CITATION: Novick v. Ontario College of Teachers, 2016 ONSC 508

DIVISIONAL COURT FILE NO.: 598/14

DATE: 20160307

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MOLLOY, CORBETT and SANDERSON JJ.

BETWEEN:

ALYSSA NOVICK and IAN MIDDLETON

Appellants

– and –

ONTARIO COLLEGE OF TEACHERS

Respondent

Howard Goldblatt and Peter Engelman, for the Appellants

Eli Mogil, for the Respondent

HEARD: December 8, 2015 in Toronto

MOLLOY J.:

REASONS FOR DECISION

A. INTRODUCTION

[1] Alyssa Novick and Ian Middleton are teachers and members of the Ontario College of Teachers (“the College”). They appeal from the decision of a three-member panel (“the Committee”) of the Discipline Committee of the College dated June 20, 2014 finding them guilty of professional misconduct. Although there were several allegations of misconduct before the Committee, findings were only made against the teachers in respect of one charge – that they failed to immediately notify parents of a student in their charge after that student reported that he had been sexually assaulted. All other allegations against the teachers were dismissed. No appeal was taken from those dismissals. Likewise, there was no appeal from the penalty imposed (a reprimand).

[2] At the conclusion of the argument of the appeal, we advised the parties that the appeal was granted, that the Committee’s decision was quashed, and that we will not be remitting this matter for a new hearing. We further advised that written reasons for our decision would be released in the New Year.

[3] In the Reasons that follow, I have first set out a factual overview in order to place what follows in context, followed by a description of the nature of the complaints involved in this case and the proceedings before the Committee. The next section is a review and summary of the Reasons provided by the Committee for its decision. It was necessary to do this in some considerable detail as the Reasons themselves are poorly organized and difficult to follow.

[4] There are two main findings by the Committee: (1) that the teachers were guilty of professional misconduct for failing to maintain the standards of the profession; and (2) that the teachers were guilty of professional misconduct because their act or omission, having regard to all the circumstances, would reasonably be regarded by members as unprofessional. The Committee’s Reasons did not differentiate in a comprehensible way between its findings on breach of professional standards and those of unprofessional conduct. Its factual findings relate to both. Accordingly, I have first considered the issue of professional standards and concluded that the Committee’s decision was unreasonable in terms of what it determined to be a professional standard and how it came to that conclusion. I do not deal with the factual issues under that heading. However, in the next section of the Reasons dealing with the finding of unprofessional conduct, I review the problems with the factual conclusions reached by the Committee. Those findings are tainted by numerous unreasonable findings and cannot stand. The same facts are relied upon for the findings in relation to the professional standards breach and would result in setting aside the decision on that ground, in addition to its unreasonable findings with respect to what constitutes a professional standard.

[5] These Reasons are organized under the following headings:

A. INTRODUCTION --- paras. 1-6

B. BACKGROUND FACTS---paras. 7-19

(i) Overview ---paras. 7-11

(ii) The Nature of the Complaints---paras. 12-13

(iii) The Proceedings Before the Committee---paras. 14-17

(iv) Events subsequent to the Boston trip---paras. 18-

C. THE REASONS OF THE COMMITTEE ---paras. 20-51

(i) Organization---paras. 20-23

(ii) Standard of Care---paras. 24-29

(iii) Role of Ms. Novick as Leader---paras. 30-33

(iv) Professional Misconduct of Ms. Novick: (Particular (a)—failure to immediately notify parents)---paras. 34-39

(v) Professional Misconduct of Ms. Novick: (Particular (b)—falsely advising parents that Student A did not wish to report the assault to Boston Police)--- para. 40

(vi) Professional Misconduct of Ms. Novick: (Particular (c)—discouraging Student A from reporting the assault to Boston police)--- para. 41

(vii) Professional Misconduct of Ms. Novick: (Particular (d) --- refusing a request from the parents that a report be made to the Boston police) --- para. 42

(viii) Professional Misconduct of Mr. Middleton: (Particular (a)—failure to immediately notify parents --- paras. 43-45

(ix) Professional Misconduct of Mr. Middleton: (Particular (b) – refusing a request from the parents that a report be made to the Boston police –para. 46

(x) Findings with Respect to the Headmaster, Mr. Matthews--- paras. 47-51

D. ISSUES and STANDARD OF REVIEW---paras. 52-56

E. PROFESSIONAL MISCONDUCT – STANDARDS OF THE PROFESSION---paras. 57-76

F. PROFESSIONAL MISCONDUCT – UNPROFESSIONAL CONDUCT

(i) Determining What Can Be Regarded as Unprofessional --- paras. 77-82

(ii) Reliance on Extraneous, Improper and Irrelevant Considerations ---para. 83

Medical Treatment for Student A --- paras. 84-86

Legal Advice for Student A --- para. 87

Failure to Report Crime to Boston Police --- para. 88

Breakfast Arrangements --- para. 89

(iii) Adverse Inference as to the Evidence of Headmaster Matthews --- paras. 91-97

(iv) Adverse Findings Against Ms. Novick --- paras. 98-104

(v) Failure to Consider Relevant Evidence: The Rights of Student A --- paras. 105-115

(vi) Failure to Take into Account Surrounding Circumstances --- paras. 116-120

(vii) Failure to Consider the Good Faith Exercise of Judgment --- paras. 121-128

(viii) Effect of Cumulative Errors--- paras. 129-134

G. REMEDY --- paras. 135-141

[6] For the reasons set out below, the Committee’s decision is quashed as being unreasonable and unsupportable on the evidence before it. In the circumstances, it is not reasonable to remit the matter for a new hearing. The charges against these teachers are dismissed.

B. BACKGROUND FACTS

(i) Overview

[7] A brief overview of the facts is useful in order to set the context for the analysis that follows. I will deal with those facts in more detail in that analysis.

[8] Alyssa Novick and Ian Middleton are teachers at Ashbury College, an independent private school in Ottawa. In the fall of 2007, 49 Ashbury students between the ages of 16 and 18, along with four teacher supervisors, took part in a four-day school-sponsored enrichment trip to Boston. Ms. Novick and Mr. Middleton were among the teacher supervisors; the other two were Mr. Penton and Ms. Defossés.

[9] Shortly before midnight on the third night of the trip, a 16-year-old male student (“Student A”) called Mr. Middleton and reported that he believed he had been sexually assaulted. Mr. Middleton and Mr. Penton met first with Student A and his roommate (who had been a witness). Student A reported that four fellow students had entered the hotel room he shared with his roommate (“Student B”). One student digitally penetrated Student A’s anus while a second student restrained him. A third student recorded the assault on video. The fourth student was there, but it is unclear what he did. Mr. Middleton spent some time talking to and counselling Student A, who was quite upset. Initially, Student A did not want to tell his parents what had happened but was persuaded by Mr. Middleton that he would need to do so at some point. Mr. Middleton then left Student A with his roommate in order to deal with the perpetrators.

[10] Mr. Middleton alerted the other teachers as to what had happened, confronted the four alleged perpetrators, and confirmed that an assault had in fact occurred. Further, he seized the video recording of the assault before it had been disseminated. He spoke with the school’s headmaster (Mr. Matthews) who decided that the two main perpetrators should be flown back to Ottawa immediately, along with one of the teachers and the confiscated video. Arrangements were made by Ms. Novick for the return flights. The parents of the offending students were notified to be at the airport to pick up their children. At 3:00 a.m., having completed these tasks, Mr. Middleton returned to Student A’s room for the purpose of assisting Student A to call his parents, only to discover that Student A was asleep. Mr. Middleton felt it was good for Student A to get some rest. He decided to let him sleep. However, at 7:00 a.m. he went back to Student A’s room, woke him up, and in his presence called Student A’s father. Mr. Middleton spoke briefly to Student A’s father to explain what had happened and Student A then spoke directly to his father. Student A decided not to return home to Ottawa and his parents did not come to Boston. Student A continued with the rest of the trip.

[11] Ms. Novick had no direct contact with Student A that night. However, she was aware of what steps were being taken. As the main organizer of the trip, she was seen by the Committee as being the teacher in charge in Boston.

(ii) The Nature of the Complaints

[12] Two years after the trip, Student A’s parents filed complaints with the College against all four teachers who were on the Boston trip, as well as the Assistant Headmaster of Ashbury, Mr. Ostrom. The Headmaster of Ashbury, Mr. Matthews, was not a member of the College and therefore not subject to discipline procedures before it.

[13] The Investigation Committee of the College conducted an investigation of the complaints in order to determine whether a discipline hearing was warranted. The Investigation Committee dismissed the complaints against everyone except Ms. Novick and Mr. Middleton. The Investigation Committee also dismissed the complaint that Ms. Novick and Mr. Middleton had been guilty of professional misconduct for failing to obtain medical assistance for Student A. The Investigation Committee referred other complaints against Mr. Middleton and Ms. Novick to the Discipline Committee for a hearing, based on allegations that they failed to maintain the standards of the profession, failed to comply with the Education Act, committed acts that would reasonably be regarded by the profession as “disgraceful, dishonourable or unprofessional,” and engaged in conduct unbecoming a member. The following particulars were alleged:

As against Ms. Novick

(a) failed to “immediately notify” the parents of Student A that he had been sexually assaulted;

(b) falsely advised Student A’s parents that he did not wish to report the assault to the Boston police;

(c) discouraged Student A from reporting the assault to the Boston police; and

(d) refused a request from Student A’s parents to report the assault to the Boston police.

As against Mr. Middleton

(a) failed to “immediately notify” the parents of Student A that he had been sexually assaulted;

(b) refused a request from Student A’s parents to report the assault to the Boston police.

(iii) The Proceedings Before the Committee

[14] These charges against Ms. Novick and Mr. Middleton proceeded to a discipline hearing before a three-member Committee comprised of two experienced teachers and one lay person who had experience dealing with youth groups. The hearing proceeded before the Committee for eight days of evidence between November 26, 2012 and February 21, 2013 and one day of argument on October 18, 2013. The Committee issued a brief “Decision on Finding” dated February 28, 2014 stating that both Ms. Novick and Mr. Middleton were guilty of professional misconduct, but that they did not fail to comply with the Education Act or engage in conduct unbecoming a member. The Committee indicated that written Reasons for their decision would follow.

[15] On June 20, 2014, the Committee issued its written Reasons, covering 238 pages. The Committee found that the two teachers were guilty of professional misconduct because they failed to “immediately notify” Student A’s parents of the sexual assault. This was found to be a breach of their “duty of care,” a failure to maintain the standards of the profession, and conduct that would be reasonably regarded by teachers to be unprofessional. The other complaints were dismissed.

[16] A penalty hearing was convened on October 15, 2014. A written penalty decision was released on November 5, 2014 directing each of the teachers to appear before the College in person to be reprimanded and to enroll in and complete an approved program on ethical standards and reporting obligations. The Committee directed that the names of the teachers be published and that the reprimand remain on the public record for one year.

[17] The only appeal taken from the Committee’s decisions is with respect to the finding of professional misconduct against both teachers based on their failure to “immediately notify” the parents of Student A that he had been assaulted.

(iv) Events subsequent to the Boston trip

[18] There were four students involved in the assault on Student A. Upon their return to Ottawa, the matter was reported to the police in Ottawa. After a joint investigation by the Ottawa and Boston police departments, the two students most directly involved were criminally charged in Boston. Both pleaded guilty and were convicted. All four students were expelled from the College.

[19] While Student A was in Boston, his mother had undergone a biopsy to diagnose suspected cancer. Subsequently, cancer was confirmed. Although ill, she testified at the discipline hearing. Tragically, she died shortly after the hearing.

C. THE REASONS OF THE COMMITTEE

(i) Organization

[20] The Committee provided lengthy Reasons for its decision. Unfortunately, the Reasons are difficult to follow and there is no index. In the first 143 pages of the decision the Committee sets out the charges and the Agreed Statement of Facts and summarizes the evidence of the witnesses, generally without analysis. The next four pages contain a list of the exhibits, without elaboration. The closing submissions of the College are summarized at pages 147 to 169 of the decision, followed by a summary of the closing submissions of counsel for the teachers from pages 170 to 184, and the reply submissions by College counsel from pages 184 to 189.

[21] At pages 189 to 191, under the heading “Decision, Onus and Standard of Proof”, the Committee recites general principles on the burden and standard of proof and how to assess credibility. While stating that they had followed all of these principles, there is at this point no analysis of any evidence and no examples are provided as to how the principles were actually applied. Then, at page 191, the Committee states its decision that Ms. Novick and Mr. Middleton were guilty of professional misconduct contrary to Ontario Regulation 437/97 subsections 1(4) and 1(18). The Committee found no breach of the Education Act Regulations ss. 1(15) or 1(19).

[22] A section entitled “Reasons for Decision” begins at the bottom of page 191 of the Reasons. Up to this point, there has been no analysis and no findings of fact. The Reasons for Decision section begins with a paragraph about what the Committee refers to as “standard of care” and relates to the evidence of the standard of care accepted by the Committee. The rest of the section is organized under the following headings:

• Alyssa Ranni Novick (pages 192-197) stating the findings of the Committee with respect to each allegation against her

• Ian David Middleton (pages 197-201) stating the findings of the Committee with respect to each allegation against him

• Evidence and Testimony Assessment (pages 201-214), consisting of: a description of the exhibits, with some commentary about how some of them were useful, and a paragraph on each witness and some credibility findings as to the overall weight of their evidence

• Submissions of College Counsel (pages 215-225), consisting of arguments advanced and including at some points whether those arguments were accepted or rejected, sometimes with reasons

• Submissions of Members’ Counsel (pages 225-234), a similar analysis to the above

• Reply Submissions of College Counsel (pages 234-249)

[23] Because of the way in which the Reasons are set up, it is difficult to follow a train of analysis with respect to each finding. Some analysis is under the heading for the two teachers involved, some of it is scattered through the analysis of exhibits and witnesses, and some of it is set out as a response to submissions by counsel. There is no coherent, issue by issue, analysis. However, taking all of these sections into account, I set out below the key findings by the Committee.

(ii) “Standard of Care”

[24] The Committee held (at pp. 191-192):

The standard of care is obvious and is known by all, accepted by all and is part of the educational expectation of the general public. A parent entrusts their child with a teacher under the principle of loco parentis, which means a parent expects a level of care that would be normally exercised by a responsible parent. The Committee would describe this standard as “notorious.”

[25] The Committee then stated, “Student A’s parents should have been informed immediately as options were explored to comfort the student” and further stated that in similar circumstances a teacher “ought to have immediately sought medical attention for the student.”

[26] The Committee held that although there was no expert evidence presented as to the standard of care, the standard was so “ingrained” and “notorious” that evidence was not required. The Committee stated that it relied in this regard on s. 16(b) of the Statutory Powers Procedure Act “to recognize the standard that was demonstrated by Members when they tended to the needs of other students on the trip.”

[27] The Committee also made some comments on the “standard” in the course of reviewing the submissions of counsel. At page 215 of its Reasons, the Committee stated that it agreed with College Counsel that “the issue of whether the parents were called quickly enough is in fact a simple issue, one that can be used to determine the level of a teacher’s professionalism.” In addressing the argument of the Members’ Counsel that it was not for the Committee to rely on its own expertise or its private opinions in determining professional misconduct, the Committee noted (at page 231) that it has jurisdiction to “make determinations through reliance on its own expertise,” again relying on s. 16(b) of the Statutory Powers Procedure Act. The Committee stated (at page 231) it was not in the position of “setting standards” but rather “recognizing the parameters of established standards.” The Committee agreed with the proposition (from cases cited by the Members’ Counsel) that where a decision must be made based on limited known and unknown factors, “the honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation.” However, the Committee held (at page 232) that the teachers in this case had sufficient knowledge of the situation and the action required. Regardless of whether the teachers followed their school’s protocol by calling the Headmaster immediately, the Committee was of the view that this did not meet the standard of care and that the “standard of care as were provided to other students on the trip were not followed in respect of Student A.” At page 234 of its decision, the Committee referred to the reply submissions of College Counsel that the Committee could take notice of information or opinions within its specialized knowledge. The Committee stated (at p. 234) that although College Counsel had submitted it could affirm the standard for purpose of s. 1(5) of the Regulation, the Committee “preferred to subscribe to the Statutory Powers and Procedures Act in its deliberations” and that “most important, the Committee determined that the standard of care was indeed notorious and that this standard is widely known among teachers in Ontario.”

[28] Under the heading “Submissions of College Counsel” (at page 223), the Committee stated that counsel had referred to three authorities: Professional Misconduct Related to Sexual Abuse and Sexual Misconduct (OCT 2002); Provincial Model for a Local Police/School Board Protocol (Ministry of Education); and a Discipline Committee decision in Tallevi (Oct. 2009). The Committee held that these were guidelines only and that “there was no clear evidence that these were standards nor that the teachers breached any of the requirements of the authorities.” The Committee then concluded that “the degree to which the Members were bound by these authorities was inconclusive to the Committee, which made them less forceful as conveyors of guiding principles for a teacher’s responsibilities.”

[29] In its discussions of the “standard of care,” the Committee frequently referred to the permission forms signed by the parents and the fact that the teachers stood in “loco parentis.” At page 224 of its Reasons, the Committee accepted the submission of Counsel for the College that it was incongruous for the school to require parental consent for everything involving the students on the trip, but to then proceed to treat a 16 year old as “a child for all purposes but for the reporting of a sexual assault.” The Committee stated that it “would have been quite easy for the teachers to reach the parents immediately or to contact the police at any time during that day” and therefore stated that “the principle of in loco parentis was not observed with regard to the follow-up to the sexual assault.”

(iii) Role of Ms. Novick as Leader

[30] The Committee agreed (at page 152) with the College’s position that Ms. Novick was the “trip leader.” In support of that conclusion, the Committee pointed out that Ms. Novick was the main organizer, that she had “led” ten such trips in the past, and that for the two years she was on maternity leave, the trips did not take place. The Committee also relied on the letter to parents outlining the itinerary costs and the permission slip, which were signed by Ms. Novick and identify her as “the leader of the tour and primary contact with parents.” The Committee referred to the evidence of Mr. Middleton that Ms. Novick “as the team leader” determined that another student who was ill with a sore throat should be taken to the hospital.

[31] In the section in which that factual finding was made, the Committee did not mention any of the evidence to the contrary, nor did the Committee set out any reasons in this section for preferring some evidence over other evidence.

[32] However, in the section on “Evidence and Testimony Assessment,” the Committee referred to the letter sent to the parents prior to the trip, which had been signed by Ms. Novick, and which states, “The trip will be supervised by four Ashbury staff members (led by Ms. Novick).” The Committee held (at page 204) that “from this document” it was “convinced of the status and role of Ms. Novick as the lead teacher in charge of the trip.” The Committee also referred to the permission form that parents were required to sign in order for their children to go on the trip. The Committee held (at page 204) that the inclusion of the permission form “demonstrates the premise that students need parental consent to take part in the trip,” and that parents therefore “retained their right to make decisions regarding the safety and well-being of their children.” The Committee then concluded, “As such, the students did not have the autonomy to make decisions, such as calling the police in the case of an assault.” The Committee noted that the permission protocol assigns to the teachers a significant responsibility for the students’ care but that “conceivably” this responsibility would include consulting with parents. The Committee concluded (at page 205) that “a telephone call to a parent as soon as possible is paramount.”

[33] The Committee was highly critical of Ms. Novick’s evidence in the section of their Reasons dealing with “Evidence and Testimony Assessment.” The Committee concluded that it “found the testimony of Ms. Novick not to be credible, clear and concise.” The Committee held that it preferred the evidence of Student A’s mother over that of Ms. Novick, although noting that there were some “internal variations” in the mother’s evidence. The Committee rejected Ms. Novick’s evidence for two reasons. First, the Committee said it found inconsistencies in Ms. Novick’s evidence. The only such inconsistency mentioned was the fact that on the one hand, Ms. Novick said she completely understood why Student A’s mother was so upset, but on the other hand, characterized Student A’s mother as “yelling” and being “unpleasant.” The Committee said it found “the position of Ms. Novick to be incongruous in that on the one hand she portrays herself as a staunch advocate for the rights of Student A . . . and on the other hand, demonstrated through her management of the trip, a keen eye for the obligations and rights of parents and the privileges they retain for the care of their children.” The Committee concluded from this (at page 211) that Ms. Novick “prevaricated in the giving of her testimony and was, in fact, opting to convey as positive an image of her behavior as was possible.” Second, the Committee was critical of the fact that Ms. Novick called her husband, who was a lawyer, and asked his advice about calling the police, including who should make the call and whether or not the wishes of the student needed to be considered. The Committee noted Ms. Novick’s evidence that she had been told by her husband that she needed to respect the rights of the 16-year-old student. The Committee then stated (at page 212) that “this advice was not established by an expert witness to be the legal standard.” The Committee held that this professional response by Ms. Novick was “a narrow approach” and “one that opted to take a limited definition of teacher responsibility,” referring again to the difference in the approach taken with respect to the student who became ill, as opposed to “deferring” the decision to contact parents and police to a traumatized 16-year-old. From this, the Committee concluded from Ms. Novick’s behavior on the trip and her testimony, that she was “increasingly concerned about her own personal liability” and that her testimony was “not credible, clear and concise (sic).”

(iv) Professional Misconduct of Ms. Novick: (Particular (a)--failure to immediately notify parents)

[34] The Committee held (at page 193) that “By not immediately contacting the parents of Student A to advise them of what had befallen their son during the school trip to Boston, Ms. Novick failed in her duty of care and thereby, failed to maintain the standards of the profession.”

[35] The Committee recognized that Ms. Novick did not have immediate contact with Student A, but held that she was “part of the staff” that dealt with the incident. The Committee found that “Ms. Novick, by her actions, exercised poor judgment by prioritizing the discipline and security of the perpetrators instead of addressing the immediate needs and physical well-being of the victim.” Although the Committee did not specifically state this to be the case in this section, presumably they attributed liability to Ms. Novick for failing to contact the parents earlier because of her status as the leader of the trip.

[36] Under this heading, the Committee also criticized Ms. Novick based on the fact that she and the other female teacher “went out and saw to their own breakfast without previous arrangement for Student A to be with adults, and separated from the two members of the group of perpetrators who had not been sent home to Ottawa.”

[37] Further, the Committee criticized Ms. Novick for not obtaining medical attention for Student A and not making any effort to obtain a psychological or emotional assessment after this traumatic event. The Committee specifically stated on this point (at page 194), “Again this was taken into account by the Committee as evidence of Ms. Novick’s breach of the standard of care.”

[38] Under the heading “Submissions of College Counsel” (at page 215), the Committee stated that the “issue of whether the parents were called quickly enough is in fact a simple issue, one that can be used to determine the level of a teacher’s professionalism.”

[39] Under that same heading, the Committee (at pages 228-229) was critical of both Ms. Novick and Mr. Middleton for deferring decision-making to a Headmaster (Mr. Matthews) who was not obligated to follow the standards and professional conduct of the College. The Committee held that they “ought to have been more concerned about their professional responsibility rather than deferring to a person who was not subject to the College’s oversight of professional standards.”

(v) Professional Misconduct of Ms. Novick: (Particular (b)--falsely advising parents that Student A did not wish to report the assault to Boston police)

[40] The Committee found this allegation was not supported by the evidence, notwithstanding the testimony of Student A’s mother. The Committee referred to the “differing representations” of various witnesses as to what Student A wanted to do, such that it was difficult to determine the true nature of his wishes. The Committee concluded that it was not possible to say that Ms. Novick had actually lied to the parents about this.

(vi) Professional Misconduct of Ms. Novick: (Particular (c)—discouraging Student A from reporting the assault to the Boston police)

[41] The Committee held there was no clear and cogent evidence that Ms. Novick discouraged Student A from going to the police. The Committee noted, however, that neither did Ms. Novick actively encourage Student A to go to the police and the Committee was critical of her failure to have explained to Student A what all of his options were.

(vii) Professional Misconduct of Ms. Novick: (Particular (d)—refusing a request from the parents that a report be made to the Boston police)

[42] The Committee found that Ms. Novick did not directly refuse to report the matter to the Boston police when requested to do so by Student A’s parents. The Committee noted that there was some dispute in the evidence as to whether the parents’ request that the police be called was clear and unequivocal, but that certainly by 6:09 p.m. on the day after the assault, the parents’ wishes were clear. The Committee was critical of Ms. Novick for deferring responsibility to Mr. Middleton to contact the College’s Headmaster, Mr. Matthews. The Committee stated (at page 196), “However, a sexual assault was clearly committed, and this should have resulted in immediate contact with the Boston Police, regardless of any perceived equivocality of the request by the parents.” Further, the Committee considered the submission of counsel for the teachers that a 16-year-old had some rights to determine whether he wanted to involve the police. On this point, the Committee stated that it “does not give weight to the fact that simply because Student A was 16, he had the obligation to decide whether to report the matter to the police in Boston.” In support of that finding, the Committee cited the permission form indicating that parents of the students were required to consent for the student to go on the trip and for the teachers to have authority to make medical decisions. Finally, the Committee held (at page 196), that “Student A had the right to know all his options, and was denied that right through the inaction of the Members.” However, notwithstanding this criticism, the Committee found that there was not clear and cogent evidence of a refusal on the part of Ms. Novick to call the police.

(viii) Professional Misconduct of Mr. Middleton: (Particular (a)--failure to immediately notify parents)

[43] The Committee held (at page 198) that “By not immediately contacting the parents of Student A to advise them of what had befallen their son during the school trip to Boston, Mr. Middleton failed in his duty of care and thereby, failed to maintain the standards of the profession.”

[44] The Committee referred to four incidents on the trip in which Mr. Middleton demonstrated his awareness of the “appropriate standard of care”: (1) the parents of a sick child were contacted to determine the medical care that might be required; (2) the parents of the two main perpetrators of the assault were sent home and calls were immediately made to their parents; (3) “timely” calls were made to the parents of the other two perpetrators regarding their continued participation on the trip; and (4) a call was immediately made to the parents of a student who was experiencing a balance issue that impacted her safety.

[45] The Committee accepted the evidence that after hearing from Student A what had happened, Mr. Middleton advised him that his parents should be contacted “at some point.” However, instead of calling the parents immediately, Mr. Middleton notified the other teachers and proceeded to collect sufficient evidence from the students involved to determine that there had been a sexual assault. The Committee also accepted that Mr. Middleton then called the Headmaster, Mr. Matthews, which was in accordance with the College’s protocol, but noted that even then, the parents were not called. The Committee held, at page 199:

However, Mr. Middleton, in consultation with the other teachers on the trip, decided that it was not necessary to call the parents of Student A at this time; rather it was wiser to allow the traumatized Student A to get some sleep. The Committee is of the opinion that this was not the correct path to take. Student A’s parents had the right to know, in a timely and a responsible fashion, what had happened to their child. It was with dismay that the [Committee] received evidence about the flurry of activity that unfolded that evening in dealing with the perpetrators, while the victim remained without the support of his parents. The Committee notes that Mr. Middleton was the first teacher to learn about the assault. It was his responsibility to call the Headmaster, which he did. More important, it was his responsibility to contact the parents in a timely and appropriate fashion, but he did not. [emphasis added]

(ix) Professional Misconduct of Mr. Middleton: (Particular (b)-- refusing a request from the parents that a report be made to the Boston police)

[46] At the beginning of this section of its Reasons, the Committee stated (at page 200) that “Mr. Middleton did not have a specific phone conversation with Mr. A or Ms. A directing him to call the Boston Police, and therefore, it is impossible for the Committee to find Mr. Middleton guilty of this allegation in its strict interpretation.” Notwithstanding this finding, the Committee continued for one and one-half pages to criticize Mr. Middleton’s actions, stating (at page 201) that notwithstanding that he had not received such instructions from the parents, a sexual assault was committed and “this should have resulted in immediate contact with the Boston Police.” The Committee concluded that, “It was Mr. Middleton’s obligation to ensure that the call had been made and not to defer this responsibility.”

(x) Findings with Respect to the Headmaster, Mr. Matthews

[47] As I have already mentioned, the Committee was critical of the teachers for deferring to the direction of their Headmaster, who was not subject to the supervision of the College.

[48] Mr. Matthews was not called as a witness by either side. However, the Agreed Statement of Facts filed at the outset of the hearing provided substantial information as to his involvement, including the following:

• At 1:39 a.m. on November 17, 2010, Middleton spoke with Mr. Matthews to inform him about what had transpired and to seek direction from him.

• Mr. Matthews advised the teachers through Middleton to fly the two main perpetrators home with a teacher accompanying them and directed that the teacher bring with him the camera and computer upon which the video was stored.

• Mr. Matthews called Middleton again between 2:00 and 2:30 to obtain and update and provided further direction.

• At 8:30 a.m., Mr. Matthews spoke on the phone with the parents of Student A.

• At 9:00 a.m., Mr. Matthews spoke with Middleton to obtain an update and discuss next steps.

• At 3:00 p.m., the Assistant Headmaster sent an email to Ashbury’s liaison with the Ottawa Police informing that a serious incident had happened in Boston and seeking the opportunity to discuss.

• Ms. Novick had a 16 minute discussion with Student A’s mother at 5:19 p.m. and another discussion with her at 6:09 p.m. Shortly after this call, Middleton called Mr. Matthews. Mr. Matthews was also contacted at 7:30 p.m. and 9:30 p.m.

• At 7:30 p.m., Mr. Matthews advised the teachers that he had contacted the Boston police and they had indicated a file had already been opened. Mr. Matthews advised the teachers that the Boston police indicated that they “might” send someone to the hotel to speak with them.

[49] The Committee referred (at page 219) to the submission of counsel for the College urging the Committee to draw an adverse inference from the failure of counsel for the teachers to call Mr. Matthews as a witness and argued that in these circumstances there was an “implied admission that the evidence of the absent witness would be contrary to the party’s case,” and that this undermined the “credibility of the Members on the key issues to be determined.” The Committee stated that it “agreed with the viewpoint of the College on the matter of an adverse inference,” and stated that it “acknowledges that it is drawing an inference only.”

[50] In the section entitled “Submissions of Members’ Counsel,” the Committee again addressed the issue of Mr. Matthews’ evidence. Counsel for the teachers had argued that the key points of Mr. Matthews’ evidence had already been set out in the agreed facts, that Mr. Matthews was available and willing to testify, and that the College could just as easily have called him as a witness. However, the Committee found that “the failure to produce Mr. Matthews during the giving of testimony was detrimental to the Committee’s full understanding of his role during the events of that evening.” The Committee referred to the evidence as to Mr. Matthews’ involvement as set out in the Agreed Statement of Facts as being “curiously incomplete” and said it was then “bound to rely on the testimonies of the witnesses present.” The Committee referred to “discrepancies” that could not be tested through the cross-examination of Mr. Matthews, but did not say what those discrepancies were. The Committee then stated (at page 233), “The Committee does make an adverse inference in the decision to not call Mr. Matthews as a witness but acknowledges that this is an inference only.”

[51] The Committee does not state what inference it drew, nor does the Committee relate that to the evidence of the witnesses or its findings as against the two teachers.

D. ISSUES and STANDARD OF REVIEW

[52] Pursuant to s. 35(4) of the Ontario College of Teachers Act,[^1] a full right of appeal lies to the Divisional Court from decisions of the Committee on questions of fact or law or both. The Court has a full range of powers on review, including the power to substitute its own opinion for that of the Committee.

[53] The appellants submit that the Committee erred in determining what constituted the professional standard by which the teachers’ conduct was to be measured. This, it is argued, is a question of law to which the correctness standard applied, relying on King Lofts Toronto I Ltd. v. Emmons.[^2] The King Lofts decision is not an administrative law case, but rather a civil negligence action against a solicitor. The issue that was found to be a question of law was the standard of care required of a reasonably competent real estate practitioner. Very different issues arise in the administrative law context when a specialized tribunal is determining the professional standards of its own profession. This would typically be a question of mixed fact and law, or sometimes a pure question of law. However, that does not mean that a standard of correctness is to be applied. Such questions are squarely within the expertise of the tribunal, attracting deference. The standard of review is one of reasonableness.[^3]

[54] In the course of its Reasons, the Committee made rulings on issues that are questions of law of broad application, including: the independent rights of a 16-year-old who has been the victim of a sexual assault; the duties of a teacher to “immediately” report a sexual assault to the police; the consequences of a parental permission form for the rights of a young person; and the proper interpretation of terms of the Statutory Powers and Procedures Act.[^4] These are not issues directly within the expertise of the Committee and they have broad implications beyond this case and beyond the teaching profession. A strong argument could be made for a correctness standard on these issues. However, given that the Committee’s decision did not reach a reasonableness standard, it is unnecessary to determine if correctness is required.

[55] The appellants also submit that the Committee erred in determining that the conduct of the teachers constituted professional misconduct. Counsel for the appellants accepts that the standard of reasonableness applies to this issue. I agree.[^3]

[56] The appellant also argued that this case raised issues of retroactivity, to which a correctness standard applied, as well as principles of natural justice. In my view, the retroactivity issue is misconceived. However, it was not necessary to deal with it in arriving at our decision and it is therefore unnecessary to determine the appropriate standard of review.

E. PROFESSIONAL MISCONDUCT – STANDARDS OF THE PROFESSION

[57] Normally, in a professional misconduct case, one would expect the tribunal to set out what the applicable professional standard was, and to then explain how the member’s conduct did not meet that standard. That approach was not taken in this case. However, the first paragraph of the Committee’s Reasons, under the heading “Reasons for Decision” does appear to encapsulate the various bases expressed by the Committee throughout its Reasons for determining the appropriate standard. The Committee held (at pages 191-192):

The standard of care is obvious and is known by all, accepted by all and is part of the educational expectation of the general public. A parent entrusts their child with a teacher under the principle of in loco parentis, which means a parent expects a level of care that would be normally exercised by a responsible parent. This Committee would characterize this standard as “notorious”. Student A’s parents should have been informed immediately as options were explored to comfort this student. When confronted by similar facts as occurred in this incident of sexual assault, a teacher ought to have immediately sought medical attention for the student to ensure the student’s safety and well-being. Although the Committee was not presented with expert evidence on the issue, it felt that as the standard was so ingrained and “notorious” that such evidence was not required. Further, the Committee felt that it was able to rely upon section 16(b) of the Statutory Powers Procedure Act to recognize the standard that was demonstrated by the Members when they tended to the needs of other students on the trip.

[58] The two teachers in this case were found guilty of professional misconduct contrary to Ontario Regulation 437/97 ss. 1(5) and 1(18), which state:

1. The following acts are defined as professional misconduct for the purposes of subsection 30 (2) of the Act:

2. Failing to maintain the standards of the profession.

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

[59] Other than baldly stating its finding of breach, the Committee made no reference to these provisions of the Regulation. The text of the provisions was never set out.

[60] It is unclear what the Committee considered to be the standards of the profession against which it judged the conduct of these teachers. A number of times in its Reasons, the Committee referred to a “standard of care” or “duty of care” and appears to have imported a negligence-type standard into its analysis. That is a very different analysis than should have been applied in determining “standards of the profession,” which relate to professional standards imposed on teachers, not civil law negligence standards based on concepts of the reasonable person. There was no allegation of negligence in this case; it was a question of whether teachers had a positive obligation under their professional standards to notify the parents before they did. Concepts of tort liability are misplaced.

[61] The Committee also referred often to the term “loco parentis.” However, the Committee completely misapprehended the concept of “loco parentis” by applying it in a context in which the “standard” being considered is when to call a parent. The doctrine of “loco parentis” puts the teacher (or other custodian) in the shoes of the parent and requires the teacher to do what is required in the best interests of the child, as if the teacher were in the position of a reasonable parent. By definition, this cannot apply to when to call a parent; the person in loco parentis is, for that purpose, the parent.

[62] It is not the role of a discipline committee to create standards of the profession. Rather, the governing professional body sets those standards to which its members are required to conform, and the role of the discipline committee is to determine whether those standards were met. Under the Ontario College of Teachers Act, the power to establish professional standards and ethical standards is vested in the College[^5] and the College has established such standards, including “the Ethical Standards for the Teaching Profession” and “The Standards of Practice for the Teaching Profession.” The Committee in this case made no reference to either authority, perhaps because there is no ethical or professional standard dealing specifically with the duty to notify parents. The “Ethical Standards” document deals with ethical standards under four headings: “Care, Trust, Respect and Integrity.” Under the heading “Trust,” the standard states, “The ethical standard of Trust embodies fairness, openness and honesty. Members’ professional relationships with students, colleagues, parents, guardians and the public are based on trust.” Under the heading “Care,” teachers are required to demonstrate “compassion” and “commitment to students’ well-being” amongst other things. Under the heading “Respect,” teachers are required, amongst other things, to demonstrate “trust and fair-mindedness,” to “honour human dignity, (and) emotional wellness” and to “model respect for confidentiality.” While timelines for notifying parents of an incident involving their children are not spelled out, an analysis of these competing principles might have been a useful starting point for the Committee. I note in particular that it would have been helpful for the Committee to have recognized the relationship of trust with the parent, while considering the counterbalancing duties to the student in terms of trust, compassion, emotional well-being and confidentiality. None of these nuances were considered by the Committee.

[63] At the hearing before the Committee, counsel for the College relied on three authorities with respect to the professional standard to be applied: (1) the College’s publication entitled “Professional Misconduct Related to Sexual Abuse and Sexual Misconduct;” (2) the Ministry of Education’s “Provincial Model for a Local Police/School Board Protocol; and (3) the College Discipline Committee’s prior decision in Ontario College of Teachers v. Tallevi.[^6] Of these three sources, only the Tallevi decision was provided to this Court on the appeal. The Committee held that the College and Ministry of Education documents were “guidelines” and that “there was no clear evidence these were standards nor that these teachers breached any of the authorities.” It seems to me that “guidelines” issued by the College and the Ministry are at least of some assistance in determining professional standards, but not knowing what is in the documents makes it difficult to go further than that. The Committee also held, at p. 223 that, “the degree to which the Members were bound by these authorities was inconclusive to the Committee which made them less forceful as conveyors of guiding principles for a teacher’s responsibilities.” I am not sure what that sentence means. I do note, however, that the Tallevi case was very different from this case, as it involved a teacher who had knowledge that a student had been sexually assaulted by other students and was continuing to be bullied and harassed by the same students. Apart from mentioning some, but not all of the circumstances to the principal, the teacher did nothing, even though the teacher had concerns about the student’s safety. The teacher did not contest that this constituted professional misconduct. The Discipline Committee found that the teacher was required by laws and regulations pertaining to child welfare in Ontario and by school board policy to report these incidents. Nothing approaching that level of misconduct occurred in this case, as was recognized by the Committee.

[64] While rejecting the standards referred to it as inapplicable and ignoring standards of the profession that had been established by the College, the Committee offered no other basis for recognizing immediate notification of parents as a standard of the profession.

[65] There was no expert evidence before the Committee to assist in its determination of the professional standards to be expected of a teacher in circumstances similar to those faced by these teachers. The Committee stated that no such evidence was required, purporting to rely on s. 16(b) of the Statutory Powers Procedure Act (“SPPA”). The Committee did not set out the text of s. 16(b) anywhere in its Reasons. It is unclear from the Reasons that the Committee was in fact relying upon s. 16(b) because it repeatedly used language suggesting that it was in fact relying on 16(a). The relevant provisions state:

16. A tribunal may, in making its decision in any proceeding,

(a) take notice of facts that may be judicially noticed; and

(b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.

[66] Section 16(a) of the SPPA merely gives tribunals the power to take judicial notice of facts on the same basis a court would. Judicial notice can be taken of two kinds of fact: facts which are so notorious as not to be the subject of dispute amongst reasonable persons; and facts that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy.[^7] The Supreme Court of Canada described it in the following terms in R. v. Find:[^8]

Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. [emphasis added]

[67] At page 192 of its Reasons, the Committee stated that it “would characterize the standard as ‘notorious.’” Later in the same paragraph, the Committee stated that although no expert evidence was presented, “it felt that as the standard was so ingrained and ‘notorious’ that such evidence was not required.” Further, at page 234, the Committee again referred to the standard of care as being “notorious” and “widely known.” Thus, although the Committee repeatedly relied on s. 16(b) of the SPPA for this authority, it repeatedly used the language of judicial notice including language such as “notorious” and “widely known,” suggesting that it was actually using s. 16(a), or had misconceived the nature of s. 16(b).

[68] There are two points in its Reasons where the Committee actually refers to the test under s. 16(b) of the SPPA in relation to its own specialized knowledge. At page 231, in addressing an argument by counsel for the teachers that the Committee could not rely entirely on its own expertise or private opinions, the Committee stated that it “does have the jurisdiction to make determinations through a reliance on its own expertise” and relies on s. 16(b). However, later, at p. 234, the Committee refers to s. 16(b) by quoting the reply submissions of counsel for the College, but then appears to reject that approach. The Committee held:

College Counsel presented an argument to the issue of whether or not an expert witness is required to establish professional standards and expectations. College Counsel referred to section 16(b) of the Statutory Powers Procedure Act, which affirms that a committee may take notice of information or opinions within its specialized knowledge. College Counsel submitted that the Committee did indeed have specialized knowledge of the standards of the profession and that the services of an outside expert are not required. Therefore, the Committee is entitled, according to College Counsel, to affirm the standard for the purposes of s. 1(5) of the Regulation. The Committee preferred to subscribe to the Statutory Powers Procedure Act in its deliberations. Further, and most important, the Committee determined that the standard of care was indeed notorious and that this standard is widely known among teachers in Ontario. [Emphasis added]

[69] It is not completely clear from its Reasons how the Committee understood the SPPA and what it was relying upon to establish the standards of the profession. However, the Committee seems to have been confused about the principle of judicial notice that may be taken of facts that are so notorious and well-known that proof of them through formal evidence is not required, as provided for in s. 16(a). That is entirely different from the kind of specialized information known to a tribunal because of its own expertise, as contemplated under s. 16(b). Judicial notice is not a doctrine that would lend itself to setting professional standards of conduct. It seems, however, that this is what the Committee did, or at the very least, it jumbled up the two concepts. In doing so, it fundamentally misconceived the legal principles involved and misdirected itself as to the applicable standard.

[70] It is debatable whether a professional standard could be established in this case based solely on the specialized knowledge of the Committee. This is not an issue of “scientific or technical fact;” it is more an ethical issue, or one of professional responsibility. It is unclear whether there are “opinions” or “information” within the “specialized knowledge” of the Committee that would establish a professional standard in circumstances such as this. If so, the Committee did not state what they were, apart from the fact that the standard is notorious that parents need to be called “immediately.”

[71] There may be cases where conduct is so egregious that an expert is not required to inform the Committee about it being misconduct. For example, physical or sexual abuse of a student by a teacher, or counselling a student to commit a criminal act, would be clear examples of conduct that is so offside what is acceptable as to be self-evidently misconduct. I do not see the conduct in this case as being anywhere close to that kind of situation. It cannot be said that the requirement to “immediately” contact a parent upon any report of a sexual assault on a student, regardless of the surrounding circumstances, is, in the words of the Supreme Court of Canada, “so notorious or generally accepted as not to be the subject of debate among reasonable persons.” That is a very high standard. In this particular case, four highly regarded, highly experienced teachers, with blameless records, consulted with each other, with their Headmaster and also the assistant Headmaster. None of them had anything to gain by delaying a report to the parents. All of them felt they were taking an appropriate course of action. If the “immediacy” standard was so well-known, it is more than odd that none of them were aware of it.

[72] Counsel for the respondent College was unable to point to a single authority of any kind – no formal standards of the profession, no guidelines from the College or the Ministry of Education, no school policy, no discipline decisions, and no case law – supporting the finding by the Committee that this duty to immediately notify parents is a professional standard at all, much less a notorious one. Counsel for the appellant teachers cited the decision of Lauwers J. (as he then was) in W.W. v. Lakefield School. In that case, students at a private school were caught in possession of marijuana, in contravention of the school’s zero tolerance policy. The students were expelled and their parents sought recourse before the courts, including an interlocutory injunction. One of the issues raised was that the school found out about the conduct on the evening of December 19, did some investigating until 11:00 p.m., and decided not to notify the parents until the morning of December 20. Lauwers J. held (at paras. 75-76):

[S]taff decided not to call the parents on December 18, 2011 because the investigation did not conclude until too late in the evening. While he did ask the students if they wanted to call their parents that evening, they declined . . .

. . .The facts did not change overnight and I frankly see no particular reason why a term that parents should be immediately informed should be implied into the agreement with the school or that a breach of it should be found in the circumstances. Providing immediate notice to the parents would have had no practical effect on the outcome in any event. No additional evidence is necessary and this is not a serious issue to be tried.

[73] This was not a discipline proceeding. Further, the students in question were guilty of criminal conduct, rather than being victims of it. However, it is not possible to reconcile this decision with that of the Committee in this case that “immediate” notification of parents when there is a crisis involving their children is a professional standard for all teachers, indeed according to the Committee, a “notorious” one. I find this decision to be highly persuasive support for the appellant’s position that there is, in fact, no such professional standard for teachers.

[74] Further, the criticism most frequently articulated by the Committee is that the parents should have been notified “immediately.” What “immediately” means in this context is impossible to define. Should Mr. Middleton have called the parents “immediately” upon getting the call from Student A? Surely not, Student A was upset and seeking advice and counsel from a teacher he trusted. I would think the teacher had to at least talk to him and make sure he was safe before calling the parents. Counsel for the College conceded this to be the case during the argument of the appeal. Should Mr. Middleton have called the parents immediately before confronting the perpetrators? Again, I would think not. He had a responsibility to ensure the perpetrators were not harming others in some kind of rampage, and in seizing the video from them if he could. The victim’s interests would not have been well-served by the teacher taking valuable time to call parents, thereby giving the perpetrators time to download their video to Facebook or elsewhere on the internet, or distribute it to the victim’s classmates. Counsel for the College also conceded this was a reasonable step prior to calling the parents. Thus, the question of where on this time continuum parents needed to be called is not capable of an exact answer, as perhaps was recognized by the Committee itself at page 199 of its Reasons when it stated the parents had a right to know “in a timely and a responsible fashion” and described Mr. Middleton’s responsibility as being to contact the parents “in a timely and appropriate fashion.”

[75] One of the difficulties with the approach taken by the Committee is that it never did define the professional standard. It castigated the teachers for not “immediately” notifying the parents, without defining what the general professional responsibility to contact parents would typically entail. I believe that if the Committee had first established what the professional standards are for the reporting relationship between parents and teachers, it would have been clear to the Committee that a contextual approach would need to be taken. The timing of notifying parents will vary according to the circumstances, which would necessarily involve things such as the seriousness of the incident, the well-being of the student involved, safety issues, other responsibilities of the teacher, the ease with which notification can be effected, and the age of the student, just to name a few. Inevitably, this will involve issues of reasonableness, priorities, and judgment.

[76] In my view, the Committee’s finding that the teachers were guilty of professional misconduct by breaching the standards of the profession cannot stand for the following reasons:

(a) The Committee failed to identify any standards of the profession that had been breached;

(b) The Committee ignored sources from which professional standards might have been gleaned;

(c) The Committee erred and fundamentally misapprehended the applicable law by confusing principles of tort involving the standard of care and duty of care and the doctrine of in loco parentis with professional standards of conduct for teachers;

(d) The Committee placed an unreasonable construction on the SPPA and confused the principles of judicial notice with specialized expertise;

(e) The Committee improperly and unreasonably concluded that it could take notice of “standards” which are notorious and well-known to establish professional standards of conduct;

(f) The Committee’s conclusion that “immediate” notification of parents is “notorious” and can be judicially noticed, is improper and unreasonable;

(g) The Committee’s conclusion that “immediate” notification of parents in these circumstances was a professional standard for teachers is unreasonable. It does not fall within a range of acceptable outcomes that can be justified.

F. PROFESSIONAL MISCONDUCT – UNPROFESSIONAL CONDUCT

(i) Determining What Can Be Regarded as Unprofessional

[77] The Committee’s findings of misconduct based on unprofessional conduct were made pursuant to s. 1(18) of the Regulation which requires “an act or omission that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.”

[78] The conduct that was particularized in the charge was the failure to immediately notify the parents of Student A. Other charges of misconduct, including refusing to comply with the parents’ request that the teachers call the Boston police, discouraging Student A from reporting the matter to the police, and lying to the parents about their son not wanting to involve the police were all dismissed as not being supported by the evidence. Therefore, the sole allegation of professional misconduct before the Committee was the failure to notify the parents immediately.

[79] The Committee made virtually no reference in its Reasons to professionalism. At one point in its Reasons (at p. 238), the Committee referred to the conduct as “unprofessional,” but this was merely a bald conclusory statement, in the last sentence of the decision, that a failure to immediately call the parents was unprofessional. This could be taken as a reference to ss. 1(18), although the Committee does not expressly say that. One other reference can be found in the Committee’s discussion of the submissions of counsel for the College (at p. 215), where the Committee stated that the “issue of whether the parents were called quickly enough is in fact a simple issue, one that can be used to determine the level of a teacher’s professionalism.” Neither of these statements provide any insight into why the Committee found the teachers’ acts or omissions to be unprofessional. Further, the Committee did not consider at all whether the conduct was “disgraceful” or “dishonourable,” or whether “unprofessional” should be considered in this context as similar in nature to the other two adjectives.

[80] The analysis of the facts constituting misconduct does not differentiate between “standards of the profession” and “an act or omission reasonably regarded as unprofessional.” The findings of fact as to why each teacher was guilty of misconduct refer to breaching the “standards,” but there is no discussion of what members of the teaching professions would reasonably consider to be “unprofessional conduct.” This is perhaps understandable given that the two concepts may be seen to be related and the same factual allegation is said to apply to both. That said, it is problematic that the Committee says nothing explicit in its Reasons about conduct considered to be unprofessional by its members.

[81] I am mindful, however, of the requirement of deference. This is a lay tribunal and its Reasons must not be held to a standard of perfection. The Supreme Court of Canada has directed in Newfoundland Nurses[^9] that a decision maker is not required to make an explicit finding on each constituent element leading to its final conclusion. Further, the Court held (at para. 16) that “courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.” At para. 12, the Abella J. (writing for the unanimous Court) stated:

It is important to emphasize the Court’s endorsement of Professor Dyzenhaus’s observation that the notion of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”. In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows:

“Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc., then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis added by the Abella J.]

(David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304)

[82] As I have noted previously in these Reasons in dealing with standards of the profession, the Committee made a number of references to “standards of care” that it considered to be “notorious” or “well known” in the teaching profession. The Committee did not specifically relate that to s. 1(18) of the Regulation dealing with what teachers would reasonably consider to be unprofessional conduct, a generous reading of the decision could possibly support such a conclusion. There is considerable precedent for deference when dealing with what an expert tribunal considers to be unprofessional conduct within its own profession.[^10] Accordingly, if this was the only problem with the decision, I might be inclined to defer. Unfortunately, there are many other problems, the cumulative effect of which is to make the decision as a whole unreasonable.

(ii) Reliance on Extraneous, Improper and Irrelevant Considerations

[83] As I have mentioned, the only allegation of an act or omission that could be regarded as unprofessional, was the failure to immediately notify the parents. Notwithstanding this, the Committee took into account numerous other acts which the Committee considered to be improper and which the Committee took into account in making its decision.

Medical Treatment for Student A

[84] The Committee stated at a number of points in its decision that the teachers ought to have immediately sought medical attention for Student A. The Committee also criticized the teachers for “not making any effort to obtain a psychological or emotional assessment after this traumatic event.” At page 194 of its Reasons, the Committee specifically stated that it took this into account “as evidence of Ms. Novick’s breach of the standard of care.”

[85] This was a wholly irrelevant consideration. It had been part of the original complaint and had not been referred to the Discipline Committee for hearing. It was not within the scope of the hearing and the Committee was acting outside its jurisdiction by making such findings.

[86] Furthermore, it was a completely unjustified criticism. The assault occurred at about midnight. The parents were called at 7:00 a.m. Between midnight and 7:00 a.m., it is ludicrous to suggest that a “psychological or emotional assessment” should have been obtained. The student was upset, quite understandably, but nothing close to what would require psychological treatment on an emergency basis in the middle of the night. Further, the student was not physically injured. He was held down and there was brief digital anal penetration. Mr. Middleton asked the student if he wanted to see a doctor and he declined. When Student A spoke to his father at 7:00 in the morning, he again repeated that he did not need medical treatment. After 7:00 a.m. neither of the parents asked that the student be taken to a hospital or doctor, and Student A did not seek such attention. There was no possible basis, in fact or in law, for the teachers to unilaterally insist on unnecessary and unwanted medical attention for a 16 year old. Their failure to do so can hardly be considered unprofessional conduct. Had they taken the student to a doctor in those circumstances without the consent of the student or his parents, that might constitute professional misconduct. Even if the criticism had been justified, this was not a matter that was relevant to the Committee’s consideration and should not have been taken into account. The fact that the Committee did take it into account is wrong in law and manifestly unreasonable.

Legal Advice for Student A

[87] The Committee was also highly critical of the teachers’ failure to ensure that Student A understood his legal options with respect to going to the police. Again, this was not part of the complaint and should not have been part of the Committee’s analysis. It is also wrong. It is not the job of teachers to advise students of their legal rights; that is what lawyers are for. It is also not the job of teachers to hire lawyers for students; that is what parents are for. As it happens both of Student A’s parents were lawyers. It would have been wholly inappropriate for the teachers in those circumstances to start giving the student legal advice, or to usurp the role of the parents in this regard. The Committee ought not to have considered it at all. Further, their criticism of the teachers was unreasonable and wrong, both legally and factually.

Failure to Report Crime to Boston Police

[88] The Committee also stated several times that the teachers acted improperly by failing to immediately notify the Boston police of the crime. This also was beyond the scope of the hearing and should not have been considered by the Committee. Again, the criticism that was made was unjustified and unreasonable. There was no issue as to the identity of the perpetrators. The teachers acted quickly, ascertained who was involved, obtained admissions, and seized the camera and computer upon which the video of the whole incident was recorded. This was therefore not a situation in which police needed to be involved on an urgent basis. The parents were involved as of 7:00 a.m. that morning. Any decision about involving the police should definitely involve the parents, as well as the wishes of Student A (a point to which I will return). Contrary to the view of the Committee, a decision to report a sexual assault of this nature to the police, particularly in a foreign jurisdiction, is not a simple one and not just a question of common sense. Ultimately, the parents did direct that a report be made to the police in Boston, and the Headmaster complied with that request, just minutes after the parents had asked the teachers to do that, and just minutes after the parents themselves had called the police, thereby triggering the opening of an investigation file in Boston. It was always within the power of the parents, and of Student A himself, to have contacted the police. The teachers did nothing wrong in this regard, and it was both wrong and grossly unfair for the Committee to have stepped outside the parameters of its own jurisdiction to make such an accusation against the teachers.

Breakfast Arrangements

[89] One of the findings made against Ms. Novick by the Committee (at page 205) was that, “the morning following the assault, Ms. Novick and Ms. Defossés went out and saw to their own breakfast without previous arrangement for Student A to be with adults and separated from Student 3 and 4” (the two perpetrators who played more minor roles and who were not sent home). Again, the Committee specifically stated it was taking this into account as “an additional example of Ms. Novick’s omission to provide continual care and support for Student A.” This is another clear example of the Committee taking into account conduct that is not part of the allegations and therefore irrelevant to the Committee’s role. Further, the Committee fundamentally misapprehended the facts. By this time, the parents had already been called and Student A had already spoken with his father for 22 minutes. Student A had already decided, and discussed with his father, that he wanted to stay in Boston and continue on with the trip. He did not want his father to come to Boston. The bus was leaving at 8:00 a.m. for the day’s outing. The girls on the trip wanted to go to Starbucks for breakfast; the boys wanted to go to McDonald’s. If Student A and his roommate Student B had not wanted to go to McDonald’s, they certainly did not need to go. To call this professional misconduct by a teacher, even if it was a relevant consideration (which it was not), does not approach reasonableness.

[90] In determining whether the teachers’ conduct was improper, the Committee compared the treatment of Student A to that of other students on the trip in other circumstances. One student had strep throat. Her parents were called and she was taken to hospital for treatment. Another student was having vertigo issues that were a safety concern and her parents were called. The Committee compared the speed with which those parents were called compared to the delay in calling Student A’s parents. Those were both situations that occurred during the day and where medical treatment was required. They were not situations in which parents were called in the middle of the night for a situation which did not require medical intervention. There is no suggestion that there was any favouritism towards the students who had illnesses and their parents, nor any animosity towards Student A or his parents. The comparison made was illogical. It was wholly unreasonable to compare such dissimilar situations and make adverse findings against the teachers accordingly.

(iii) Adverse Inference as to the Evidence of Headmaster Matthews

[91] The Committee made a finding with respect to the Headmaster, Mr. Matthews, that is perplexing. There was an Agreed Statement of Fact setting out various facts, including the involvement of the Headmaster. The Headmaster was not in Boston at the time of the trip, but Mr. Middleton called him at 1:39 a.m. on November 17th to fill him in on what happened. The Headmaster was involved in the decision making. The Agreed Statement of Fact clearly states that it was the Headmaster who directed that the two main perpetrators be sent home. There was a further discussion to update the Headmaster at 2:00 and 2:30 a.m. At 6:45 a.m., Mr. Penton left the hotel with the two main perpetrators, commencing the journey back to Ottawa.

[92] There is no evidence whatsoever that there was any disagreement amongst the four teachers on the trip and the Headmaster as to any of the steps taken. All of the evidence supports a finding that the steps taken were based on the consensus of all involved about what was appropriate. There is no discrepancy between the Agreed Statement of Facts and the testimony at trial as to the role of the Headmaster. There is nothing to suggest that the Headmaster had any different evidence to give about the sole issue, being the delay in contacting Student A’s parents. The Headmaster was willing and available to testify if any party required his presence.

[93] Notwithstanding that, the Committee noted[^11] that the Headmaster was not called to corroborate the teachers’ testimony that they had taken direction from him and that he was the one who made the decisions. The Committee also noted that there was no evidence from the Headmaster as to the “true status of responsibility on the trip and stated that “his evidence was curiously incomplete.” The Committee stated that it “should have heard from the Headmaster himself about his expectations about respecting the standards of practice and his sense of the decisions made by the teachers.” This last point is particularly perplexing given the Committee’s statements elsewhere in the decision that the Headmaster was not a Member of the College and that the teachers should not, therefore, have deferred decision-making to him. I see no relevance to the opinion of the Headmaster on the very issue the Committee had to decide, even if he had been a member of the College.

[94] At the urging of counsel for the College, the Committee drew an adverse inference that the evidence of Mr. Matthews would not assist the teachers based on the failure of the teachers to call him as a witness. Further, the Committee held this created an implied admission that the evidence of Mr. Matthews would be contrary to the teachers’ case. Based on this, the Committee ruled that the “credibility of the [teachers] on the key issues was undermined.” The Committee then went on to state that it “acknowledges that it is drawing an inference only.”[^12]

[95] It is difficult to know precisely what adverse inference was drawn by the Committee. The Committee merely stated that an adverse inference would be drawn as to the credibility of the teachers. The Committee did not specify which evidence of the teachers it now found to be not credible, except to say that it was on the “key issues.” It cannot have been the decision to send the two main perpetrators home, as it was an agreed fact that this was the Headmaster’s decision. The teachers did not testify that there were instructions from the Headmaster that it was not necessary to call Student A’s parents. Mr. Middleton testified that he would have called Student A’s parents at 3:00 a.m. if Student A had been awake. There was no communication between Mr. Middleton and the Headmaster at that point in time. It is difficult to see how an adverse credibility finding can be made against Mr. Middleton on this point based on the failure of the Headmaster to testify.

[96] In any event, the Committee failed to properly apply the principles with respect to adverse inferences. There was an Agreed Statement of Fact with respect to Mr. Matthews’ involvement. He was a witness who could have been called by the College if it wished, or if the Committee directed. There is no indication that he had any evidence to provide that did not merely duplicate the evidence of those directly involved. No adverse inference should have been drawn in these circumstances. Further, if an adverse inference was drawn, it was incumbent upon the Committee to state what the inference was. An adverse inference that the witnesses who did testify are generally not to believed, is not a proper inference.

[97] The Committee stated twice that this was “an inference only,” which is a statement I do not understand. It may be the case that the adverse inference had no impact on the result, except possibly with respect to the findings against Ms. Novick based on the Committee’s conclusion that she was in charge. However, that is not clear from the decision itself.

(iv) Adverse Findings Against Ms. Novick

[98] The Committee found Ms. Novick to be guilty of professional misconduct for failing to immediately contact the parents of Student A. Ms. Novick had no contact with Student A until after his parents had been notified and he had spoken with his father. Therefore, Ms. Novick can only be liable if she is somehow responsible for the acts or omissions of Mr. Middleton. Although the Committee did not make this finding explicitly, it can perhaps be inferred from the Committee’s finding that Ms. Novick was the “team leader” of the trip to Boston. The Committee’s findings as to her leadership role were based on: Mr. Middleton referring to Ms. Novick as the team leader at one point in his evidence; the fact that she was the main organizer of the trip; and the content of the letter to parents which was signed by Ms. Novick and identified her as the lead staff person. It does not necessarily follow from this administrative responsibility that Ms. Novick had authority over other teachers to the extent that she could direct their actions and was responsible for their misconduct. However, the Committee did not address this issue, nor identify at all the basis for Ms. Novick’s responsibility for the acts or omissions of others.

[99] Since Ms. Novick testified that she was not in charge of the other teachers, the Committee must necessarily have rejected her evidence on this point. The Committee made adverse credibility findings against Ms. Novick, stating that they found her testimony “not to be credible, clear or concise.”[^13] The Committee also stated that where there was a conflict in the evidence as between the testimony of Student A’s mother and Ms. Novick, it preferred the testimony of Student A’s mother, notwithstanding what it referred to as some “internal variations.”[^14] However, the Committee did not actually follow through on that. On issues where Ms. Novick’s evidence was pitted directly against the testimony of A’s mother (i.e. whether Ms. Novick lied to the parents about Student A not wanting to report the incident to the police; whether Ms. Novick discouraged Student A from going to the police; and whether Ms. Novick refused a request from the parents to report the incident to the police), the Committee actually found in Ms. Novick’s favour contrary to the evidence of the mother. The only issue upon which Ms. Novick’s testimony appears to have been rejected is with respect to whether she was the team leader, an issue upon which Student A’s mother’s evidence would have been irrelevant.

[100] The Committee offered two explanations for its adverse findings of credibility against Ms. Novick: inconsistencies in her evidence and the fact that she called her husband for advice. On the first point, the Committee stated that there were “inconsistencies” in Ms. Novick’s testimony, which led them to question the “many versions they were offered.” The Committee did not state what the “many versions” were, but did provide two examples of the “inconsistencies.” First, the Committee said that Ms. Novick testified she understood why Student A’s mother was upset, but then later Ms. Novick characterized the mother’s demeanour in a negative way, describing her as being “unpleasant” and “yelling.” I fail to see how this can be considered to be inconsistencies in testimony. A witness can easily understand why a person is upset and nevertheless describe that person as yelling and being unpleasant. This is no basis for making a negative credibility finding. The second example is similar in nature. The Committee found Ms. Novick’s position to be “incongruous” in that on the one hand she portrayed herself “as a staunch advocate for the rights of Student A,” while on the other hand “demonstrated through her management of the trip, a keen eye for the obligations and rights of parents and the privileges they retain for the care of their children.” Again, these are not inconsistencies in evidence. The fact that Ms. Novick was even-handed and open-minded with respect to the individual rights of the child while at the same time recognizing the rights of parents is to her credit; it can hardly be said to make her unworthy of being believed. No other examples of inconsistent evidence were mentioned.

[101] The second stated basis for the adverse credibility finding against Ms. Novick was the fact that she called her husband, who is a lawyer, and asked for his advice as to who should make the call to the police and whether the wishes of the student needed to be taken into account. The Committee felt this demonstrated that Ms. Novick was worried about her own personal liability. The Committee also discounted the advice Ms. Novick received about respecting the rights of the 16-year-old student and noted that it had not been “established by an expert witness to be a standard legal principle.” The Committee went on to substitute its own view as to the propriety of an educator on a field trip taking such a “narrow approach” and described Ms. Novick as abandoning the requirement of “caring for a student experiencing difficulty” and considering it “appropriate to defer the decision to contact parents and police to a traumatized 16-year old.” The Committee concluded that analysis by stating that the testimony of Ms. Novick was not “credible, clear and concise.”

[102] Although the Committee did not expressly say so in this section of its analysis, it is possible that the adverse inference with respect to the failure of the Headmaster to testify was also a factor affecting its adverse findings of credibility against Ms. Novick. I say that only because the Committee expressly said that it was using the fact of the failure of the Headmaster to testify as reflecting on the general lack of credibility of the teachers and only issue upon which any teacher was disbelieved was on the leadership issue.

[103] The Committee erred in virtually every respect in its analysis of Ms. Novick’s testimony. No examples of truly inconsistent evidence were cited. It was improper to make adverse findings of credibility against her generally because of the failure to call another witness. It was appropriate and responsible for Ms. Novick to seek advice about the law surrounding the rights of a 16-year-old to make his own decisions about a matter of this nature. Further, the advice she received was sound. Even if the advice had not been replicated through an expert at the hearing, it was completely improper to determine Ms. Novick to be unworthy of belief and trying to avoid her own personal liability merely because she sought legal advice on a pertinent legal question, which incidentally had nothing at all to do with her own liability.

[104] It is rare for a reviewing court to interfere with the credibility findings of a tribunal. This could well be an appropriate case in which to do so. However, the only adverse finding made against Ms. Novick was that she was the leader of the trip, and was therefore responsible for the decision not to call the parents “immediately.” There was “some” evidence that she was the team leader because she was described as such in the letter to the parents. However, given that the entire decision of the Committee is being set aside, it is not necessary to make a determination as to whether the Committee erred in finding Ms. Novick to be in charge and responsible for the acts of others, and I refrain from doing so. However, the manner in which the Committee dealt with this credibility issue is a further example of the unreasonableness of the decision as a whole.

(v) Failure to Consider Relevant Evidence: The Rights of Student A

[105] Student A first contacted Mr. Middleton at about midnight. Mr. Middleton spent about an hour with Student A, listening to his story of what had happened and providing him with comfort. Initially, Student A took the position that he did not want to tell his parents what had happened. However, Mr. Middleton encouraged him to talk to his parents by telling him about his personal experience of being assaulted as a young person and later regretting the fact that he had not shared this with his own parents at the time. As a result of their discussion, Student A agreed that he would speak to his parents. At 1:00 a.m. Mr. Middleton left Student A with his roommate and from then until 3:00 a.m. was dealing with other details.

[106] During this time, Student A was in a hotel room with access to a phone. He also had his own cell phone. He could easily have called his parents if he wanted to talk to them. He did not. Indeed, he could have called his parents before turning to Mr. Middleton, but did not.

[107] At 7:00 a.m., Mr. Middleton woke up Student A and told him it was time to call his parents. It was Mr. Middleton who placed the call and he spoke first to Student A’s father. Father and son then spoke for about 20 minutes. Student A said he wanted to continue with the trip and did not want his father to come to Boston. After this conversation, Student A’s father did not wake up his wife, Student A’s mother, to tell her what had happened. Instead, he went to his gym for a workout. He told his wife when he got home an hour later. Student A’s mother attempted to reach her son, but he had turned off his cell phone. Student A’s mother called Ms. Novick and told her she wanted to speak to her son, who was not present at the time. Ms. Novick told Student A to call his mother. Student A did not do so, and continued to leave his cell phone switched off. Shortly after 1:00 p.m., Ms. Novick spoke to Student A and discovered he had not yet spoken to his mother. Ms. Novick insisted he speak to his mother in her presence, and gave him the school’s cell phone to do so.

[108] The reluctance of Student A to speak to his parents about the matter is apparent. Likewise, it is apparent that both Mr. Middleton and Ms. Novick encouraged Student A to talk to his parents and actively facilitated his doing so.

[109] With respect to the involvement of the police, the teachers quite rightly left that issue up to the parents. When the parents decided they wanted the Boston police contacted, the Headmaster did that, only to learn that the parents had also called the police minutes earlier. Obviously, the parents could have done so at any time, as could Student A.

[110] At the age of 16, Student A was not an adult in the eyes of the law. However, that does not mean that he had no rights whatsoever to privacy or self-determination. At the very least, he was entitled to have his preferences taken into account. There will be circumstances in which the preference of a young person not to report a crime (whether to his parents or to the police) will not be paramount. There will be circumstances in which a teacher will be entitled, and should, override the student’s preference to maintain his privacy. Those circumstances will include situations in which there are safety issues for others, as well as health and safety issues for the student himself. However, the individual rights of the student cannot simply be ignored or over-ridden merely because he is under the age of 18. The teachers charged with misconduct in this case understood that the student involved had rights, and that those rights needed to be taken into account and treated seriously. Unfortunately, the Committee had no such understanding.

[111] The rights and stated wishes of Student A were a relevant consideration for the decision-making of the teachers to whom he turned for help. They were sensitive to that issue and sought legal advice about it.

[112] The Committee erred by ignoring the rights of Student A as a relevant issue to be taken into account in assessing the reasonableness of the teachers’ actions with respect to this incident. The Committee compounded that error by treating the teachers’ legitimate concern as a negative factor in its determination of whether the teachers were guilty of professional misconduct. The Committee found the teachers to have acted improperly in failing to contact the police themselves. Again, this was improper. In concluding that the student had no rights in this situation, the Committee relied upon the permission form which the school required parents to sign before the school would take the students to Boston on the trip.[^15] The Committee correctly stated, “The inclusion of this permission sheet demonstrates the premise that students needed parental consent to take part in the trip.” That is all the permission form demonstrates. The Committee went further, holding that this showed that parents retained their rights to make decisions regarding the safety and well-being of their children. This is somewhat accurate, except that the teachers were given the authority to make those decisions in the absence of the parents. Unfortunately, the Committee still went further and held, “As such, the students did not have the autonomy to make decisions, such as calling the police in the event of an assault.” That conclusion does not follow logically from the permission form. Furthermore, it is wrong. A child always has the right to report a crime to the police, even against his own parents, or indeed teachers. That right cannot be taken away. The Committee misconceived the nature and legal effect of the permission form and gave it an interpretation it cannot bear in law, or even as a matter of common sense.

[113] There were no safety issues at play here. There were no injuries to Student A requiring immediate medical intervention. There was no ongoing danger to Student A or to others. As a result of the quick actions of the teachers, especially Mr. Middleton, the offending students were confronted, and admitted their wrongdoing. The main perpetrators were removed from the group and sent home. The evidence of the assault was preserved. There was no urgency requiring the immediate involvement of police. There was ample time for a considered decision to be made, one in which the parents (hopefully in consultation with their son) were in the best position to make. There was no basis for the teachers to take such a decision out of the hands of the student or his parents by unilaterally making a report to the police. That their failure to do so should be taken as evidence of professional misconduct is unreasonable. In any event, a report was made to the police within 24 hours of the incident.

[114] Thus, the Committee not only failed itself to take into account relevant evidence as to the surrounding circumstances, it criticized the teachers for taking that relevant information into account.

(vi) Failure to Take into Account Surrounding Circumstances

[115] The consideration of unprofessional conduct under s. 1(18) of the Act is required to be contextual. Conduct can be said to be unprofessional only if members would reasonably regard it as such, “having regard to all the circumstances.”

[116] The Committee in this case failed to have regard to all the surrounding circumstances, as they were required to do. In particular, the Committee failed to appreciate that the teachers had competing duties, which they were required to prioritize. Obviously, the teachers were charged with ensuring the well-being of Student A. However, the teachers also needed to deal with the perpetrators of the assault. It was important to confirm with those perpetrators and other witnesses exactly what happened. Further, the teachers knew the incident had been filmed. It was critical that the video be located and seized before it wound up on the Internet. This was important not only for purposes of preserving the evidence, but in order to protect the privacy and well-being of Student A. In accordance with school policy, the permission forms signed by the parents, and the directions of the Headmaster, a decision was made to send the two main perpetrators back to Ottawa. This also protected the well-being of Student A, who wanted to stay on the trip. Because these students were being sent back home early by air, arrangements had to be made for the parents of those students to pick up their children at the airport. Those students were being accused of a serious offence. It was important for their parents to know that as well. That is not to say that the rights of the perpetrators are more important than those of the victim, but to merely recognize that the teachers had multiple responsibilities.

[117] Rather than recognizing that the teachers were required to deal with the perpetrators as part of their professional responsibilities, the Committee criticized the teachers for giving them priority over Student A. What the Committee failed to take into account is that Mr. Middleton, and for part of the time Mr. Penton, spent over an hour with Student A, and only left to attend to other things after assuring that Student A was safe, did not require medical attention, and felt comfortable being left in the company of his roommate.

[118] The Committee also failed to take into account the time of day when this was occurring. Student A made his report to Mr. Middleton at midnight. Mr. Middleton spent a little over an hour with Student A. He then woke up all of the other teachers. Between 1:00 and 3:00 a.m., there were consultations with the Headmaster, interviews with the perpetrators (taking care to keep them separated), contact with the parents of the perpetrators, and arrangements to transport the perpetrators back to Ottawa. By the time Mr. Middleton was able to return to Student A, it was 3:00 a.m. and Student A was asleep. The question he confronted at that point was not merely should the parents be called. The question was whether it was sufficiently urgent for the parents to be contacted that both they and Student A should be woken up at 3:00 in the morning. The timing was an important contextual factor that the Committee ought to have taken into account, but failed to weigh in the balance.

[119] It must also be borne in mind that these teachers had responsibilities to the other students on the trip. They had already been up most of the night. The trip would be continuing the next morning. The teachers also needed to get some minimum amount of sleep before tackling the activities of the next day, short-handed at that point given that Mr. Penton had been delegated to accompany the perpetrators back to Ottawa. The Committee gave no consideration to this factor.

(vii) Failure to Consider the Good Faith Exercise of Judgment

[120] There is no specific rule or law stating the precise circumstances and precise time at which a teacher should contact a parent about a student. As already noted, a contextual approach must be taken. In this case, the teachers, weighing the various factors, were required to exercise judgment as to when the parents of Student A should be called. The Committee failed to properly consider the situation as an exercise of judgment.

[121] It is well-established that an appropriate exercise of judgment will satisfy professional obligations. In Wilson v. Swanson, the Supreme Court of Canada held:[^16]

An error in judgment has long been distinguished from an act of unskillfulness or carelessness or due to lack of knowledge. Although universally-accepted procedures must be observed, they furnish little or no assistance in resolving such a predicament as faced the surgeon here. In such a situation a decision must be made without delay based on limited known and unknown factors; and the honest and intelligent exercise of judgment has long been recognized as satisfying the professional obligation.

[122] Although Wilson v. Swanson was a negligence action, the same principles have been applied in professional misconduct proceedings (often citing Wilson v. Swanson). For example, in Brett v. Board of Directors of Physiotherapy,[^17] the Ontario Divisional Court held:

Where the alleged misconduct does not infringe a specific law and relates to the conduct or judgment of the member in performing his professional work, the member cannot be found guilty of professional misconduct if there exists a responsible and competent body of professional opinion that supports that conduct or judgment.

[123] In this case, a student who had been a victim of an assault came to a teacher he trusted and confided in him what had happened. He was quite upset, understandably. He told that teacher, Mr. Middleton, that he did not want to tell his parents. One possible course of action for the teacher would have been to “immediately” call the student’s parents and tell them what had happened, over the objections of the student. Instead, Mr. Middleton spent an hour with this troubled student, listening to him, reassuring him, making sure he was alright. He gained the further trust of the student and was able to convince the student that his parents should be told. That was a judgment call. Surely the teacher should not be faulted for taking this time with the student and listening to his concerns before simply overriding his concerns about talking to his parent. Obviously, there was no difference whatsoever in calling the parents at 1:00 a.m. as opposed to midnight.

[124] Next, the teacher could have immediately called the parents at 1:00 a.m. Instead, he woke up the other teachers and consulted with them. He sought and received the advice of his Headmaster. He went to the perpetrators and separated them. He interviewed them and ascertained the facts, obtaining their admissions to what had happened. He seized the video camera that had been used to record the incident and the computer upon which the video was stored. Had the teachers failed to seize that video and it had wound up being distributed on the internet or to other students on the trip, Student A’s trauma would clearly have been exacerbated. Were the teachers wrong in taking care of these steps before calling Student A’s parents? Who can say? There was no downside to whether Student A’s parents found out at 1:00 or 3:00, but there was considerable downside to delaying dealing with the perpetrators. This was a judgment call. All four teachers, in consultation with their Headmaster, took a course of action they considered to be appropriate. While reasonable minds might differ as to what they should or would have done, it is not reasonable to find that the choice of one course of action over another was professional misconduct, particularly when it was a decision made in good faith and no harm whatsoever resulted.

[125] At 3:00 a.m., Mr. Middleton went to Student A’s room with the intention of calling his parents in his presence. Student A was asleep. Mr. Middleton had options. He could have pounded on the door until Student A (and likely the other students in the room) woke up, and then insisted that Student A call his parents, waking them up in the middle of the night. Alternatively, he could have called the parents himself, waking them up at 3:00 a.m. to tell them what had happened and to also tell them that their son was asleep, leaving it up to the parents to decide whether Student A should be gotten out of bed. A third alternative was to let Student A sleep and call the parents in the morning. Mr. Middleton chose the third option. He reasoned that Student A had been through a difficult and potentially traumatic event and that if he was getting some rest, that was a good thing. He decided to wait until 7:00 a.m. to call the parents. That was a judgment call. No harm was done. There was no peril to Student A and no peril to the parents. There was no need of medical attention. After the parents were involved, they did not direct that Student A be seen by a doctor, they did not seek to have Student A sent home, and they did not themselves come to Boston. Indeed, Student A’s father also appeared to recognize the lack of urgency, giving priority to going to his gym for a workout over waking up his wife to tell her what had happened.

[126] The Committee’s consideration of the “exercise of judgment” issue can be found in the penultimate page of its Reasons, as follows:

The Committee was particularly convinced by the comments of College Counsel, which asserted that the actions to be taken by a teacher after hearing from a student, “I think I’ve just been sexually assaulted,” should be clear, and do not require a “tough judgment call”.

The Committee finds that no special training or legal advice is necessary to know that parents should be called immediately, that the victim should receive appropriate care and support and that the crime should be reported to the police. It was just common sense to call the police.

[127] The Committee erred in law and acted unreasonably in failing to appreciate that the actions taken by the teachers were undertaken as an exercise of professional judgment. The teachers gave considerable care to the decisions they made, and acted throughout in good faith and in what they believed to be the best interests of Student A. This is not disputed in the evidence. The failure to even consider this as a factor in determining whether the teachers committed professional misconduct is a fundamental and overriding error going to the very essence of the Committee’s reasoning.

(viii) Effect of Cumulative Errors

[128] The number, nature and extent of the errors made by the Committee are overwhelming. The Committee made fundamental errors in assessing credibility. The Committee took into account irrelevant factors and made adverse findings based on those factors. The Committee criticized the teachers for failing to contact the police, a factor that was not properly before the Committee, and about which the Committee was wrong in any event. Likewise, the Committee criticized the teachers for not obtaining medical care for Student A, a factor that was not properly before it and upon which the Committee was wrong. Student A did not require medical attention, as was confirmed by the teachers that night and by his parents when they spoke to him the next day. The Committee completely misconstrued the relevance of the doctrine of in loco parentis and the effect of the permission form signed by parents. There were also other irrelevant factors taken into account, as referred to above.

[129] Further, the Committee failed to take into account numerous factors that were relevant and important for them to consider. These included the rights of Student A, a factor which the Committee not only ignored, but decided was an adverse factor against the teachers, when the reverse was true. Likewise, the Committee failed to consider the surrounding circumstances such as the time of the occurrence and the other responsibilities and duties the teachers were required to perform and prioritize. Finally, and most importantly, the Committee either failed to consider, or gave short shrift to, the fact that the teachers were exercising professional judgment in this situation. They complied with school policy and the directions of their Headmaster. They did not violate any law, guideline or rule for teachers or any other member of the public. They acted throughout in what they believed to be the best interests of the students in their care, including Student A. Nothing they did or did not do resulted in any harm to Student A, or interfered with his rights in any way. None of this was taken into account by the Committee.

[130] On top of all of these errors, the Reasons of the Committee are virtually unintelligible and do not meet the minimal standards required for reasons. Counsel for the College cited the Federal Court of Appeal’s decision in Vancouver International Airport Authority v. P.S.A.C. in which Stratas J.A. identified the four fundamental purposes against which the adequacy of reasons must be measured: (1) the substantive purpose (the substance of the decision; why the decision-maker ruled as it did); (2) the procedural purpose (so that the parties can decide whether or not to seek judicial review); (3) the accountability purpose (so that the reviewing court can meaningfully assess reasonableness); and (4) the “justification, transparency and intelligibility purpose” (adopting the language of the Supreme Court of Canada in Dunsmuir[^18] and requiring reasons to be understandable to the parties and to the general observer). Elaborating on the justification, transparency and intelligibility criteria, Justice Stratas stated (at para. 16(d)):

Justification and intelligibility are present when a basis for a decision has been given, and the basis is understandable, with some discernable rationality and logic. Transparency speaks to the ability of observers to scrutinize and understand what an administrative decision-maker has decided and why. In this case, this would include the parties to the proceeding, the employees whose positions were in issue, and employees, employers, unions and businesses that may face similar issues in the future. Transparency, though, is not just limited to observers who have a specific interest in the decision. The broader public also has an interest in transparency: in this case, the Board is a public institution of government and part of our democratic governance structure.

[131] Justice Stratas then held as follows:

The adequacy of reasons is not measured by the pound. The task is not to count the number of words or weigh the amount of ink spilled on the page. Instead, the task is to ask whether reasons, with an eye to their context and the evidentiary record, satisfy, in a minimal way, the fundamental purposes, above.

[132] Ironically, this reference to reasons not being measured by the pound is usually applied in cases where the reasons are extremely brief. However, the principle applies equally to the opposite end of the spectrum. The mere fact that the Reasons in this case are 238 pages long does not mean that they are adequate. The substantive purpose is not met. It is not clear from the decision why the Committee made many of the rulings it did. It is also difficult to find what the actual rulings are, as they are scattered throughout the decision, sometimes under headings dealing with the submissions of counsel or descriptions of documents, rather than under the headings which purport to set out the actual findings. Further, the opaque nature of the Reasons, and their prolixity, have made the process of judicial review a difficult one, which affects the procedural and accountability purposes. Finally, the Reasons in this case are not intelligible, nor are they transparent. They might be comprehensible to the parties, or at least to their counsel. However, an outsider to the case would not be able to discern the underlying basis for the Committee’s ruling.

[133] Any one of these defects or errors might not have been sufficient, standing alone, to warrant setting aside the decision. The cumulative effect, however, is overwhelming. The decision is so tainted with error it cannot stand. Most importantly, the result cannot be said to fall within a range of reasonably acceptable outcomes. The decision must be set aside.

G. REMEDY

[134] Although this Court has the jurisdiction to set aside the findings of the Committee and substitute its own decision, it would rarely do so. This case, however, is one of those rare situations in which justice requires such a course of action.

[135] The teachers in this case faced an unusual occurrence outside the usual experience of teachers. They were in a different country and dealing with criminal conduct by one group of students in their charge against another student in their charge. There were no clear laws, policy directives, rules or guidelines telling them what they should do in such a situation. This happened in the middle of the night. The teachers remained calm. They comforted and reassured the victim, convincing a reluctant teenage boy that he should disclose the assault to his parents. They worked together as a team, sought legal advice, and consulted with their Headmaster in Ottawa. They confronted the alleged perpetrators, separated them from each other, obtained their confessions, and seized a video of the assault before it was disseminated, saving the victim from untold anguish into the future. They acted always with the privacy and dignity rights of the victim in mind, but also ensuring that he was safe and well. They removed the main perpetrators from the group and returned them to Ottawa, ensuring that the victim, who wanted to stay with his friends and continue the trip, was able to do so without embarrassment or fear. They ensured that the victim spoke to his father (at 7:00 in the morning) and his mother (at 1:00 in the afternoon). Without the direct involvement of Mr. Middleton and Ms. Novick, neither of those calls would have been made. When the parents directed that the police should be called, the teachers facilitated that as well. They did all of this through the hours of the night, from midnight through to 7:00 a.m. with little, if any, sleep. Then, they continued on the next day supervising 47 teenagers on their field trip in Boston.

[136] Five years after the fact, their conduct is being scrutinized on the basis of whether they phoned the parents of the victim fast enough. Throughout, the teachers were exercising their professional judgment and prioritizing the tasks they were facing. They never lost sight of the best interests of Student A, who it must be borne in mind had no real desire to speak to his parents. Different choices could have been made; and indeed some might advocate that different choices should have been made. Reasonable minds can differ. At 1:00 a.m., Mr. Middleton elected to get advice from others and then deal with the perpetrators, rather than calling the parents. By doing so he may well have averted considerably more anguish for Student A than was already there. At 3:00 a.m. Mr. Middleton elected to let a tired and traumatized 16-year-old get some sleep, rather than calling his parents. He did that with Student A’s best interests in mind, believing he needed to rest more than he needed to talk to his parents. Some might say he should have called the parents earlier. I would not be among them, but I recognize there can be a different point of view.

[137] But that is not the issue. The teachers in this case faced a difficult situation and they brought their best, educated judgment to bear. They did so in good faith, with an enormous degree of compassion, and always with the best interests of Student A in mind. As a result of their actions, Student A was comforted and supported by his teachers that night, and by his father first thing in the morning. The perpetrators were brought to justice. Any delay by the teachers in contacting the parents had no impact whatsoever on anything that took place thereafter, apart from the anger of the parents. The question is not whether the teachers should have contacted the parents earlier. The question is whether their failure to do so in all of the circumstances amounts to professional misconduct. In my opinion, in all of the circumstances, such a conclusion would be manifestly unreasonable.

[138] There are virtually no facts in dispute and, in substituting our determination for that of the Committee, this Court is not required to make findings of fact or determinations of credibility. Given the passage of time and the conclusion which I consider to be virtually inevitable, I see no merit in putting the parties through another lengthy and difficult hearing.

[139] Accordingly, the decision of the Committee is set aside and in its place there will be a dismissal of all charges against these teachers. The appellants are entitled to their costs. If the parties are unable to agree on the quantum, written submissions may be forwarded to the court within 30 days of the release of this decision.

[140] Finally, the College is urged to provide training to its Committee members on the substantive issues they will be required to address and the process of writing effective reasons.

MOLLOY J.

CORBETT J.

SANDERSON J.

Released: March 7, 2016

CITATION: Novick v. Ontario College of Teachers, 2016 ONSC 508

DIVISIONAL COURT FILE NO.: 598/14

DATE: 20160107

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MOLLOY, CORBETT and SANDERSON JJ.

BETWEEN:

ALYSSA NOVICK and IAN MIDDLETON

Appellants

– and –

ONTARIO COLLEGE OF TEACHERS

Respondent

REASONS FOR JUDGMENT

Molloy J./ Divisional Court

Released: March 7, 2016

[^1]: Ontario College of Teachers Act 1996, S.O. 1996, c.12

[^2]: King Lofts Toronto I Ltd. v. Emmons, 2013 ONSC 6113.

[^3]: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9; Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 SCR 708, 2011 SCC 62; Markson v. Ontario College of Teachers, 2003 9308 (Ont.Div.Ct.)

[^4]: Statutory Powers and Procedure Act, R.S.O. 1990, c. S.22

[^5]: Ontario College of Teachers Act, s. 3 (1) 7

[^6]: Ontario College of Teachers v. Tallevi, 2011 LNONCTD 33

[^7]: Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Toronto:Butterworths, 1992) as cited in R. v. Koh (1998), 1998 6117 (ON CA), 42 OR (3d) 668; 131 CCC (3d) 257; 21 CR (5th) 188 (C.A.).

[^8]: R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32 at para. 48

[^9]: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 SCR 708, 2011 SCC 62 at paras. 12, and 14-16

[^10]: Markson v. Ontario College of Teachers, 2003 9308 (Ont.Div.Ct.) at para. 9; Sclater v. Ontario College of Teachers, [2000] O.J. No. 1428 (Div.Ct.); Devgan v. College of Physicians and Surgeons, 2005 2325 (ON SCDC), [2005] O.J. No. 306 (Div.Ct.); Cheung v. Ontario Association of Architects, [2009] O.J. No. 2230, 79 C.L.R. (3d) 256 (Div.Ct.)

[^11]: Reasons of the Committee, p. 213

[^12]: Reasons of the Committee, p. 219; see also p. 233 for a statement to the same effect.

[^13]: It is unclear what a failure to be “concise” has to do with credibility; perhaps the Committee misunderstood the word.

[^14]: Reasons, p. 208 and 210-212

[^15]: Reasons of the Committee, at p. 204; see also pages 196-197 of the Reasons of the Committee and paras, ** of these Reasons.

[^16]: Wilson v. Swanson, 1956 1 (SCC), [1956] S.C.R. 804 at 812

[^17]: Brett v. Board of Directors of Physiotherapy (1991), 1991 8286 (ON SCDC), 77 D.L.R. (4th) 144 (Ont.Div.Ct.) at p. 152; see also Hallam v. College of Physicians and Surgeons of Ontario, [1993] O.J. No. 459; Barrington v. The Institute of Chartered Accountants of Ontario 2010 ONSC 338 (Div.Ct.) at paras 158-162 and 239.

[^18]: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 at para. 47