speech at issue, which does not meaningfully advance the values meant to be protected by s. 2(b) of the Charter;

(iii) the vulnerability of students in relation to teachers; and,

(iv) the Panel’s right to rely on the best evidence available, along with logic and common sense, when analyzing the harm sought to be avoided by the impugned provisions.

44The Attorney General argued that the safety of students across Ontario is a pressing and substantial objective and there is a rational connection between protecting students and removing teachers who have been found to have committed sexual abuse from the profession. Further, the mandatory penalties are minimally impairing because, where the sexual abuse arises from remarks, the teacher can apply for reinstatement after five years. The Attorney General submitted that the salutary benefits of removing teachers who have engaged in sexual abuse outweighs any deleterious effect on the teacher given that the loss of a teaching licence is a purely economic interest, which is not protected by the Charter.

45The Discipline Panel applied the accepted approach to freedom of expression as set out in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927. The Panel noted the low threshold to show that the activity in question has expressive content and, following R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 729, that even unpopular, untruthful, distasteful, offensive and repugnant communications are given constitutional protection. The Panel rejected the College submissions that the Facebook posts were not within protected expression. The Panel found that the Facebook messages, as repugnant as they found them, were still afforded protection under s. 2(b) of the Charter.

46The Panel then considered whether the impugned legislation, in purpose or effect, restricts freedom of expression, finding that it does. The Panel found that the mandatory revocation provisions, read together with the definition of “sexual abuse”, are intended to protect vulnerable students. The provisions protect students by prohibiting teachers from making remarks of a sexual nature to a student and by revoking the teacher’s certificate of registration when they do so.

47The Panel then considered whether the infringement of the appellant’s s. 2(b) rights was justified under s. 1 of the Charter, applying the framework in R. v. Oakes, [1986] 1 S.C.R. 103. The Panel found that the infringement was justified under s. 1 of the Charter.

48Pressing and Substantial Legislative Goal: The Panel found that the primary legislative goal of the mandatory revocation provisions is protecting children from harm and ensuring students’ safety in schools. The Panel found that these objectives are sufficiently pressing and substantial to override the appellant’s freedom of expression. The Panel found that they also have the objective of denouncing all forms of sexual abuse involving a student, which is pressing and substantial.

49The Panel considered the Hansard transcripts regarding Bill 48, which expanded mandatory revocation, concluding that they showed that the Legislature’s goal was not just general deterrence, but to strengthen the protection of students and ensure their safety across Ontario schools. The Minister of Education had clearly stated that the government had “zero tolerance” for sexual abuse of Ontario students and children and they were taking action to ensure schools are safe learning environments.

50The Panel noted that the College of Teachers had strongly supported the introduction of the mandatory revocation provisions for behaviour or remarks that constituted sexual abuse. The Panel accepted evidence from a College witness who had been involved in efforts to advance the College’s public interest mandate, including the protection of students from sexual abuse, for over twenty years. He explained that sexual abuse of students had long been recognized as a most serious and obvious breach of trust for a teacher. He further noted that allegations of sexual abuse continued with a frequency that required the College to maintain deterrence as a top priority.

51Proportionality: The Panel conducted the proportionality analysis under Oakes and found that the mandatory revocation provisions are an appropriate limitation on the appellant’s s. 2(b) rights.

52The Panel focused on the pressing and substantial objective of the protection of vulnerable students. The Panel found a strong rational connection between removing teachers who have sexually abused students from the profession and the Legislature’s goal of protecting vulnerable students.

53The Panel did not find Dr. Doob’s evidence about the criminal justice system very helpful in the context of a regulatory disciplinary body. At para. 58, the Panel accepted the evidence of Dr. Arnold “that any and all forms of sexual abuse, including sexual remarks, are harmful to students, and can lead to profound and lasting impacts on students’ health, behaviour, academics, and psycho-emotional well-being and thus the need for a zero-tolerance policy toward all forms of sexual abuse to ensure student safety”.

54The Panel further found that common sense and logic support the rational connection and there does not need to be scientific proof of causation, citing Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827, at paras. 77-78 and Yazdanfar v. The College of Physicians and Surgeons, 2013 ONSC 6420, 317 O.A.C. 53 (Div. Ct.), at para. 115.

55The Panel then considered minimal impairment, finding that the mandatory revocation provisions impair the appellant’s rights no more than was reasonably necessary to accomplish the objective of protecting students. The Panel accepted, at para. 63, Dr. Arnold’s opinion that “even a minor incident by a trusted adult can have a profound and lasting impact on the youth” and “when a teacher directs sexual remarks to a student, ‘the trust placed in the teacher is violated through the exploitive communication’ which results in harm for the student””.

56The Panel found that the evidence of the harmful effects of sexual abuse on students demonstrated the appropriateness of the mandatory revocation provisions for all forms of sexual abuse. In response to the appellant’s submissions that leaving the penalty to the discretion of the Discipline Panel would be minimally impairing, the Panel noted that was the prior regime and the Legislature changed the Act to a “bright line” approach to ensure the protection of students and provide clear guidance to teachers.

57The Panel referred to decisions of the Court of Appeal upholding a “bright line” approach prohibiting sexual abuse in other professions, citing Mussani v. College of Physicians and Surgeons of Ontario (2004), 74 O.R. (3d) 1 (C.A.) and Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482, 156 O.R. (3d) 675, leave to appeal dismissed [2021] S.C.C.A. No. 350. The Panel noted that those were not s. 2(b) decisions but found the reasoning regarding professionals relevant. Specifically, the Court of Appeal found that membership in a profession is a privilege and not a right, there is no constitutionally protected right to practice a profession, and mandatory revocation for sexual abuse infringes an economic interest that is not protected by the Charter: Mussani, at para. 43; Tanase, at para. 19.

58In the course of distinguishing the criminal context, the Panel held, at para. 68, that “[m]embership in a regulated profession comes with certain restrictions. Part of the social contract of being a member of a regulated profession is the obligation to uphold the public interest ahead of their own interests, and in this case, the protection of students.”

59The Panel noted the substantial procedural safeguards that a teacher is entitled to in the discipline process before a finding is made. Further, the Panel noted the distinction in the Act for remarks of a sexual nature, where the teacher is permitted to reapply after five years in contrast with other forms of sexual abuse. The Panel found that revocation was therefore not necessarily permanent – it was a reasonable measure and minimally impairing.

60The Panel then considered overall proportionality, noting that the protection of vulnerable people is an important objective that should be given great weight. The Panel further found that the appellant’s Facebook messages do not meaningfully advance any of the genuine human goods associated with freedom of expression and therefore carry very little weight in the s. 1 analysis, citing Bracken v. Niagara Parks Police, 2018 ONCA 261, 141 O.R. (3d) 168, at para. 81 and Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at paras. 112-113. Further, the mandatory revocation provisions restrict a teacher’s ability to make sexual remarks to a student, not other types of expression.

61The Panel was mindful that losing a teaching certificate is the most serious penalty but noted that it is for the most egregious violations of trust. The Panel concluded, at para. 71, that “the benefits of removing teachers from the profession who have engaged in sexual abuse of students to ensure that students are protected and have a safe learning environment significantly outweigh any damaging effects on teachers’ right to freedom of expression.

62The Panel concluded that the infringement of the appellant’s s. 2(b) rights was justified under s. 1 of the Charter.

Issues and Standard of Review

63The appellant submits that the Discipline Panel erred as follows:

(i) by rejecting the evidence of Dr. Hawes on sexual abuse;

(ii) by finding (under the Oakes test) that the mandatory revocation provisions of the Act are a justified limit on the appellant’s s. 2(b) right of freedom of expression under s. 1 of the Charter; and

(iii) by failing to conduct a Doré analysis in its determination that there was sexual abuse.

64The appellate standard of review applies to these statutory appeals: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37. As set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the standard of review is correctness for questions of law, palpable and overriding error for questions of fact and palpable and overriding error for questions of mixed fact and law except that extricable questions of law are reviewed for correctness.

65The standard of review for the legal issues on the constitutional challenge is also correctness. The Attorney-General notes that in Fair Voting BC v. Canada (Attorney General), 2025 ONCA 581, at paras. 82-84, leave to appeal dismissed 2026 29503, the Court of Appeal expressed uncertainty regarding the standard of review of underlying factual findings. We do not need to resolve this uncertainty here because we do not find the potential difference in the standard of review for factual findings would lead to a different result.

Analysis

(i) Ruling on Dr. Hawes’s evidence

66The appellant submits that the Discipline Panel erred in failing to accept Dr. Hawes’ evidence on sexual abuse. The appellant emphasizes that Dr. Hawes was put forward by the College. The appellant submits that since the Panel accepted Dr. Hawes as an expert on the standards of the teaching profession, inside and outside the classroom, it follows that she is an expert on sexual abuse. Further, the appellant submits that since the evidence was uncontested it can only be rejected if there is a rational basis for doing so, which was not present here.

67The appellant does not take issue with the Discipline Panel’s use of the “reasonable observer” test from Chase but submits that Dr. Hawes is that reasonable observer.

68We do not find an appealable error. To begin with, Dr. Hawes was not tendered as an expert on sexual abuse. On the voir dire, Dr. Hawes was tendered and accepted, on consent, as a participant expert “regarding the standards required of teachers, including their conduct in the classroom, on school trips, and when communicating with students outside of the school”.

69The issue about Dr. Hawes’s expertise on sexual abuse arose during the cross-examination of Dr. Hawes. The Discipline Panel permitted the cross-examination and invited and later heard submissions in final argument regarding whether or not to accept the evidence.

70The Discipline Panel addressed the issue regarding Dr. Hawes’s testimony about sexual abuse in its Merits Decision, providing its rationale. The Panel disregarded that evidence for several reasons, summarized as follows:

(i) Dr. Hawes was not qualified as an expert in sexual abuse;

(ii) her opinion conflicted with inferences that could be drawn from other evidence, citing R. v. Richmond, 2016 ONCA 134, 334 C.C.C. (3d) 315, at para. 58;

(iii) taking her evidence as a whole, including her recommendation to the Principal to call the police and her concerns that the messages could be seen as grooming and could eventually lead to a sexual relationship, Dr. Hawes’s evidence was supportive of a finding that the messages were sexual in nature;

(iv) the Panel did not need expert evidence to make the determination regarding sexual abuse; and,

(v) it was the Panel’s role to determine whether the comments were of a sexual nature and amounted to sexual abuse, which was the ultimate issue the Panel needed to decide.

71It was open to the Discipline Panel to disregard the evidence on this basis. The Discipline Panel made no error of law or palpable and overriding error of fact in its decision about the evidence of Dr. Hawes regarding sexual abuse.

72Although not the main focus of his argument, the appellant also submits that the Panel wrongly disregarded Dr. Hawes’s cross-examination regarding the other conduct at issue (the discussion in the Grade 5 classroom and the field trip). The appellant submits that the Discipline Panel wrongly failed to have regard for her opinions as clarified in cross-examination.

73The Panel had considerable evidence from Dr. Hawes about the events and considered them, giving reasons that include some of the evidence that the appellant seeks to rely on. It was open to the Panel to accept or reject all or part of her evidence, and the Panel was not obliged to refer to all of her evidence in its reasons for decision. The appellant is essentially asking this Court to reweigh that evidence, without showing a palpable and overriding error.

(ii) Constitutionality of ss. 30.2(a), 30.2(2), 30.03 and 33(4.1) of the Act

74On this appeal, there is no issue that the mandatory revocation provisions, as applied to the appellant, infringed the appellant’s s. 2(b) right to freedom of expression. The appeal issues relate to s. 1 of the Charter.

75There is also no issue that the Oakes test applies to this aspect of the appeal.

76To begin with, the challenged provisions must have a pressing and substantial objective sufficient to override the protected right. The parties agree that there is a pressing and substantial objective here, specifically to protect students from all forms of sexual abuse. However, the appellant submits that the Panel ought not to have also found a secondary objective of denunciation. Yet both the legislative record and the evidence from the College showed that denunciation is a valid secondary purpose for the challenged provisions. The message to teachers is zero tolerance for all forms of sexual abuse.

77The issue is therefore whether the impugned provisions are reasonable limits that can be demonstrably justified under the proportionality analysis in the Oakes test, which requires that the College/Attorney General show as follows:

(i) the limit to freedom of expression must be rationally connected to the objective;

(ii) the limit must minimally impair freedom of expression; and,

(iii) the deleterious effects of the limit must not be disproportionate when weighed against the statutory objectives.

78The appellant challenges the Discipline Panel’s decision on all three parts of the Oakes proportionality test. The College supports the Charter Decision, as does the Attorney General, who begins quite simply by saying that sexual remarks made by teachers to students have no place in the teaching profession.

79Beginning with rational connection, the test is not particularly onerous – the government need only show that it is reasonable to suppose that the limit may further the goal, not that it will do so: Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, at para. 228; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, at para. 48. The causal connection between the infringement and the goal may be established on the basis of reason and logic: Hutterian Brethren, at para. 48.

80To challenge the rational connection step, the appellant relies on the evidence of his expert, Dr. Doob, submitting that mandatory revocation is likely to have no greater impact on deterring sexual abuse than a less harsh sentence. The appellant submits that while scientific proof of a causal link in not necessary, the Panel had credible social science evidence from Dr. Doob that established the opposite.

81We find no error in the Panel’s decision. The Discipline Panel did not err in relying on the evidence of Dr. Arnold rather than Dr. Doob. The Panel considered their differing expertise and did not find Dr. Doob’s evidence about the criminal justice system very helpful in the context of a regulatory disciplinary body. The Panel accepted the evidence of Dr. Arnold, including her evidence that revocation was the most decisive way to protect students.

82The appellant also submits that the Panel wrongly conflated the concept of zero tolerance with mandatory revocation and submits that the prior legislation could be described as zero tolerance. Yet the prior legislation excluded remarks to a student of a sexual nature from mandatory revocation and the Panel had evidence before it about the purpose of the legislative reform, to significantly increase that protection, and evidence about the harms on students of sexual abuse.

83This ground fails. The Panel correctly applied the rational connection test to conclude that “common sense and logic established a strong rational connection between the imposition of mandatory revocation, removing teachers who engage in sexual abuse, and the goal of protecting students.”

84Moving to minimal impairment, the appellant submits that the evidence did not show how less-impairing means could satisfy the goal of protecting students from sexual abuse. The appellant submits that leaving the penalty determination to the Discipline Panel would satisfy the objective. The College and Attorney General submit that mandatory revocation, with the opportunity to reapply after five years, is minimally impairing.

85Under the minimal impairment analysis, the government “is not required to choose the absolutely least intrusive alternative” especially if less intrusive means would not “achieve the same objective as effectively”: R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, at para. 39.

86The question is whether the measures chosen by government fall within the range of reasonable alternatives: Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 43; Ontario v. Trinity Bible Chapel et al, 2022 ONSC 1344, 160 O.R. (3d) 748, at para. 139, aff’d in Ontario (Attorney General) v. Trinity Bible Chapel, 2023 ONCA 134, 166 O.R. (3d) 81, leave to appeal dismissed [2023] S.C.C.A. No. 168.

87Here, mandatory revocation only arises after a discipline committee determines, following a full hearing with the onus on the College, that a teacher has made sexual remarks to a student. The remarks must be sexual in nature. They must be made to a student. Expression that is pedagogically appropriate is excluded. Revocation is not permanent.

88We are not persuaded that the Discipline Panel erred in concluding that making revocation discretionary would fail to meet the legislative objective of protecting students and providing them with a safe learning environment. The Panel correctly held that “[g]iven the seriousness of the misconduct and the harmful effects sexual abuse can have on students … anything less than mandatory revocation for a finding of sexual abuse of students would fail to properly denounce sexual abuse and fail to meet the College’s legislative objective of protecting students.”

89The appellant further submits that the Panel erred in adopting a “bright-line” approach to mandatory revocation based on a misreading or misapplication of the Court of Appeal’s decisions in Mussani and Tanase.

90We disagree. In Tanase, the Court of Appeal held that imposing a “bright-line” rule that prohibits sexual relationships between regulated health professionals and patients better prevents sexual abuse and is permissible under the Charter. The Discipline Panel here did not simply adopt that rule. The Panel noted that Mussani and Tanase were challenges under s. 7 and 12 of the Charter. The Panel found the reasoning that membership in a profession is a privilege and not a constitutionally protected right, and that mandatory revocation infringes an economic right that is not constitutionally protected, persuasive.

91In Tanase, at para. 49, the Court of Appeal held that the College of Dental Hygienists’s zero tolerance policy for sexual relationships “assures patients that their relationships with health care providers will not become sexualized – that they will not have to negotiate a sexualized atmosphere in seeking health care.” These principles apply with equal force to this case. Teachers have a statutory duty to provide a safe environment for students.

92As held by the Panel at para. 69: “What is considered professional misconduct, and what penalties may be ordered against members may change over time. In the Panel’s view, strict penalties for sexual abuse of students are a reasonable limit that the Member accepted when he chose to become a teacher.”

93We further agree with the Attorney General’s submission that this case is an example of a “complex social [issue] where the legislature may be better positioned than the courts to choose among a range of alternatives,” citing Hutterian Brethren, at para. 53. In making that assessment, the courts “accord the legislature a measure of deference”. Here, the legislative decision to impose mandatory revocation are intended to protect students, undoubtedly a vulnerable group, from teachers who engage in sexual abuse despite their trusted position and obligations to that group.

94We conclude that the challenged provisions satisfy the requirement that they be minimally impairing and move on to the proportionality analysis. That analysis asks whether the overall effects of impugned law are disproportionate to the government’s objective: Hutterian Brethren, at para. 73.

95The appellant submits that the Panel erred in focusing exclusively on the objectives of the legislation and not its effects. The appellant accepts that protection of students from sexual abuse is an important objective. The appellant submits that Panel failed to properly consider the very negative impact on him – the mandatory revocation of his registration to teach for at least five years. The appellant submits that the Panel wrongly focused on the impact of freedom of expression.

96We disagree. “The final branch of the proportionality test requires an assessment of whether the importance of the legislative objective … outweighs the deleterious effects of the provision in limiting [the Charter right]. If the deleterious effects of the restriction outweigh the benefits to be derived from the provision, that part of the proportionality test is not met”: Whatcott, at para. 147.

97The Panel properly considered the impact of the impugned provision on the Charter right that they infringe, specifically freedom of expression. Here, any impact is minimal. The provisions preclude remarks “of a sexual nature” to a student, a category of expression that is in breach of teacher’s duties and harmful to a vulnerable group, students. We agree that this expression falls at the lowest end of the spectrum of interests protected by s. 2(b) of the Charter.

98The Discipline Panel expressly recognized the severity of mandatory revocation on a teacher but also correctly noted that the related economic interest is not constitutionally protected.

99On the other side, salutary benefits of the challenged provisions are significant. As shown in Dr. Arnold’s evidence, sexual abuse by a teacher is the most egregious offence a student can experience in the course of their education. It has the potential to damage a student’s psychological functioning into their adult life. The evidence of Student 1 shows that the appellant’s inappropriate communications with her have had a lasting impact on her well-being. The removal of a teacher (for at least five years) who has engaged in this harmful behaviour protects students and their access to a safe learning environment.

100The Panel correctly concluded, at para. 71, that the “benefits of removing teachers from the profession who have engaged in sexual abuse of students to ensure that students are protected and have a safe learning environment significantly outweigh any damaging effects on members’ right to freedom of expression”. The limits are not disproportionate.

101We conclude that the Panel did not err in finding that the challenged provisions are reasonable limits that can be demonstrably justified under s. 1 of the Charter.

(iii) Deciding on “sexual abuse” without a Doré analysis

102The appellant submits that the Panel’s decision on sexual abuse was discretionary, and the Panel should therefore have proceeded to do an analysis under Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395.

103More specifically, the appellant submits that the interpretation of the definition of “sexual abuse” and the application of that definition to the facts involved the exercise of discretion. This ordinary process of interpreting and applying legislation is not usually described as discretionary where the statute does not provide a discretion. As set out in s. 1(1) of the Act, the definition itself is mandatory: “sexual abuse” of a student by a member means… remarks of a sexual nature by the member towards the student”.

104Further, the Discipline Panel applied the objective test from Chase regarding whether the Facebook messages were “sexual in nature” as required by the definition of “sexual abuse”. As put in the appellant’s factum on this appeal, “the [appellant] does not take issue with the Panel’s reliance on Chase.” There is therefore no interpretative issue regarding the definition of sexual abuse on this appeal that would call for the use of Charter values: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 62.

105Nor does the appellant submit that the inclusion of “remarks of a sexual nature by the member towards the student” in the definition of “sexual abuse” renders that definition unconstitutional as a breach of s. 2(b) of the Charter that is not saved by s. 1. The appellant’s constitutional challenge is limited to the resulting mandatory revocation. The appellant submits, somewhat in conflict with this ground of appeal, that “[t]he Ontario Legislature, by enacting the Mandatory Revocation Provisions, has prevented the Panel from conducting a Doré analysis.”

106Charter values should be considered, and the Discipline Panel did so, albeit in the Charter Decision. The appellant relies on this Court’s very recent decision in Gould v. Ontario College of Teachers, 2026 ONSC 1095 (Div. Ct.), which held that a Doré was required in that case.

107The appellant’s situation is different from that in Gould, including the nature of the factual and other issues in Gould, which were, at least in part, discretionary. Most significantly, in Gould the provisions at issue did not expressly refer to and then preclude protected expression. In Gould, the teacher’s expression fell into a general category of professional misconduct arising from “act[s] or omission[s].” Here, the definition of sexual abuse in the Act expressly includes “remarks of a sexual nature,” which all parties agree falls within the scope of s. 2(b) protection.

108As the Supreme Court instructs in Doré at para. 36, the approach courts take when the source of a limitation on Charter rights is enshrined in law is different than when the source of the limitation is an individualized administrative decision. Hence, the uncontested use of the Oakes test to challenge the constitutionality of the mandatory revocation provision for making remarks of a sexual nature to a student.

109Also, unlike Gould, here the Discipline Panel did consider the relevant Charter values as part of the Oakes analysis regarding the mandatory revocation arising from remarks in the definition of “sexual abuse”. The appellant accepts that a Doré analysis “is a proportionality exercise, similar to the one performed under the Oakes test.”

110As set out in Doré, at para. 56, the decision-maker should “ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives.”

111The Oakes analysis in the Charter Decision includes relevant findings for a Doré analysis regarding the finding of sexual abuse. The Discipline Panel was alive to the values underlying free expression, as they relate to the specific statements the appellant made, when the Panel discussed the proportionality of the mandatory revocation provisions. This discussion “works the same justificatory muscles” as the Doré analysis and achieves the goal the Supreme Court articulated in in Doré, at paras. 5-6: “In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.”

112Further, both Oakes and Doré contemplate giving a “margin of appreciation,” or deference, to administrative and legislative bodies in balancing Charter values against broader objectives”: Doré, at paras. 35, 57. In the professional regulatory context, this includes affording deference to regulators’ determinations of the harm to the public caused by the actions of regulated professionals: Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685, 167 O.R. (3d) 11 (Div. Ct.), at para. 45, leave to appeal to Ont. C.A. refused 2024 CarswellOnt 13873, leave to appeal to S.C.C. refused [2024] S.C.C.A. No. 78; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 38.

113In Doré, the court below had also done an Oakes analysis, and, after deciding on the Doré approach, the Supreme Court proceeded to apply it. We see no reason not to consider the impact of a Doré analysis here given the overlapping nature of the issues and the extensive reasons of the Discipline Panel on relevant Charter issues.

114As discussed above, the appellant submits that the Discipline Panel erred in not conducting a Doré analysis when it decided whether or not he had engaged in “sexual abuse” as defined in s. 1(1) of the Act. We find that analysis would not have yielded a different result.

115Under Doré, the first step is to consider the statutory objectives at issue. Here, the statutory objective of the definition of “sexual abuse” and related sections under which a finding of sexual abuse results in a finding of professional misconduct and mandatory revocation, are the same as discussed and elaborated on above. They need not be fully repeated here. The parties agree that there is a pressing and substantial objective here, specifically to protect students from all forms of sexual abuse, which applies under this analysis as well.

116Under Doré, the nature of the Charter right must be considered. Here, it is the same expression and the same impact as found under the Oakes test above – freedom of expression that is at the lowest end of the spectrum of interests protected by s. 2(b) of the Charter. The Discipline Panel found that the appellant’s Facebook messages to Student 1 were repugnant, yet they were protected by s. 2(b). We see no error in reaching that conclusion.

117In the Doré analysis, we then consider how to best protect the Charter rights in view of the statutory objectives. The appellant submits that having regard to his Charter rights, the remarks that fall within the definition of “sexual abuse” should be narrowly construed to exclude his remarks. He raises the definition of “sexual misconduct” in the Act in comparison, submitting that less problematic remarks would fall under that definition. A finding of sexual misconduct does not result in mandatory revocation.

118These submissions overlook an important distinction between sexual abuse and sexual misconduct under the Act. Sexual abuse typically involves targeted behaviour or remarks of a sexual nature toward a particular student. That is what happened here. The appellant used a social media route to communicate with Student 1 in particular. He sent her messages late at night and asked her personal questions. Student 1 understood the messages as attempts to probe her for her age, whether she had a boyfriend and as sexual innuendo and insinuations of wanting to pursue some type of sexual encounter with her. Student 1’s mother felt that the appellant was grooming and preying on Student 1. The appellant’s inappropriate communications with Student 1 have had a lasting impact on her well-being.

119The Panel found that the Facebook messages that were sent to Student 1 were personal, open to a sexually suggestive interpretation, and were inappropriate. The Panel applied the agreed objective test from Chase, concluding that they were of a sexual nature. Although the appellant submitted then and now that he did not have a sexual purpose, his credibility has been significantly undermined as set out in the Merits Decision.

120When considering how to best protect the Charter right in view of the statutory objectives, the analysis of the statutory objectives in the Charter Decision applies and need not be fully repeated here. It begins with the objective to protect students from all forms of sexual abuse. The prior legislation excluded remarks to a student of a sexual nature from mandatory revocation. The purpose of the legislative reform was to significantly increase that protection, given the harms of sexual abuse on students. Educators are in a position of trust and authority and work with a vulnerable sector of society. The protected speech in this case was shown to have caused harm to Student 1. A Doré analysis does not assist the appellant in this case given the nature of his speech and the importance of the statutory objectives.

121To the extent the Discipline Panel may have erred in not conducting a Doré analysis, the substance of the Doré analysis was done as part of the Oakes analysis in the Charter Decision, and confirmed by this Court. There is no substantial wrong or miscarriage of justice in this case. There need not be a new hearing: s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43; Okafor v. Ontario College of Teachers, 2025 ONSC 6089 (Div. Ct.), at para. 86.

Disposition

122These two appeals are therefore dismissed, with costs to the College in the agreed amount of $10,000 in total, all inclusive.

___________________________ Newton R.S.J.

Backhouse J.

Matheson J.

Date: April 24, 2026

CITATION: Bujacz v. Ontario College of Teachers, 2026 ONSC 1265

DIVISIONAL COURT FILE NO.: 157/25 and 255/25 DATE: 20260424

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R.S.J. Newton, Backhouse and Matheson JJ.

BETWEEN:

LEE ALLAN BUJACZ Appellant

– and –

ONTARIO COLLEGE OF TEACHERS Respondent

REASONS FOR DECISION

The Court

Footnotes

1. 12023 ONOCT 12
2. 22025 ONOCT 14
3. 3Sections 30.2(a), 30.2(2), 30.03 and 33(4.1), referred to above under “Statutory Regime”.