Kalin v. Ontario College of Teachers, 2005 ONSCDC 18286

Kalin v. Ontario College of Teachers [Indexed as: Kalin v. Ontario College of Teachers]

75 O.R. (3d) 523

[2005] O.J. No. 2097

Court File No. 195/03

Ontario Superior Court of Justice

Divisional Court

Lane, Howden and Molloy JJ.

May 24, 2005

Administrative law -- Boards and tribunals -- Evidence -- Teacher found guilty of professional misconduct as result of alleged sexual [page524] contact with former student -- Teacher acquitted of charges of sexual assault and sexual interference arising out of same allegations -- Teacher not having testified at criminal trial and defence counsel having made tactical decision not to question student's claim that sexual contact took place -- Discipline committee admitting transcript of student's testimony at criminal trial and trial judge's reasons -- Committee making decision in absence of viva voce evidence of student or teacher -- Committee erring in giving any weight to trial judge's finding of fact that alleged incidents occurred -- Decision quashed.

Administrative law -- Boards and tribunals -- Sufficiency of reasons -- Discipline committee not giving reasons for interlocutory rulings or for final decision finding teacher guilty of professional misconduct -- Tribunal merely summarizing positions of parties and baldly stating its conclusions -- Failure to provide meaningful reasons constituting breach of principles of natural justice -- Decision quashed.

Administrative law -- Natural justice -- Adjournment -- Discipline committee arbitrarily refusing to accommodate applicant's absence from country in setting date for hearing and arbitrarily denying applicant's request for adjournment so that he could attend hearing -- Applicant denied natural justice -- Decision finding applicant guilty of professional misconduct being quashed.

Professions -- Teachers -- Professional discipline -- Retroactivity and retrospectivity -- Teacher found guilty under 1997 Regulation of professional misconduct in respect of conduct which allegedly occurred in 1991 -- Application of 1997 Regulation to 1991 conduct offending rule against retrospective application of legislation -- Decision quashed.

The applicant teacher allegedly had inappropriate sexual contact with R, a 17-year-old former student, in 1991. He was charged with sexual assault and sexual exploitation. He did not testify at his criminal trial, and his lawyer made the tactical decision not to challenge R's evidence as to whether the alleged incidents actually occurred. The defence strategy was directed towards the issue of consent (on the sexual assault charge) and the issue of whether the applicant was in a position of authority (on the exploitation charge). The applicant was acquitted.

R made a complaint about the applicant to the Ontario College of Teachers in 2000. In May 2002, the complaint was referred to the Discipline Committee. The Discipline Committee issued a Notice of Hearing alleging that the applicant was guilty of professional misconduct. When counsel attended before the Chair of the Discipline Committee in November 2002 to set a date for the hearing, counsel for the College asked for the first available date, which was in January 2003. Counsel for the applicant advised that the applicant was in Asia but would be returning in July for five weeks and asked that the hearing be scheduled for July so that the applicant could be present. The Board Chair set the hearing for January 20, 2003.

In the week prior to the hearing, R indicated that he did not wish to testify and stated that his testimony at the criminal trial was accurate and that he had nothing to add to it. At the opening of the hearing, counsel for the applicant requested an adjournment to July 2003 so that the applicant could be present. He indicated that the applicant denied R's allegations and wished to testify. The request for an adjournment was denied. No viva voce evidence was called at the hearing. The Discipline Committee relied entirely on the transcript of R's testimony at the [page525] criminal trial and the findings of the trial judge. Counsel for the College submitted that the applicant's defence at his criminal trial was "technical" and that it would be appropriate for the Tribunal to draw an adverse inference from the fact that the applicant did not challenge R's evidence at the criminal trial that the sexual contact took place. The Tribunal found the applicant guilty of professional misconduct. The regulation under which the applicant was charged and found guilty was first enacted in 1997. The Tribunal accepted the submissions of counsel for the College that the applicant could be found guilty of breaching a regulation that did not exist at the time of the alleged conduct. The Tribunal revoked the applicant's Certificate of Qualifications and Registration. The applicant brought an application for judicial review of that decision.

Held, the application should be granted.

A Tribunal is entitled to control its own processes and is not obliged to grant an adjournment merely to accommodate the convenience of a party. However, in exercising its discretion as to whether to grant an adjournment, a Tribunal is not permitted to act arbitrarily. The Tribunal in this case acted arbitrarily in scheduling the hearing for January and then in refusing to grant an adjournment to July. The Tribunal failed to consider relevant factors and breached its duty to act fairly and in accordance with natural justice. The relevant factors included the following. The charges against the applicant were serious. He had co-operated with the College from the time the complaint was first filed. He maintained his innocence and asserted a desire to testify in his own defence. It was clear that he was out of the country. Nearly 14 years had passed since he had last been R's teacher; nearly 12 years had passed since the date of the alleged incident giving rise to the complaint; five years had passed since R first disclosed the incident to any authority; and just over two years had passed since the applicant had been tried and acquitted on the criminal charges relating to the same incident and since R had filed his complaint with the College. Five years had passed since the applicant last taught in any school in Ontario. He was no longer living in Canada. No other witness was going to testify at the hearing. In this context, it was hard to imagine what prejudice there could be to the College, or to the general public or students in Ontario, if an adjournment of five or six months was granted in order to permit the applicant to defend himself on the charges. The denial of natural justice and fairness was a sufficient basis, in and of itself, to set aside the Tribunal's decision and order that any re-hearing be conducted by a differently constituted panel.

It was open to the Tribunal to accept in evidence the transcript of testimony given at the criminal trial in lieu of having a witness provide viva voce evidence before the Tribunal. However, the tribunal was obliged to consider all the relevant circumstances before deciding to do so. Credibility was obviously a critical factor in this case. The difficulty in weighing the credibility of the applicant and R was a factor supporting viva voce testimony. Since R was not cross-examined at trial on whether the alleged incidents occurred, there was prejudice to the applicant in admitting the transcript rather than requiring R to testify. The seriousness of the consequences to the applicant was another factor supporting the defence position that the transcript should not be admitted. The evidence in support of R's claim that there were health reasons which prevented him from testifying was extremely vague and unsupported by any medical opinion. The tribunal did not appear to have taken into account the factors supporting the defence position that the transcript ought not to be admitted. This was a serious error affecting the right to procedural fairness and natural justice.

It was also open to the tribunal to admit the trial judge's reasons for dismissing the criminal charges. However, counsel for the College sought to rely on factual [page526] findings made by the trial judge not with respect to the issues of authority or consent which were central to his decision, but rather as to whether the acts alleged by R actually occurred. This was problematic as those findings were not essential to the trial judge's decision and were therefore obiter, and as they were based on unchallenged testimony. The submission of counsel for the College that the applicant put on a "technical defence" to the charge of sexual assault was incorrect. The defence of consent, or honest but mistaken belief in consent, is not a technical defence but rather a defence going to the very heart of an essential element of the offence charged. In addition, it would have been a serious error for the tribunal to have accepted the submission of counsel for the College that it would be appropriate to draw an adverse inference from the fact that the applicant did not challenge R's evidence at the criminal trial. An accused at a criminal trial is protected by the presumption of innocence and is not required to testify in his own defence. No adverse inference can be drawn from this, particularly where the accused was acquitted on all charges. In the absence of any reasons from the tribunal as to why it chose to exercise its discretion to admit the factual findings of the trial judge, the fact that such incorrect and potentially prejudicial submissions were made was problematic. It was clear that the tribunal relied upon the trial judge's findings of fact that the incidents alleged by R had occurred in coming to its ultimate decision on the merits. Given the circumstances in which those remarks were made by the trial judge and the nature of the evidence before him, it was not safe to rely on those conclusions for other purposes.

The Committee gave no reasons for any of its interlocutory rulings, for its finding that the applicant was guilty of professional misconduct, or for the penalty which it imposed. The governing legislation provides for a right of appeal from decisions of a discipline committee of the College. Without reasons for a tribunal's decision, there is no meaningful right of appeal and the intention of the legislature will have been thwarted. It was not sufficient for the tribunal to simply summarize the position of the parties and baldly state its conclusions. The failure to provide meaningful reasons supporting its decision was itself a breach of the principles of natural justice that warranted quashing the tribunal's decision.

The application of a regulation which came into force in 1997 to allegations of conduct which was alleged to have occurred in 1991 was improper because it offended the rule against retrospective application of legislation. If the College were to proceed with a complaint against the applicant, the procedures under the current legislation would apply, but the applicant should be charged under the regulations in place at the time of the alleged conduct, and the College was required to consider his conduct in the context of what would have constituted professional misconduct at the time of his alleged acts.

APPLICATION for judicial review of a decision of a discipline committee.

Bhadauria v. Ontario College of Teachers, 2004 16867 (ON SCDC), [2004] O.J. No. 2468, 187 O.A.C. 296 (Div. Ct.), consd Other cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22; Benner v. Canada (Secretary of State), 1997 376 (SCC), [1997] 1 S.C.R. 358, [1997] S.C.J. No. 26, 143 D.L.R. (4th) 577, 208 N.R. 81, 42 C.R.R. (2d) 1; Brosseau v. Alberta Securities Commission, 1989 121 (SCC), [1989] 1 S.C.R. 301, [1989] S.C.J. No. 15, 65 Alta. L.R. (2d) 97, 57 D.L.R. (4th) 458, 93 N.R. 1, [1989] 3 W.W.R. 456, 47 C.R.R. 394n (sub nom. Barry and Alberta Securities Commission (Re)); Cressman v. Ontario College of Teachers, 2005 1406 (ON SCDC), [2005] O.J. No. 565, 194 O.A.C. 262, 249 D.L.R. (4th) 749 (Div. Ct.); Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18, 223 D.L.R. (4th) 599, 302 N.R. 34, [2003] 5 W.W.R. 1, 2003 SCC 19, 11 B.C.L.R. (4th) 1; [page527] Flamboro Downs Holdings Ltd. and Teamsters Local 879 (Re) (1979), 1979 1669 (ON SC), 24 O.R. (2d) 400, 99 D.L.R. (3d) 165 (Div. Ct.); [ cf2]Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 169 O.A.C. 62 (Div. Ct.); Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, [2002] O.J. No. 1531, 212 D.L.R. (4th) 353 (C.A.); Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, 1975 4 (SCC), [1977] 1 S.C.R. 271, 66 D.L.R. (3d) 449, 7 N.R. 401, [1976] C.T.C. 1, 75 D.T.C. 5451; Henderson v. College of Physicians and Surgeons of Ontario (2003), 2003 10566 (ON CA), 65 O.R. (3d) 146, [2003] O.J. No. 2213, 228 D.L.R. (4th) 598 (C.A.); Kooner v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 4233 (C.A.), affg [2002] O.J. No. 5198 (Div. Ct.); Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 257 N.B.R. (2d) 207, 223 D.L.R. (4th) 577, 302 N.R. 1, 674 A.P.R. 207, 2003 SCC 20, 31 C.P.C. (5th) 1; Markson v. Ontario College of Teachers, [2003] O.J. No. 278, 186 O.A.C. 339 (Div. Ct.); Megens v. Ontario Racing Commission ( cf2003), 2003 26509 (ON SCDC), 64 O.R. (3d) 142, [2003] O.J. No. 1459, 225 D.L.R. (4th) 757 (Div. Ct.), supp. reasons [2003] O.J. No. 3562 (Div. Ct.); Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, [2002] S.C.J. No. 9, 245 N.B.R. (2d) 201, 209 D.L.R. (4th) 1, 636 A.P.R. 201, 2002 SCC 11; Ontario College of Teachers v. Webb, [2004] O.J. No. 1134 (Div. Ct.); Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560, [1989] S.C.J. No. 25, 57 D.L.R. (4th) 663, 93 N.R. 81, [1989] 3 W.W.R. 289 (sub nom. Prassad v. Minister of Employment and Immigration); Richmond Square Development Corp. v. Middlesex Condominium Corp. No. 134, 1993 9380 (ON SCDC), [1993] O.J. No. 997, 103 D.L.R. (4th) 437 (Div. Ct.); Royal Canadian Mounted Police Act (Re), 1990 13011 (FCA), [1990] F.C.J. No. 1133, [1991] 1 F.C. 529, 123 N.R. 120 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46 Ontario College of Teachers Act, 1996, S.O. 1996, c. 12, s. 30(2) Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 Rules and regulations referred to O. Reg. 437/97 ("Ontario College of Teachers Act, 1996"), ss. 1(5), (7), (14), (15), (18), (19) Authorities referred to Dreidger, E.A., "Statutes: Retroactive Retrospective Reflections" (1978) 56 Can. Bar Rev. 264

Howard Borenstein, for appellant. Carole Jenkins and David Leonard, for respondent.

The judgment of the court was delivered by

MOLLOY J.: --

A. The Appeal

[1] This is an appeal from a decision of the Discipline Committee of the Ontario College of Teachers dated February 27, 2003. [page528] The appellant, Myer William Kalin, was a member of the Ontario College of Teachers (the "College") and had been a high school teacher in Ontario for 30 years. The Discipline Committee found Mr. Kalin guilty of professional misconduct contrary to certain provisions of the Professional Misconduct Regulations and revoked his Certificate of Qualifications and Registration. The allegations against Mr. Kalin involve sexual impropriety with a former student ("RH") in July 1991.

[2] The January 2003 hearing before the Discipline Committee (the "Tribunal") proceeded in Mr. Kalin's absence. At the time, Mr. Kalin was teaching in Asia. Mr. Kalin had requested a July 2003 hearing date, but the Tribunal refused. Mr. Kalin's counsel subsequently requested an adjournment of the January 2003 hearing date, which was also refused. Mr. Kalin submits this is a breach of natural justice and fairness.

[3] No viva voce evidence was called at the hearing. The factual determinations made by the Committee were based entirely on the transcript of the testimony of RH at a criminal trial on two charges involving the same allegations against Mr. Kalin and on the findings of the trial judge made at that trial. Mr. Kalin did not testify at the criminal trial. He was acquitted on the sexual assault charge against him because the trial judge had a reasonable doubt as to whether RH consented to the conduct alleged or whether Mr. Kalin may have had an honest but mistaken belief in that consent. Mr. Kalin was acquitted on the sexual exploitation charge because the trial judge was not satisfied beyond a reasonable doubt that he was a person in authority in relation to RH at the time of the alleged incident. The appellant submits that the Tribunal failed to properly consider the material from the criminal trial and drew improper inferences from the evidence and the comments of the trial judge. The appellant further submits that the Tribunal erred in fact and law because there was insufficient evidence to support the finding of misconduct.

[4] The Regulation under which Mr. Kalin was charged and found guilty of professional misconduct was first enacted in 1997. The alleged incident giving rise to the charges occurred in 1991. The appellant submits the Tribunal erred in law by giving retrospective effect to the 1997 Regulations, which did not exist at the time of the alleged misconduct.

[5] Finally, the appellant submits that the Tribunal simply adopted every submission of the prosecution, with little or no reasons provided, and that this excessive favouring of the prosecution gives rise to a reasonable apprehension of bias.

[6] At the conclusion of argument we advised counsel that the appeal would be allowed, with written reasons to follow. It is not [page529] necessary to deal with each and every basis upon which we would have set aside the Tribunal's decision in this case. We are of the view that the Tribunal breached principles of natural justice and fairness in scheduling the hearing when it did and refusing an adjournment. That would be sufficient to dispose of the appeal. However, we are of the view that the Tribunal does have jurisdiction to hear a complaint against Mr. Kalin in respect of the 1991 allegations. Because there is likely to be a new hearing, it is necessary to deal with some of the issues raised in the appeal for the guidance of the next committee hearing the matter. These reasons will therefore also address retrospectivity, sufficiency of reasons, and problems with respect to the use of the criminal trial proceedings. The sufficiency of the evidence will not otherwise be addressed and we do not find it necessary to deal with the allegation of reasonable apprehension of bias.

B. Standard of Review

[7] Even where there is a statutory right of appeal and no privative clause, the disciplinary bodies of self-governing professions are entitled to considerable deference: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 223 D.L.R. (4th) 577; Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, [2003] S.C.J. No. 18. This is particularly the case on issues within the Tribunal's core area of expertise, such as whether particular acts amount to professional misconduct and the appropriate penalty for misconduct. On such issues, this court has held that the appropriate standard of review for the discipline Tribunal of the College is that of reasonableness: Markson v. Ontario College of Teachers, [2003] O.J. No. 278, 186 O.A.C. 339 (Div. Ct.); Ontario College of Teachers v. Webb, [2004] O.J. No. 1134 (Div. Ct.).

[8] In matters outside the expertise of the Tribunal, and in particular where the expertise of the court is greater than that of the Tribunal, the Tribunal is required to be correct: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, [2002] S.C.J. No. 9, 209 D.L.R. (4th) 1, at para. 61. In this case, the correctness standard would apply to pure questions of law such as whether the statute has retrospective application, inferences that may reasonably be drawn from the failure of an accused to testify at a criminal trial or to challenge particular aspects of a witness' testimony and the applicability of findings of fact made by the judge at a criminal trial to the issues of professional misconduct before the Tribunal.

[9] Every Tribunal is entitled to control its own procedure and will be accorded deference on matters requiring an exercise of [page530] discretion, such as matters of scheduling or adjournment requests. However, where there has been a breach of natural justice or procedural unfairness, it is not necessary to engage in an analysis of the appropriate standard of review. Decisions which do not comply with the rules of procedural fairness and natural justice cannot stand: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193; Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 169 O.A.C. 62 (Div. Ct.).

C. Background Facts

[10] Mr. Kalin had been a math teacher for a number of years at a high school in the Ottawa area. In the school year 1988/ 1989, RH was in Mr. Kalin's Grade 10 math class. RH was good in math and he and Mr. Kalin got along well. RH was not in Canada for the next academic year, but returned for Grade 12 for the year 1990/1991. He was not in any of Mr. Kalin's classes that year, but spoke to him on occasion. Nothing improper is alleged during that school year. The incident alleged by RH occurred in Mr. Kalin's home during the summer, after school was finished for the year. RH was 17 years old at the time. Although RH would be returning to the same school in September for Grade 13, Mr. Kalin would not, as he was moving to a different school.

[11] The first time RH complained of any improper conduct by Mr. Kalin was in 1998. At that time he reported to police that while he was at Mr. Kalin's home in July 1991 to practice a sales pitch for a summer job selling knives, Mr. Kalin took him to the basement, showed him pornographic images on the television, touched his genitals and performed fellatio on him.

[12] Mr. Kalin was charged criminally with sexual assault and sexual exploitation. He pleaded not guilty and was tried by the Honourable Mr. Justice Roy (sitting without a jury) in December 2000. RH testified at the trial. Mr. Kalin elected not to testify. On cross-examination, defence counsel did not challenge RH's evidence as to whether the incidents alleged actually occurred. The defence strategy was directed towards the issue of consent (on the sexual assault charge) and whether Mr. Kalin was in a position of authority (on the exploitation charge). However, there was no admission by the defence that the events described by RH occurred.

[13] Roy J. acquitted Mr. Kalin on both charges. With respect to the charge of sexual assault, Roy J. had a reasonable doubt as to whether RH consented to the conduct alleged and also was concerned, even if RH did not consent, that Mr. Kalin may have had an honest although mistaken belief that there was consent. Roy J. [page531] held (at p. 8 of the transcript of his reasons), "The victim himself testified that an observer could well conclude, in observing what was going on, that he was consenting."

[14] On the sexual exploitation charge, the trial judge noted that the incident was alleged to have occurred in the summer of 1991, two years after RH had been a student in Mr. Kalin's class. Further, in the following year, they would not even be in the same school. He therefore concluded that he could not be satisfied beyond a reasonable doubt that Mr. Kalin was in a position of authority over RH at the time of the alleged sexual contact, which is an essential element of the sexual exploitation offence.

[15] At about the same time as the criminal trial was proceeding, in November or December of 2000, RH made a complaint about Mr. Kalin to the Ontario College of Teachers. Mr. Kalin had been teaching in Ontario up until the fall of 1998, but had taken a one-month leave of absence, and then retired as a teacher with the school board in November 1998. However, he remained a member in good standing of the College up until the Order of the Discipline Committee which is the subject of this appeal. The complaint to the College related to the same allegations as were the subject of the criminal proceedings.

[16] Following the filing of the complaint in November 2000, an investigation was conducted by the College. However, it was not until May 2002 that the complaint was referred to the Discipline Committee. The Discipline Committee issued a Notice of Hearing on May 24, 2002, alleging Mr. Kalin was guilty of professional misconduct as defined in s. 30(2) of the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12. Under the Act, discipline hearings proceed before a three-person Tribunal.

D. Scheduling and Adjournment

Scheduling the hearing for January 2003

[17] The Notice of Hearing set June 3, 2002 as an initial appearance date for the discipline proceeding, which was stipulated to be for the purposes of setting a hearing date. Prior to the issuance of the Notice, the College Investigator had been dealing with Mr. Shore, who had been Mr. Kalin's lawyer on the criminal charges. Mr. Shore advised the College that Mr. Kalin was in Asia and agreed to facilitate service on Mr. Kalin by accepting service on his behalf. He further advised at that time that he would agree to a hearing date in October 2002, but that this was tentative as he had not yet been retained to act on the hearing and it was possible Mr. Kalin would be retaining new counsel. It should be noted at this point that Mr. Shore's office is in Ottawa [page532] and that the discipline hearing would be proceeding in Toronto. Finally, Mr. Shore advised that he, himself, would be away from his office until after Labour Day.

[18] Sometime between June and October, Mr. Bornstein was retained to represent Mr. Kalin at the discipline hearing. He advised counsel for the College that Mr. Kalin was in Asia and asked for an adjournment of the October hearing date. On consent, the matter was adjourned to November 6, 2002 to set a hearing date.

[19] On November 6, 2002, Mr. Bornstein (for Mr. Kalin) and Ms. Jenkins (for the College) attended before the Chair of the Discipline Committee to set a date for the hearing. Ms. Jenkins asked for the next available hearing date, which was January 20-22, 2003. Mr. Bornstein advised that Mr. Kalin was in Asia, but would be returning in July for five weeks and asked that the hearing be scheduled then so that Mr. Kalin could be present. Ms. Jenkins advised that the complaint involved "serious allegations" without stating what they were. She stated that the College "was not in the habit of accommodating the travel plans of their members" and submitted that in the absence of evidence that either the expense of travel or loss of employment were an issue, the January dates should be set.

[20] The Board Chair set the hearing for January 20, 2003. Her entire stated reasons for doing so were:

I have to say that I agree with the prosecution. I don't know what the allegations are. I am taking her word that they are serious and I agree that they have to be dealt with.

Refusing to adjourn the January 2003 hearing date

[21] In the week prior to the January 20 hearing date, Mr. Bornstein again advised counsel for the College that Mr. Kalin was in Asia and not able to attend the hearing in January. He further advised that he would be requesting the Tribunal to adjourn the January hearing to July. Mr. Bornstein provided a letter from Mr. Kalin in which he stated that he denied, and had always denied, any sexual contact with RH, whether consensual or nonconsensual. He pointed out that although he did not testify at his criminal trial, he did not admit sexual contact with RH, and that he had been acquitted of the criminal charges. He stated, "I wish to testify at my disciplinary hearing to deny these allegations." He said he would be out of the country until the last week of June 2003.

[22] In that same week, a law clerk employed by the College's legal counsel contacted RH (who was living in British Columbia) [page533] for the purpose of preparing for the hearing. RH advised the law clerk that he did not wish to testify, citing health and job-related reasons. He confirmed that he had the transcripts of his evidence given at the criminal trial in October 2000, that his testimony then was accurate and that he had nothing to add or change.

[23] Ms. Jenkins, for the College, refused to consent to the adjournment requested by counsel for Mr. Kalin. She further advised that the College proposed to proceed without viva voce evidence from RH and would be seeking instead to admit his transcript from the criminal trial.

[24] The College filed an affidavit of the law clerk who had spoken to RH. No direct evidence from RH was provided. On this point, the law clerk's affidavit states:

R. H. advised that he cannot attend the hearing of this matter, scheduled to commence on Monday, January 20, 2003, for the following reasons:

(a) he has been experiencing serious physical and emotional health problems and was recently confined to hospital;

(b) he fears that the emotional stress of reliving the events at issue will negatively affect his physical and emotional well-being; and

(c) he commenced his current employment two months ago. This is a particularly stressful and busy time as it is year end from an accounting/tax perspective, as well as the company's year end.

[25] Ms. Jenkins (for the College) and Mr. Bornstein (for Mr. Kalin) attended on January 20, 2003, before the Tribunal, which was comprised of Sterling Campbell (Chair), Sheila Gifford (Member) and Janet Cornwall (Member, and the person who had initially fixed the January 20, 2003 hearing date). The Tribunal also had the assistance of its own independent counsel, Mr. Brian Gover.

[26] At the opening of the hearing, Mr. Bornstein requested an adjournment of the hearing to July 2003. He advised the Tribunal that Mr. Kalin was in Asia and unable to attend in January, but would be returning at the end of June. He informed the Tribunal that Mr. Kalin wished to be present, that he denied the allegations of RH, and that he wished to testify before the Tribunal to that effect. He pointed out the prejudice to Mr. Kalin if the College proceeded based on a "paper record", as there would be no opportunity to cross-examine the complainant and no opportunity to call any other evidence to rebut the evidence provided by the complainant at the criminal trial.

[27] Ms. Jenkins resisted the adjournment on behalf of the College. She submitted that there was nothing before the Tribunal that had not been before Ms. Cornwall when the January 2003 date was set. She pointed out that Mr. Kalin had received six weeks notice of the hearing date and yet there was no evidence as [page534] to what Mr. Kalin was doing in Asia, whether his employment would be affected by attending the hearing in January or otherwise why he could not attend. She objected to an adjournment for the purpose of accommodating Mr. Kalin's travel plans. She noted the seriousness of the allegations and submitted that the hearing should proceed expeditiously.

[28] In response to questioning from the Tribunal, Mr. Bornstein advised that Mr. Kalin was working as a teacher in Asia, that his travel plans were not vacation plans and that he believed he had contractual obligations in Asia that did not permit him to leave.

[29] After a brief recess, the Tribunal rejected the adjournment request. The reasons provided state, in their entirety:

The Committee is satisfied that the notice of hearing was properly served and allowed sufficient time for the Member to make arrangements to be present, and therefore, the motion by the defence for an adjournment is denied.

Analysis (natural justice and fairness)

[30] Matters such as scheduling and deciding whether or not to grant an adjournment involve an exercise of discretion. Generally speaking, decisions made in the exercise of discretion are entitled to considerable deference, provided the discretion is exercised judicially and in accordance with principles of fairness and natural justice: Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560, [1989] S.C.J. No. 25, at para. 18; Baker, supra, at para. 53.

[31] A Tribunal is entitled to control its own processes and is not obliged to grant an adjournment merely to accommodate the "convenience" of a party: Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 (1979), 1979 1669 (ON SC), 24 O.R. (2d) 400, 99 D.L.R. (3d) 165 (Div. Ct.). However, in exercising its discretion as to whether to grant an adjournment, a Tribunal is not permitted to act arbitrarily. The Tribunal may take into account the public interest and the interest of the Tribunal itself in having matters move expeditiously. But, it must take into account all of the relevant factors, including the reasons for the request and the implications of not granting the request and whether the public interest may be adequately protected by alternate means: Re Flamboro Downs, supra; Richmond Square Development Corp. v. Middlesex Condominium Corp. No. 134, 1993 9380 (ON SCDC), [1993] O.J. No. 997, 103 D.L.R. (4th) 437 (Div. Ct.); Kooner v. College of Physicians and Surgeons of Ontario, [2002] O.J. No. 5198 (Div. Ct.) , affd [2003] O.J. No. 4233 (C.A.).

[32] In my opinion, the Tribunal in this case acted arbitrarily both with respect to the scheduling of the hearing for January and then in refusing to adjourn the January hearing date. The [page535] Tribunal failed to consider relevant factors and breached its duty to act fairly and in accordance with natural justice.

[33] The charges against Mr. Kalin are serious. He is accused of sexual misconduct. He has previously enjoyed an exemplary record as a teacher with 30 years of service. The implications of the disciplinary proceeding for him, personally and professionally, are extreme. He co-operated with the College from the time the complaint was first filed, retained counsel and facilitated service of the Notice by instructing his counsel to accept service on his behalf. He maintained his innocence of the charges, asserted that there had been no sexual contact whatsoever with the complainant, and stated his wish to testify in his own defence. Further, it is clear that Mr. Kalin was in fact out of the country. These are factors which the Tribunal ought to have taken into account.

[34] Little weight can be placed on the originally scheduled hearing date for October as counsel stipulated it was a tentative date and that Mr. Kalin would likely be retaining other counsel. The November attendance to schedule a hearing date was really the first appearance on the charges. At that first appearance in November, I can see no reasonable basis for the Tribunal's insistence that the hearing proceed at the earliest available date, which was in January 2003. The Tribunal Chair knew Mr. Kalin was in Asia and would not be returning to Canada until the end of June 2003, although she did not know at that time what Mr. Kalin was doing in Asia. The Chair made no attempt to accommodate the defence request to schedule the hearing when Mr. Kalin would be back in Canada and does not even appear to have considered it. Indeed, she stated on the record that she did not even know what the charges were, but that she took the word of counsel for the College that they were serious and had to be dealt with. There was no consideration of any implications of a five- to six-month delay in the commencement of the hearing. Her decision would appear to be completely arbitrary.

[35] I am also of the view that the decision of the three-member Tribunal refusing the adjournment request in January 2003 was arbitrary, unreasonable and a breach of natural justice and fairness. By that time, the Tribunal knew the nature of the charges, had been advised that Mr. Kalin was teaching in Asia and could not attend in January and knew that the complainant also would not be testifying in person. Since there would therefore be no opportunity to cross-examine the complainant, there would essentially be no defence at all in the absence of Mr. Kalin. Continuing with the hearing in those circumstances was obviously going to be very prejudicial to Mr. Kalin.

[36] The Reasons of the Tribunal for refusing the adjournment are sparse. The Tribunal simply stated that Mr. Kalin had six [page536] weeks notice of the hearing date and should have been able to make arrangements to attend. The Tribunal does not appear to have considered the extreme prejudice to Mr. Kalin if the hearing proceeded in these circumstances, nor did it appear to understand or consider the implications of the fact that the complainant would not be there either, with the result that there could be no cross-examination. The Tribunal did not refer to any factor to support the College's position that the hearing should proceed in Mr. Kalin's absence.

[37] In particular, the Tribunal did not appear to have been concerned about the implications of any further delay, nor about any concerns for the public interest or safety of students. In this regard, it must be noted that, at the time the Tribunal was considering the issue of a five- or six-month adjournment in January 2003:

-- nearly 14 years had passed since Mr. Kalin had last been RH's teacher;

-- nearly 12 years had passed since the date of the alleged incident giving rise to the complaint;

-- five years had passed since RH first disclosed the incident to any authority;

-- just over two years had passed since Mr. Kalin had been tried and acquitted on the criminal charges relating to the same incident;

-- just over two years had passed since RH filed his complaint with the College;

-- five years had passed since Mr. Kalin last taught in any school in Ontario;

-- Mr. Kalin was no longer living in Canada;

-- no other witness was going to testify at the hearing.

[38] In this context it is hard to imagine what prejudice there could be to the College, or to the general public or students in Ontario, if an adjournment of five or six months was granted in order to permit Mr. Kalin to defend himself on these charges. Even if there was some threat to safety, it surely could have been addressed by imposing some sort of restrictions during the period of the adjournment. The complaint was lodged with the College in the fall of 2000. The criminal trial was completed in December 2000. The College did not refer the matter to the Discipline Committee [page537] until the end of May 2002. Against this background, I have difficulty understanding the rigid position taken with respect to the adjournment requested by the defence, particularly given the degree of prejudice to Mr. Kalin if the hearing proceeded in his absence.

[39] It is a fundamental precept of our system of justice that an individual is entitled to be heard before a decision affecting his interest can be made against him. That does not mean that Tribunals must cater to the convenience of the parties at all costs. However, the interests of fairness must at least be addressed and seriously considered before a Tribunal embarks on a hearing with serious consequences for the person affected. The Tribunal in this case did not weigh the interests of justice and fairness in the balance before electing to proceed with the hearing. Mr. Kalin has been denied natural justice and fairness. This is a sufficient basis, in and of itself, to set aside the Tribunal's decision and order that any re-hearing be conducted by a panel differently constituted.

E. The Criminal Trial Transcript and Judge's Findings

[40] As the College has indicated it intends to proceed with a new hearing against Mr. Kalin, it is important to address issues decided by the prior Tribunal which raise problems. One such issue is the use made by the Tribunal of the transcripts of the criminal trial and the findings of fact by the trial judge. The Tribunal in this case admitted into evidence the transcript of the testimony of RH at the criminal trial and also the Reasons of Mr. Justice Roy for his decision acquitting Mr. Kalin on all charges.

[41] The Tribunal is entitled under its own Rules of Procedure and under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, to accept in evidence a transcript of testimony given elsewhere, in lieu of having the witness provide viva voce evidence before the Tribunal. However, the Tribunal should consider all the relevant circumstances before determining it will do so. Relevant factors would include, for example, the nature of the proceedings, the seriousness of the charge, the nature of the evidence to be tendered, the reason for tendering the transcript rather than calling the witness, any hardship to the witness if required to testify in person, and any prejudice to the party subject to the complaint.

[42] In this case, credibility is obviously a critical factor. RH alleges a significant incident of sexual contact between him and Mr. Kalin, initiated by Mr. Kalin. Mr. Kalin denies there was any sexual contact at all. The difficulty in weighing the credibility of these two witnesses is a factor supporting viva voce testimony. At the criminal trial, counsel for Mr. Kalin did not cross-examine RH as to whether the conduct alleged had actually occurred. [page538] Given the nature of RH's evidence, counsel concentrated solely on the issue of consent. Indeed, the sexual assault charge was dismissed on that ground alone. This is another factor against permitting RH's testimony to be provided in written form only. It would not be sufficient on a complaint of professional misconduct for a teacher to merely establish a reasonable doubt as to whether the student consented to the conduct or whether he had a reasonable belief that the student had consented. Therefore, the evidence of RH as to the conduct alone might be sufficient to persuade a Tribunal that the complaint was substantiated. Since there was no cross-examination at trial on this issue, which is crucial to the misconduct allegation, there is prejudice to Mr. Kalin in admitting the transcript of the trial rather than requiring RH to testify. The consequences of a finding against Mr. Kalin are very serious. This is another factor supporting the defence position that the transcript should not be admitted.

[43] On the other hand, the incident described in the criminal trial is the very same incident that is the subject of the discipline proceeding, which supports its admissibility. The other factor supporting the prosecution's position is the hardship to the witness. Unfortunately, however, the evidence before the Tribunal as to that hardship was sparse. There was an affidavit of a law clerk indicating that RH told her he had recently been hospitalized for physical and mental health problems, that he believed the stress of testifying at the discipline proceeding would adversely affect his emotional well-being and he was busy at work. While these are certainly relevant factors to consider, it must also be noted that the busy time at work problem could have been accommodated by an adjournment (which had been requested by the defence in any event) and that the evidence with respect to the health issue was extremely vague and unsupported by any medical opinion.

[44] Having considered these factors, a Tribunal might well conclude that the interests of fairness and natural justice required viva voce testimony from RH. At a minimum, the Tribunal was required to weigh the competing factors before deciding to admit the evidence. However, the only reasons given by the Tribunal was the following oral ruling, at p. 51 of the transcript:

Based on the submissions, once again, of both counsel, under our Rules of Procedure, we will admit the evidence.

[45] I will deal later in these reasons with the overall problem of sufficiency of reasons. For present purposes, suffice to say that this statement does not constitute reasons; it is merely a ruling. It does not appear that the Tribunal took into account the factors supporting the defence position that the transcript ought not to [page539] be admitted. This is a serious error affecting the right to procedural fairness and natural justice.

[46] The error was compounded when it came time for the Tribunal to consider all of the evidence and determine what weight to give to it. Any error with respect to admissibility might possibly have been mitigated if the Tribunal had addressed the weaknesses in the transcript evidence in the course of coming to its ultimate conclusion. However, the Tribunal did not advert at all to the transcripts, apart from the general comment that it "accepts the evidence presented". The only findings of fact made by the Tribunal are set out in a list, which is simply a repetition, virtually word-for-word, of the allegations in the Notice of Hearing.

[47] In addition to admitting the transcript of the trial proceedings, the Tribunal accepted into evidence the reasons given by Roy J. for dismissing the criminal charges against Mr. Kalin. The Tribunal has a discretion to admit such evidence pursuant to rule 13.06(3) of its Rules of Procedure, which provides:

13.06(3) The Discipline Committee may, in its discretion, admit findings of fact, whether or not supportive of a finding of guilt, made in prior criminal, civil or administrative proceedings as proof, in the absence of evidence to the contrary, of the facts so found. In exercising its discretion under this sub-rule, the Discipline Committee shall have regard to such factors and circumstances as it considers relevant, including:

(a) the nature of the proceedings in which the findings were made;

(b) the significance of the findings to the ultimate determination in the proceedings in which the findings were made;

(c) whether the findings of fact were made on a balance of probabilities or beyond a reasonable doubt or otherwise;

(d) whether the party against whom the findings were made was a party to the proceedings in which they were made;

(e) whether the party against whom the findings were made had an opportunity to challenge the evidence upon which the findings were made;

(f) whether the party against whom the findings were made was motivated to challenge the evidence upon which those findings were made, or the findings themselves.

[48] As I have already discussed above, and as was pointed out to the Tribunal by counsel, a strategic decision was made at the criminal trial to focus on the issues of consent and whether Mr. Kalin was a person in authority. Therefore, although there was no admission that the acts alleged by RH had occurred, his evidence on those points was not challenged on cross-examination. The strategy proved to be an effective one, as Mr. Kalin's acquittal was based on those two issues. Counsel for the College sought [page540] to rely on factual findings made by Roy J., not with respect to the issues of authority or consent which were central to his decision, but rather as to whether the acts described by RH actually occurred. This is problematic as those findings were not essential to the decision of the trial judge and are therefore merely obiter. Also, they were based on unchallenged testimony.

[49] Rule 13.06(3) does not give the Tribunal blanket authority to admit every factual finding made by a different trier of fact. Rather, the Tribunal is given a discretion and directed to consider relevant factors and circumstances before exercising that discretion. The circumstances in which Roy J. made findings as to whether the events occurred is clearly a relevant factor the Tribunal was required to consider. The factors listed in subparas. (a) to (f) in the rule are not meant to be exhaustive. However, they do constitute a good checklist of factors that will likely be important to take into account in almost every case. In this case, it is particularly relevant to consider the motivation of the party to challenge the evidence upon which the findings were made. Mr. Kalin's defence counsel made a tactical decision not to completely attack the credibility of the complainant, but rather to concentrate on two key points which were weaknesses in the Crown's case and which were essential for the Crown to obtain a conviction. It was not necessary to attack the credibility of the complainant to achieve this, and it is not surprising therefore that the decision was made not to do so. Therefore, there was good reason for Mr. Kalin's defence counsel not to challenge the evidence as to whether the acts occurred. Further, since Mr. Kalin was acquitted at trial, there would be no purpose in challenging the findings of fact made by the trial judge with respect to whether the acts alleged occurred. This is a factor which the Tribunal ought to have considered before admitting the factual findings of the trial judge into evidence.

[50] After hearing submissions from counsel as to the admissibility of this evidence, the Tribunal ruled, at p. 45 of the transcript:

Now, based on the submissions of both counsel, the Committee rules that the evidence proposed by the prosecution shall be admitted. And Rules of Procedures (sic) of the College, specifically, Section 13.30, sub. 1, 13.06, sub. 3, allow the Committee to exercise its discretion to do so.

[51] Again, this is a conclusion, not reasons. It is not possible to determine whether the Tribunal addressed its mind to relevant factors affecting the admissibility of this evidence before it decided to admit it. This is particularly problematic because of some submissions made by counsel for the College. At p. 9 of the transcript, in the course of her submissions on the adjournment [page541] request, counsel for the College advised the Tribunal that Mr. Kalin had put on a "technical defence" at his criminal trial, rather than challenging whether the incident occurred. It is not correct to characterize the defence of consent, or honest but mistaken belief as to consent, as a "technical defence" on a criminal charge of sexual assault. This is not a technical defence. It is a defence which goes to the very heart of an essential element of the offence charged.

[52] In addition, counsel for the College submitted to the Tribunal that it would be appropriate for them to draw an adverse inference from the fact that the accused did not challenge this evidence at the criminal trial. It would have been a serious error for the Tribunal to have drawn such an inference. An accused at a criminal trial is protected by the presumption of innocence and is not required to testify in his own defence. No adverse inference can be drawn from this, particularly where the accused was acquitted on all charges. An accused is not required to raise a reasonable doubt as to every element of an offence charged. If there is a reasonable doubt about any essential element of an offence, an acquittal must be registered. Typically, what line of cross-examination to pursue and how to conduct the trial is a decision made by criminal trial counsel. It would be improper to draw an adverse inference of guilt against Mr. Kalin because his defence counsel at his criminal trial chose a strategic line of defence which ultimately proved to be successful.

[53] The mere fact that this submission was made does not mean, of course, that it was accepted by the Tribunal. I do note that one of the grounds raised by counsel for Mr. Kalin before us was bias on the part of the Tribunal as evidenced by the fact that the Tribunal accepted each and every argument advanced by the College. We have determined it is not necessary to deal with the issue of bias. However, for present purposes, in the absence of any reasons from the Tribunal as to why it chose to exercise its discretion to admit the factual findings of Roy J., the fact that such incorrect and potentially prejudicial submissions were made is problematic. It may well be the case that the Tribunal was influenced in its decision by such improper considerations.

[54] Finally, it is clear the Tribunal relied upon the decision of Roy J. in coming to its ultimate decision on the merits. In its written Reasons for Decision issued on February 27, 2003, the only evidence specifically referred to by the Tribunal are the conclusions of the trial judge. After setting out the allegations, the Tribunal stated (at p. 4 of the reasons):

Counsel for the College presented evidence that Myer William Kalin was the subject of proceedings in the Ontario Court of Justice and that he had been [page542] found not guilty but the Committee [Tribunal] gave weight to the Honourable Mr. Justice Roy's Reasons for Judgment (Exhibit 2) where he states on page 11; "There is no doubt as well on the evidence that there was sexual activity, touching, the act of fellatio was committed, and I think that evidence was uncontradicted and accepted."

[55] Further, at p. 5, under the heading "Reasons", the Tribunal simply says that it "accepts the evidence presented" and states that "the most compelling evidence was the statement that Mr. Justice Roy made on p. 11 of the Reasons", quoting the same excerpt set out above.

[56] It is clear the Tribunal placed heavy reliance on the finding of fact made by Roy J. that the incidents alleged by RH had occurred. Indeed, it would appear to be the single most persuasive piece of evidence considered by the Tribunal. Given the circumstances in which those remarks were made by the trial judge and the nature of the evidence before him, it is simply not safe to rely on those conclusions for other purposes. The trial judge's findings were based solely on the evidence before him. Whether the acts occurred was not a disputed issue and the reference relied upon was not essential to his decision. It was an error for the Tribunal to have given any weight to this factual finding. I would have found this factor to be sufficient to quash the Tribunal's decision, even in the absence of any other reason for doing so.

E. Sufficiency of Reasons

Introduction: The decisions made

[57] In the course of this brief hearing, the Tribunal made seven key decisions: (i) it scheduled the hearing for a date when it knew Mr. Kalin would be out of the country; (ii) it refused an adjournment requested by the defence; (iii) it admitted into evidence the transcript of the evidence at the criminal trial; (iv) it admitted into evidence the Reasons for Decision of Roy J. at the criminal trial; (v) it ruled as a question of law that Mr. Kalin could be prosecuted for breach of a regulation that did not exist at the time of the acts alleged; (vi) it found on the evidence that Mr. Kalin was guilty of professional misconduct; and (vii) it ordered as a penalty that Mr. Kalin's Certificate of Qualification and Registration be revoked and that its finding and Mr. Kalin's name be published in the College's official publication. The Tribunal gave no reasons for any of these decisions.

The law

[58] The governing legislation provides for a right of appeal from decisions of a discipline committee of the College. Without reasons [page543] for a Tribunal's decision, there is no meaningful right of appeal and the intention of the legislation will have been thwarted. It is not necessary that a Tribunal's reasons be expressed in writing, nor are the reasons required to be an exhaustive analysis of every relevant point. However, the Tribunal is required at a minimum to state the reasons for the conclusion it reached. The Supreme Court of Canada held in Baker, supra, at para. 43:

In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. ... It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.

[59] It is not sufficient for the Tribunal to simply summarize the positions of the parties and baldly state its conclusions. Reasons are required; not merely conclusions: Megens v. Ontario Racing Commission (2003), 2003 26509 (ON SCDC), 64 O.R. (3d) 142, [2003] O.J. No. 1459 (Div. Ct.). As was stated by the Ontario Court of Appeal in Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, [2002] O.J. No. 1531, 212 D.L.R. (4th) 353 (C.A.), at pp. 364-75 O.R., p. 364 D.L.R.:

The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.

[60] For a Tribunal such as this one, on issues of the importance involved here, the failure to provide meaningful reasons supporting its decision is itself a breach of the principles of natural justice that will warrant quashing the Tribunal's decision: Baker, supra; Megens v. Ontario Racing Commission, supra.

Scheduling and adjournment decisions

[61] With respect to its decisions regarding the scheduling of the hearing and the refusal of the adjournment request in January 2003, the Tribunal's reasons are set out in their entirety at paras. 20 and 29 above. These are not reasons. It is not sufficient for the Tribunal to merely state that it agrees with the submissions of one party without stating why. In this case, there is no indication that the Tribunal weighed the various pros and cons in the balance in reaching the conclusions it did. That is a breach of natural justice. [page544]

Rulings on evidence

[62] Detailed reasons are often not necessary for rulings on evidence made during the course of a hearing. However, where the evidentiary ruling is on a significant or contentious point, and particularly where it will have a substantial impact of the outcome of the hearing, fairness to the parties requires that reasons be provided. The Tribunal's rulings on the admissibility of the transcript of the complainant's evidence at the criminal trial and the Reasons of the trial judge following that trial are decisions which had a pivotal effect on the outcome of the proceeding. In both instances, the Tribunal merely stated its rulings without mentioning any of its reasoning in getting to those decisions. It is simply not possible to determine whether the Tribunal considered the relevant factors and decided for appropriate reasons to admit the evidence. It is possible that the Tribunal committed fundamental legal error in reaching the conclusions it did. Fairness to Mr. Kalin requires that he be able to test the Tribunal's reasoning on these crucial matters. In the absence of any meaningful reasons, he is unable to do so, nor are we. Given the significant nature of these rulings, the Tribunal's failure to provide any reasons whatsoever is a fundamental error and a breach of fairness to Mr. Kalin.

Legal ruling on retrospective effect of the legislation

[63] The issue of retrospective effect of the legislation was raised at the hearing by counsel for Mr. Kalin, who argued that Mr. Kalin could not be found guilty of breaching a regulation that came into force in 1997, based on conduct that occurred in 1991. The Tribunal requested written submissions on this difficult legal issue. Counsel for Mr. Kalin provided a written submission, citing relevant authorities. Counsel for the College responded with a written submission rebutting those submissions and also citing relevant authorities, to which counsel for Mr. Kalin provided a brief written reply. The Tribunal also had the benefit of a written submission from its own independent counsel, Mr. Gover, advising the Tribunal that in his opinion the current Regulations could not be applied retrospectively and Mr. Kalin could not be found in breach of them for conduct that took place before they were passed.

[64] The Tribunal communicated its decision by letter to counsel dated February 5, 2003 in which it stated it had reached a decision "after lengthy and thoughtful deliberations". However, none of its lengthy and thoughtful deliberations were disclosed. The only reasons provided were that the Tribunal "accepts the submissions and arguments presented by the Prosecution". A Tribunal is not obliged to accept the advice of its own counsel. Its [page545] decision must be its own, not that of its legal counsel. Therefore, it is not problematic that the Tribunal reached a conclusion different from the advice it received. However, the Tribunal is required to set out its own reasons for adopting the position it did. It is simply not sufficient for the Tribunal to state that it agrees with the Prosecution.

Final decision on the merits and penalty

[65] At the conclusion of the hearing on February 26, 2003, the Tribunal recessed for approximately half an hour and then stated orally that it found Mr. Kalin guilty of professional misconduct under O. Reg. 437/97, ss. 1(5), (7), (14), (15), (18) and (19) and ordered that his Certificate of Qualification and Registration be revoked immediately. The Tribunal then stated it would provide written reasons at a later date. There is no problem with proceeding in this manner provided the Tribunal is fully confident of its decision on the merits and the appropriate penalty. The Tribunal's six-page written reasons were released the next day, February 27, 2003.

[66] These reasons are more extensive than the reasons given for any of the Tribunal's other decisions. However, they are nevertheless woefully inadequate. The first two and one-half pages merely set out the particulars of the parties and the charges against Mr. Kalin. At pp. 3-4, under the heading "Evidence", the Tribunal essentially merely lists the allegations set out in the Notice of Hearing. Allegations are, of course, not evidence. However, the Tribunal does conclude this section with a reference to some evidence, stating:

Counsel for the College presented evidence that Myer William Kalin was the subject of proceedings in the Ontario Superior Court of Justice and that he had been [page546] found not guilty but the Committee gave weight to the Honourable Mr. Justice Roy's Reasons for Judgment (Exhibit #2), where he states on page 11: "There is no doubt as well on the evidence that there was sexual activity, touching, the act of fellatio was committed, and I think that evidence is uncontradicted and accepted."

Apart from this one reference, there is no other mention of any evidence before the Tribunal.

[67] In its next section entitled "Findings of Fact" (pp. 4-5) the Tribunal merely lists the allegations in the Notice of Hearing, virtually verbatim. This is followed by a paragraph entitled "Reasons" at the bottom of p. 5 and the concluding section at p. 6, which merely states the finding of guilt and the penalty imposed without any reference to reasons. Thus, although there is a six-page decision from the Tribunal, the only reference to any reasons it had for the decisions it reached is at p. 5, as follow: [page546]

The Committee accepts the evidence presented and that Myer William Kalin committed the acts as alleged. The most compelling evidence was the statement that Mr. Justice Roy made on page 11 of the Reasons for Judgment (Exhibit #2): "There is no doubt as well on the evidence that there was sexual activity, touching, the act of fellatio was committed, and I think that evidence is uncontradicted and accepted."

[68] Thus, apart from the Tribunal's bald statement that it accepted the evidence presented, it would appear that its entire reasons are merely reliance on obiter findings made by Roy J. following the criminal trial. The Tribunal made no reference whatsoever to any of the arguments presented as to the appropriate weight to give to the evidence from the criminal trial or the findings of the trial judge. It made no reference to any frailties in the evidence of the complainant, nor the fact that the complainant was not cross-examined on key areas of his evidence at the criminal trial. The appropriateness of the penalty is likewise not mentioned at all. It is simply imposed without discussion.

[69] These are not reasons. They are merely a recital of allegations followed by bald conclusions. They are not adequate to explain to the Member, nor to this court, how the Tribunal reached its decision. Again, the reasons are so inadequate that the decision would have been quashed on this basis alone.

F. Retrospective or Retroactive Operation of the Statute

[70] The incident giving rise to the complaint against Mr. Kalin is alleged to have occurred in 1991. At that time, Mr. Kalin held an Ontario Teacher's Certificate and was subject to discipline for professional misconduct. However, the discipline regime at that time was different. A complaint of misconduct would be considered by the Relations and Discipline Committee of the Ontario Teachers' Federation, which would then make a recommendation to the Minister of Education if it found misconduct. It was the Minister who had the authority to cancel or suspend certificates. (See Cressman v. Ontario College of Teachers, 2005 1406 (ON SCDC), [2005] O.J. No. 565, 249 D.L.R. (4th) 749 (Div. Ct.) for a good summary of the legislative scheme.)

[71] The current self-government disciplinary system began in 1996 with the creation of the Ontario College of Teachers: Ontario College of Teachers Act, 1996, S.O. 1996, c. 12. The portions of the Act providing the framework for the discipline regime came into effect on May 20, 1997. Section 30(2) of the Act provides that a Discipline Committee, after a hearing, may find a member guilty of "professional misconduct as defined in the regulations". Pursuant to its regulation making power, the College passed a regulation defining conduct constituting professional [page547] misconduct, which came into effect on December 4, 1997: O. Reg. 437/97. Section 1 of that Regulation lists 27 things that are defined to constitute professional misconduct. They include the following subparagraphs under which Mr. Kalin was charged and found guilty by the Tribunal:

5. Failing to maintain the standards of the profession.

6. Abusing a student physically, sexually, verbally, psychologically or emotionally.

7. Failing to comply with the Act or the regulations or the by-laws.

8. Failing to comply with the Education Act or the regulations made under that Act, if the member is subject to that Act.

9. An act or omission that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

10. Conduct unbecoming a member.

[72] The appellant argues that applying this Regulation (which came into force in 1997) to the allegations against him (which are alleged to have occurred in 1991) is improper because it offends the rule against retrospective application of legislation.

[73] The appellant does not deny the jurisdiction of the College to receive and hear a complaint against him in respect of conduct that occurred before the College came into existence. That issue has already been decided by this court in Bhadauria v. Ontario College of Teachers, 2004 16867 (ON SCDC), [2004] O.J. No. 2468, 187 O.A.C. 296 (Div. Ct.) (MacFarland, Swinton and Linhares de Sousa JJ.). The complaint against Mr. Bhadauria in that case related to letters he had written in 1989 which, in a grievance procedure that went all the way to the Supreme Court of Canada, had been found to constitute "extreme misconduct" warranting his dismissal by the school board. Subsequently, the College proceeded with a discipline complaint against Mr. Bhadauria with respect to the letters. Mr. Bhadauria took the position that the College had no jurisdiction over any matter that arose prior to the College's existence. The Divisional Court held that it was the intention of the legislation that the College have a continuing jurisdiction over conduct that occurred prior to the new regime, stating at para. 20:

To suggest the College is without jurisdiction to deal with any discipline matter arising before its creation but not reported until after the College comes into existence is, we think, an absurd result. It would provide [page548] immunity to members for misconduct in circumstances where non-members would be held accountable. This cannot reasonably have been the legislative intent and if it were, would require specific legislation granting immunity.

[74] Having reached that conclusion, the Divisional Court in Bhadauria went on to state (at para. 22) that they were "fortified" in that conclusion by "the legislative provision which requires the College in carrying out its objects to serve and protect the public interest" and that any presumption against retrospective effect of the legislation was therefore rebutted. In doing so, however, the court specifically adopted a submission of the respondent as follows (at para. 25):

It must also be noted that the Act does not reach into the past and declare the law different than what it was in that it does not change the status of the conduct engaged in by the Appellant. The previous regime similarly governed the suitability of individuals to teach through the application of criteria of professional misconduct. The difference between the current and former regimes with respect to the treatment of their conduct is primarily procedural.

[75] Thus, it is clear (and indeed conceded by the appellant) that the College had jurisdiction to proceed with a discipline hearing against Mr. Kalin for conduct dating back to 1991. The issue here is whether Mr. Kalin can be charged under the specific provisions of O. Reg. 437/97, which did not exist in 1991.

[76] There is often confusion in the case law between the terms "retroactive" and "retrospective". In Benner v. Canada (Secretary of State), 1997 376 (SCC), [1997] 1 S.C.R. 358, [1997] S.C.J. No. 26, the Supreme Court of Canada (at para. 39) endorsed the following explanation from E.A. Driedger in "Statutes: Retroactive Retrospective Reflections" (1978) 56 Can. Bar Rev. 264:

A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospective statute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was: a retrospective statute changes the law from what it otherwise would be with respect to a prior event.

(Italics in the original; underlining added)

[77] The 1997 Regulations provide specific definitions of professional misconduct which did not exist in 1991. To apply a 1997 definition of misconduct to a 1991 event and to discipline a teacher based on breach of a 1997 defined standard for 1991 conduct is to "look backwards" and attach new consequences to a past event. To use the words of Driedger, it "changes the law from what it otherwise would be with respect to a prior event". Thus, [page549] finding Mr. Kalin guilty of breaching specific sections of the 1997 Regulation is to give retrospective effect to that legislation.

[78] There is a presumption against giving a retrospective interpretation to legislation: Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, 1975 4 (SCC), [1977] 1 S.C.R. 271, 66 D.L.R. (3d) 449; Cressman v. Ontario College of Teachers, supra, at para. 52-53 and 85-87. That presumption is particularly strong where penal consequences attach. Matters of professional discipline have been referred to as quasi-criminal in nature, with revocation of professional licensing being described as "a professional death penalty". The consequences of such proceedings are grave. The case authorities have consistently maintained that professional discipline legislation should be strictly interpreted: Henderson v. College of Physicians and Surgeons of Ontario (2003), 2003 10566 (ON CA), 65 O.R. (3d) 146, [2003] O.J. No. 2213 (C.A.), at paras. 26-27; Bhadauria at para. 42; Cressman at para. 53. Applying these general principles would reject any interpretation of the 1997 Regulations as being applicable to the 1991 conduct.

[79] The College argues that Bhadauria is authority for the proposition that the 1997 Regulations may be applied to pre- 1997 conduct because the purpose of the legislation is the protection of the public. The College further relies in this regard on the Supreme Court of Canada's decision in Brosseau v. Alberta Securities Commission, 1989 121 (SCC), [1989] 1 S.C.R. 301, [1989] S.C.J. No. 15, which also was cited by the Divisional Court in Bhadauria.

[80] The decision in Bhadauria does not deal directly with the issue before this court. Rather, it is restricted to the jurisdiction of the College to deal with any matter that occurred prior to the creation of the College. The court's decision turned on its finding that the necessary and only reasonable intention of the legislation was that the College would have ongoing jurisdiction to deal with matters that had occurred prior to its creation. The court in Bhadauria dealt with the public protection exception for retrospective application of a statute solely within this jurisdictional context. The issue was whether the College would have the power to discipline or remove teachers for conduct that occurred prior to 1996. The implications of denying jurisdiction in those circumstances could be significant, as the College would be incapable of proceeding against teachers for even the most egregious pre-1996 conduct, thereby endangering the safety of students. There is no issue in this case about the jurisdiction of the College over the subject matter of the complaint and over Mr. Kalin. Further, the court in Bhadauria took care to point out (at para. 25) that its decision related to procedural matters, rather than reaching into the past and changing the status of conduct. The [page550] issue raised in this case goes beyond procedure; the application of the 1997 definition to 1991 conduct does reach into the past and potentially changes the status of past conduct.

[81] The decision of the Supreme Court of Canada in Brosseau v. Alberta Securities Commission is also distinguishable. The issue in that case was not disciplinary proceedings, but provisions designed to protect the public by disqualifying persons from trading in securities because of past acts that call into question their business integrity. It does not follow from this that every statute that also has a public protection purpose can be given a retrospective application. If so, very few statutes would ever fall within the rule. Indeed, even the Criminal Code, R.S.C. 1985, c. C-46 is, in a very real sense, a statute designed to protect the public. In this regard, I agree with the comments of Meehan J. in Cressman that the decision in Brosseau does not extend to this situation. At para. 63 of his Reasons, he adopted the following statement of MacGuigan J.A. at para. 34 of Re Royal Canadian Mounted Police Act, [1990] F.C.J. No. 1133, 123 N.R. 120 (C.A.):

Whether there is a general category broader than the subcategory, it must at least be recognized that there cannot be any public interest or public protection exception, writ large, to the presumption against retrospectivity, for the simple reason that every statute, whatever its content, can be said to be in the public interest or for the public protection. No Parliament ever deliberately legislates against the public interest but always visualizes its legislative innovations as being for the public good.

[82] In Cressman, a complaint was filed against a high school principal for failing to protect a student in his school from sexual abuse by a teacher at the school. The abuse occurred between 1992 and 1996. At the end of 1996, Mr. Cressman retired. The College proceeded with the complaint, alleging professional misconduct contrary to the 1997 Regulation's definition. Meehan J. held that there was not authority for the proposition that "a penalty such as fine and costs which did not exist at the time of the alleged acts could be imposed by statute or regulation passed sometime later without clear wording to that effect in the statute". He therefore ruled that the presumption against retrospectivity had not been rebutted and that the Discipline Committee had no jurisdiction to proceed. Separate reasons were delivered in that case by O'Driscoll and Swinton JJ., concurring with the reasons of Meehan J., but clarifying why the Bhadauria case was distinguishable. They stated at paras. 85-86:

... Regulation 437/97 defines professional misconduct by setting out 27 acts of misconduct. A number of these acts are clearly ones which would not have been misconduct under the previous regime, since they make reference to the College, the Discipline Committee and the Investigating Committee (for [page551] example, 20 through 25). Thus, the application of the regulation is not simply a procedural change in all cases.

The allegations against Mr. Cressman in the Notice of Hearing of the Discipline Committee refer to eight different grounds in the regulation. The regulation under the Teaching Profession Act did not have this degree of specificity. Moreover, if found guilty of professional misconduct, Mr. Cressman may be subject to a fine or costs. Under the previous regime, such sanctions were not available. Finally, under the previous disciplinary regime, had he resigned his membership, he could not have been subsequently disciplined. Thus, in Mr. Cressman's case, the disciplinary proceedings are not just a change in procedure, but rather the retrospective application of the Professional Misconduct Regulation and the Act.

[83] Part of the rationale of the court in Cressman was based on the fact that Mr. Cressman has retired, such that there was no ongoing licensing or public protection issues and the proceedings against him were therefore purely penal in nature. In that sense, the case is not on all fours with this one, as Mr. Kalin was still a member of the Ontario College of Teachers at the time of the proceedings against him. However, in my opinion, the principles applied by this court in Cressman are nevertheless applicable. Prosecuting Mr. Kalin under a 1997 definition of misconduct for acts that are alleged to have occurred in 1991 offends the rule against retrospectivity. While there is clearly a public interest in supervising teachers and removing from the profession those who have been proven to have abused a student, discipline proceedings are nevertheless also penal in nature. Certainly the College has jurisdiction to proceed with complaints against those who are alleged to have been guilty of misconduct prior to 1996, but the College cannot judge that conduct based on 1997 standards. The conduct must be judged in light of what was prohibited conduct at the time. Further, if it is to be punished, the punishment cannot be more severe than the potential punishment to which the perpetrator was liable at the time of the misconduct.

[84] In 1991, a teacher could be subject to discipline for professional misconduct. Although the Regulations in force at that time did not include the specific definitions set out in the current Regulations, sexual relations with a student would no doubt have constituted professional misconduct in 1991, as it would now. However, the principle remains, and it is an important one, that it is not in accordance with principles of justice to change the definitions of an offence after the fact and apply a 1997 definition to 1991 conduct. The subsequent replacement of the regulations and Codes of Conduct that were in place in 1991 does not prevent their consideration and application now, provided they are applied to conduct which occurred at that time. Section 30(2) of the current Act provides that the Discipline Committee may find [page552] a member guilty of professional misconduct "as defined in the regulations". The word "regulations" in that section must necessarily mean "the applicable regulations" and this would include those regulations in force at the time of the alleged conduct giving rise to the offence. Any other interpretation would violate the rule that a retrospective construction of a statute is to be avoided. Thus, if the College is to proceed with a complaint against Mr. Kalin now, the procedures under the current legislation apply, as established in Bhadauria. However, Mr. Kalin should be charged under the Regulations in place at the time of the alleged conduct and the College must consider his conduct in the context of what would have constituted professional misconduct at the time of his alleged acts.

G. Conclusions

[85] In the result, the decision of the Discipline Committee is quashed. If the College elects to proceed with a complaint against Mr. Kalin, it shall be before a differently constituted panel and shall reference the regulations or codes of conduct that were applicable to the time of the alleged offence. If the parties are unable to agree on costs, they may address written submissions to the court. Mr. Borenstein is requested to co-ordinate this effort and to deliver three copies of a bound volume containing the submissions of both parties to the Divisional Court office within 30 days of the release of these Reasons.

Application granted.