Reverse Engineering Not Allowed

The Ontario Divisional Court continues to apply strict limits to any departure from a joint submission in discipline cases. A discipline panel may only reject a joint submission where it would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. The panel cannot depart from a joint submission simply because it is of the view that the proposed sanction is unfit. This limited role for the discipline panel is based upon the importance of a high degree of certainty in such resolutions, which serves a valuable public interest purpose on its own.

In Ontario College of Teachers v. Merolle, 2023 ONSC 3453, a school principal admitted to making inappropriate comments to a colleague, who held a subordinate position. The joint submission included, among other things, a three-month suspension. A majority of the panel declined to impose the three-month suspension on the basis that it would be unduly harsh in the circumstances. One panel member dissented in support of the joint submission.

In restoring the joint submission, the Court noted the high threshold for departing from it, namely only where a reasonable person would view the outcome as a breakdown in the proper functioning of the justice system. The Court noted that while the majority of the panel used “contrary to the public interest” language in its reasons, in fact they applied general sentencing principles, such as weighing the seriousness of the conduct and considering the range of prior decisions. The Court said that the panel had reverse engineered its rejection of the joint submission.

The Court reimposed the joint submission as it would have been accepted by the dissenting member of the panel, finding that he applied the correct legal test.

More Posts

The Right to Rebut?

Many regulators frequently provide a copy of the registrant’s response to a complaint to the complainant for comment. Doing so can assist in providing the

Registration Runaround

A concern for regulators arises when applicants for registration, who are practicing elsewhere at the time, foresee disciplinary issues developing in their existing jurisdiction. A

Right-Touch Regulation Redux

Perhaps the most consequential document in professional regulation in the English-speaking world this century is Right-Touch Regulation published by the UK oversight body, the Professional

Reason Writing Omissions

Writing reasons for a regulatory decision is not easy, especially for non-lawyers. An administrative body’s reasons are the primary basis upon which a court will