Joint Submission Was not “Unhinged”

The Divisional Court of Ontario has again emphasized the stringent nature of the public interest test that applies to discipline panels that consider rejecting a joint submission in the case of Bradley v. Ontario College of Teachers, 2021 ONSC 2303 (CanLII), https://canlii.ca/t/jdz7v. In the Bradley case a teacher had agreed to a two-month suspension over the summer months for harassing comments and behaviour towards a colleague. The discipline panel moved the suspension period to the school year because it felt a summer suspension did not adequately recognize the seriousness of the conduct and provided insufficient deterrence. The Court restored the summer suspension that had been set out in the joint submission, saying:

In this case, the Discipline Committee referred to the Anthony-Cook [2016 SCC 43 (CanLII), [2016] 2 SCR 204, https://canlii.ca/t/gv7bk] decision as the guiding authority on the issue of whether it could reject the joint submission on penalty, but it misunderstood the stringent nature of the public interest test and thereby misapplied it. In particular, the Discipline Committee did not find that or articulate any basis for finding that serving the two month penalty in the summer was so “unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down”. … Any disciplinary body that rejects a joint submission on penalty must apply the public interest test and must show why the proposed penalty is so “unhinged” from the circumstances of the case that it must be rejected. In this case, the Discipline Committee clearly misunderstood the stringent public interest test, and impermissibly replaced the proposed penalty with its own view of a more fit penalty.

The Court believed the discipline panel had “tinkered” with the joint submission, should not have sought more information in support of the joint submission, and should have shown more regard for the importance of joint submissions.

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