From Whose Perspective?

As the saying goes, perspective is everything. What lens should a regulator use when assessing whether a school play presented to Grade 8 students about bullying and school violence warrants a referral to discipline for those responsible for its production? The answer is that it must be through an objective lens, and not through the personal perspective of the complainant, according to Fuchigami v. Ontario College of Teachers, 2024 ONSC 106 (CanLII).

A teacher complained about the school’s drama teacher, Principal, and Superintendent involved in the play and its aftermath. The complaint was about the decision to put on the play, the preparation of the students who were going to see it, and the adequacy of the support for students after the complainant teacher indicated that the play had “triggered” significant mental consequences for him. The regulator took no action on the complaint finding that those involved had exercised professional responsibility in choosing its content, notifying teachers in advance of the sensitive nature of the play so that the students attending were prepared for its content (and could opt out if desired, although none did), and following up with students when the complainant teacher expressed concerns about its impact on him.

The complainant teacher sought judicial review. The Court held that the complainant teacher did not have standing to challenge the substance of the decision. While the complainant teacher initiated the complaint, its determination then became primarily a matter between the regulator and those complained against. The complainant teacher was only entitled to procedural fairness, which was afforded by offering him the opportunity to make submissions to the screening committee. The application for judicial review could have been decided on this basis alone.

As an aside, the Court’s discussion on standing recognized that the decision could be impacted by enabling legislation. For instance, a different approach is taken where the complainant is given the explicit right to have the complaints disposition reviewed for reasonableness by an independent tribunal, such as in Ontario’s Regulated Health Professions Act, 1991. Conferring that right to complainants by statute appears to result in a broader scope of judicial review of the tribunal’s decision.

The Court did discuss, in the alternative, the reasonableness of the complaints screening decision. The Court said:

The Applicant appears to have brought this application, at least in part, to obtain confirmation of the injuries he has experienced from watching the play.  It bears making this point to the Applicant firmly: this is not a claim, by him, for a remedy for his injuries.  The subject-matter of the complaints was the conduct of the respondent Members, and whether that conduct met professional standards, and not about whether the Applicant was “triggered” by the play and suffered as a result.  The subjective impact of the play on the Applicant was a question of fact the Respondent could consider, together with all the other facts presented, but the focus of the Respondent’s decision was, and had to be, an objective assessment of the respondent Members’ conduct, and not the subjective experience of the Applicant.

The reasons below must be read with this observation in mind.  The Respondent found that the play was within the range of curriculum offerings for Grade 8 students, and that the respondent Members exercised their reasonable professional judgment in connection with the play and issues arising after its performance.  The Respondent made no finding as to whether the play “triggered” the Applicant, but rather, in effect, concluded that even if it did, this unfortunate result was not the professional responsibility of the respondent Members.  These conclusions were reasonable and borne out by the record before the Respondent, and there would be no basis for this court to intervene, even if the Applicant had standing to raise these issues.

The Court also commented on the wording of the reasons of the screening committee when discussing the complainant teacher’s reaction to the play:

The consequences for the Applicant do not raise issues of professional responsibility because, objectively, the play was an acceptable production for a Grade 8 class.  If the play “caused” or contributed to the Applicant’s subsequent distress, that arose because of his pre-existing condition, and not because the play was unsuitable for a school setting.

I appreciate that the Panel may have been trying to spare the Applicant’s feelings by expressing their findings as they did.  It would have been better to state – clearly and unambiguously – that the Applicant’s subjective reaction to the play was not the focus of inquiry.  He reported being triggered, and his mental health challenges were real – these facts put school authorities on notice that they should make inquiries to ensure that others who watched the play were not at risk.  They did these things, and no other person reported a problem.

The proper perspective for assessing a complaint is through the lens of objective professional standards.

 

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