Mammarella v. Ontario College of Teachers, 2023 ONSC 6654

CITATION: Mammarella v. Ontario College of Teachers, 2023 ONSC 6654

DIVISIONAL COURT FILE NO.: 025/23

DATE: 2023-11-27

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DANIEL MAMMARELLA, Applicant

AND: ONTARIO COLLEGE OF TEACHERS, Respondent

BEFORE: Backhouse, Matheson & Doyle JJ.

COUNSEL: Kirsty Niglas Collins, Austen Metcalfe and Jeremy Lee, for the Applicant

Christine Lonsdale and Adam H. Kanji, for the Respondent

HEARD at Toronto: November 21, 2023

ENDORSEMENT

[1] This application for judicial review was dismissed at the hearing with reasons to follow. These are those reasons.

[2] The applicant seeks judicial review of a decision of the Discipline Committee and the Fitness to Practise Committee of the Ontario College of Teachers (“OCT”) to amend Rule 7.03 of the Rules of Procedure of the Discipline and Fitness to Practise Committee. This amendment has the effect of bringing the third party production rule in line with the Supreme Court of Canada decision in R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, rather than the test outlined in the Supreme Court’s prior decision in R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411.

[3] R. v. O’Connor addressed requested access to a complainant’s medical and other records where the accused was charged with a number of sexual offences. R. v. Mills then addressed the amendments to the Criminal Code that were made on the same issue, after R. v. O’Connor.

[4] The OCT challenges the standing of the applicant to bring this application. In any event, the OCT submits that the ambit of judicial review is limited and the decision in question is reasonable. We agree.

[5] Beginning with standing, the applicant is a member of the OCT and submits that he has private interest standing. He also submits that he qualifies for public interest standing. We conclude that he does not have either private or public interest standing in this case.

[6] The requirements for private interest standing were summarized by this Court in Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931, at paras. 42-43, also quoting from Carroll v. Toronto-Dominion Bank, 2021 ONCA 38. To have private interest standing, a person must have a personal and direct interest in the issue being litigated and must themselves be specifically affected by the issue. It is not enough that the person has a “sense of grievance” or will gain “the satisfaction of righting a wrong” or is “upholding a principle or winning a contest”.

[7] The rule in question relates to proceedings before the Discipline Committee and the Fitness to Practise Committee and the applicant is not currently the subject of either type of proceeding. He was previously the subject of discipline proceedings and brought a third party record application that was addressed applying the test in R. v. O’Connor, after which allegations of sexual abuse were withdrawn. Other allegations resulted in a finding of professional misconduct. Those discipline proceedings concluded in December 2022. The applicant submits that his prior discipline experience and current membership in the OCT are sufficient for private interest standing. We disagree.

[8] The applicant has no personal and direct interest in the rule change because he is not currently the subject of proceedings under which that rule would apply. If he were, he could attempt to challenge the rule as unfair within the context of the related discipline or fitness to practice proceedings. This application is unlike Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, where the appellant lawyer was subject to the mandatory professional development rules at issue and was suspended for non-compliance.

[9] We also do not grant the applicant public interest standing. This application for judicial review is not a reasonable and effective way to bring the issue before the courts, nor do the other factors favour granting standing: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at paras. 37, 50. If need be, the issue may be raised, in context, in the proceedings where it applies.

[10] Even if the applicant had standing, we would dismiss this application. Subsection 25.1(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, provides that a tribunal may make rules governing the practice and procedure before it, and these two committees have done so. The applicant accepts that the OCT can change the rules but submits that this change is different because it imposes a different test for the production of third party records and is unreasonable.

[11] The applicant submits that the rule in R. v. Mills is stricter, limiting access to third party records, and in turn limiting a member’s ability to obtain exculpatory information. The applicant submits that it also should not be applied outside the context of sexual offences yet fails to address the fact that R. v. O’Connor also arose in that context. The applicant relies on the absence of reasons for the Committees’ decision to change the rule. The applicant further challenges the memorandum put forward to the Committees in support of the then proposed change.

[12] As noted in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 136, formal reasons are not necessarily required. The applicant has not shown that they were required in this instance. Where formal reasons have not been provided, the reviewing court looks at the record as a whole to understand the decision: Vavilov, at para. 137. The memorandum put forward in support of the proposed change is relevant context. It noted that the prior rules were sparse, that the R. v. O’Connor test had been applied, discussed the test in R. v. Mills, noted that it was intended to counter improper stereotypes about sexual assault victims, and noted that the Regulated Health Professions Act had already codified the R. v. Mills regime and other regulators had also done so.

[13] The applicant has not shown that the rule change was unreasonable. On the contrary, it is well within the scope of reasonableness for the third party production rule to be updated to align with a more recent decision of the Supreme Court of Canada and steps taken by other regulators. A regulator has considerable latitude in making rules: Green, at para. 24. The applicant may disagree with the decision. He is of the view that he benefited from the R. v. O’Connor test. But he has not shown that the rule change was not justified, transparent and intelligible.

[14] The application is dismissed with costs to the respondent in the agreed upon amount of $7,500, all inclusive.

Backhouse J.

Matheson J.

Doyle J.

Date: November 27, 2023