The LeSage report

Council acts on LeSage report

At its June 7–8 meeting, College Council expressed its gratitude to former Ontario Chief Justice Patrick LeSage for his 76-page report on the College’s investigation and discipline practices, and its observations and recommendations.

Council also approved motions to reflect and incorporate the intent of 49 recommendations contained in LeSage’s report, according to needed legislative, regulatory, bylaw or policy change.

Regarding legislative change, Council recommended to the Minister of Education that legislative actions be taken to:

➔ better define restrictions on the member’s duties that initiate a school board’s obligation to report the member to the College, require school boards to provide the College with all relevant information relating to a complaint within a defined time frame, give members a maximum of 60 days to reply to a complaint and allow the College to proceed if the member has not responded within the prescribed period

➔ obligate other public agencies to provide the College with a person’s record, if failure to disclose it is likely to cause the person or another person physical or emotional harm and the need for disclosure is urgent

➔ enable the College to disclose information to bodies that govern a profession inside or outside of Ontario, and a police officer to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result

➔ permit the College to provide a member’s response to a complainant. A summary only of the response should be provided if the response would exacerbate the tension between the member and the complainant

➔ authorize the Registrar to appoint an investigator in an emergency if it is believed the member’s conduct is likely to expose a student to harm or injury, and there is not time to seek the approval of the College’s executive committee

➔ include clear legislative provisions governing the College’s dispute resolution process

➔ ensure that allegations related to sexual abuse or sexual misconduct be dealt with in a public discipline hearing and not be eligible for dispute resolution at the investigation stage

➔ enable the College to fast-track complaints directly to the Discipline Committee in cases where the member has received a criminal conviction and wishes to plead guilty or not contest the allegation

➔ help the Investigation Committee screen complaints by expanding the reasons to decline to investigate a complaint if it was made for an improper purpose, is manifestly without substance, does not warrant further consideration, or is not in the public interest to further investigate

➔ establish procedural steps similar to those found in the Health Professions Procedural Code if an investigation panel has not disposed of a complaint within 120 days

➔ enable panels to consider prior decisions involving the member

➔ ensure that the College reports to notifying and current employers

➔ limit the power to close a hearing, similar to civil and criminal courts

➔ authorize the Discipline Committee to order publication bans

➔ make the penalty for sexual abuse by a teacher of a student “almost invariably” revocation

➔ publish and electronically post dispute resolution decisions, including the name of the member

➔ require the College to post information (a Notice of Hearing) that has been issued against a member on Find a Teacher

➔ require the College’s register be posted on the College’s website

➔ place undertakings and information about the results of relevant criminal proceedings involving the member on the College’s register

➔ ensure that at least three years elapse before a finding of incompetence or incapacity, or a penalty of reprimand, admonishment, counselling or fine is removed from a member’s record on the public register. Suspensions and revocations shall remain on the register indefinitely

➔ conduct reinstatement hearings in public, unless there are compelling reasons not to

➔ ensure that five years elapse before a member can apply for reinstatement after a finding of sexual abuse or sexual misconduct

➔ prevent members from delaying the imposition of a Discipline Committee penalty by filing an appeal with the courts

➔ ensure that a school board’s notice to the College related to an unsatisfactory Teacher Performance Appraisal be treated as a regular employer notification and not a formal public complaint

➔ have the government use its authority to appoint additional members to the roster of panellists for hearings, including people with no teaching background. Establish processes to ensure an adequate number of bilingual and principal/vice-principal members.

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With respect to regulatory changes, Council passed motions asking the Minister of Education to amend regulations to:

➔ prohibit Council members from attending caucus meetings with their unions or associations when the Council agenda is discussed.

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With respect to amendments to College bylaws, Council approved two motions for debate at the November meeting:

➔ to amend the bylaw on complaints so that the College can accept complaints in writing or recorded on a tape, film, disk or other medium

➔ that the bylaw addressing contents of the register be amended to include:

➔ a notation about a notice of hearing on Find a Teacher when it is issued and that the notation remain until the matter has been resolved

➔ a summary of any restriction imposed on a member’s right to teach as a result of an undertaking or an agreement between the member and the College or one of its statutory committees be posted on Find a Teacher

➔ a summary of any restriction imposed on a member’s right to teach that has been imposed by a court or other lawful authority, including the name of the court or authority and the date the restriction was imposed.

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With respect to policy or practice changes, Council passed motions to recommend that:

➔ the Investigation Committee develop a policy to obtain an assessment from the College prosecutors whether or not a case is likely to result in a guilty finding when considering to refer a matter to the Discipline Committee

➔ the Discipline and Fitness to Practise committees amend their rules of procedure to ensure that the selection of discipline panels be varied and balanced, and that College staff provide the chair of the committee with the names of eligible panellists, taking into consideration current panel assignments and any outstanding writing assignments

➔ the Discipline Committee amend its rules of procedure to permit a single member of the committee, if required, to fix dates for any pre-hearing and hearing dates; set a pre-hearing date, if required, to take place no later than 60 days after the scheduling of a hearing; and require that a hearing date(s) should be within 60 days generally

➔ the Discipline Committee amend its rules to enable a Notice of Hearing to be posted on the College’s website when it is served on the member and to provide updates with every scheduling change

➔ the Discipline and Fitness to Practise committees amend their rules to provide for consecutive full hearing days with no interruption from the start to the end of a hearing, allowing for exceptional circumstances.

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Regarding Registrar’s undertakings, Council supported:

➔ developing a communication strategy in time for the 2013 budget to increase public awareness of the College and its mandate, and to explain the distinction between the College’s role and employers

➔ reviewing administrative policies and identifying the exceptional circumstances under which an investigation should be deferred pending the outcome of criminal or other investigations, and report back to the Investigation Committee

➔ developing additional communication products and opportunities to inform employers about the type of information required for investigations

➔ developing an administrative protocol outlining the initial notification to a member of a complaint and subsequent notifications throughout the investigation process

➔ developing an administrative protocol with steps and timelines to transfer, draft, approve and serve a Notice of Hearing

➔ developing a fixed and regular training program, including judgment writing and decision making for members of the Investigation, Discipline and Fitness to Practise committees and roster members appointed to one of these respective committees

➔ identifying appropriate resources to employ an editor on an ad hoc basis to assist in the decision-writing process.

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Council also passed motions to refer six recommendations to the Investigation, Discipline, Fitness to Practise, and Quality Assurance committees for further discussion and report to Council’s November meeting. These included:

➔ asking the Investigation Committee (IC) to further study Mr. LeSage’s recommendation to send a complaint, that if proven would likely result in the member receiving a caution or admonishment by the Investigation Committee, to dispute resolution. Further, the IC decision should not be publicized or entered on the College’s public register, the complainant should be notified of the result, and a single member of the IC should have authority to dispose of such matters. No other matters should be resolved by dispute resolution at the Investigation Committee stage

➔ asking the Investigation Committee to consider a recommendation that would ensure that dispute resolution officers take all reasonable steps to consult with school boards, or public complainants, before reaching an agreement with a member regarding a complaint

➔ asking the Investigation, Discipline and Fitness to Practise committees to further study a recommendation requiring a panel to include a working or retired principal or vice-principal if the matter relates to a principal or vice-principal

➔ asking the Discipline Committee to further study a recommendation that would restrict the committee’s power over the publication of decisions, other than publication bans

➔ asking the Discipline Committee to study a recommendation that would enable one member of the committee to write a decision with reasons within 60 days and to prescribe a maximum of four months to release a decision and any dissenting decision

➔ asking the Quality Assurance Committee to study and report on a recommendation that would prohibit any member of the Investigation, Discipline and Fitness to Practise committees from holding any elected or appointed union/association positions during their tenure on those committees.