Ontario Superior Court of Justice – Divisional Court

Sclater v. Ontario College of Teachers

Date: 2000-02-21

David W.T. Matheson, for the appellant;

Caroline R. Zayid, for the respondent.

(File No. 798/99)

I. The Nature Of Proceedings:

[1] O'Driscoll, J. [orally]: The appellant school teacher, a member of the Ontario College of Teachers ("College"), appeals from the decision of the Fitness to Practise Committee of the Ontario College of Teachers ("Committee"), dated October 20, 1999.

[2] The appeal is provided by the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12, as amended by S.O. 1997, c. 31 (the "Act").

[3] Section 35 of the Act provides:

"(1) A party to a proceeding before … the Fitness to Practice Committee may appeal to the Divisional Court, in accordance with the rules of court, from the decision or order of the committee.

"(4) An appeal under this section may be made on questions of law or fact or both and the court may affirm or rescind the decision of the committee appealed from and may exercise all powers of the committee and may direct the committee to take any action which the committee may take and that the court considers appropriate and, for the purpose, the court may substitute its opinion for that of the committee or the court may refer the matter back to the committee for rehearing, in whole or in part, in accordance with such directions as the court considers appropriate."

[4] The appellant seeks orders:

(1) setting aside the requirement that the appellant voluntarily surrender her teaching certificate and continue to have her certificate remain with the Registrar, and

(2) an order varying the remaining conditions in the October 20, 1999, order by substituting the proposed orders set out in the Joint Submission as to disposition.

[5] Paragraph 26 of the agreed statement of facts states:

"In keeping with her desire to resolve outstanding issues and return to the classroom, Mrs. Sclater cooperated wholeheartedly with the College. When the College decided to take steps to suspend her teaching qualifications on an interim basis, she voluntarily relinquished her certificate so that the College did not have to refer the matter for an Executive Committee interim ruling hearing;"

II. The Background:

[6] Upon completion of her studies at York University, the appellant began teaching for the Simcoe County Board of Education in September, 1994 at Goodfellow Public School. She taught various grades, filling in for other teachers on maternity leave. For the 1996-97 school year, the appellant taught a combined grade .7 and grade 8 class at Good-fellow. This continued during the 1997-98 school year until the events under review occurred.

[7] Student "R" was born in 1984. He was a student at Goodfellow from kindergarten to grade 8. The appellant taught him on a number of occasions. The appellant and student "R" developed a relationship outside the classroom. The appellant supervised student "R" and a number of other students while they played basketball during the lunch hour and before the morning classes began. Outside of class time, they also often met to talk when no other person was present.

[8] In February 1998, student "R" began writing notes to the appellant to which she responded. These are set out in Exhibit Book, Tab 3.

[9] The appellant also accepted gifts from "R" including chocolates, candies, flowers and an inexpensive necklace.

[10] The appellant concedes that her responses to student "R's" notes had the effect of encouraging him to write notes to her, including complimentary notes. She further concedes that this conduct had the potential to affect the student in his growth and development.

[11] On or about April 21, 1998, student "R's" mother discovered several letters written by the appellant to "R". "R's" mother was concerned about the content of these letters and the apparent sexual content of some of them. "R's" mother reported the matter to the Simcoe County Children's Aid Society (S.C.C.A.); it investigated the matter and produced a report.

[12] The S.C.C.A. recommended, amongst other things, that the appellant not be allowed to have direct duties that involved children and that she seek an appropriate psychiatric assessment of her maturation and emotional state.

[13] As a result of the S.C.C.A. report, the appellant was suspended without pay by the Simcoe County Board of Education (Board), effective September 1, 1998. Initially, the Board took the position that the appellant had to satisfy the recommendations stipulated by the S.C.C.A. The Board, however, changed its position and agreed to accept the decision of the Fitness to Practice Committee with respect to the appellant's certification to teach.

[14] As stated above, the appellant is a member of the College. The Act states:

"s. 3(1) The College has the following objects:

1. To regulate the profession of teaching and to govern its members;

2. To develop, establish and maintain qualifications for membership in the College;

3. To establish and enforce professional standards, ethical standards applicable to the members of the College;

4. To receive and investigate complaints against members of the College and to deal with discipline and fitness to practice issues.

"s. 3(2) In carrying out its objects, the College has a duty to serve and protect the public interest.

"s. 28 The Council shall appoint at least five of its members to the Fitness to Practise Committee.

"s. 31(1) The Fitness to Practise Committee shall,

(a) hear and determine matters directed or referred to it under section 26, 29 or 33; and

(b) perform such other duties as are assigned to it by the Council.

"(2) The Fitness to Practise Committee may, after a hearing, find a member to be incapacitated if, in its opinion, the member is suffering from a physical or mental condition or disorder such that the member is unfit to continue to carry out his or her professional responsibilities or that a certificate held by the member under this Act should be made subject to terms, conditions or limitations.

"(3) Where the Fitness to Practise Committee finds a member to be incapacitated, it may make an order doing one or more of the following:

1. Directing the Registrar to revoke any certificate held by the member under this Act.

2. Directing the Registrar to suspend any certificate held by the member under this Act for a stated period, not exceeding 24 months.

3. Directing the Registrar to impose specified terms, conditions or limitations on any certificate held by the member under this Act.

4. Directing that the imposition of a penalty be postponed for a specified period and not be imposed if specified terms are met within that period."

[15] On May 12, 1999, the College issued a ten (10) page notice of hearing (Appeal Book: p. 23). It was directed to the appellant alleging that she was suffering from a physical or mental condition or disorder such that she was unfit to carry out her professional responsibilities or that her certificate of teaching should be made subject to terms, conditions or limitations and alleging that she was incompetent as defined in s. 31(2) of the Act.

[16] The matter came on for hearing in June, 1999 and was adjourned to September, 1999.

[17] On September 9, 1999, the matter came on for hearing before a panel of three members of the Committee, two of whom were educators; the hearing proceeded on September 9, 10 and 14, 1999.

[18] Normally, a hearing before the Fitness to Practise Committee is a full hearing and the parties, the College and the member, are entitled to call viva voce evidence and make submissions. In this case, counsel for the College and counsel for the appellant were able to reach complete agreement prior to the hearing with respect to the material that would be placed before the Committee for its consideration. The agreed statement of facts was accompanied by a number of exhibits from professionals, including several psychiatric assessments. Of the professional opinions collected by the appellant in her own defense, it appears that no one was concerned with the appellant's return to teaching. According to the reports, there is a "low chance of recidivism" and no evidence of any "apparent sexual propensities". It is clear from most of the reports that the professionals who dealt with the appellant agreed that her conduct flowed from "immature personality traits". No expert retained by either the College or the appellant stated that the appellant was unfit to teach in the grades for which she was trained, namely, the primary and junior divisions.

HI. The Proceedings Before The Committee:

[19] The only evidence placed before the Committee was the Agreed Statement of Facts; it was signed on behalf of the College and by Mrs. Sclater, and dated September 9, 1999. The Committee was also advised that counsel for the College and counsel for Mrs. Sclater had agreed upon a Joint Submission as to Disposition (Exhibit Book, Tab 5).

[20] On September 10, 1999, the Chair of the Committee said:

"THE CHAIR: The Fitness to Practise Committee finds that Laura Sclater is incapacitated, in that she suffers from a mental condition, as will be detailed in the Committee's reasons, such that the certificate held by the member shall be made subject to terms, conditions or limitations.

"The certificate of the member is suspended until the terms and conditions have been determined by the Fitness to Practise Committee. A date will be established by the hearing's assistant in agreement with counsel and the Committee. And the panel stands adjourned."

[21] On September 14, 1999, the Chair of the Committee announced the panel was "looking toward making a decision and order which differs from that submitted", and at the end of the day, the Chair said:

"I think I can fairly speak on behalf of the other members of the panel and share with you our appreciation of your attempts to come to a joint agreement and it is certainly not without appreciation for the hard work and effort that is involved in making such an agreement and to provide you reassurance that we will certainly ~ we have certainly considered what has been put before us and will continue as we withdraw to consider what you have submitted to us in response to our proposal."

[22] Shortly after that the Chair said:

"The committee has heard your submissions and we are prepared to further review the documents. In the interim we accept that the member's certificate shall remain in the hands of the registrar until our decision has been released."

Thus, at the end of the day on September 14, 1999, judgment was reserved.

[23] On October 20, 1999, the panel released seventeen (17) pages of unanimous reasons (Appeal Book, Tab 2). At p. 18, the reasons state:

"Reasons:

"The teacher's position of authority and trust is of the highest importance to students, the profession and the public. Because the Committee accepts the Joint Submission that Laura Glen Sclater is incapacitated and is persuaded that she suffers from a mental condition as detailed subsequently under the heading 'Decision and Orders', the Committee, comprised mainly of educators, is convinced that as a result of this condition, the member has engaged in serious boundary violations. Because the Committee is not convinced that Laura Glen Sclater has fully recognised the seriousness of her boundary violations, and their effect or their potential effect on students, the Committee is further concerned about her ability to perform her duties as a teacher and act in a position of trust. Further the Committee is of the opinion that the member has failed to demonstrate knowledge of personality social and psychosexual development in school age children, adolescents and that such understanding is essential to carry out her duties as a teacher.

"Decision and Order:

"Based on the findings and/or the evidence examined in the Exhibits filed, the Committee finds Laura Glen Sclater to be incapacitated within the meaning of s. 31(2) of the Ontario College of Teachers Act, 1996, as alleged in that she suffers from a mental condition as described by Dr. Hy Bloom in the following passages of his report of June 7, 1999:

'The theory that I prefer, which I believe resonates more with all of the available information, is that the behaviour in question was borne of naivete, some measure of psychological and emotional immaturity, and poor judgement. Ms. Sclater characterized her role as confidante to the children as a burden that she would have preferred to sidestep. I suspect, however, that there were a number of psychological and emotional benefits that she derived from that involvement. The relationships with her students certainly left her feeling that she was respected, cared about, and above all valued, but her level of participation in the ongoing issues in day-to-day lives of pre-adolescents probably gratified her at another level. My theory is that the level of her acceptance by and participation with her students promoted some psychological regression on her part. I suspect that she was deriving the kind of gratification a person experiences when he or she is very popular in his or her peer group. This hypothesis operationalizes the immature personality traits that were hypothesized in the report from the Behavioural Sciences Unit.

'I can find no evidence of any unusual sexual propensities or anomalous behaviour. There is, in fact, no psychiatric diagnosis that specifically explains Mrs. Sclater's conduct in relation to "R.D." (and the other students). There is no evidence of any personality disorder, although immature personality traits are the essential and psychopathological component of the conduct in question. Family and personal dynamics, together with these traits, caused Mrs. Sclater to suspend her judgment in the interests of gratifying an unrecognized need for attention and admiration, and further, she gratified her need to be valued and helpful. Mrs. Sclater was well-intended, albeit, misguided by the variables that I have described above.'"

[24] The panel of the Committee then ordered:

(1) that the member's teaching certificate remain in the hands of the registrar;

(2) that the appellant undergo not less than twenty (20) therapy sessions at her own expense;

(3) upon completion, and again at her own expense, the appellant was to undergo a psychiatric assessment;

(4) if the program was successfully completed, the appellant was to reappear before the Fitness and Practise Committee, so that the Committee might consider the documentation. At that time, the Committee may order the conditions to be lifted or make further orders;

(5) during the currency of the Committee's order, the appellant was not to write notes in any way to any student.

IV. The Grounds Of Appeal:

[25] The appellant does not argue that the Committee was, per se, without jurisdiction to make the impugned order. The grounds of appeal are (Appeal Book, Tab 1, p. 3):

(1) The Fitness to Practise Committee erred by imposing conditions for which there was no evidence in support and which were contrary to the evidence before it;

(2) The Fitness to Practise Committee erred, in its prohibition of the appellant's ability to teach, by failing to properly balance its mandate of protecting the public with its mandate of minimally restricting the appellant's ability to maintain her employment in accordance with rights accorded her by the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms and, thereby imposed conditions which violated those rights;

(3) The Fitness to Practise Committee erred by failing to properly weigh the evidence before it with the result that the Committee imposed conditions that were not reasonably or objectively justified by the evidence before it;

(4) The Fitness to Practise Committee exceeded its jurisdiction by imposing an order which, in the circumstances, amounted to a disciplinary penalty.

[26] When analyzed, the de facto ground of appeal is disappointment that the Committee did not accept the Joint Recommendations for Disposition and that the panel imposed conditions more stringent than those agreed upon in the Joint Recommendations. The Committee, under a condition imposed by statute, namely, s. 3(3) of the Act, has a duty to serve and protect the public interest, that is, the children in the school system. The panel announced that it did not accept the Joint Recommendations and asked for and received submissions from counsel as to disposition.

[27] In College of Physicians and Surgeons (Ont.) v. Petrie (1989), 32 O.A.C. 248; 1989 4276 (ON SC), 68 O.R.(2d) 100, at p. 101 (Div. Ct.), Callaghan, A.C.J.H.C, O'Brien and Campbell, JJ., the Associate Chief Justice said:

"While it is within the jurisdiction of the Committee to reject a joint submission, we are of the view that when a Committee with disciplinary power rejects such a submission and proposes to impose a sentence of a more severe character, then the rule of audi alteram partem' should be invoked and the Committee should afford counsel the opportunity to make representations addressing the issue of the more severe penalty.

"It is our view that a tribunal imposing a more substantial penalty than that which has been recommended on a joint submission should follow carefully that fundamental principle and indicate to those appearing before it that it is considering imposing such a penalty and request submissions thereon."

[28] In my view, in this case, that protocol was followed.

[29] There was evidence before the Committee in the reports of the psychologist, Mr. Gary Schoener, that it could not be assumed that the remediation plan proposed by Drs. Pollock and Heaman would work. Indeed, in his report of August 19, 1999 (Exhibit Book, Tab 4, p. 127), Mr. Schoener was of the view that it was unlikely that the appellant's psychological problem would be easily treated.

[30] In para. 33 of the respondent's factum, this appears:

"33. Mr. Gary Schoener (one of the College's experts) and Dr. Nathan Pollock (one of the appellant's experts) agree that the results of the assessment suggest that Ms. Sclater does not fully grasp the problems with her behaviour:

Reference: Report of Dr. Gary Schoener dated August 18, 1999 Exhibit Book, p. 126

"36. Dr. Schoener expressed the opinion that it would not be easy for the appellant to accomplish changes in the areas of concern, and that the prognosis for change is quite poor. He recommended that any plan for rehabilitation be followed by a reassessment to assess what results have been obtained and to determine whether there are any recommendations with respect to supervision, limitations on activities, and ability to teach.

Reference: Report of Dr. Gary Schoener, dated August 18, 1999 Exhibit Book, p.128"

[31] The reports of Dr. Bloom disclose that the appellant's particular psychological problem is not listed as such in the Diagnostic and Statistical Manual known as "DSM IV". Nevertheless, it cannot be seriously asserted that the bizarre conduct of the appellant under review lacks the potential to cause deleterious effects upon adolescent male pupils who may encounter the appellant as teacher.

[32] In view of the past conduct that was under consideration, the Committee, in exercising its jurisdiction under s. 31(3) of the Act, was entitled to take a "wait and see" position in order to determine whether the remediation was or was not successful. In my view, to proceed in any other way than it did, the panel of the Committee would not have been fulfilling its statutory duty under s. 3(3) of the Act, namely, to serve and protect the public interest. Surely, an ounce of prevention is still worth more than a pound of cure.

[33] In my view, there was ample evidence upon which the Committee was able to come to the conclusions that it reached. On several occasions this morning during his submissions, counsel for the appellant submitted that the panel of the Fitness to Practise Committee has no particular expertise. I beg to differ. The panel was composed of three females. Two of the three members of the panel were educators. Those members would know firsthand what takes place in a class-room, in the corridors of a school, about "boundaries" and the violation of "boundaries".

[34] The Supreme Court of Canada in Pezim v. British Columbia Securities Commission et al. (1998), 1994 103 (SCC), 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1; 114 D.L.R.(4th) 385 (S.C.C.), at p. 406 per Iacobucci, J., said:

"Consequently, even where there is no privative clause and where there is a statutory right of appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal's expertise."

[35] In Milstein v. College of Pharmacy (Ont.) (1976), 1976 858 (ON SC), 13 O.R.(2d) 700 (Div. Ct.), at p. 701, Corey, J., in giving the majority judgment of the Divisional Court, said:

"The power of self-discipline perpetuated in the enabling legislation must be based on the principle that members of the profession are uniquely and best qualified to establish the standards of professional conduct. Members of the profession can best determine whether the conduct of a fellow member has fallen below the requisite standards and determine the consequences. The peers of a professional person are deemed to have and, indeed, they must have special knowledge, training and skill that particularly adapts them to formulate their own professional standards and to judge the conduct of a member of their profession. No other body could appreciate as well the problems and the frustrations that beset a fellow member."

[36] The Committee's disposition balanced the rights of the appellant and the public interest. The Committee's disposition did not violate any of the appellant's rights under either the Ontario Human Rights Code or under the Charter of Rights.

[37] Whatever standard of review may be applicable, we are of the view that the panel was correct in its disposition of this matter.

[38] After consulting with my colleagues, I have endorsed the back of the Appeal Book as follows;

"This appeal is dismissed for the oral reasons given for the court by O'Driscoll, J. In view of all of the circumstances, there will be no order as to costs."

Appeal dismissed.