April 11, 2011

Extraordinary or Interim Suspensions: adequacy of reasons and sufficiency of pre-existing measures

Administrative Law
Inquiry and Investigations
Professional Regulation

Even in cases where one might conclude the basis for extraordinary action, e.g., an interim suspension or a like measure, is obvious from the seriousness of criminal charges against a professional, an inquiry or investigation committee may still be required to issue adequate reasons of decision as an aspect of procedural fairness, and thereby demonstrate why extraordinary action is necessary despite any previous measures already operating to protect the public pending any investigation or discipline hearing.

The need for regulatory bodies to carry out demonstrably careful reasoning is illustrated in Aris v. Ontario College of Teachers, 2011 ONSC 1202 (Ont.Sup.Ct.), where a grade one/two teacher was criminally charged, but not yet convicted, of one count of possession of child pornography. He was released on bail with conditions which prohibited him from attending any school or holding a position of trust for a child of less than 14 years. His teaching contract also prohibited him from taking a teaching position with any employer other than his School Board. The Board removed him from classroom work and placed him on paid home assignment. Upon learning of the charge, the college appointed an investigator who was ultimately advised by the London Police Service that the police had identified three videos and over 100 photographs that were “believed to constitute child pornography.” [12] The College’s registrar lodged a complaint, the complaint was referred to the Discipline Committee, and the Executive Committee suspended the teacher’s certificate pending final disposition, without reasons.  As a result of the suspension of the teacher’s certificate, the Board suspended the applicant’s pay, as a school board could not, under Ontario law, appoint an individual whose certificate has been suspended or revoked. [15]

The court confirmed that adequacy of reasons is a matter of procedural fairness, which does not attract any standard of review analysis. [17] In other words, either a process is fair or not; a court will not defer to a regulatory body’s view that a process is fair, if the court decides otherwise. The court also confirmed the standard of review for the decision itself was reasonableness. [18]

Inadequate reasons: Although the College argued the reasons were “obvious,” [23] the interim suspension had a significant impact on the member [26] in terms of both pay [26] and reputation, due to publication of the decision [26]. Fairness required an explanation, [27] and a reviewing court would be left without the ability to scrutinize the decision to ensure it was reasonable. [27] Although the court noted that less is needed to satisfy the requirement for adequate reasons where the order is an interim one, [28] the lack of reasons was procedurally unfair as the record did not show whether and to what extent the Executive Committee considered not only the criminal charge, but evidence to determine if a suspension was required at the time to protect students. [33] Although the College submitted the suspension would serve to protect the public by being on the register, “for example, if the applicant decided to coach a hockey team,” the court noted that while the College has a duty to serve and protect the public interest, “the statute does not confer a mandate to protect the public at large,” and the issue was the likely exposure of students to harm or injury. [35] The decision had to be set aside on the issue of procedural fairness alone.

An unreasonable decision: Furthermore, the Executive Committee was required to make its decision based on “some evidence that is more than speculation.” [38] no evidence met the statutory test of exposure of students to actual or likely harm or injury, not to merely possible harm. [41] “The Board’s action and the bail conditions already addressed and significantly reduced this risk.” [41] The teacher had already been removed from the classroom and school setting. [42] No evidence indicated he had contravened his bail conditions in the previous year. [42] His employment contract also prevented him from working as a teacher with another employer. [42] “In these circumstances, a suspension was not required in order to protect students from likely harm.” [42] Given the evidence before the Executive Committee and the statutory test, which the Executive Committee did not address, given the College’s justifications of protecting the public and large, and its concern for protecting students in the hypothetical situation of the teacher being acquitted, the decision was unreasonable, and the order suspending the teacher’s certificate was set aside.

Aris v. Ontario College of Teachers, 2011 ONSC 1202 (Ont.Sup.Ct.)