Number 10 – April, 2007

• Commission of Inquiry into SARS Issues Final Report
• Significant Findings of Fact made at Criminal Trial Cannot be Challenged in Subsequent Arbitration
• College of Teachers Failed to Accommodate Foreign Trained Applicant
• Proposed Reforms to Ontario’s Long-Term Care Legislation

Commission of Inquiry into SARS Issues Final Report

By Elizabeth J. McIntyre

Justice Campbell’s Commission of Inquiry into SARS issued its final report January 9, 2007. It is an eloquent, comprehensive, insightful report outlining the failures during the SARS outbreak in Ontario in the spring of 2003 and prescribing corrective measures, which must be taken to prevent a similar crisis from recurring in the future (such as an influenza pandemic). He concludes that the internal government missteps and health care sector leader ignorance about occupational health and safety led to disaster. Justice Campbell praised the health care workers who held the Ontario health care system together amidst blunders all around them.

In the report, Justice Campbell compares the success of Ontario and British Columbia in responding to SARS. The report reveals that while B.C. had an index SARS patient admitted to Vancouver General:

“...there was no further spread. A combination of a robust worker safety and infection control culture at Vancouver General, with better systemic preparedness, ensured that B.C. was spared the devastation that befell Ontario.”

In contrast, Ontario officials exhibited an ignorance of occupational health and safety law and principles.

Justice Campbell emphasizes there is no time for, or value in, finger-pointing. He concludes that the SARS crisis was the product of deep-rooted systemic problems, and individuals heroically worked tirelessly did the best they could within a profoundly dysfunctional system. For instance, in the raging N95 respirator controversy, he cautioned:

“It would be too easy to personalize this debate and point out that some of those who most vociferously opposed the N95 and fit testing, and who were most disdainful of nurses and independent safety experts who prefer precaution, were the very people on whose watch nurses became sick despite the assurances that they were safe.”

He further found that:

“Hospitals did their best within the limits of their lack of preparation, their generally inadequate infection control systems, and their inadequate worker safety systems. Inevitably they made mistakes in the fog of war against an invisible army.”

Infection Control/Occupational Health and Safety Disconnect

Justice Campbell was very alert to the problems arising from the disconnect between the infection control and the occupational health and safety communities in Ontario. He wrote:

“There were during SARS two solitudes: infection control and worker safety.”

His report prescribes an end to these solitudes and the need of both communities to be mutually respectful of each others’ knowledge and expertise to combine their efforts and collaborate to make the system ready for the unseen.

“Although no one did foresee and perhaps no one could foresee the unique convergence of factors that made SARS a perfect storm, we know now that new microbial threats like SARS have happened and can happen again. However, there is no longer any excuse for governments and hospitals to be caught off guard and no longer any excuse for health workers not to have available the maximum level of protection through appropriate equipment and training.”

Justice Campbell also found that the discord was not confined to the relationship between the infection control and occupational health and safety communities - it also plagued inter-ministerial and intergovernmental relationships.

The Precautionary Principle

Justice Campbell outlines the compelling evidence that led him clearly and unequivocally to advocate the adoption of the precautionary principle “throughout Ontario’s health, public health and worker safety systems ...”. This single most important recommendation in his report, if implemented, would have widespread implications for worker health and safety. He was emphatic in his call for this change.

“Some of the same Ontario hospital leaders who argued against the N95 respirator required to protect nurses and who actually denied there was a safety law that required the N95 to be fit tested still insist that science, as it evolves from day to day, comes before safety. If the Commission has one single take-home message it is the precautionary principle that safety comes first, that reasonable efforts to reduce risk need not await scientific proof. Ontario needs to enshrine this principle and to enforce it throughout our entire health system.”

“What we do need is a common-sense approach to worker safety in hospitals coupled with a measure of scientific humility in light of the terrible and sometimes fatal failures in scientific advice and hospital safety systems during the SARS outbreak ... It is better to be safe than sorry.”

Justice Campbell found the evidence demonstrates that B.C. followed the precautionary principle and “... stopped SARS in its tracks.”

Hospitals are Dangerous Workplaces but Don’t Apply Occupational Health and Safety

Justice Campbell’s comprehensive investigation found that:

“Hospitals are dangerous workplaces, like mines and factories, yet they lack the basic health and safety culture and workplace safety systems that have become expected and accepted for many years in Ontario mines and factories and in British Columbia’s hospitals.”

The Commission also found “seven systemic problems that run like steel threads through all of SARS, through every hospital and government agency”, and specifically:

• communication
• preparation planning
• accountability: who’s in charge, who does what
• worker safety
• systems: infection control, surveillance, independent safety inspections
• resources: people, systems, money, laboratories, infrastructure
• precautionary principle: action to reduce risk should not await scientific certainty”

The report makes extensive recommendations about legislation, policies and procedures to finally establish and solidify a health and safety culture in Ontario’s health care sector.

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Significant Findings of Fact made at Criminal Trial Cannot be Challenged in Subsequent Arbitration

By Amar Bhatia

Background

In the recent decision of Near North District School Board and Ontario Secondary School Teachers’ Federation, District 4 (Reinders Grievance), (2006) 153 L.A.C. (4th) 437 (Herman) dealt with the preliminary issue of abuse of process and the potential relitigation of findings of fact made by a judge in a previous criminal trial at a subsequent arbitration hearing.

After a lengthy suspension with pay, the grievor, Hendrik Reinders, was discharged from his teaching job in January of 2003 following concerns raised about his classroom conduct towards students in the fall of 2002. The School Board’s investigation into these concerns resulted in a report detailing ten alleged incidents of improper behaviour, including kissing a student on the cheek and placing his hand on a student’s rear end. This report was shared with the Union and, after an initial deferral pending additional interviews, ultimately led to the grievor’s termination before a special meeting of the Trustees of the Board and pursuant to the recommendation of senior administration.

While the discharge was grieved by the Union, four criminal charges were laid against the grievor with respect to the alleged kiss of a student’s cheek and inappropriate touch to her rear end with his hand. The matter proceeded to trial before Madam Justice G. Pardu, who dismissed all of the charges in her Reasons for Judgment delivered on December 9, 2004. Among other things, Madam Justice Pardu found that the grievor did not have any sexual/romantic interest in the complainant, that the complainant exaggerated or misconstrued some comments, that there was physical contact between the grievor’s hand and the student’s rear end, but that the physical contact was neither for a sexual purpose nor intentional.

Union’s Position

At the arbitration, the Union argued that relitigation of the significant findings made by the trial judge would amount to an abuse of process by the School Board. The Union relied upon the reasoning of the Supreme Court of Canada in City of Toronto and Canadian Union of Public Employees, Local 79 (2003), 232 D.L.R. (4th) 385, [2003] 3 S.C.R. 77 (“Toronto and CUPE, L.79”), where the grievor was charged and convicted of sexual assault and the Supreme Court of Canada ruled unanimously that the arbitrator was bound by the criminal conviction.

In that decision, the Court held that the “doctrine of abuse of process concentrates on the integrity of the adjudicative process”, which would be undermined by relitigation for three reasons: 1) there was no assumption that relitigation would yield a more accurate result; 2) arriving at the same result would prove to be a waste of resources, unnecessarily expensive, and a potential hardship on witnesses; and 3) arriving at a different result on the same issue would yield inconsistency undermining the credibility and authority of the judicial process and its aim of finality.

In this case, the Union did concede that the School Board could seek to establish facts in arbitration that were found not proven beyond a reasonable doubt by the trial judge.

School Board’s Position

The School Board replied by emphasizing that the labour arbitration process involved different parties, processes, issues, and onus of proof than the original criminal proceeding.

In attempting to further distinguish the grievor’s acquittal at the criminal proceeding, the Employer also argued that the arbitration would comprise all ten alleged incidents (as opposed to the two incidents dealt with at the trial), the context of the just cause standard and the standards demanded of teachers, and a significant number of witnesses that did not testify at the trial. In sum, the School Board argued that there would be no relitigation, but simply litigation for the first time of all of the relevant labour and employment matters.

In making its argument, the Employer attempted to rely on the decision in City of Toronto and Toronto Civic Employees Union, Local 416 (2004), 131 L.A.C. (4th) 188 (Randall) (“Toronto Civic Employees Union”), in which the arbitrator found “nothing inconsistent between the Crown not being able to prove criminal charges beyond a reasonable doubt and an employer proving the same allegations to a less exacting standard”.

The Arbitral Decision

Arbitrator Herman distinguished this reasoning in the Toronto Civic Employees Union decision because in that case, the arbitrator had also noted that the dismissal of charges in the middle of a criminal trial was quite different from an acquittal following a full trial that included significant evidentiary findings by the trial judge.

Instead, Arbitrator Herman noted that he had previously dealt with this issue in a prior case and then also cited the decision of O.C. Transpo and Amalgamated Transit Union, Local 279 (2005), 142 L.A.C. (4th) 343 (Starkman) (“O.C. Transpo”), to further ground his decision. In O.C. Transpo, it was held that factual findings made by the trial judge are equally binding in a subsequent arbitration regardless of whether the trial resulted in a conviction or an acquittal.

Arbitrator Herman also found that there was no distinction between a conviction and an acquittal such that the Supreme Court’s three concerns regarding relitigation would be alleviated in any way with respect to acquittals. He also noted that there would be confusion and potential for abuse of process where criminal trials over multiple charges led to mixed results (both convictions and acquittals arising from the same set of factual findings).

Although noting the Employer’s concerns, and specifically that it was not party to but nevertheless was bound by the criminal proceedings, Arbitrator Herman concluded that the same abuse of process concerns motivating the relitigation of findings of fact leading to a conviction applied to the relitigation of findings of fact leading to an acquittal. He did note that evidence put before the trial judge could still be tendered in arbitration (as long as it was arguably relevant to some issue other than the finding itself).

Context for the Decision

This decision adds to the growing line of arbitral authority that favours deference to previous factual findings and the ideal of finality among the various fora described above. Notwithstanding this ideal of finality and the desire to avoid an abuse of process, it is important to remember that a different onus applies in non-criminal proceedings such that certain conduct must be proved on the balance of probabilities and not “beyond a reasonable doubt” as in the criminal context.

This decision is also important for practitioners, professionals, unions and employers as it again demonstrates the multiplicity of proceedings potentially regulating the conduct of teachers (see Update for Professionals, Number 5, November 2005 and The Simcoe County Board of Education and Elementary Teachers’ Federation of Ontario (Sclater Grievance) (2005), 140 L.A.C. (4th) 52 (Newman)). With respect to teachers, these fora can potentially include police investigations and criminal trials, civil trials, professional discipline hearings, grievance arbitration hearings, and Children’s Aid Society investigations.

Practically speaking, and because of the overriding liberty interest triggered by criminal charges, the initial litigation of a set of allegations (or some portion thereof) will likely take place in the criminal court context. Correspondingly, it will be important for professionals to know and assert their rights at an early stage and for employers to exercise patience in their pursuit of parallel investigations or procedures.

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College of Teachers Failed to Accommodate Foreign Trained Applicant

By Brian Hanulik

An important decision was recently issued by the Ontario Superior Court of Justice regarding the accreditation of foreign trained professionals. In Siadat v. Ontario College of Teachers, 2007 CanLII 253 (ON S.C.D.C.) (“Siadat”), Ms Siadat was a Convention refugee from Iran. She appealed a decision of the College’s Registration Appeals Committee (the “Committee”) to deny her request to waive the College’s requirement to produce official documentation regarding her accreditation as teacher, thereby refusing to issue her a Certificate of Registration in Ontario.

The College’s Accreditation Process

In order to teach in Ontario’s publicly funded education system, a teacher must have a Certificate of Qualification from the College. The College is a self-regulatory body with the statutory mandate to licence, govern and regulate the practice of teaching in Ontario.

Under the College of Teachers Act (the “Act”), the College has the power to make regulations. Regulation 184/97 (the “regulation”) covers the requirements for Certification and provides that applicants who are trained outside of Ontario require proof of proficiency in English and French as well as all of the following:

• Evidence of his/her academic or technological qualificiations;
• His/her teaching certificate and a transcript of his/her teachin education program;
• A statement from the issuing authority that his/her teaching certificate has not been suspended or cancelled.

Under section 18 of the Act, the Registrar of the College shall issue a Certificate of Qualification and Registration to a person who applies and fulfills the above requirements under the regulation.

Apart from the Act and the regulations, it has been the policy of the College, and the Ministry of Education before it, to require the production only of original documents, with official documents, duly signed and sealed, to be sent directly from the granting institution.

Background of the Applicant

Ms Siadat was born, raised, educated and worked as a teacher for some 16 years in Iran. While teaching High School literature classes in that country, she made comments about authors’ rights to freedom of expression and incurred harassment by the governing regime, leading to a loss of her employment and threats to her life. Ms Siadat fled Iran in advance of a “political trial” and was accepted as a Convention refugee in Canada.

Upon arriving in Canada, Ms Siadat obtained a Community College Certificate in early childhood learning and obtained work in day-care facilities and in assistant or administrative positions in schools.

Her attempts to gain recognition as a teacher from the Ministry of Education and then the College were unsuccessful. The issue was that the originals of her University Degree, her transcripts and the equivalent of her teaching certificate in Iran are all held by the Ministry of Education there, which is in effect, the organization that caused her to flee that country as a political dissident. In her view, not only would Iran not respond to requests to provide the documentation but it might, in response, seek out and harm members of her family who still live in Iran.

Ms Siadat has one original governmental document – a photo identification card issued by the Ministry of Education. She also obtained, through a friend who works in Iran for the Ministry, a handwritten copy of what was purported to be a transcript of her university courses. She also provided photocopies of her degree and the employment order from the Ministry, as well as certified translations of those documents. Further, she provided the College with a personal resume and supporting affidavits from a friend and a relative in support of her application.

The Decision of the Committee

Ms Siadat relied on the above documentation at the hearing before the Committee and provided “social context” evidence as to why she was unable to provide the original documents requested by the College. This was a “paper hearing” and Ms Siadat was not called to testify or be cross-examined.

Following the “hearing”, the College issued decision. Most of the decision outlined Ms Siadat’s prior unsuccessful attempts to obtain a teaching certificate in Ontario and a list of the material that the Committee considered. The actual decision was just over a page in length. There was no discussion about the content of the documents considered, except to say that they were not satisfactory evidence of a previous teaching certificate, undergraduate degree or completion of a teacher education program, and/or professional standing. The Committee’s decision states that the alternative documents provided by Ms Siadat could not be verified or did not constitute acceptable evidence. As such, her application was denied.

Ms Siadat’s request for an individualized method of determining her qualifications for certification was also denied. The Committee decided that the material presented as “social context” did not convince it that she should be treated any differently from other applicants because these other individuals met the requirements of Ontario Certification.

The Decision on Appeal

After considering the arguments of both parties, the Court held that the Committee had failed to meet both its obligation to properly interpret and apply the relevant law, and the obligations to provide adequate reasons for its decision. As such, the decision was rescinded and Ms Siadat’s application was referred back to the Committee for a re-hearing.

The Court held that the requirement for original or certified copies of documents was an internal administrative practice not called for under the Regulations. In terms of addressing the College’s possible concerns regarding the credentials, the Court noted that foreign trained individuals who successfully applied to the College were issued interim certificates, which are limited to specific time periods during which the teacher works under supervision of others. These interim certificates can also be cancelled if the teacher does not perform satisfactorily.

The Court held that the issue was not whether Ms Siadat had satisfied the College’s requirements for certificate. Rather, it found that two other issues were determinative in this appeal.

First, the Court found that the Committee had failed to properly interpret and apply the provisions of the Ontario Human Rights Code and public policy in rendering its decision. The Court stated that:

It is plain and obvious to me that to insist on original, or government certified documents from her place of origin, is prima facie discriminatory against her, in view of the evidence she has provided. It is no answer for the Committee, or the College Registrar to say that 17,414 other applicants had succeeded in providing these documents and she is the first one who cannot, especially in view of the evidence that the others, who did not provide all the documents, simply had their applications returns to them as incomplete and were not counted among the 17,414. It appears Ms Siadat is the first person to protest that treatment, and appeal to the Committee, and then to this Court as a test case.

As such, the Court held that the Committee had failed to establish that Ms Siadat’s accommodation request was not possible without undue hardship.

Further, the Court considered that the Committee had failed to meet the legal requirement to give sufficient reasons for their decisions. The duty to provide sufficient reasons is a component of procedural fairness. The Court found that the Committee’s decision failed to meet the requisite criteria, specifically that the decision maker set out its findings of fact, the principle evidence upon which those findings were based, address the major points in issue and the reasoning process followed by the decision maker. The Court held that:

The point at issue before the Committee was appropriate accommodation for the Applicant, in view of her status as a Convention refugee, from a place of origin that would not provide her with formally certified documents. The only mention of that was in the “background” section, where the Committee in effect said that it had heard all of this before, and had turned her down; and on the last page, where the Committee said that “the material presented as “social context” does not convince the Committee that the applicant should be treated any differently from other applicants…”

Conclusion

This is an important decision concerning the ongoing hurdles faced by foreign trained professionals who apply for accreditation in Ontario. This decision makes it clear that professional regulatory bodies must consider the provisions of the Human Rights Code when assessing applications and, where appropriate, must consider what, if any, accommodation may be required in the circumstances.

The decision is also important as it reiterates that administrative tribunals, such the various committees at self-regulating professional entities, must provide sufficient reasons for their decisions. In this case, the decision of the Committee at the College of Teachers failed to set out its findings of fact, the principle evidence upon which its findings were based, address the major points in issue and its reasoning process.

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Proposed Reforms to Ontario’s Long-Term Care Legislation

By Jo-Anne Pickel

The Ontario legislature will soon begin third reading of the Bill 140, the Long-Term Care Homes Act. The Standing Committee on Social Policy held public hearings into the Bill and recently reported back to the legislature with an amended version of the Bill.

Bill 140 seeks to repeal the Nursing Homes Act, Homes for the Aged and Rest Homes Act, and the Charitable Institutions Act and replace them with the Long-Term Care Homes Act, 2006. The new Long-Term Care Homes Act includes a number of provisions that are aimed at enhancing resident care, as well as the enforcement of standards, and accountability of long-term care homes. The Bill includes the following provisions:

• Enhanced Residents’ Bill of Rights;
• Provisions concerning the prevention of abuse and neglect, including a duty on any person to report abuse and neglect;
• Whistleblower protection for those who report abuse and neglect;
• Requirement that at least one registered nurse be on duty and present in a home at all times;
• Provisions aimed at restricting the use of restraints to circumstances where it is necessary and with appropriate safeguards; and
• Provisions seeking to improve enforcement and compliance.

During the Committee’s hearings a number of organizations and unions were critical of the Bill and recommended various amendments including:

• Legislating minimum staffing standards and levels of resident care;
• Defining what constitutes abuse and neglect within the legislation rather than in the regulations;
• Expanded whistleblower protection that would cover disclosures to media or elected representatives;
• Improved health and safety standards and working conditions for long-term care staff;
• Strengthened inspection and enforcement mechanisms;
• Greater transparency and accountability of long-term care homes; and
• Explicit commitment to preserving and promoting the not-for-profit delivery of long-term care.

As well, several advocacy organizations and unions have stressed that any reforms to the long-term care sector will fail to meet their objectives unless accompanied by sufficient, consistent and predictable funding for the long-term care system.

The Committee’s amended version of the Bill addressed some, but not all of these concerns. The following are some of the more significant amendments to the Bill:

• Instead of legislating minimum staffing and care standards, it appears that these matters will be left to government regulations. A provision was added requiring every licensee of a home to ensure that the home meets the staffing and care standards provided for in the regulations;

• All homes will be inspected at least once a year. Exceptions to this requirement for certain classes of homes and homes recognized as having a good record of compliance were removed.

• The preamble to the Bill was amended to include a statement of the government’s commitment to the promotion of the delivery of long-term care home services by not-for-profit organizations; and

• The range of fines that may be imposed on a director or officer of a non-profit home for failing to ensure compliance with the Act was reduced. The fine for directors or officers in the for-profit sector is a maximum of $25 000 for a first offence and a maximum of $50 000 for a subsequent offence. The fine for directors or officers of non-profit homes is not less than $50 and not more than $1000.

After passing third reading, the Bill will receive Royal Assent and become law. Because of the broad scope of the Bill, it is likely that certain of its provisions will not come into force immediately upon Royal Assent but will instead be proclaimed into force at a later date.

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