CITATION: De Santis v Ontario College of Teachers, 2019 ONSC 1344 DIVISIONAL COURT FILE NO.: DC-184/18 DATE: 20190226
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MULLINS, MYERS, and FAVREAU JJ.
BETWEEN:
LISABETTA DE SANTIS and ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO
Applicants
– and –
ONTARIO COLLEGE OF TEACHERS
Respondent
Howard Goldblatt and Willow Petersen, lawyers the Applicants
Deborah Templer and Caroline H. Humphrey, lawyers for the Respondent
HEARD at Toronto: February 25, 2019
Myers J.:
REASONS FOR JUDGMENT
The Application
[1] This is an application for judicial review of the decision of the Registrar of the Ontario College of Teachers dated March 1, 2018. In his decision, the Registrar declined Ms. De Santis’s request to remove from the College’s public register the entry recording the 2014 finding of professional misconduct made against her by the Discipline Committee of the College.
The Applicants
[2] Ms. De Santis is a school teacher who is a member of the Elementary Teachers’ Federation of Ontario, the other Applicant in this application. Mr. Goldblatt confirms that the union seeks no different relief and advances no different arguments than Ms. De Santis. Rather than debate the union’s standing to bring or participate in this proceeding, Mr. Goldblatt was content to treat its involvement as having become moot. In light of the outcome reached below, it is unnecessary to determine this issue. Accordingly, I make no finding as to whether the union has any status in this proceeding.
The 2014 Decision
[3] In its 2014 decision, the Discipline Committee of the College made the following finding about the penalty that it imposed on Ms. De Santis:
The Committee considered and accepted the Joint Submission on Penalty. The Committee agreed that a reprimand and a course on classroom management and sensitivity to students with [a redacted condition] was the appropriate penalty for conduct of this nature. [Emphasis added]
[4] Ms. De Santis also asked the Discipline Committee to exercise its discretion to refrain from requiring that its findings be recorded on the Registrar’s public register. It refused this request holding:
The recording of the fact of the reprimand on the Register is important. It serves as a deterrent to the Member, the profession and the public at large. Penalty decisions made by Disciplinary Committees should be transparent and should not be withheld from the profession or the general public
The Statute and By-Laws regarding Deleting Information from the Register
[5] Subsection 23(2.5)(a) of the Ontario College of Teachers Act, 1996, SO 1996, c 12, provides:
(2.5) The Registrar shall remove from the register, in a timely manner,
(a) any terms, conditions or limitations imposed on a certificate of qualification and registration, as referred to in clause (2) (b), that are no longer applicable;
[6] Once Ms De Santis completed the course that was a condition of her penalty, the Registrar noted on the register that the condition had been fulfilled. It remains visible on the register, but Ms. De Santis’s license is noted as having returned to good standing.
[7] Subsection 26.01(a) of the College’s by-laws provides:
26.01 Notwithstanding section 23 of the Act, and other provisions of the bylaws:
a. if:
i. a finding of professional misconduct was made against a member, and
ii. the penalty imposed was limited to a reprimand, admonishment, counselling, or a fine, and
iii. at least three (3) years have elapsed since the order became final,
the finding of professional misconduct and the order shall be removed from the register, subject to any order of the Discipline Committee.[Emphasis added]
[8] Under s. 26.01(a)(ii) as emphasized above, where the only penalty imposed by the Discipline Committee is a reprimand, the Registrar is required to remove the finding of misconduct and the reprimand from the register after three years. Ms. De Santis submits that since she fulfilled the condition that she take a course, the only thing currently left on her record on the register is the reprimand. As more than three years have passed, she submits that she is entitled to have the reprimand removed from the register.
[9] The Registrar found that:
As the [2014] decision of the [Discipline] Committee included an order that course work be completed, the order was not limited to a reprimand…It is therefore not subject to removal under College Bylaw 26.01(a).
[10] The Registrar interprets s. 26.10(a)(ii) of the by-law to depend on whether the initial “penalty imposed” was a reprimand alone or whether there was some other penalty imposed as well at that time. Ms. De Santis argues that as the register now only shows her reprimand, that satisfies the by-law condition. In addition, she argues that the requirement of course work was not a “penalty” but was remedial in nature.
[11] Mr. Goldblatt argues with great force that the course was assigned by the Discipline Committee to assist the applicant’s rehabilitation. There is no basis in public policy for the fact that a teacher has taken an education course in the interests of rehabilitation to cause a reprimand to remain on the record longer than it would for another teacher who was reprimanded without a course being assigned.
[12] Mr. Goldblatt also noted that this case involved a plea arrangement and a joint sentencing submission. He argued that no teacher would agree to take a remedial course in a plea bargain in the future if doing so prejudiced her ability to have the reprimand removed from her record.
[13] In rejecting Ms. De Santis’s request to remove the finding of professional misconduct and the order for a reprimand from the register, the Registrar concluded:
The College does not hold the position that the completion of such course fundamentally alters the nature or intent of the original decision of the Discipline Committee.
JURISDICTION
[14] Pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act, RSO 1990, c J.1, the Divisional Court has jurisdiction to hear an application for judicial review.
STANDARD OF REVIEW
[15] The applicant argues that the standard of review is correctness, relying on the decision in Headrick v. Ontario College of Teachers, 2011 ONSC 1687, at para. 20. The Registrar argues that the standard of review in this case is reasonableness. This application involves the interpretation of the Registrar’s home statute and the College’s own by-laws in the context of the regulation of teacher licensing and discipline in Ontario.
[16] The parties appear to have agreed on the standard of review so the issue was not argued in Headrick. However, applying the well-known factors set out by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, in my view, a reasonableness standard provides an appropriately deferential approach for the court in this case. There is no privative clause. However the issue is not one of central import to the legal system generally. Rather, the issues engaged in the interpretive exercise in this case turn on the particular circumstances of teacher discipline. This is a highly regulated field and one in which collective bargaining is ubiquitous. It is appropriate to regard the Registrar as having day-to-day experience and expertise in the field and under this statute.
ANALYSIS
[17] A reasonableness review considers the transparency and intelligibility of the decision that is being reviewed. The question is whether the decision made by the Registrar is one that can be considered to be within the reasonable range of outcomes that were open to him on the evidence and the applicable law.
[18] In this case, the words of the statute and the by-law are clear and unambiguous. While the purpose of requiring Ms. De Santis to take a course may have been remedial, it cannot be doubted that the course was imposed as a part of the penalty for her professional misconduct. The reasons of the Discipline Committee leave no doubt that it was engaged in assessing and imposing a penalty on Ms. De Santis. She made a submission jointly with the Registrar specifically on the question of the appropriate penalty that should be imposed on her. Imposing a penalty for a finding of professional misconduct was the only basis on which the Discipline Committee had the jurisdiction to require Ms. De Santis to take the course.
[19] This was not a case where the Discipline Committee determined to impose a reprimand alone. The fact that the condition was removed from the register when the course was completed has no bearing on the issue addressed by s. 26.01(a)(ii) of the by-law. It speaks to the nature of the initial penalty imposed by the Discipline Committee and not the future content of the register. Mr. Goldblatt’s argument that the outcome does not conform to public policy is an argument about the reasonableness of the by-law as drafted and is properly made in another forum.
[20] The rationale of the Registrar’s decision was readily intelligible and within the range of outcomes that were reasonably available to him under the statute and the by-laws. Therefore, the application is dismissed.
[21] The parties agreed that costs would be paid to the successful party in the amount of $6,500 all-inclusive. Therefore the applicants are jointly and severally liable and are ordered to pay costs to the respondent on a partial indemnity basis fixed in the amount of $6,500 within 30 days.
___________________________ Myers J.
I agree
Mullins J.
I agree
Favreau J.
Date of Reasons for Judgment: February 26, 2019
CITATION: De Santis v Ontario College of Teachers, 2019 ONSC 1344 DIVISIONAL COURT FILE NO.: DC-184/18 DATE: 20190226
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MULLINS, MYERS, and FAVREAU JJ.
BETWEEN:
LISABETTA DE SANTIS and ELEMENTARY TEACHERS’ FEDERATION OF ONTARIO
Applicants
– and –
ONTARIO COLLEGE OF TEACHERS
Respondent
REASONS FOR JUDGMENT
MYERS J.
Date of Reasons for Judgment: February 26, 2019