Case Name:

Mitchell v. British Columbia College of Teachers

Between

The British Columbia College of Teachers, appellant

(respondent), and

Patrice Ellen Mitchell, respondent (appellant)

[2005] B.C.J. No. 269

2005 BCCA 76

Vancouver Registry No. CA031407

 British Columbia Court of Appeal

 Vancouver, British Columbia

Finch C.J.B.C., Southin and Huddart JJ.A.

Heard: November 24, 2004.

 Judgment: February 16, 2005.

(32 paras.)

Administrative law -- Judicial review and statutory appeal -- Standard of review -- Reasonableness -- Boards and tribunals -- Reasons -- Education law -- School boards -- Professional responsibility -- Discipline -- Grounds -- Professional misconduct -- Sexual impropriety -- Penalties -- Appeals and judicial review -- Professions -- Other -- Teachers.

Appeal by the British Columbia College of Teachers (the College) from a judge's decision to overturn the decision of the Council of the College (the Council) to cancel the respondent, teacher's, certificate of qualification and terminate her membership. The Council reiterated the reasons of a panel of the Hearing Sub-Committee of the College's Discipline Committee (the panel). The Council's decision was made in June 2001. Sixteen years prior to the decision, the teacher had had sexual relations with a 14-year-old former student. The student was not at the teacher's school at the time the relationship occurred. In both a civil and criminal trial, the conduct was found to be consensual. Medical evidence indicated that she did not pose a risk to other students. Apart from this incident, she was held in high regard during her ten years of teaching. She had five non-teaching years after her suspension in 1996. The judge substituted a penalty of a two-year suspension. The teacher appealed the Council's decision regarding the penalty and its decision not to allow a publication ban. Regarding the publication of her name, the panel did not find a compelling reason not to publish her name. The judge did not find any compelling reason to publish the name. The judge found both the Council and panel's decisions to be unreasonable and their reasoning was inadequate.

HELD: Appeal dismissed. The appropriate standard of review was reasonableness simpliciter. There was nothing in the panel or Council's reasons to indicate whether it considered a lesser penalty. There was no explanation why a lesser penalty did not suffice. The two-year penalty imposed by the judge was upheld. The panel ignored portions of the evidence and treated the case as though it had occurred in 1991 and not in 1985. Cancellation of the teacher's certificate was unnecessary to maintain the public's confidence in the educational system. The appeal on this issue was dismissed. There was uncertainty regarding whether the College's bylaws created a presumption of publication. There was no error in the judge's decision finding that it was unreasonable for the Council to reject a publication ban.

Statutes, Regulations and Rules Cited:

British Columbia College of Teachers Bylaws, Bylaw 6.R.01, 6.R.01(a), 6.R.01(b), 6.R.03.

Teaching Profession Act, R.S.B.C. 1996, c. 449, ss. 23, 36, 40.

Counsel:

B. Laughton: Counsel for the Appellant

C. Anderson and L. Fong: Counsel for the Respondent

The judgment of the Court was delivered by

1 HUDDART J.A.:-- On 22 June 2001, the Council of the College of Teachers cancelled the respondent's certificate of qualification and terminated her membership. Its reasons for doing so were a reiteration of the reasons of a panel of the Hearing Sub-Committee of the College's Discipline Committee contained in a report made 14 March 2001 after a hearing over four days in late 2000 and early 2001. The hearing had centred on the question of whether the respondent's admitted sexual conduct with a 14-year old former student in 1984 and 1985 constituted unprofessional conduct. Before the panel, the respondent acknowledged her conduct was unbecoming a teacher but submitted that it did not constitute professional misconduct because she was not teaching the student when the conduct occurred. When the panel found otherwise, she accepted its decision and apologized to the College.

2     At the hearing before the panel, the respondent acknowledged her misconduct deserved the sanction of a suspension. However, she asked that the panel not recommend the ultimate sanction of the loss of her qualification to teach and membership in the College, because her conduct was not illegal but was the result of a loving friendship with a former student who was then attending high school, and because of her exemplary record as an ESL teacher until the Vancouver School Board suspended and then discharged her in 1996 following the student's complaint in late 1995. Medical evidence established that she posed no risk to any of her students. By 1996, she was married with three children and had come to fully appreciate how wrong her conduct had been. Criminal charges and the former student's civil action for damages were both dismissed after jury trials. At the civil trial, the jury determined the respondent had established that the sexual relationship had been consensual. The trial judge, in reasons dismissing a claim for damages for breach of fiduciary duty had concluded the former student was "not vulnerable to her or at [her] mercy" and "was pursuing her": M.(M.) v. M.(P.) (2000), 82 B.C.L.R. (3d) 125 (paras. 48 and 49).

3     The panel's findings of fact about the relationship were brief:

          The panel found that Patrice Ellen Mitchell first met the male student in 1982 when he was enrolled as a Grade 7 student in her ESL class. The student was born in 1969. Patrice Ellen Mitchell did tutor the male student privately after he went to high school. In the beginning the relationship included phone calls and tutoring and a friendship developed. In the summer of 1984 Patrice Ellen Mitchell began a sexual relationship with the male student. He was 14 years old at the time. Patrice Ellen Mitchell's sexual activity with the male student included holding hands, hugging, kissing, back massages, oral sex and intercourse on a regular basis. Patrice Ellen Mitchell kept her sexual relationship with the student a secret. Her former roommate believed the student to be one whom Patrice Ellen Mitchell was tutoring. Patrice Ellen Mitchell and the student wished to keep the relationship confidential and he requested her not to tell his family about the relationship.

4     After setting out the history of the criminal and civil proceedings, and the respondent's position before them, the panel concluded the respondent was "guilty of Professional Misconduct and Conduct Unbecoming a Member". The members of the panel explained their findings on pp. 7-8 of their report:

          ... The teacher should not have allowed the relationship to reach the personal levels it did and is unacceptable that it became a sexual relationship that began in the summer of 1984 and lasted to the summer of 1985. The teacher holds a position of trust, confidence and responsibility. This relationship seriously affects the confidence of the public in the profession and could be "reasonably regarded as disgraceful, dishonourable, or unbecoming a member of the profession by his well respected brethren in the group" Monnin C.J.M. in Law Society of Manitoba v. Savino, [1983] 6 W.W.R. 538, 1 D.L.R. (4th) 285, (at p. 292). ... Patrice Ellen Mitchell was the teacher of the male student. There was breach of trust of the teacher/student relationship when Patrice Ellen Mitchell, the teacher in the relationship, allowed it to become sexual. Teachers must always be cognizant of their profession and the privileged position they hold with students and parents. Patrice Ellen Mitchell did not demonstrate that knowledge of her profession in this situation.

5     The panel's reasons for its penalty recommendation were also brief:

          The panel considered all mitigating circumstances raised by Mr. Anderson. The cases submitted in support of suspension were significantly different to the circumstances in this case. The aggravating circumstances included the age and vulnerability of the fourteen-year-old ESL student. Further, this was not a single incident of touching. This was a sexual relationship with the male student, which included holding hands, hugging, kissing, back massages, oral sex and intercourse on a regular basis, which continued from the summer of 1984 to the summer of 1985. Ms. Mitchell kept her sexual relationship with the student a secret. It was not known or supported by the parents. As in Ross v. New Brunswick School District No 15, [1996].

          Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly on the community's perception of the ability of the teacher to fulfil such a position of trust and influence and upon the community's confidence in the public school system as a whole.

          The protection of the students in the care of teachers and the acknowledgement of the special position of trust must be honoured by all members of the profession. This was a fully sexual relationship that was kept secret and maintained over a period of time. Ms. Mitchell would not have had access to the boy if not for her position as his teacher. She was not formally his teacher at the time the relationship became sexual. However, she still held a position of trust and authority. The student witnesses who acted as references in support of Ms. Mitchell further evidenced this. They spoke to their perception of their ability to trust her and to think of her as a role model. Ms. Mitchell's relative inexperience or naivete does not absolve her of her professional responsibility.

6     The panel rejected the respondent's request for a publication ban of her name due to the importance placed on transparency in the College's disciplinary decision-making process. The objects of the College are to foster public confidence in the profession, to notify its members that an act may be found to be professionally wrong even if found not be criminally or civilly wrong, and to establish a general deterrent for the profession.

7     When the Council adopted the panel's reasons and recommendations, the respondent appealed the penalty and the corollary publication decision to the Supreme Court, as she is entitled to do under s. 40 of the Teaching Profession Act, R.S.B.C. 1996, c. 449. On 27 October 2003, Humphries J. released reasons allowing the appeal against both decisions: 2003 BCSC 1636, [2003] B.C.J. No. 3056. She found both decisions to be unreasonable. In her opinion, the panel's analysis was pro forma, and the Council, in accepting the panel's report, ignored portions of the evidence, considered only selected facts, and treated the case as if it had occurred yesterday rather than sixteen years prior. In the result, she substituted a penalty of a two-year suspension commencing 22 June 2001, and prohibited the College from publishing the respondent's name in the case summary. The College's appeal is from the consequential order. In supplemental reasons released 25 February 2004 [26 B.C.L.R. (4th) 147], Humphries J. dismissed the respondent's applications to have her initials substituted for her name in the style of cause and for an order sealing the Supreme Court file. Leave to appeal was not sought from that order.

8     The College's position is that its decisions as to both penalty and publication were based on a reasoned analysis of the evidence before it, and that the reasons given in support of its decisions, when taken as a whole, are tenable to support those decisions. In this submission, the College tracked the language of Iacobucci J. at para. 55 of his reasons in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 where he summarized the reasonableness simpliciter standard of review developed in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 this way:

          [55] A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. (see Southam, at para. 79).

9     There is no dispute that reasonableness simpliciter is the appropriate standard of review in this case. The question for this Court is whether the appellate judge erred in its application with regard to one or both of the Council's orders, as Koenigsberg J. was found to have done in Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. McLachlin C.J.C. concluded that Koenigsberg J. exceeded the limits of judicial review by engaging in a reconsideration of the findings of credibility made by the Inquiry Committee of the College of Physicians and Surgeons.

10     As the Supreme Court of Canada noted in Dr. Q., the reasonableness simpliciter standard requires a "significant searching or testing" rather than the "exacting" review required by the standard of correctness. The College alleges the appellate judge reweighed the mitigating circumstances and thus undertook an exacting review, in effect applying the correctness standard to her review of both of its orders. In the College's view, citing Ryan, supra, at para. 61, a reviewing court cannot reweigh the evidence of mitigating circumstances and impose a different penalty under the standard of reasonableness simpliciter. Where the appropriate standard is reasonableness simpliciter, as was the case here, a reviewing court must not interfere unless the party seeking review has positively shown that the decision, taken as a whole, was unreasonable.

Decision as to Penalty

11     The tenor of the appellate judge's reasons is that the panel's reasoning was basically inadequate. In essence, the panel imposed the maximum penalty available because a secret sexual relationship between a 14-year old former student and a 26-year old teacher required that penalty to deter others, and thereby uphold the public's faith in the educational system. Humphries J. concluded the panel could not have reached that conclusion had it properly considered the uncontradicted evidence as to what had happened since the teacher terminated that relationship in 1985 - evidence of the respondent's complete rehabilitation and her exemplary teaching record until her suspension by the Vancouver School Board ten years later.

12     Like the appellate judge, I can find nothing in the reasons of the panel to suggest it or the Council considered whether, in the circumstances of this case, the lesser penalty of suspension would adequately deter others, protect the public's faith in the educational system, and assist in the College's ability to regulate the conduct of its members. The panel's pro forma one-line acknowledgment of mitigating evidence reinforces the conclusion that it did not. I find it untenable to reason from the respondent's conduct to the maximum penalty without analysis and explanation as to why a lesser penalty would not suffice, one that would preserve the capacity of a highly-regarded teacher to benefit students, including those who testified as to those benefits. The respondent learned a difficult lesson from her misconduct and paid a high price for it in criminal and civil trials with the consequential publicity and ignominy, in addition to five non-teaching years.

13     The respondent understood and accepted before the Council's decision on penalty that it was her professional duty not to allow a friendly and loving relationship with a former student to become sexual. This is a consequence of the high standard of conduct required of teachers by our society as recognized in R. v. Audet, [1996] 2 S.C.R. 171; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, and Y.(D.M.) v. British Columbia College of Teachers (2001), 198 D.L.R. (4th) 292 (B.C.C.A.). Any teacher who reads the panel's decision about the offence charged or a summary of it will understand that criminal, civil, and professional consequences may follow a consensual sexual relationship with a former student.

14     The respondent and other teachers will also understand that the College sees 14-year old Grade 8 and 9 students as generally vulnerable - the panel found the former student's age to be an aggravating circumstance. What they will not understand is why a case where two juries of citizens and a trial judge found consent, lack of vulnerability, and pursuit on the student's part to be deserving of the maximum penalty - cancellation of the licence to teach in British Columbia. Nor will they understand why this consequence should flow from misconduct that ended three years before the College was established, at a time when the misconduct was not sanctioned by the criminal law, over 15 years before the penalty hearing, five years after the employer school board suspended her from teaching, and four years after her resignation. An explanation is missing from the panel's reasons and thus from the Council's decision. A meaningful discussion of other cases where sexual misconduct was found to have occurred might have provided an explanation. That, too, was missing.

15     In Y.(D.M.), supra, at para. 17, McEachern C.J.B.C. noted that "the imposition of the maximum penalty cannot be an invariable rule". At para. 78, Rowles J.A. stated that "disciplinary measures taken by a statutory authority in relation to sexual misconduct by a teacher ought to be directed at preventing specific harms rather than enforcing a state-imposed moral code". The failure to explain in a meaningful way why the maximum penalty was required in this case renders the College's decision as to penalty untenable. I agree with this conclusion of the appellate judge:

          [36] It is a basic principle of decision-making in the professional self-government regime that each case must be decided on its own facts. The reasons should be tenable, grounded in the evidentiary foundation and able to withstand a somewhat probing examination. Here it appears that the panel decided upon a principle first and then selected only the facts that fit it. In my view, this is not a reasonable approach, and the reasons for penalty do not withstand a somewhat probing examination.

          [37] The College is required, by its objects, to consider not only the public interest but the professional interest of its members. It did not do so here when it failed to give any analysis or consideration to the many mitigating factors specific to this case, in particular, failing to consider the uncontradicted evidence that the appellant will not re-offend, poses no risk to the public, and in view of her unblemished record since these long-past events, is not in need of rehabilitation. Its decision cannot stand and the appeal is allowed.

16     That error in principle permitted Humphries J. to consider whether the penalty imposed was appropriate in the circumstances, and if not, what penalty would be fit. She imposed a two-year suspension effective from the date of the Council's decision. I agree with that penalty. Indeed, the College did not suggest an alternative penalty if this Court were to uphold the appellate judge's order.

17     The practical difference between a two-year suspension and cancellation of a teaching certificate is that the teacher need not establish on re-application after two years that she is of good moral character and a fit person to teach. In this case, the evidence was overwhelming that this was the case with the respondent. On any reasonable examination of the evidence, cancellation was not required to maintain public confidence in the educational system.

18     When the harm the respondent caused her former student is weighed against the high regard in which she was held during ten subsequent years of teaching, the lack of risk to future students, and the five non-teaching years that followed her suspension in 1996, a two-year suspension is entirely fit. The College did not allege any misconduct during the year the respondent taught the former student. By the summer of 1983 he had graduated from the school where she was teaching. When the sexual relationship began in the summer of 1984, he had been attending a different school for a year. This is not a case of seduction for the teacher's personal satisfaction. The teacher failed to impose an appropriate boundary in a relationship that resulted from an earlier teacher/student relationship at the behest of the former student.

19     That an informed member of the public will not lose confidence in the educational system by reason of that penalty is evidenced in this case by the civil jury verdict. The jury heard the testimony of the former student and the respondent and found that the student gave genuine consent to the sexual contact. In concluding the respondent was not in a fiduciary relationship to her former student, Bennett J. commented (M.(M.)), supra, at para. 36):

          The finding within the jury verdict that the plaintiff genuinely consented to sexual relations leads to the conclusion that the defendant was not in a position of power or authority with respect to the plaintiff. If she was in a position of power or authority, she did not use or exploit her position to extract the plaintiff's consent to sexual contact. The plaintiff's consent was "genuine". It was given freely and voluntarily.

20     The respondent submits the panel's finding that she "still held a position of trust and authority" following the termination of the teacher/student relationship necessarily contradicts the civil court's verdict directly, such that at the very least, the panel was obliged to address the inconsistency in its reasons. I agree. While the College may be entitled to find that a sexual relationship with a former student constituted professional misconduct, once it chose to describe the professional duty as arising from a continuing relationship of "trust and authority", it ought to have addressed the verdicts of the juries and the findings of the trial judge, or to have explained its different use of those terms or to have demonstrated otherwise in its reasons respect for their contradictory findings of fact. Anything less diminishes the integrity of the courts' adjudicative function, especially in this case, the authority of jury verdicts.

21     Shortly after the release of the appellate judge's reasons, the Supreme Court of Canada examined the obligation of a regulatory decision-maker when considering a guilty verdict following a criminal trial on a charge of sexual assault. In Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, Arbour J. commented (at para. 51):

          ... if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

22     The discussion surrounding that comment suggests it is in the public interest that regulatory decision-makers give considerable deference to findings of fact made in earlier public proceedings, whether they be criminal or civil. This must be particularly so where those earlier proceedings were before a jury.

23     It follows I would affirm the order of Humphries J. regarding the penalty decision of the College.

Decision as to Publication Ban

24     The College's Bylaws have the force of a regulation once ratified by Order in Council under s. 23 of the Teaching Profession Act, as is the case here. Bylaws 6.R.01(a) - (b) permits case summaries, or such parts of it as are deemed appropriate, to be circulated among the College's members and released to the public. Bylaw 6.R.03 gives the Council the discretion to order that the disqualified member not be identified, as long as reasons are provided. The respondent sought such an order. The Council, reiterating the decision and reasons of the panel, rejected that request. In its reasons, the panel identified three interests to be served by publication of the case summary: public confidence in the College's self-regulation process, education of members as to standards of conduct and deterrence from their breach, and transparency of the decision-making process.

25     The College acknowledges that considerations that apply to their discipline proceedings differ from those that apply to court proceedings. Bylaw 6.K.02 dictates that discipline hearings are normally to be held in camera and Policy P6.S.01 provides limited public access to hearing reports. Thus, case summaries are the only means the College uses to inform the public and members of the profession about its discipline process. Case summaries, whether or not they identify the teacher by name, satisfy the need for public confidence in the process and the requirements for educating and deterring members of the College. Transparency is the interest served by identification; the College considers the public is entitled to know the discipline record of its members.

26     To serve this interest, the College will restrain from identifying a teacher whose certificate is cancelled and membership terminated only for a compelling reason. Compelling reason includes the protection of the privacy of the student victim and the interests of a respondent teacher's school-age children. In the panel's view, no compelling reason was established in the respondent's case.

27     A publication ban on the name of a disciplined teacher may be seen to keep secret that teacher's discipline record. That is unlikely because a ban on publication of a case summary does not preclude the College from providing a teacher's discipline record to a potential employer or any other person with a legitimate interest in having it. Indeed, s. 36 of the Teaching Profession Act requires the Registrar of the College to notify all school boards in British Columbia and the responsible Minister of all penalties and to record them in the College register.

28     The members of the panel explained their decision to refuse a publication ban of the respondents' name on pp. 10-11 of their report:

          The panel is recommending publication. It sought independent legal counsel on the issue of the potential breech [sic] of the court publication ban. The College proceeding considers Professional Conduct [sic] and Conduct Unbecoming a Member in relation to the Teaching Profession Act. The Criminal Court considered criminal actions within a defined context. The Civil Court proceeding considered civil liability and fiduciary trust. ...

          The College must be as transparent as possible to put the public's mind to rest and to foster the public confidence in the integrity of the College. ...

          The profession needs to be aware that an act may not be found to be criminally or civilly wrong, however, it may be professionally wrong. ...

          The public is aware of some of the specifics of this case and in the interest of the public confidence, it is important that the College's decisions are transparent. ...

          The general deterrence to the profession is an important factor. This is the only way to show the College acts firmly when the misconduct is significant.

29     Humphries J. found in the panel's reasons, "no reason, other than punishment, to publish the appellant's name at this late date and in these circumstances". She found those reasons supported the decision to publish a case summary, but not a decision to publish the respondent's name. In her view, the long delay in reporting the incident, the respondent's exemplary record in the intervening ten years, the six years since the report, and the lack of risk of reoccurrence, justified non-publication of the name. "There is no risk of harm, no risk of repetition of the conduct, and no risk of the school system being brought into disrepute in the eyes of the community" (para. 48).

30     This approach to the respondent's request for a publication ban of her name differs fundamentally from that of the College. The College looks for evidence of compelling reason to justify non-publication of the name. The appellate judge looked for reasons to publish. Treleaven v. College of Teachers (British Columbia) (2000), 78 B.C.L.R. (3d) 355 is the only other case where Bylaws 6.R.01 and 6.R.03 have been judicially considered. In that case Martinson J. (at para. 100) rejected the College's submission that the Bylaw 6.R.03 presumed a disciplined member would be named in the case summary and publication. She determined there is no legal presumption in favour of publication. The College's position on this appeal approximates a rebuttable presumption.

31     In this state of uncertainty about the interpretation and application of the bylaw, I would in ordinary circumstances have remitted this question to the College for reconsideration in light of the varied penalty and these reasons. The College is entitled to consider and explain its approach in careful and complete reasons, and to determine on the basis of its understanding of its bylaws whether the respondent's name should be published, having regard to the variation in penalty. However, on this appeal the College took the position this Court should decide the question and order that the notice be amended to reflect the disposition of the appeal as to penalty. In these circumstances I am content to say I find no error in the appellate judge's holding that the decision of the College to reject a publication ban was unreasonable.

32     It follows I would dismiss the appeal.

HUDDART J.A.

 FINCH C.J.B.C.:-- I agree.

 SOUTHIN J.A.:-- I agree.

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