Teachers’ Professional Discipline Regulations Apply Retroactively
By Fay Faraday
In May 2004, the Ontario Superior Court (Divisional Court) heard two applications for judicial review challenging the retroactive application of professional discipline regulations under the Ontario College of Teachers Act, 1996 (Act): Bhadauria v. Ontario College of Teachers, (Court File #377/03) and Cressman v. Ontario College of Teachers (Court File #748/03). In each case, the College’s Investigation Committee referred to the Discipline Committee and the Discipline Committee took jurisdiction over allegations of professional misconduct regarding conduct that occurred before the College came into existence and before the professional misconduct regulations under the Act were made.
Issues
Two key issues were raised on judicial review in each case:
- Can the Act and the regulation under it which creates the offence of professional misconduct apply retroactively?
- Does the College’s delay in investigating allegations of professional misconduct violate the duty of fairness?
In its judgment in Bhadauria, released 9 June 2004, the Divisional Court ruled that the Ontario College of Teachers Act does give the College jurisdiction to impose discipline for matters that took place before the College came into existence. Moreover, the Court ruled that although the statute mandates that the College use its “best efforts” to dispose of a claim within 120 days, the three-year delay in this case (which itself had been preceded by an unexplained two-year delay by the School Board in filing its complaint with the College) did not constitute abuse of process.
The Court has reserved judgment in Cressman and, at the date of writing, the decision has not yet been released. The remainder of this article, then, examines the decision in Bhadauria.
In 1989, Jagdish Bhadauria was terminated from his teaching position with the Toronto Board of Education as a result of two letters he had written to the director of the Board which were found to be offensive and unprofessional. Mr. Bhadauria’s termination was the subject of a grievance arbitration that proceeded to the Supreme Court of Canada which, in 1997, upheld his termination: Toronto Board of Education v. OSSTF, District 15 [1997] 1 S.C.R. 487.
In July 1999, two years after the Supreme Court of Canada decision, the Toronto Board filed a complaint of professional misconduct with the Registrar of the Ontario College of Teachers in relation to the two 1989 letters. The College notified Mr. Bhadauria of the complaint in February 2000. More than two years later, on 30 May 2002, the Investigation Committee referred the matter to the Discipline Committee. The Discipline Committee conducted a four-day hearing and in March 2003 ruled that the letters constituted professional misconduct.
Mr. Bhadauria, who was not represented by a lawyer, applied for judicial review to the Divisional Court.
Retroactive Application of Professional Discipline Statute
As a general rule, there is a strong legal presumption that statutes cannot apply to events that occurred before they were enacted. A statute can only apply backwards in time – can only apply retroactively – if this power is expressly or by necessary implication required by the language of the statute. The underlying rationale to this presumption is that it is unfair to change the legal status of past acts. If conduct was not subject to legal consequences when it occurred, it would be unfair for a statute to reach back in time and change the legal consequences of such conduct by imposing new liabilities or obligations. The Ontario Court of Appeal has also recently confirmed that professional discipline statutes must be interpreted narrowly by the courts and must be strictly complied with: see for example Henderson v. College of Physicians and Surgeons of Ontario (2003), 65 O.R. (3d) 146 (C.A.).
Nevertheless, in this case, the Court ruled that the Legislature did intend the College to have jurisdiction over acts amounting to professional misconduct which took place before the College and the professional discipline regulation came into existence. The Court relied on s. 14(5) of the Act to reach this conclusion. Section 14(5) provides that:
“A person whose certificate of qualification and registration is revoked or cancelled continues to be subject to the jurisdiction of the College for professional misconduct, incompetence or incapacity referable to any time during which the person held,
(a) a certificate of qualification and registration under this Act; or
(b) an Ontario Teacher’s Certificate or a letter of standing as a teacher under the Education Act.”
The Court found that, in the case of persons whose certificates have been cancelled or revoked, s. 14(5) grants the College jurisdiction to address professional misconduct “which occurred at any time the person held a certificate” (emphasis added). Reasoning by analogy, the Court found that if the legislation applies retroactively to persons whose certificates have been revoked or cancelled, it must, even more certainly, apply to persons who continue to be certified. To find otherwise would result in the absurd situation where current members have immunity regarding conduct that pre-dates the Act while former members would not. The Court also ruled that because one of the primary purposes of the College is to protect the public, the presumption against retroactive application of statutes could be rebutted.
Although this case arises in the context of the College of Teachers, it will be of interest to other regulated professions. Ultimately, the degree to which any particular College can take retroactive jurisdiction over matters of professional discipline will fall to be determine on the specific language of the governing statute.
Delay
On the issue of delay, the Court acknowledged that under s. 26(9) of the Act, the statutory language requires that the Investigation Committee “shall use its best efforts” to dispose of a claim within 120 days. As the School Board’s complaint was filed with the College in July 1999, the Court found that “absent exceptional circumstances” the Investigation Committee should have dealt with it by the end of November 1999. In fact, the Committee did not refer the complaint to the Discipline Committee until the end of May 2002 - almost three years after the complaint was filed. There was no explanation for the delay. At the Discipline Committee hearing, Mr. Bhadauria did not ask for a stay of the proceedings due to delay and did not present evidence that he suffered any psychological or emotional harm that could be linked to the delay. On the facts of the case, the Court found that the delay is not such that it impaired the fairness of the hearing or impugned the disciplinary proceedings: “His case is not one of those few cases that if proceeded with would be contrary to the interests of justice.” After noting that in another case a delay of three years “could very well be such as to amount to an abuse of process”, it found that on the present facts it was not. The Court went on to state: “We find it inexcusable on this record for the College to have take as long as it did to process the complaint against Mr. Bhadauria where the legislation requires the Investigation Committee to use its best efforts to dispose of complaints in 120 days. It is not, however, such as to amount to abuse of process.”
Conclusions
This ruling raises real questions about whether and the extent to which regulatory bodies can be effectively held to their statutory obligations to address complaints in a timely way. Although the Court ruled that “absent exceptional circumstances” the complaint should be dealt with within 120 days, the College was not put to the test to show that exceptional circumstances existed to cause the delay in this case. The Court allowed the three-year delay even though the College offered no explanation for the delay. Although “best efforts” clauses like s. 26(9) have not received much scrutiny in the Courts, the Bhadauria ruling appears to be consistent with other cases which suggest that unless a “best efforts” clause is accompanied by an express provision prescribing specific consequences for failing to comply with the stipulated time line, courts will be reluctant to hold the regulatory body to the time line or to find an abuse of process.