Jun 1, 2009 | Article
Publication of Members’ Names at the Ontario College of Teachers
By Immanuel Lanzaderes
Until recently, it was considered virtually automatic that member who was found guilty of professional misconduct at the Discipline Committee of the Ontario College of Teachers would have his or name published in Professionally Speaking, the College’s quarterly newsletter.
In fact, no statutory or regulatory provision requires the College to publish members’ names. Section 30(5) of the Ontario College of Teachers Act, 1996 uses permissive rather than mandatory language for publication:
30. (5) Where the Discipline Committee finds a member guilty of professional misconduct, it may, in addition to exercising its powers under subsection (4), make an order doing one or more of the following:
3. Directing that the finding and the order of the Committee be published, in detail or in summary, with or without the name of the member, in the official publication of the College and in any other manner or medium that the Committee considers appropriate in the particular case.
The Discipline Committee is thus required to consider publication based on the facts of each case, rather than considering publication to be the default choice. However, it is noteworthy that the Discipline Committee continues to take the position that publication is a fundamental aspect of self-regulation and accountability.
Publication is intended to serve two goals: specific deterrence and general deterrence. Specific deterrence, as the name suggests, is supposed to deter the individual member from repeating the action or actions which brought him or her before the Discipline Committee. Publication reinforces specific deterrence through its public aspect. Members will avoid repeating the behaviour to avoid the public embarrassment of publication.
General deterrence is intended to deter all members. General deterrence is served by publishing the facts, with or without the member’s name. Other teachers reading Professionally Speaking will learn what behaviour is unacceptable by reading the facts that led to the discipline proceedings. The facts outline the prohibited conduct and the decision outlines the consequences. The member’s name is not required to accomplish general deterrence.
A review of more recent decisions suggest that the Discipline Committee is increasingly recognizing that publication is not necessary in many circumstances including the following:
- when the misconduct is very minor or isolated;
- where public safety is not an issue; or
- where the interests of innocent third parties are at stake.
Reviewing recent decisions suggests that the Discipline Committee will accept non-publication in the certain rare situations, as outlined above. Specific examples where publication of the member’s name was not ordered include failing to uphold the standards of the profession, cultivating a non-physical relationship with a student, and requesting students to massage a muscle spasm. Having no prior record of discipline also works in favour of non-publication.
The Discipline Committee will continue to insist on publication of the member’s name in cases of more serious conduct, for example, sexual assault or a relationship with a student that became physical or intimate. In such cases, the Discipline Committee has held that publication of the member’s name is necessary for both public safety and to ensure the transparency of the process. Publishing the member’s name is required to ensure that the public knows that serious misconduct will be treated seriously.
Sparing the member and her or his family or co-workers from embarrassment is of little concern to the College. Publication was ordered when family members with the same last name and in the same town were also teachers.
Even if the member’s name has already been published as the result of criminal proceedings, the Discipline Committee considers it a public responsibility to re-publish the name as part of professional regulation and self-regulation.
It is important to note that non-publication does not guarantee absolute privacy. Although the member's name may not be published in Professionally Speaking, it is available to those who request specific decisions from the College or who search the legal database, Quicklaw. Any member of the public can access decisions with the member’s name by going to the College’s library or by sending a request.
It is always up to the member or his or her lawyer to argue for non-publication. The Discipline Committee will balance the public’s interest in publication with the member’s right to privacy.