2016—2017 · Vol. 44 No. 3



Serious concerns about the "Protecting Students" Act

Despite a number of suggestions and objections raised by OSSTF/FEESO, the Liberal government passed Bill 37, the Protecting Students Act, on November 15.

There is a long history behind the evolution of this legislation. In 2011, a Toronto Star investigation of the Ontario College of Teachers’ (OCT) discipline process alleged that Ontario students were not being adequately protected from professional misconduct by teachers. The Toronto Star’s allegations resulted in an inquiry, led by retired Justice Patrick LeSage, into the OCT’s discipline processes. LeSage’s report was made public in 2012 and recommended a number of steps that culminated in the introduction of provincial legislation to address this perceived problem. After two previous attempts to introduce legislation died on the legislative order paper—the first as a result of the 2014 Ontario general election and the second due to the prorogation of the Legislature in the summer of 2016—the Liberal government introduced Bill 37, the Protecting Students Act, in October.

Although the legislation was first contemplated a number of years ago, the latest incarnation of the bill has been fast-tracked by the governing Liberals, with committee hearings happening within three weeks of the bill’s introduction. Despite this, OSSTF/FEESO submitted both a written and verbal brief to the committee, in which a number of concerns regarding the proposed legislation were raised.

First, OSSTF/FEESO is concerned with the publication of a member’s involvement in criminal proceedings. Specifically, the most problematic aspect of the legislation is the extremely broad scope of its language. The legislation requires the posting of “current or previous criminal proceedings,” which may include historical criminal charges for which there was no conviction, as well as current, unproven charges that have yet to be resolved. The prejudicial consequences of such postings for innocent members is incalculable. Furthermore, it is possible that non-relevant criminal convictions will be included, needlessly harming excellent and long-serving teachers. This practice is counter to Justice LeSage’s suggestion that the OCT should follow the model of the Royal College of Dental Surgeons of Ontario, wherein a much narrower summary of any existing court-imposed restriction on a member’s right to practice is published.

OSSTF/FEESO is also concerned with the current practice when a case is referred to the Discipline Committee. First, a “Notice of Hearing” is published and linked to the Member’s information on the public register. In addition to the allegation that the Member has committed professional misconduct, particulars of the alleged incidents are published.

OSSTF/FEESO has handled multiple cases where a Notice of Hearing is placed on the OCT website prior to a hearing that then takes up to four years to schedule, only to have the OCT withdraw all or part of the allegations within 14 days of the scheduled hearing date. This is extremely prejudicial to members who are accused of misconduct and then publicly associated with the precise details of the allegations for years before the member has the opportunity to respond to those specific allegations in the hearing stage.

OSSTF/FEESO believes there are several solutions to this issue, many of which arise from the LeSage Report itself. OSSTF/FEESO submits that the College should be required to complete “Prosecutorial Viability Assessments” at the Investigation Committee stage. This would allow the OCT to screen out false or unviable allegations before publishing the Notice of Hearing. Justice LeSage explicitly recommended that the College introduce prosecutorial viability assessments. OSSTF/FEESO believes that a prosecutorial viability assessment prior to a referral to the Discipline Committee is the fairest and most transparent method to ensure that innocent members of the College are not prejudiced by specific and unfounded public allegations from the College.

Another issue that OSSTF/FEESO raised was the redaction of particulars. Justice LeSage expressed concern about the content of Notice of Hearings. He stated “the Notice of Hearing must contain a concise statement of the material facts and allegations, but not the evidence. The evidence is to be presented in a public forum where it will be heard and weighed by a trier of fact.” OSSTF/FEESO submits that the College’s publications of highly specific particulars prejudices members and should be restricted. If a member is accused of a criminal offence, such precise details are not available because they may yet be unfounded.

OSSTF/FEESO also expressed concerns regarding the timelines of the Notice of Hearing. Specifically, OSSTF/FEESO submits that our concerns could be addressed by restricting the time period when a Notice of Hearing is available. It is OSSTF/FEESO’s experience that discipline cases take two to four years to proceed to a disciplinary hearing. OSSTF/FEESO submits that given these issues the College should only publish the Notice of Hearing once a formal disciplinary hearing date has been set and College Counsel has determined whether any allegations will be withdrawn. Given the last-minute nature of previously withdraw allegations, OSSTF/FEESO proposed a time limit for publication of the Notice of Hearing. OSSTF/FEESO suggested that a Notice of Hearing should be published 15 working days prior to a hearing on the merits of a case at the Discipline Committee.

Despite OSSTF/FEESO’s suggestions, the Liberal government proceeded to pass the Legislation without any changes that reflected the concerns expressed. The PCs and NDP also supported the bill at the final reading.

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