Understanding Retrospectivity

A good way to watch someone’s eyes glaze over is to discuss the concept of retrospectivity of legislation. However, the concept is an important one for regulators whose legislation is frequently amended. Do the new regulatory provisions apply to events that occurred before their enactment? A recent Divisional Court case provides a relatively accessible overview of the principles that apply: Grimstead v. Ontario College of Teachers, 2023 ONSC 1801.

The registrant, a teacher, was convicted in 2008 for common assault of a 17-year-old student. It was agreed that the physical contact was of a sexual nature. In 2009 the regulator suspended the teacher’s certificate for two years for the sexual abuse of the student. There were also terms and conditions for reinstatement including obtaining the opinion from a psychologist that there was no risk of harm if the teacher was reinstated. The teacher’s certificate was reinstated in 2011 and the teacher obtained a pardon of their criminal conviction in 2019.

In 2020 the applicable regulatory legislation was amended requiring the automatic revocation of the teacher’s certificate because of the finding of sexual abuse. (To complicate things further, the teacher’s certificate was temporarily reinstated pending the hearing because of another provision in the legislation addressing teachers who had been pardoned.) The teacher was required to demonstrate to the discipline panel that they were a suitable candidate for reinstatement. The panel concluded that reinstatement was not in the public interest and again revoked the teaching certificate.

The teacher argued that the 2020 statutory amendments did not apply retrospectively to prior conduct. The Court disagreed, making the following points:

  1. There is a rebuttable presumption that legislation is not intended to apply to conduct that occurred before its enactment.
  2. However, that presumption can be rebutted by express language or necessary implication where it appears that the legislature has turned its mind to the unfairness of applying the new provisions to past conduct and determined that the benefits of public protection outweighed the unfairness.
  3. Even where the presumption is not rebutted by the wording of the enactment, the provisions may have retrospective effect where the new prejudicial consequence is designed to protect the public rather than add punishment to the prior event.

In this case, the Court held that point two, above, was most relevant. The language of the legislative amendments made it obvious that the new rule was intended to apply to the teacher’s circumstances. This language distinguished this case from others in which the presumption against retrospectivity was found to apply. The Court also held that the two previous reinstatements of the teacher did not create an acquired right or entitlement.

The Court also did not find the panel’s application of the public interest to be unreasonable. The conduct in issue was among the most serious form of misconduct a teacher can commit. The teacher’s evidence of good character and rehabilitation did not demonstrate that the teacher had fully addressed the issues that contributed to the misconduct. Concerns about lack of insight and accountability remained. Also, reinstatement would negatively affect the public’s trust and confidence in the teaching profession.

The revocation stood.

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