Indexed as:
Treleaven v. British Columbia College of Teachers
Between
Theodore Earl Treleaven, appellant, and
British Columbia College of Teachers, respondent
[2000] B.C.J. No. 1562
2000 BCSC 1160
Vancouver Registry No. L000135
British Columbia Supreme Court
Vancouver, British Columbia
Martinson J.
Heard: June 8 and 9, 2000.
Judgment: July 28, 2000.
(128 paras.)
Professional occupations -- Teachers -- Disciplinary proceedings -- Boards and tribunals -- Domestic tribunals -- Statutory appeals -- Reasons for decisions -- Administrative law -- The hearing and decision -- Conduct of hearing -- Natural justice -- Effect of denial of natural justice.
Appeal by Treleaven from a disciplinary decision of the Council of the College of Teachers ordering publication of a summary of the case and his name. Treleaven had a non-professional relationship with a 16-year-old male student that involved associating with and counselling the student contrary to the express wishes of his parents and the principal, and taking suggestive photographs of the student. Following a complaint, he was dismissed. His Union grieved the dismissal, resulting in a Consent Arbitration Order wherein the parties agreed to recommend to the College of Teachers that no further action be taken. Notwithstanding that recommendation, a Disciplinary Hearing Sub-Committee recommended to the Council that a summary of the case with Treleaven's name be published. Treleaven's written submissions were received three days before the hearing and the written reply submissions of the College were received the day of the hearing. Treleaven did not have an opportunity to reply to the College's submissions. The Council did not give reasons for its decision. Treleaven argued that the Council exceeded its jurisdiction, breached rules of natural justice and denied him a fair hearing.
HELD: Appeal allowed. The Council was to re-hear the matter. The right to procedural fairness required that Treleaven be allowed to reply to adverse submissions. The bylaws gave Treleaven the right to make written submissions before the Council. The Disciplinary Hearing Sub-Committee was not specifically authorized to decide or make recommendations on the issues of publication. Only Council had that mandate. Reasons had to be provided where there was a statutory right of appeal. Therefore, the Council was required to provide reasons.
Statutes, Regulations and Rules Cited:
Inquiry Act, ss. 12, 15, 16.
Teaching Profession Act, ss. 4, 15, 21, 23(2), 23(3), 28(2), 28(3), 28(4), 28(5), 30, 32(1), 32(2), 32(3), 34, 40.
Teaching Profession Act, Bylaws, ss. 1, 6.
Counsel:
Allan E. Black, Q.C., for the appellant.
Shona A. Moore, Q.C., for the respondent.
MARTINSON J.:--
INTRODUCTION
1 This is an appeal by a teacher based on s. 40 of the Teaching Profession Act, R.S.B.C. 1996, c. 449, from a disciplinary decision of the Council of the College of Teachers ordering publication of a summary of the case and the name of the teacher. The teacher says he should have been given the chance to reply to adverse submissions made by the College and that the Council should have provided reasons for its decision. I agree with both submissions of the teacher.
2 In the mid-1980's the teacher had a non-professional relationship with a 16 year old male student that involved associating with and counselling the student contrary to the express wishes of his parents and the principal, and taking suggestive photographs of the student that were given to the student's girlfriend.
3 Some ten years later a complaint was made to the School Board, leading to the teacher's dismissal. His union grieved the dismissal, resulting in a Consent Arbitration Order between the Board and the Union that said that he was guilty of professional misconduct and that there would be a retroactive suspension for five and one half months. They also agreed to recommend to the College of Teachers that no further action be taken.
4 Notwithstanding that recommendation the College decided to take disciplinary action, as it was entitled to do. The teacher consented to a finding that he engaged in professional misconduct and agreed that there should be the same retroactive suspension of his licence to practice as imposed by the Consent Arbitration Order. He did not, however, agree to the publication of a summary of his case, containing his name.
5 A Disciplinary Hearing Sub-Committee of the College Council recommended to the Council that there be such publication. The Council concluded that both the summary and name should be published after receiving a written report from the Hearing Sub-Committee, the written submissions of counsel for the teacher and the written submissions of counsel for the College. The written submissions of the teacher were received three days before the hearing and the written submissions of the College, in reply, were received the day of the Council hearing. The teacher did not have an opportunity to reply in writing to the College's submissions. The Council did not give reasons for its decision.
6 The teacher continues to teach at the same school.
7 The Appeal was argued based on an Agreed Statement of Facts. The teacher argues that the Council exceeded its jurisdiction, breached the rules of natural justice and denied him a fair hearing for two main reasons: he should have had the right to reply to the adverse submissions of counsel for the College; and the Council was required to provide reasons where there is a statutory right of appeal. The College agrees that a duty of procedural fairness applies but says that there was no right to make further submissions, that there was no requirement to provide reasons and even if there were such a requirement, reasons were provided.
8 I conclude that there has been a breach of the duty of procedural fairness based on a denial of the right to reply to an adverse submission and the fact that reasons were required and were not provided.
9 The disciplinary procedures provided for in the Act and Bylaws of the British Columbia College of Teachers (24 August 1998) are in many respects admirable. They are comprehensive and provide a number of opportunities for the participation of a teacher, and many safeguards for the benefit of a teacher. These safeguards include the discretion not to proceed with disciplinary action, the ability to proceed informally, a preliminary investigation, an initial hearing before a Hearing Sub-Committee and, in most cases, a hearing by Council on the question of penalty. There is also a theme of openness of procedure that meets the requirement to act in the public interest.
10 Nevertheless, the law with respect to the right to participate and the need to provide reasons is evolving. I conclude that the law now requires that a right of reply to adverse submissions be provided by the Council and requires that the Council provide a form of reasons. The recent decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration); Canadian Council of Churches et al, Interveners, [1999] 2 S.C.R. 817; 174 D.L.R. (4th) 193 is of particular significance in this respect.
11 I will explain my reasons for reaching these conclusions under these headings:
A. The Decision of the Supreme Court of Canada in Baker
B. The Statutory Scheme
C. The Agreed Statement of Facts
D. Responding to Adverse Submissions
E. Providing Reasons
F. The Remedy
A. THE DECISION OF THE SUPREME COURT OF CANADA IN BAKER
12 Any analysis of the content of the duty of procedural fairness, in general, and the included participatory rights, in particular, should be made in light of the decision of the Supreme Court of Canada in Baker. The Court confirmed that the duty of fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected. (at para. 22)
13 The Court said that several factors are relevant, though the list is not exhaustive. Underlying all of the factors is the idea that the purpose of participatory rights is to "ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker." (at para. 22)
14 The Court also said that there must be a "meaningful opportunity to present their case fully and fairly." (at para. 30) Where there is no oral hearing there should be "full and complete written documentation." (at para. 34)
15 These are the relevant factors provided by the Court:
1. The nature of the decision being made and the process followed in making it
16 The Court stated that one important consideration is the nature of the decision being made and the process followed in making it. The "more the process provided for, the function of the tribunal, the nature of the decision-making body and the determinations that must be made to reach a decision, resemble judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness." (at para. 23)
2. The nature of the statutory scheme and the terms of the statute pursuant to which the body operates
17 The Court said that:
The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted. [at para 24]
3. The importance of the decision to the individual(s) affected
18 The Court said that the importance of the decision to the people affected is a significant factor affecting the content of the duty of procedural fairness. "The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated." (at para. 25)
4. The legitimate expectations of the person challenging the decision
19 The Court said that account can be taken of "promises or regular practices of administrative decision-makers." It will "generally be unfair for [administrative decision makers] to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights." (at para. 26)
5. The choices of procedure made by the agency itself
20 While the choices of procedure made by an agency itself are not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints. This is particularly so when the statute allows the decision-maker to choose its own procedures or when the agency has an expertise in determining what procedures are appropriate in the circumstances. (at para. 27)
B. THE STATUTORY SCHEME
1. Overview of the Statutory Scheme
21 By way of overview, the statutory scheme as it relates to this case is that the Council for the College of Teachers appoints a Disciplinary Committee. That Committee has a Preliminary Investigation Sub-Committee that conducts investigations into member conduct and Hearing Sub-Committees that hear complaints, called citations, referred to them by the Preliminary Investigation Sub-Committee.
22 The Hearing Sub-Committee will determine if there has been professional misconduct. It has the final authority to reprimand if that decision is reached unanimously. However, it cannot suspend, terminate or cancel a licence to teach unless the Sub-Committee members are unanimous and the teacher consents. If it is not unanimous or is unanimous and the member does not consent, the Council must decide the penalty. A copy of the written report of the Hearing Sub-Committee to the Council is sent to the teacher. The teacher can then make a written submission to the Council within 30 days of the delivery of the report. There is no provision in the Act or Bylaws for a reply to that submission by the College. The Council considers issues in the absence of the parties. Its decision is reported to the teacher and the College by the College Registrar.
23 The Hearing Sub-Committee has no authority to make an order publishing a summary with or without the teacher's name in it. Only the Council has authority to do so. The Hearing Sub-Committee is required to prepare a written report of its findings on each allegation made and its verdict. It has no specific authority to make recommendations with respect to publication of a summary and the member's name. It can however make such report as it considers proper.
2. Details of the Statutory Scheme
24 The College and the Council obtain their authority from the Teaching Profession Act. The object of the College is to establish, having regard to the public interest, standards for the education, professional responsibility and competence of its members, persons who hold certificates of qualification and applicants for membership and, consistent with that object, to encourage the professional interest of its members in those matters. (s. 4 of the Act)
25 The Council must govern and administer the affairs of the College. (s. 21 of the Act) It sets the time and place of its own meetings. (s. 15 of the Act)
a. Description of the Council
26 The Council has 15 elected members who are teachers, two people appointed by the Lieutenant Governor in Council, two people appointed by the Minister of Education and one person appointed jointly by the Deans of the Faculties of Education and by the Minister: s. 5 of the Act. The quorum for meetings of the Council is ten. (Bylaw s. 1.E.02)
b. Discipline Generally
27 The Council can make Bylaws, including Bylaws consistent with the Teaching Profession Act, for the discipline of teachers, the commencement and conduct of hearings and all other related matters. (s. 23(2) of the Act)
28 The Council must appoint two Council members to act as chair and vice-chair of a Disciplinary Committee: s. 28(1) of the Act. All Council members are entitled to sit on the Disciplinary Committee. (s. 28(2) of the Act, Bylaw s. 6.A.01) The quorum of that committee is three. (s. 28(3) of the Act) At least two of the three must be elected members of Council. (Bylaw s. 6.A.04). The fact that a Council member is a member of the Discipline Committee does not prevent the member from sitting as a Council member on the consideration of a report of the Discipline Committee. (s. 23(5) of the Act) The bylaws must provide for a written report by the Discipline Committee of the facts as found by the Discipline Committee and a written report to the Council of the result of a hearing by the Discipline Committee. (s. 23(3) of the Act)
29 There are two sub-committees of the Disciplinary Committee: the Preliminary Investigation Sub-Committee (Bylaw s. 6.A.03) and Hearing Sub-Committees, constituted as needed. (Bylaw s. 6.A.04)
30 Disciplinary matters can come to the attention of the College in a number of ways. The Council or the Disciplinary Committee may make or cause to be made a preliminary investigation into the conduct of a member or may enquire into the conduct. (s. 28(5) of the Act) Relevant here is the requirement of a School Board to report the results of a grievance procedure. (s. 28(4)(a) of the Act) The Registrar must refer such a matter to the Preliminary Investigation Sub-Committee. (Bylaw s. 6.B.01.1(a))
c. Preliminary Investigation Sub-Committee
31 When the Preliminary Investigation Sub-Committee receives a report, it may, if satisfied it has sufficient information before it to make a determination in the matter, take no further action or proceed with the matter informally. (Bylaw s. 6.C.01(a)) If it is not satisfied that it has sufficient information, it can make or cause to be made a preliminary investigation into the conduct of the teacher. (Bylaw s. 6.C.01(b))
32 If an investigation is ordered, a written report is prepared and the teacher will receive a copy. (Bylaw s. 6.C.03(a)) The teacher can make a written response within 30 days. (Bylaw s. 6.C.03(b)) The Preliminary Investigation Sub-Committee will then consider the report and any written response, and can refer the matter for further investigation, take no further action, proceed with the matter informally or direct that a citation be issued. (Bylaw s. 6.C.04)
d. The Citation
33 The Preliminary Investigation Sub-Committee cannot issue a citation itself unless the members are unanimous. (Bylaw s. 6.E.01) If only a majority is of that opinion, the matter must be referred to the Discipline Committee who may order an inquiry by directing a citation. (Bylaw s. 6.E.02) Once a citation has been issued, the Registrar may declare to the public the nature of the citation and its status. (Bylaw s. 6.E.06(a))
34 A citation leads to a hearing before a Hearing Sub-Committee. Members of the Preliminary Investigation Sub-Committee cannot be on the Hearing Sub-Committee. (Bylaw s. 6.A.05) If there is to be a hearing, the College shall be represented by legal counsel. (s. 32(2) of the Act; Bylaw s. 6.G.01)
e. Disclosure and Pre-trial Matters
35 A teacher is entitled to disclosure of the particulars of the complaint. (Bylaw s. 6.I.01) In addition, a pre-hearing conference can be ordered by the chair or vice-chair of the Council. (Bylaw s. 6.I.02)
f. The Discipline Hearing Sub-Committee
36 What is the nature of a hearing before the Hearing Sub-Committee? The teacher may appear personally or with counsel at the hearing. (s. 32(1) of the Act); Bylaw s. 6.G.02) The Hearing Sub-Committee has the powers, protection and privileges of a commissioner under ss. 12, 15 and 16 of the Inquiry Act. (s. 32(3) of the Act) Both the College counsel and the teacher are entitled to call witnesses who must testify on oath or solemn affirmation and are subject to cross-examination. (Bylaw s. 6.K.01) The Hearing Sub-Committee can accept any written statement of agreed facts. (Bylaw s. 6.K.05(a)) It can admit evidence tendered in a form which is agreed to by both the teacher and College counsel. (Bylaw s. 6.K.05(b)) It may admit evidence in any other manner it considers appropriate. (Bylaw s. 6.K.05(c)) All proceedings are recorded by a court reporter. (Bylaw s. 6.J.06)
37 Once the evidence is complete, the Hearing Sub-Committee must invite the teacher and the College counsel to make submissions on the facts and verdict on each allegation in the citation. (Bylaw s. 6.L.01) The Hearing Sub-Committee must then, by majority decision, determine the facts and a verdict on each allegation. It then may dismiss the citation, determine whether the teacher has been guilty of professional misconduct or other conduct unbecoming a member of the College, and determine whether the teacher has incompetently carried out duties undertaken by the teacher in his or her capacity as an employee of a board. It can also make such other report to the Council respecting the citation as it considers proper. (s. 34 of the Act; Bylaw s. 6.L.02)
38 If guilt is determined, the Hearing Sub-Committee must invite the teacher and College counsel to make submissions as to penalty or recommendations that may be made by the Hearing Sub-Committee. Written victim impact statements may also be considered. (Bylaw s. 6.L.03)
39 After the hearing, the Hearing Sub-Committee must prepare a written report on each allegation and its verdict. (Bylaw s. 6.L.04) A unanimous decision to reprimand is a final decision and is simply reported to Council. (Bylaw s. 6.M.01) Otherwise, if the Hearing Sub-Committee is unanimous as to the nature of the disciplinary action and the member consents, the Hearing Sub-Committee may exercise the disciplinary powers of Council. (Bylaw s. 6.M.02)
g. The Role of the Council
40 If there is a unanimous determination that the teacher's membership certificate should be suspended, terminated or cancelled, as was the case here, a copy of the Hearing Sub-Committee's written report to Council must be delivered to the teacher. The teacher must be advised that s/he may consent in writing to the proposed action within 30 days or if s/he does not consent, make a written submission to Council within 30 days of the date of delivery of the copy of the written report. (Bylaw s. 6.M.03)
41 The Council may employ legal or other assistance it considers necessary for the purpose of a hearing. (s. 32(2) of the Act)
42 The Council must consider the report and recommendations of the Hearing Sub-Committee with respect to the results of a hearing. (Bylaw s. 6.P.01) It can reprimand the teacher, suspend the teacher's membership or terminate the membership and cancel the certification. (s. 35(1) Act)
43 When a teacher has been found guilty of professional misconduct, the Council may require the Registrar to send to the teacher, the complainant, the board, the authority, or other individuals directly involved in the case, a summary of the circumstances, of any decision, or action taken and reasons therefore. The Council may release to the public a similar summary or such parts of it as are deemed appropriate.
44 The authority of the Council to order publication of a summary and the name of the teacher is of particular importance in this case. In any summary circulated or published, the Council may order that the teacher not be identified and in the event that the Council orders that a teacher not be identified, reasons for that decision shall be given. (Bylaw s. 6.R.01 and .03).
45 The Act and Bylaws contain a number of provisions with respect to giving notice of disciplinary action to various entities.
C. AGREED STATEMENT OF FACTS
46 The following facts are significant and were either included in the Agreed Statement of Facts or agreed upon during the hearing of the appeal. Mr. Treleaven is a long-time teacher with the Vernon School District. On January 16, 1997, he was dismissed based on conduct with a student that happened in or around 1986. The student was a 16 year old boy and the son of a family friend. Mr. Treleaven took some suggestive photos of the boy so the boy could give them to his girlfriend. Mr. Treleaven continued to associate with the boy after the school and his parents asked him to stop.
47 His union grieved the dismissal. The grievance proceeded to arbitration and, by a Consent Award dated February 10, 1998, his dismissal was substituted with a suspension without pay from January 16, 1997 to June 30, 1997. The parties to the agreement, being the Vernon Teacher's Association and the Board of School Trustees of the Vernon School District, agreed that "this settlement should be a final and conclusive resolution of the matter and will so advise the British Columbia College of Teachers."
48 The Board notified the College as it is required to do.
49 In spite of the agreement, the matter was investigated by the Preliminary Investigation Sub-Committee of the Council and on September 22, 1999, the Chair of the Disciplinary Committee issued an amended citation.
50 The pertinent parts of the Citation are these:
TAKE NOTICE that pursuant to Section 28 and 30 of the Teaching Profession Act, a Hearing Panel of the British Columbia College of Teachers will...conduct a Hearing to inquire into your conduct, the circumstances of which are stated in the schedule attached hereto, to determine whether you have been guilty of:
(i) professional misconduct; or
(ii) other conduct unbecoming a member of the college
...
AND FURTHER TAKE NOTICE that at the hearing, legal counsel on behalf of the B.C. College of Teachers, will make submissions with respect to the appropriate action to be taken regarding your certificate or membership. The action that can be taken includes the termination of your membership in the British Columbia College of Teachers and the cancellation of your B.C. Teaching Certificate.
51 The Amended Schedule said this:
Nature of Your Conduct to be Inquired Into:
1. Between 1984 and 1987, at or near Vernon, BC, Theodore Earl Treleaven encouraged and entered into a [sic] inappropriate relationship with a student, [P].
2. Between 1985 and 1987... Theodore Earl Treleaven continued, or did not discourage, an inappropriate relationship with a student, [P], after being informed by the student's parents that they wanted Mr. Treleaven to cease contact with their son.
3. In or about May or June, 1986, at or near Vernon, BC, Theodore Earl Treleaven took suggestive photographs of a student, [P].
52 On September 28, 1999, there was a hearing before a Hearing Sub-Committee to adjudicate upon the citation. That hearing proceeded by way of an Agreed Statement of Facts (s. 32 of the Act); Bylaw s. 6.H) The specific admissions before the Hearing Sub-Committee and the Council, were these:
9. Student "P" was born in October 1969. He graduated from W.L. Seaton Secondary School in Vernon in 1987. Student "P" met Mr. Treleaven in the spring and summer of 1984, as a result of Mr. and Mrs. Treleaven's friendship with the parents of Student "P". Student "P's" parents were both school teachers employed by the Vernon School District. Mr. Treleaven was a teacher in the same school as Student "P". Student "P" transferred into Mr. Treleaven's Social Studies 10 class at W.L. Seaton Secondary School in September, 1984.
10. As a result of the friendship between Mr. and Mrs. Treleaven with Student "P's" parents, Student "P" became friends with Mr. Treleaven during the school years 1984-1985 and 1985-1986.
11. Student "P" met with Mr. Treleaven during breaks during the school day and occasionally after school and on weekends.
12. Mr. Treleaven acted as a counsellor to Student "P", giving him advice and comfort, particularly when Student "P" found his parents to be unreasonable in their expectations of him or limits placed upon him.
13. In the spring of 1986 at the request of Student "P", Mr. Treleaven took photographs of Student "P", some of which contained suggestive poses....Mr. Treleaven gave the photographs to Student "P", with the intention that some of them were to be given to his girlfriend.
14. In May 1986, Mr. Treleaven attended a meeting with Student "P's" parents and the administration of his school. At this meeting, the parents told Mr. Treleaven to discontinue influencing their son and to cease all contact with him. Notwithstanding this request, Mr. Treleaven continued his contact with their son, Student "P".
15. Mr. Treleaven continued to see Student "P" outside of the classroom, notwithstanding a request by Student "P's" father that he cease to have contact with his son.
53 Mr. Treleaven was found guilty of professional misconduct. He consented to that finding. The Hearing Sub-Committee recommended that his teaching certificate be suspended retroactively (January 17, 1997 to June 30, 1997). The Sub-Committee recommended that notice of the suspension be provided to various persons and entities. The written report of the Hearing Sub-Committee to Counsel set out the submissions before it as to penalty this way:
Ms. Moore presented the following reasons for the recommendation as to Penalty:
1. Ms. Moore stated that this was not conduct of a most serious character.
2. The conduct was historical in nature in that it happened many years ago.
3. There is no evidence of further incidences of misconduct.
4. She referred to the Gillespie case as a precedent for retroactive suspension.
5. She pointed out that Mr. Treleaven's record will bear a significant period of suspension.
6. She agreed to the standard notification of Education Authorities.
7. Ms. Moore recommended that no costs be assessed to the member.
Mr. Black strongly urged acceptance of the five and a half month retroactive suspension consistent with the term imposed by the School District. He gave the following reasons:
1. The case is unusual in that the act resulted from the friendship of 2 families.
2. Mr. Treleaven had an interest in photography and the student requested the photographs be taken.
3. Mr. Black agrees that the photographs were suggestive and the Mr. Treleaven exercised poor judgement. However, the event occurred thirteen years ago.
4. Mr. Treleaven has been reinstated to a teaching position in the district and has fulfilled all the conditions in the Arbitration Agreement.
54 The one matter in dispute before the Hearing Sub-Committee was whether a summary of Mr. Treleaven's case should be published to members of the College and whether Mr. Treleaven's name should be released to the public, along with a summary of the circumstances of the case.
55 The report of the Hearing Sub-Committee to the Council summarized the arguments of both counsel on this issue:
Regarding publicity, counsel for the College submitted that there were no mitigating circumstances in the matter which would preclude publication of Mr. Treleaven's name to the membership and to the public.
Mr. Black submitted the following reasons from withholding Mr. Treleaven's name from publication to members and to the public:
1. The settlement agreed to by the Vernon School Board, and the Vernon Teacher's Association and Mr. Treleaven in the Arbitration Agreement should be considered final and conclusive.
2. The public will not be served by having the issues come forward again.
1. There were no criminal charges.
2. Mr. Treleaven continues to teach in the District.
3. He has two children in the school district.
4. He has been punished adequately.
5. His actions have not been repeated.
6. He has accepted his wrongdoing.
3. The Panel should exercise discretion to afford the Vernon School Board the opportunity to do what it said it would do.
Ms. Moore replied that the Arbitration Agreement was in the Employment context and a private arrangement between the parties involved. The Panel must take care to act in the public interest.
56 The recommendation of the Hearing Sub-Committee with respect to the matters in dispute contained in its report, were these:
The Panel agrees with Ms. Moore's recommendation to publish Mr. Treleaven's name to members and the public.
1. Mr. Treleaven not only conducted an inappropriate relationship with a student, he maintained this relationship despite being told to discontinue influencing this child and having contact with him by the child's parents in the presence of Mr. Treleaven's school administrator.
2. The Panel finds that Mr. Treleaven's failure to comply with the parent's request to break off the relationship with their son to be a serious breach of trust and abuse of his position of authority.
3. It is the responsibility of the College of Teachers to ensure that its decisions are in the public interest and not contingent on private agreements between employers and employees.
57 The unanimous recommendations of the Sub-Committee with respect to penalty, costs and publicity were these:
...
2. The Registrar be instructed to notify the following of the suspension of Mr. Treleaven's certificate of qualification:
...
4. The summary of the case contained in the Appendix be published to members in accordance with Bylaw 6.R.01(a) and Policy P6.R.02
5. The name of Theodore Earl Treleaven be released to the public along with a summary of the circumstances of the case.
58 Mr. Treleaven was advised that he could consent to the recommendation in a letter dated October 20, 1999. He was advised that if he wanted to consent, he could notify the College by November 27, 1999. He was told that the Council would consider the matter on December 2nd.
59 Counsel for Mr. Treleaven advised the Registrar that Mr. Treleaven opposed the recommendations with respect to publication in a letter dated November 29, 1999. He did, though, say Mr. Treleaven would consent to the publication of a summary omitting any facts and comments which may identify either his name and/or the name of the former student.
60 Mr. Treleaven, through his counsel, made detailed submissions, 12 pages long, with respect to the question of publication of a summary and his name. He raised issues with respect to the meaning of the words "in the Public Interest," the significance of privacy rights, who constitutes the public, mitigating and/or extenuating circumstances, curing inconsistent recommendations and ensuring consistency and predictability of its own decisions respecting publication in similar cases. Counsel for Mr. Treleaven concluded the letter by saying that he would welcome the opportunity to appear before the Council to expand on the submission or respond to any questions that members of the Council may have.
61 Counsel for the College responded to those submissions in a letter dated December 2, 1999, the same day as the hearing. Counsel for Mr. Treleaven had no opportunity to reply.
62 The Registrar, W. Douglas Smart, advised Mr. Treleaven of the decision of the Council to publish a summary and his name in a letter dated December 3, 1999. In that letter, Mr. Smart said this:
As you are aware, a hearing was held on September 28, 1999, regarding the citation issued pursuant to the Teaching Profession Act.
Pursuant to Section 33 of the Teaching Profession Act, the Disciplinary Hearing Sub-Committee found that you were guilty of professional misconduct.
The Council of the College considered this matter on December 2, 1999. The Council considered Mr. Black's letter dated November 29, 1999. Mr. Black confirmed that you consented to recommendation #1:
Mr. Treleaven's certificate of qualification be suspended retroactively from January 17, 1997 to June 30, 1997.
In addition to Mr. Black's submission, the Council also considered Ms. Moore's letter dated December 2, 1999, in response to Mr. Black's letter.
63 The remainder of the letter sets out the conclusions of the Council.
64 No reasons were provided for the Council's decision.
D. RESPONDING TO ADVERSE SUBMISSIONS
1. Argument of the Teacher
65 Mr. Treleaven argues that the submissions of counsel for the College contain potentially misleading statements and he should have had the chance to respond to them. His lawyer had no opportunity to take instructions, to ask for a right to respond or to in fact respond, because the submissions were delivered to the Council and his lawyer on the day the Council was to hear the matter. Mr. Treleaven points out that that there was no urgent need to have the matter heard on the scheduled hearing date.
66 He refers to legal submissions and to fact-related submissions found in the submissions of the College to the Council that he says are adverse to his position, and require a response. He also says that none of these matters were raised before the Hearing Sub-Committee.
a. Legal Submissions by the College to the Council
67 The College's legal submission to the Council said that the presumption in the Bylaw with respect to publication of a teacher's name is that the teacher will be named. Mr. Treleaven argues that there is no such presumption and this statement is therefore an error in law.
68 The submission of Mr. Treleaven to the Council was this:
The Hearing Sub-Committee has either failed to properly consider, or has considered factors irrelevant or extraneous to the statutory purpose in recommending that the Council exercise its discretion with respect to the publication of Mr. Treleaven's name and a summary of his case.
The Act and its bylaws contemplate that the Council ought to exercise its discretion cautiously when choosing to publish a member's name over the objection of the member.
69 In response the College said this:
We disagree. Rather, the presumption in the bylaw is that a Respondent will be named. The Bylaw, 6.R.03 presumes that a Member will be named in the Summary and publications of its decisions, but provides a discretion to order that the Respondent not be identified on condition that reasons for that decision be given by Council.
70 The College's legal submission to the Council also said that the Vernon School Board, "unlike the College of Teachers, has no public duty to publish its disciplinary or regulatory decisions." Mr. Treleaven says that this is an incorrect assertion.
b. Fact Based Submissions by the College to the Council
71 Mr. Treleaven, in his submission to Council, said that the Council must also be mindful of the privacy interest of the former student who obviously has an interest in limiting his exposure in association with this case. The College responded by saying that there is absolutely no evidence before the Council that the student or the parents of the student requested that the teacher not be named in publications to the profession or to the public. Mr. Treleaven argues that this statement by the College is an assertion of fact not found in the Agreed Statement of Facts.
72 Mr. Treleaven also argues that the College, when distinguishing previous cases relied upon by Mr. Treleaven, made certain assertions of fact that are not part of the Agreed Statement of Facts and a response is required. For example, the College submitted to the Council that "there is no evidence that publication of the name of Mr. Treleaven will result in 'significant harm for the school and school system'". This question was not dealt with in the Agreed Statement of Facts.
c. Legal Submissions of the Teacher on this Appeal
73 Mr. Treleaven, in his submissions before me, says that procedural fairness requires that he have the last word on these issues that are adverse to his interest. He says that a statutory decision-maker must allow the "person whose rights are being affected" by its decision "the last word": C.W. Casino World v. British Columbia (Gaming Commission), [1996] B.C.J. No. 1748 (S.C.) (at para. 50); (1997), 30 B.C.L.R. (3d) 186 (C.A.) (appeal dismissed without reference to this issue).
74 Mr. Treleaven also argues that it is not necessary to speculate "as to what the decision on the merits would have been had the rights of [the Appellant] not been denied": Université du Québec à Trois Riviéres v. Larocque, [1993] 1 S.C.R. 471, 101 D.L.R. (4th) 494.
2. Argument of the College
75 In summary, the College says that while the right to a fair hearing applies in this case, the process required must be tailored to fit the nature of the tribunal. Here a "Cadillac" approach is unwarranted. Mr. Treleaven had the right to know the case against him and he did know. He had the right to be heard and he was heard. That is all that is required. In this case, the submissions made on behalf of the College contained only legal argument. No new facts were alleged, credibility was not in issue and no facts were in dispute. Mr. Treleaven had an opportunity to make full submissions with respect to his position, upon which he continues to rely. Accordingly, there is no breach of natural justice or procedural fairness.
76 The College says that there is a theme of openness in this statutory scheme. In addition, case law supports publication of professional disciplinary decisions in the public interest.
a. Submissions to the Council
77 The College argues that there is nothing potentially misleading about what it said in its written submission to the Council. All the submissions were legal submissions. The College argues that looking at its submission to the Council as a whole, it would be clear to the Council that it was to exercise a discretion on the issue of publication of the summary and name.
78 The College also says that it referred to lack of evidence and did not make positive assertions of fact. There were no disputed facts or new facts and credibility was not in issue. The written submissions on behalf of Mr. Treleaven did not raise new issues. They just dealt with the issues in further detail and referred to previous cases.
79 In addition, the College points out that Mr. Treleaven also had the opportunity to respond before the Hearing Sub-Committee. The Council had before it the report of the Sub-Committee, together with the Sub-Committee's reasons for recommending that the summary and name be published to the members and to the public. There was therefore ample opportunity to be heard.
b. Legal Submissions on the Appeal
80 The College, in its submissions before this court, says that it is not a departure from the rules of natural justice or procedural fairness for a tribunal to conclude that the debate has gone on long enough and that it is time to stop: Forest Industrial Relations Limited and International Woodworkers of America et al v. International Union of Operating Engineers Local 882, [1962] S.C.R. 80 at p. 83. (S.C.C.). The tribunal in that case was quasi-judicial in nature and, even then, the Court decided that it was not improper to conclude that the debate had gone on long enough.
81 The College notes that in Forest Industrial Relations Limited there was no new material in the replies which the respondent union did not have a chance to answer. It says there was no new material here.
82 The College also relies on Kallio v. Canadian Airlines International Ltd., [1996] F.C.J. No. 725 (F.C.T.D.) at para. 9, for the proposition that there is no right of reply when there are no new material facts.
83 The College further argues that C.W. Casino World, the case relied on by Mr. Treleaven, is distinguishable. In that case, the issue was whether C.W. Casino World's right to procedural fairness was infringed by having been denied the opportunity to respond in detail to further submissions made to the Gaming Commission. These submissions were made after C.W. Casino World had supplied further evidentiary material requested by the Gaming Commission following a public hearing.
84 The College notes that in C.W. Casino World, the Court found that the final material submitted to the Gaming Commission was equivalent to an expert report alleging new facts. The Court in C.W. Casino World distinguished Forest Industrial Relations Limited on the basis that there, the Supreme Court of Canada found that both parties had been given a full opportunity to reply.
3. Discussion
a. Is there a right to reply to adverse submissions?
85 As noted earlier, the Supreme Court of Canada in Baker said that the greater the resemblance to judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. The trial model, as it relates to the right to reply to adverse submissions, is that the person bringing the case before the court makes an oral submission first, and then the other party makes an oral submission. The person bringing the claim then has a right of reply. The debate then stops.
86 I will consider this statute and the rights affected, using the list of relevant factors discussed in Baker. The Council, as a decision-making body, is large and has a quorum of 10. It has a wide ranging mandate. This includes the very important societal role of disciplining teachers. It must do so in the public interest. (see above at para. 24)
87 The Council has a discretion to decide whether there should be publication of a summary with or without the teacher's name in it, as part of the consequences of a finding of professional misconduct. The authority to do so is found in the Bylaw (ss. 6.R.01 and .03) I will set those out in full for convenience:
6.R Publicity of Decision
6.R.01 When a respondent has been found guilty of professional misconduct or conduct unbecoming a member of the College, the Council may cause the Registrar to send to the members, the complainants, the board, the authority or other individuals directly involved in the case, a summary of the circumstances, of any decision, action taken and reasons therefore, and may release to the public a similar summary or such parts of it as are deemed appropriate.
...
6.R.03 In any summary circulated or published, the Council may order that the respondent in the case not be identified, and, in the event that the Council orders that a respondent not be identified, reasons for that decision must be given.
88 To reach the decision, the Council must determine what the relevant facts are (unless there is an Agreed Statement of Facts). The Council must consider policies established with respect to when the names of victims, witnesses or complainants may be published in any summary circulated or published. (Bylaw s. 6.R.04) It will consider previous cases decided by the Council.
89 What is the process provided for? It provides, through the use of the Sub-Committee structure, for an oral hearing with the examination and cross-examination of witnesses and the right to make submissions. The Council itself has a hearing. That hearing is in the absence of the parties, but the Council considers the report of the Hearing Sub-Committee and written submissions.
90 Within the statutory scheme, the decision of the Council on the question of publication is determinative of the issue, subject to an appeal to this Court. The decision in issue relates to Mr. Treleaven's profession and livelihood and publication could have a significant, though indirect impact on both. The issue of legitimate expectations, as legally defined, does not arise in this case.
91 The Act leaves to Council the ability to choose its own procedures. The Act and bylaws do not prevent a teacher from having the last word. In fact, the bylaws arguably give the teacher the "last word" by giving him or her the right to make written submissions to the Council without giving counsel for the College the same right. (see above para. 40) This is so in spite of the fact that in this case the College was permitted to respond.
92 In the context of this tribunal, does the right to procedural fairness require that Mr. Treleaven have the right to reply to adverse submissions? In my view it does, for these reasons. The nature of the decision being made and the process involved are similar to judicial decision-making. The decision is of significance to Mr. Treleaven. The statutory scheme does not preclude a right to reply to adverse submissions. The Council's decision decides the issue. The Council plays an important societal role in disciplining teachers and in protecting the public interest.
93 I have kept in mind that uunderlying all of the factors is the idea that the purpose of participatory rights is to make sure that administrative decisions are made by using a fair and open procedure. That procedure must be appropriate to the decision being made and its statutory, institutional and social context, and must give a meaningful opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. (above at para. 13)
94 In this context, procedural fairness does not require an oral hearing before the Council. A written submission is sufficient. It does however require that there be a meaningful opportunity to have the teacher's views heard fully. The right to reply to an adverse submission in writing allows teachers affected by decisions of the Council significant to them, a meaningful opportunity to present their views and evidence fully and fairly. Without the right to reply to adverse submissions, it cannot be said that there has been such a full and meaningful opportunity. This conclusion is consistent with this court's decision in C.W. Casino World, in which Madam Justice Downs concluded that a person whose rights are affected by the decision should have the last word. (at para. 50)
95 The right to reply need not be limited to submissions relating to new evidence. In Baker, the Court refers to the opportunity of those affected by the decision to put forward their views and evidence fully. (at para. 22)
96 In Forest Industrial Relations Limited, the case relied upon by the College, the Supreme Court of Canada concluded that on the facts in that case, both parties had been given a full opportunity to be heard. (at 83) Mr. Justice Judson, speaking for the Court, referred to new material, not new evidence:
...Counsel for the respondent was invited to compare his client's letter with the replies received to it and to point to any new material in the replies. He stated that there was no new material but that nevertheless his client had a right of reply and had been deprived of it.... [at 84]
97 Forest Industrial Relations Limited is also distinguishable from this case on the basis that there, there was a full hearing before the decision-making body. In any case, the approach in that case, decided in 1962, has been superseded by later cases: C.W. Casino World at para. 49. The decision in Kallio, also relied upon by the College, is also distinguishable as it is based on a particular rule that does not apply here. (at para. 9)
98 I am mindful of the practical constraints placed on the Council due to factors such as its size, large quorum, and expansive mandate. One way of accommodating the right to reply to adverse submissions would be to set specific time limits, which would include an initial submission, a response, and a reply to the response. However, it is for the Council to decide how the right to reply to adverse submissions should be implemented.
b. Were there adverse submissions in the case?
99 Having concluded that there is a right to reply to adverse submissions, I now turn to the question of whether there were, in fact, adverse submissions that require a reply in this case. In my view, there were such adverse submissions.
100 I will deal first with the legal test that the Council must apply and the use of the word "presumption" by the College. It is true that there are references throughout both submissions to Council's "discretion", as it relates to publication. However, counsel for the College, which in fact had the last word on the issue, referred to a presumption of publication. This had the potential to mislead since there is no legal presumption in favour of publication. This issue goes to the heart of the matter.
101 There are also fact-based submissions adverse to Mr. Treleaven that require a reply. Where, as here, there is an Agreed Statement of Facts, it can be assumed that all relevant facts are contained in it. For example, if the College wanted to rely on the fact that there was no request from the student that the teacher not be named, the fact that there was no such request should have been included in the Agreed Statement of Fact.
102 It may be that the College was responding to submissions that were also based on facts not in the Agreed Statement of Facts. However, the point needed to be clarified. It may have been necessary to either amend the Agreed Statement of Facts or to apply to call evidence.
103 What significance is there, if any, to the fact that Mr. Treleaven had the opportunity to make oral submissions before the Hearing Sub-Committee? Many of the arguments presented to the Council in the written submissions were not raised before the Hearing Sub-Committee. There was no requirement that they be raised then. Rather, the bylaws gave Mr. Treleaven the right to make written submissions before the body that had the authority to make the decision, with respect to publication and who would actually make the decision.
E. REASONS
1. Are Reasons Required?
a. The Dispute
104 The Council did not provide reasons for its decision in this case. There is a disagreement as to what the Supreme Court of Canada actually said in Baker about the need for reasons.
105 Mr. Treleaven says that though there is no statutory requirement for reasons, the decision of the Supreme Court of Canada in Baker makes reasons necessary when there is a statutory right of appeal or when the decision has important significance for the individual.
106 The College says that Baker does not decide that reasons are always required when there is a statutory right of appeal or when the decision has important significance for the individual. Rather, it says that Baker emphasizes the flexible, contextual approach that should be taken when examining particular tribunals. It argues that in applying the list of factors described in Baker to the Council, reasons are unnecessary.
107 The College argues that the rationale for requiring reasons when there is a statutory right of appeal is that the failure to give reasons may: prejudice a party in asserting a right of appeal; prevent the reviewing or appellate court from access to the true basis of the decision; and, undermine public confidence in a tribunal by creating the appearance of an arbitrary decision made without apparent justification. The College says that in this case none of those factors apply.
108 It says that the lack of reasons with respect to penalty does not impair Mr. Treleaven's ability to challenge the decision. There were no conflicts of evidence which required a statement of which evidence the Council preferred or whether the tribunal disbelieved evidence tendered by a party. It was not necessary to determine whether, in the circumstances, there was sufficient evidence to support the findings because all of the facts of the case were agreed to be the parties.
b. The Supreme Court of Canada's Reasons in Baker
109 The Court said this in Baker: at para. 43.
In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing at common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary...
c. Conclusion - Requirement For Reasons
110 In my view, Baker decides that reasons must be provided when there is a statutory right of appeal. The Court's discussion was not confined to the particular decision-maker in question. Rather, the unanimous Court considered the issue broadly, looking at previous cases in Canada and in other countries. Reasons are therefore necessary, even in this case, when the Legislature has implicitly addressed the need for reasons by saying that reasons must be provided when the decision is not to release the name of the teacher. Therefore, the Council was required to provide reasons.
111 If I am wrong in this respect, I conclude, applying the flexible, contextual approach, and for the reasons stated in my conclusion on the issue of procedural fairness, that the Council should have given reasons.
112 I have kept in mind the structure of the Council and the context in which it operates. Council is a large body. The difficulties presented because of that fact were acknowledged by this court in Hanson v. College of Teachers, [1991] B.C.J. No. 3315 (S.C.). I agree with one solution suggested by Mr. Justice Spencer in that case:
...The Council consists of twenty-four members each one of whom may sit on a given case. Thus there might well be a large variety of differing views expressed. I would however have thought that a general statement of the principals involved in a given type of case would have been capable of reduction of one or two competing views only. The weight to be given to those principals in any given case would then be the subject for debate and a general consensus, with perhaps a dissenting minority view or views... [at 2]
113 In many cases, the reasons need not be lengthy or formal. The Council could, for example, specifically adopt the reasoning of the Hearing Sub-Committee or the reasoning found in any written submissions it receives.
2. What Constitutes Reasons?
114 The Court, in Baker, went on to say (at para. 44) that there must be flexibility in deciding what constitutes reasons. On the facts of that case, the Court found that the notes of a subordinate reviewing officer, prepared for the decision-maker, notes that were given to Ms. Baker's counsel when counsel asked for reasons, should be taken, by inference, to be the reasons for decision:
...Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary ... when courts evaluate the requirement of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways. [at para. 44]
3. Were There Reasons in this Case?
a. Position of the College
115 The College argues that even if reasons are required, there were reasons in this case. The Hearing Sub-Committee did have authority under s. 34(d) of the Act and Bylaw, s. 6.L.02(d), to make any recommendation it considers appropriate and it obviously considered it appropriate to make a recommendation on the issue of publication.
116 It says that it can be inferred that the Council accepted the recommendations of the Hearing Sub-Committee. Such an inference was drawn in Baker. It was also drawn in a recent decision of this court in Casson v. The British Columbia College of Teachers, [2000] B.C.J. No. 1038; 2000 BCSC 814. In Casson, which also dealt with the Council of the College of Teachers, an inference was drawn that the reasons of the Membership Hearing Sub-Committee were the reasons of Council.
b. Position of Mr. Treleaven
117 Mr. Treleaven, on the other hand, argues that the recommendations of the Hearing Sub-Committee cannot, by inference, be the reasons of the Council. The Sub-Committee had no authority to decide the issue of publication. Only Council can do that. The Sub-Committee did not even have the authority to make recommendations with respect to publicity.
118 He also says that matters were raised in the written submissions that were not before the Hearing Sub-Committee. In addition, the Council made some changes in the summary suggested by the Hearing Sub-Committee. Unlike Baker, the recommendations here were not provided as being the reasons and, unlike Casson, the recommendations were not referred to in the Registrar's letter reporting the decision.
119 Finally, Mr. Treleaven says that the recommendations do not, in any case, amount to reasons, as they don't address conflicting considerations.
c. Conclusion
120 I am not satisfied that an inference should be drawn in this case that the Council adopted the reasons of the Hearing Sub-Committee. The Council was required to consider the report of the Hearing Sub-Committee. However, it had submissions before it that were not before the Sub-Committee. It may or may not have reached its conclusion for the same reasons.
121 In this case, the Disciplinary Hearing Sub-Committee was not specifically authorized to decide or make recommendations on the issues of publication. Only Council had that mandate. This fact makes it more difficult to infer that Council adopted the reasoning of the Sub-Committee.
122 It is true that an inference was drawn in Baker that the reasons of the subordinate reviewing officer were the reasons. The Court pointed out that these notes were provided when reasons for the decision were requested. The Court said (at para. 44) that because of this fact and the fact that there was no other record, the notes should be taken as the reasons. That is not the case here. Furthermore, in Baker, there were no additional submissions after the notes were made. In this case, there were further submissions.
123 In Casson, the Court found that the College Council accepted the recommendation of the Membership Hearing Sub-Committee denying membership. In that case, unlike this one, the reporting letter of the Registrar said that the Council considered the recommendation of the Sub-Committee and that it accepted the recommendation that Ms. Casson not be granted membership. In that case, as reported in the decision, there were no further submissions before Council on the matter at issue. In addition, the decision the Sub-Committee made was specifically within its mandate.
F. REMEDY
124 Mr. Treleaven also made arguments on the merits of the decision of the Council. I am unable to assess the merits of the decision in the absence of reasons. In any event, I have concluded that there should be a reply to the adverse submissions.
125 I therefore direct that Council rehear this matter and provide reasons for its decision. Mr. Treleaven requested that if the matter were to be sent back, it be heard by Council members other than those who heard the matter initially. This flowed, in part, from his argument that the three members of the Hearing Sub-Committee who sat on Council when this case was heard, proposed the resolutions to the Council leading to its decision, thereby aggressively pursuing the adoption of the recommendations. I am unable to conclude that there was anything improper in the actions of the three members of the Sub-Committee at the meeting of the Council.
126 It is appropriate, however, that the Council consider the matter anew and it is not necessary that the same members of Council be present.
127 It is for the Council to decide the manner in which Mr. Treleaven can respond to the submissions adverse to his interest.
128 Mr. Treleaven is entitled to his Costs at Scale 3.
MARTINSON J.
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