[2011] O.J. No. 1458

2011 ONSC 1687

Ontario Superior Court of Justice Divisional Court - Toronto, Ontario

D.R. Aston, K.E. Swinton and P.B. Hambly JJ

April 1, 2011

A former teacher ("Headrick") applied for judicial review of a decision of the Ontario College of Teachers (the "College") which had referred his application for a Certificate of Qualification and Registration ("Certificate") to the College's Disciplinary Committee.

Headrick obtained a teacher certificate in June 1983. He worked in Ottawa as a teacher until resigning from his teaching position in 1994. In March 1995 he pled guilty to sexual exploitation of a former female student contrary to Section 153(1) of the Criminal Code.

In 1997 Headrick's Certificate was cancelled on a recommendation of the Relations and Discipline Committee of the Ontario Teachers' Federation.

Under the Ontario College of Teachers Act (the "Act"), the College must grant a Certificate to "any individual who meets the requirements under the Act's regulations unless there are grounds for refusal pursuant to Section 18(2)."

Under Section 18(3) of the Act, the Registrar must refuse to issue a certificate to any applicant who previously held a certificate that was revoked as a result of the decision of the Discipline Committee or the Fitness to Practice Committee.

However, with transitional matters relating to discipline and a change in the regulatory scheme for teachers, subsection (33)(1) of the Act provides that a person who has had a certificate revoked or suspended as a result of a proceeding before the Discipline Committee may apply to the Registrar to have a new certificate issued or their suspension removed.

Section 33(5) of the Act provides that the Registrar must refer a s.33(1) application to the Discipline Committee.

In April 1999 Headrick applied for reinstatement to the College of Teachers. His application was rejected by the Discipline Committee in November 2000. In December 2009 a section was added to the Act which included a provision, s. 33(15), that any person whose Certificate of Qualification was suspended or cancelled due to discipline, would be deemed to have been subject to a decision of the Discipline Committee. Thus, there was potentially a retroactive provision that would deem the prior cancellation of Headrick's Certificte to be a decision of the Discipline Committee.

In either October 2009 or January 2010, Headrick again applied for a new Certificate of Qualification and Registration. On January 13, 2010, the College indicated that the matter would be referred to the Discipline Committee pursuant to Section 33(5) of the Act.

The first issue was whether the Registrar of the College erred in referring the application for registration to the Discipline Committee.

On the issue of interpretation of provisions of the Act, the College accepted that the standard of review should be correctness. The material did not support the conclusion that the Registrar of the College brought special expertise to the interpretation and application of the Act.

The court held that Section 33(15) of the Act would have retrospective effect in this circumstance and that Headrick's application must be referred to the College's Discipline Committee since his certificate had been cancelled for disciplinary reasons.

Laws should not be construed as having retrospective effect unless such a construction is required expressly or by necessary implication. However, a law can impose a penalty on a person related to a past event if the purpose of that law is not to punish but to protect the public. Given that the Act has a primary purpose including protection of the public, the presumption against retrospective effect is rebutted, and does not apply to Section 33(15) of the Act in this instance.

The purpose of this amendment was not to punish Headrick but to protect the public. The effect of the provision is procedural, meaning that the Discipline Committee would consider his application for membership. It is reasonable to treat Headrick like other teachers who had lost their certificates because of decisions of the Disciplinary Committee under the current regulatory regime.

This case was distinguished from the decision in Cressman v. Ontario College of Teachers, 2005 CanLII 1406 (Div. Ct.) where the Discipline Committee was held not to have jurisdiction to proceed with discipline against Cressman, because the presumption against retrospective operation of the legislation was not rebutted in that circumstance.

Headrick also argued that the College Registrar breached a duty of fairness to him by failing to give adequate reasons and failing to comply with the Ontario Human Rights Code which prohibits discrimination in respect of membership in a self-governing profession, on a list of prohibited grounds.

The letter from the Registrar was interpreted as adequately conveying the reasons for the refusal to process Headrick's application. The court held there was no need to explain why the referral was to the Discipline Committee rather than the Fitness to Practice Committee.

The Human Rights Code did not apply, since Headrick failed to identify any discriminatory treatment on an enumerated ground.

The application for judicial review was dismissed. Headrick argued that costs should not be awarded against him, characterizing the matters as public interest litigation. The court awarded costs against Headrick, finding that the application did not raise issues of general public importance.