Functional and Contextual

Courts use the reasons of discipline tribunals as the basis for their review of the disciplinary decisions. However, that is not to say that a disciplinary decision will be set aside simply because its reasons are not perfect. In Cann v. Ontario College of Teachers, 2022 ONSC 6988, the Court said that reasons for decision must be reviewed in a functional and contextual manner. This means that the reasons must be considered in light of the evidence, the actual issues in dispute, and the submissions made by the parties.

In that case, the allegation was that the registrant (a teacher) performed sexual acts in the presence of a preteen “little brother” that the registrant was mentoring. The registrant denied the allegation. The discipline panel accepted the evidence of the now sixteen-year-old. In reviewing the decision, the Court made the following points may be of interest to discipline tribunals in general:

  • Where the panel correctly states the burden of proof (i.e., a civil burden on a balance of probabilities relying upon clear, cogent and convincing evidence), it is assumed that the panel applied that test unless the contrary can be demonstrated.
  • Where it is clear that the panel turned its mind to credibility being in issue, it does not have to make an overall finding of the credibility of each witness. In this case, the panel identified the considerations for assessing whether evidence is honest and reliable and applied those considerations to the evidence of the complainant.
  • While it is generally important for the panel to specifically address the credibility of the registrant when making a finding against them, there is no palpable and overriding error in failing to do so where the finding that the complainant is credible necessarily means that the registrant was found not to be credible. In this case, there was substantial agreement in the evidence about everything other than the core allegation. Thus, finding that the complainant was credible in saying the sexual acts occurred meant that the panel found the registrant was not credible on that point. In other cases where there are several facts in dispute, the panel may need to specifically address the credibility of the registrant.
  • The panel’s summary of the registrant’s evidence was an indication that it took that evidence into account.
  • It was of great assistance to the Court that the panel had addressed each of the inconsistencies in the evidence of the complainant and identified which of those were peripheral to the core allegations and which were part of the core allegation. In this case, the panel’s explanation around why the inconsistency related to the core of the allegation was understandable and clarified why the inconsistency did not undermine the complainant’s evidence as a whole.
  • Expert evidence is typically not required on the issue of how memories operate. Common sense can generally be used.
  • It is an error to say that a complainant has no motivation to fabricate their evidence simply because there was no evidence of such a motive. However, no such incorrect statement was made in this case. Rather, the panel simply concluded that the motives to fabricate suggested by the registrant were not established. That is a different kind of statement.

While a discipline panel’s reasons for decision are important to a reviewing court, especially in credibility cases, the decision will be upheld where the basis of the panel’s conclusion is apparent in all of the circumstances.

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