IN THE SUPREME COURT OF BRITISH COLUMBIA
Reasons for Judgment
INTRODUCTION [1] Mr. Stuart appeals two decisions of the Discipline Sub-Committee and a decision of the Council of the British Columbia Teachers' College (the "College") that found him guilty of professional misconduct, and conduct unbecoming a teacher. He argues that they failed to consider, or give adequate weight, to the role that his medical condition of bipolar disorder, complicated by a change of medication, played in his conduct. In other words, that they treated the offences as absolute liability offences in which the mental element was irrelevant. BACKGROUND [2] Mr. Stuart is a teacher who is on a stress-related medical leave. He qualified as a teacher in 1993, and appears to have fulfilled his professional responsibilities without difficulty. He has been on stress leave since January 2002. He was diagnosed with bipolar disorder (type I), when he was approximately 21 years of age. He successfully completed his education and was a teacher for a number of years, being able to manage this disease. [3] He was suffering from mania characterized by agitation, pressured speech, flight of ideas, poor concentration, anger outbursts, poor impulse control and sleeplessness in February 2002. His medication was changed on February 15, 2002, and within six to eight weeks he still felt agitated, angry, elated and unable to cope with stress. His feelings of mania were treated with Lithium carbonate in May 2002. [4] Mr. Stuart tried to telephone a former student a number of times, beginning February 18, and did speak to the student on the telephone on February 24, 2002. He also spoke to her boyfriend on February 24, 2002. Mr. Stuart screamed garbled profanities at her boyfriend. He also screamed profanities at the former student when she took the telephone. This led to the citation for conduct unbecoming a teacher. [5] Mr. Stuart attended at the school on June 17, 2002, as the school day was ending. He attended to obtain his personal belongings, but became involved in a verbal confrontation with school staff, including using profanities. He drove his vehicle in an erratic, stop and go manner, in the parking lot, while students and parents were in the lot. He had a verbal and physical confrontation with the police officer and was subdued by the use of a tazer. He was charged with assaulting a peace officer, resisting a peace officer and dangerous driving. He pleaded not guilty to those offences, but guilty to the included offence of causing a disturbance contrary to s.175(1)(a)(i) of the Criminal Code of Canada. He was given a conditional discharge. These actions resulted in a citation for professional misconduct. [6] The citation for professional misconduct arising from the June 2002 incident was issued on May 26, 2003. It states: . while on leave from your employment as a teacher at Princess Margaret Secondary School (the "school") in Surrey, British Columbia, and while school was in session, you acted inappropriately by: a. Attending your former classroom at the school, acting unprofessionally and uttering profanities; b. Acting in a publicly confrontational and threatening manner with teachers and administrators of the school; c. Driving your vehicle in the school parking lot in a dangerous and erratic manner; d. Engaging in abusive verbal behaviour with a member of the RCMP on the school grounds; e. Engaging in a physical confrontation with a member of the RCMP on the school grounds; [7] In addition, that while on the school grounds: . you caused a criminal disturbance, to which you pleaded guilty and for which you were given a conditional discharge with 18 months of probation and 9 conditions of probation. [8] The citation makes it clear that the College could terminate his membership in the College and cancel his teaching certificate. [9] The citation for conduct unbecoming arising from the February telephone call was issued September 11, 2003, and it states: During the month of February 2002, while you were a teacher at Princess Margaret Secondary School in Surrey, B.C., you engaged in unprofessional and inappropriate behaviour with MG, a student at that school. Your behaviour included: a. Touching of her face in an inappropriate way; [this allegation was dismissed] b. Attempting, on numerous occasions, to visit with her and speak to her after school hours; c. Making inappropriate phone calls to her late at night and using profane language with both her and her companion. [10] The citation again makes it clear that the College could terminate his membership in the College and cancel his teaching certificate. [11] The hearing of the professional misconduct citation proceeded on December 9, 2003. It proceeded on an agreed statement of facts. The decision was rendered January 13, 2004. Mr. Stuart was found guilty of professional misconduct. [12] The hearing of the conduct unbecoming citation proceeded on January 15, 2004, on an agreed statement of facts. Mr. Stuart was found guilty on January 15, 2004 of conduct unbecoming. There was no finding of inappropriate touching. [13] The College Council of the British Columbia College of Teachers met on May 7, 2004, and considered the recommendations and reasons of the hearing sub-committee and the submissions of Mr. Stuart dated March 18, 2004. The College adopted the recommendations and reasons of the hearing sub-committee. [14] Mr. Stuart agreed that his actions alone were sufficient to justify a finding of professional misconduct and conduct unbecoming, if there is no requirement for a mental element to these offences. However, he argues that these citations do require a mental element to be proven by the College. He argues that the agreed statement of facts demonstrates that he lacked the necessary mental capacity to commit the offences, or that the necessary mental element has not been proven. [15] Mr. Stuart argued that the College should have dealt with the matter as an issue of competency. [16] Counsel for Mr. Stuart and counsel for the College, who appeared at the College proceedings (different counsel appeared for the College before me), agreed with the disposition whether the matter were treated as a competency issue, or a conduct issue. Mr. Stuart argues, before me, that the matter should have been treated as a competency issue and the disposition should be the same. The disposition was an indefinite suspension on the following conditions: For professional misconduct a) Mr. Stuart will continue to receive and cooperate in receiving counselling and medical treatment from Dr. Mallavarapu, or from any other appropriate psychiatrist. b) Mr. Stuart will not attend Princess Margaret Secondary School at 12870 72nd Avenue, Surrey, B.C. unless with prior written permission from the principal of the school. c) Mr. Stuart will not initiate contact, directly or indirectly, with the administrators or teachers at the school, including any administrators or teachers at the school who have since left Princess Margaret Secondary School. d) The indefinite suspension will end when Mr. Stuart has provided to the College a psychiatric assessment acceptable to the Chair of the Discipline Committee from a psychiatrist approved by the Chair of the Discipline Committee, which includes an opinion that Mr. Stuart is fit to return to the teaching profession. [17] For conduct unbecoming, conditions a. and d. above, were imposed, and in addition, a condition "that Mr. Stuart have no contact, directly or indirectly," with the former student. THE MEDICAL EVIDENCE AND FINDINGS OF THE PROVINCIAL COURT PROCEEDINGS [18] Mr. Stuart's psychiatrist provided a medical legal report that confirms Mr. Stuart was experiencing serious side effects to his medication, and that it was changed in February 2002. The medical report confirms, that despite the change in medication, Mr. Stuart continued to feel angry, irritable, grandiose and impulsive. [19] Mr. Stuart saw his psychiatrist on June 20, 2002, after the incident at the school and his arrest. He was described as alert and responsive, but also angry, irritable and agitated. He had flight of ideas and his concentration was not good. He was not sleeping well, but appeared to have coped with the stress reasonably well so far. I assume this means the stress of the confrontation and arrest. [20] The doctor said: In my opinion, acute stress and transition from one group of medications to another could have contributed to recurrence and acute exacerbation of his bipolar disorder type I. [21] The provincial court judge stated in his reasons for sentence on April 10, 2003: .I am satisfied in the circumstances that the primary cause of that disturbance was a medical condition,. .I also take as a mitigating factor that it is quite clear that this is a medical condition that is in a very real sense beyond your control in the sense that it is not something you caused. THE DECISION BY THE SUB-COMMITTEE AND COMMENTS ON THE MENTAL ELEMENT [22] The decision on the incident at the school reviews the agreed statement of facts, and mentions the medical legal opinion. It also indicates that Mr. Stuart had one bottle of beer on the day of the incident at the school. [23] Under the heading "Submissions and Analysis", the committee reviews the submissions of counsel. Counsel for the College at the hearing, referred to The Regulation of Professions in Canada (2002) at 13-1 defining professional misconduct as: .conduct which may be deserving of sanction while a teacher is actually engaged in the practice of his profession, and conduct unbecoming relating to conduct outside the course of the practice of his profession. [24] I have not been provided with this document, nor have counsel addressed its application in British Columbia. [25] The committee seems to have accepted this, but then decided that this conduct was professional misconduct because it took place at the school where Mr. Stuart formerly taught. They considered this, even though he was on leave at the time, and not engaged in the practice of his profession. This was not argued on the appeal. [26] The committee referred to the position of college council as follows: . the reasons for the conduct, which in this case included the Respondent's mental illness, were not relevant to a determination of either professional misconduct or conduct unbecoming and that the conduct itself was the only factor for the Panel to consider. [27] The proposition of Mr. Stuart's counsel was that: . that panel must consider the underlying medical reasons for his client's behaviour. . that the conduct must be reprehensible to meet the test of professional misconduct, and that the term reprehensible suggests culpable mental functioning. [28] The panel mentioned the references to the human rights legislation and the Charter of Rights and Freedoms, but no authorities were cited. [29] The panel concluded: In considering the impact of the Respondent's illness in its determination, the Panel concluded that the serious nature of the conduct of the Respondent was sufficient to constitute professional misconduct in and of itself. Whatever the cause of the behaviour, it was dangerous, offensive, intimidating and odious toward staff, students, parents and police and it fell far below the standards of behaviour expected of a member of the teaching profession. [30] In other words, the mental element, that is, the cause of the behaviour, was irrelevant. [31] The panel decision on the February incident, the telephone call, also states the position of the College Council, and refers to the Regulation of Professions in Canada. Counsel argued that it should be characterized as conduct unbecoming. College counsel argued that: . the Respondent's mental illness, which may have been responsible for the conduct, is not a defence and the conduct itself is the only factor for the Panel to consider. Counsel emphasized the public interest and the inappropriate conduct. [32] Counsel for Mr. Stuart argued that the underlying reasons should also be considered, not just the conduct itself. He argued that but for the mental illness, it would not have occurred, and that Mr. Stuart did not have a mind with intent or wrongful motivation. He also argued that to punish someone with a mental illness would be a violation of s.13 of the Human Rights Code. [33] The panel concluded: In considering the impact of the respondent's illness in its determination, the Panel concluded that the serious nature of the respondent's conduct unbecoming for counts 2.b and 2.c of the amended Citation Schedule. Whatever the cause of the behaviour, it fell below the standards of that expected of a member of the teaching profession. Regardless of Mr. Stuart's mental disability that may have been a factor in his conduct, the Panel believes that the public interest and safety of students must be given paramount consideration. [34] In other words, the cause of the behaviour, including the mental state of Mr. Stuart are irrelevant. It is not clear how punishing behaviour which is involuntary, or which lacks moral turpitude advances the public interest or the safety of students. THE PARTIES APPROACH THE ISSUES FROM DIFFERENT ANGLES [35] Mr. Stuart says the issues are whether: 1. the respondent erred in interpreting professional misconduct as an "absolute liability offence" under the Teaching Profession Act, [RSBC 1996] c. 449 ("TPA"); 2. the respondent erred in interpreting the TPA in a manner inconsistent with the Human Rights Code; 3. the respondent erred in interpreting the TPA in a manner inconsistent with the Charter of Rights and Freedoms; 4. the respondent erred in interpreting the TPA in a manner inconsistent with common law principles of fundamental justice; 5. the respondent erred in failing to treat mental disability as an issue of competence, rather than professional misconduct under the TPA. [36] The College says the issues are: 1. What is the standard of review applicable to the College's decisions? 2. Has the appellant established that his admitted conduct was beyond his control? 3. Has the appellant established discrimination within the meaning of the Charter or the Human Rights Code? 4. What applicability does the Labour Relations Code have to proceedings under the TPA? 5. Was the College required to advance a claim of incompetence against the appellant? [37] The issues, as stated, are similar or overlapped to a large extent. The question of whether the College erred in interpreting the TPA requires a consideration of the standard of review that is applicable in this appeal. The standard of review depends to some extent on the nature of the question. [38] I find the issues to be decided are as follows: 1. What is the standard of review to be applied to this appeal? 2. Is the decision of the College reviewable based on the standard determined? 3. If so, should I decide the matter, or remit it to the College? Counsel suggested that I should simply make the decision, rather than referring the matter back to the College. STANDARD OF REVIEW [39] The B.C. Supreme Court in the decision Kempling v. British Columbia College of Teachers, [2004] BCSC133, dealt with the issue of standard of review in a case where the College has made findings of professional misconduct, or conduct unbecoming a member of the College. In Kempling, the court said: 25 The Supreme Court of Canada's pragmatic and functional approach in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, for determining appropriate standards of judicial review was affirmed in the recent case of Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 ["Dr. Q"]. The pragmatic and functional approach factors are fourfold:
The Determination of Conduct Unbecoming a BCCT Member The Standard of Review 26 Applying the pragmatic and functional approach to the Hearing Panel's finding of conduct unbecoming a BCCT member, the first factor militates against deference towards the Panel. There is no privative clause, and there is a broad statutory right of appeal to this Court under s. 40 of the Teaching Profession Act, R.S.B.C. 1996, c. 449 ["the Act"]: Appeals
27 The determination of conduct unbecoming a BCCT member is a decision involving the setting and enforcement of standards of professional responsibility for the teaching profession. This is clearly an area in which the Panel has specialized and greater expertise than the Court; thus the second pragmatic and functional factor militates in favour of greater deference to the Panel's decision. 28 With regard to the third factor, the purpose of the statute as a whole and the provision in particular, the relevant parts of the Act are as follows: Object
Discipline committee and inquiry
Citation
Action after hearing
29 The purpose of the Act as a whole, as stated in s. 4, is that the respondent is to set and enforce its own standards of training, professional conduct, and competence for the teaching profession in British Columbia, having regard to protecting and upholding the public interest. Sections 28, 30, and 34 specifically deal with making individual determinations of whether a particular BCCT member's conduct meets those standards. The remarks of the Supreme Court of Canada in Dr. Q, supra at [paragraph] 37 are apposite here: On the one hand, the legislature's intent for the legislation as a whole was to assign to the College the role of balancing competing interests and multiple policy objectives, like the protection of the public, education and qualification of members, the setting of standards of ethics and practice...This purpose suggests considerable deference. However, the discrete issue of adjudicating a claim of professional misconduct -- the particular issue that the statute puts before the Committee -- is quasi-judicial in nature, and therefore militates against deference. In the result, the purpose analysis counsels neither for great deference, nor for exacting scrutiny. 30 Finally, with regard to the fourth factor, the appellant suggests that the questions before the Hearing Panel at that stage of the proceedings (i.e. whether the appellant made discriminatory and derogatory statements against homosexuals and whether, in the context and capacity that he made them, that amounts to conduct unbecoming a BCCT member) were purely questions of law. However, it is appropriate instead to characterize the former as a question of fact, and the latter as a question of mixed law and fact, specifically a "fact-intensive" question to use the terminology of Dr. Q (at [paragraph] 34), warranting more deference. 31 As both the appellant and the respondent pointed out correctly, the Act does not define "conduct unbecoming a member". Conduct by a member that may be acceptable in one set of circumstances or done in one capacity may not be acceptable in another -- this determination would necessarily be fact-driven, and depend considerably on a recognition of the public interest and on the teaching profession's specialized expertise and understanding of the role of a teacher. The fourth factor thus calls for considerable deference in this case. Balancing the four factors of the pragmatic and functional approach, the appropriate standard of review for the determination of conduct unbecoming a member is, absent Charter issues, reasonableness simpliciter. Application of the standard of review 32 On applying the reasonableness standard of review, the Supreme Court of Canada in Law Society of New Brunswick v. Ryan (2003), 223 D.L.R. (4th) 577, 2003 SCC 20 at [paragraphs] 46-47 and 55-56 ["Ryan"]: Judicial review of administrative action on a standard of reasonableness involves deferential self-discipline. A court will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or decided as the tribunal did... The standard of reasonableness basically involves asking "after a somewhat probing examination", can the reasons given, when taken as a whole, support the decision? ... it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo in its own reasoning on the matter ... A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere ... This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements 33 I find that applying a "somewhat probing examination" leads to the conclusion that the Hearing Panel's finding of conduct unbecoming is reasonable. Although both the appellant and the respondent agreed that the standard of proof to be applied by the Hearing Panel was that of "clear and cogent evidence" enunciated in Jory v. College of Physicians and Surgeons, [1985] B.C.J. No. 320 (S.C.) and affirmed in Dr. Q, supra, at [paragraph] 11, it is not the task of the Court to re-evaluate the evidence according to that standard (Dr. Q, supra, at [paragraph] 19). The Court's task is strictly to scrutinize the decision according the appropriate standard of judicial review. As the standard here is reasonableness, the Court is to look to see whether the Panel's findings and conclusions had some basis in the evidence (Dr. Q, supra, at [paragraph] 41) and whether the reasons as a whole are tenable as support for the decision (Ryan, supra). [40] Our Court of Appeal commented on the standard of review in the decision The British Columbia College of Teachers v. Mitchell, 2005 BCCA 76. The teacher in that case appealed a penalty imposed by the College. The court said at 9: There is no dispute that reasonableness simpliciter is the appropriate standard of review in this case. [41] I agree that the appropriate standard of review for the determination of conduct unbecoming a member is reasonableness simpliciter. However, in this case the College has decided that a person's mental state is irrelevant in determining whether their conduct amounts to professional misconduct, or conduct unbecoming. I find that is a question of law. I find on that question, that the standard of review is correctness. This is similar to the approach taken by the British Columbia Court of Appeal in the decision Hammond v. Law Society of British Columbia, 2004 BCCA 560. The court dealt with an appeal from a decision of the Law Society Discipline Committee. The appeal was allowed by the Legal Profession Act, S.B.C. 1998, c.9. The court found that reasonable simpliciter is the test to be applied to findings of professional misconduct in breaches of undertaking. However, on the question of breach of undertaking, which was a question of mixed fact and law, the court found there was a preliminary question. The preliminary question was whether or not a term can be implied in a lawyer's undertaking. The court characterized that as a question of pure law which must be answered correctly. (33). [42] I find that the College's decision that a person's mental capacity is irrelevant to the decision, whether or not their conduct amounts to professional misconduct, is a preliminary question that is a pure question of law. Therefore, the standard of review on that issue is correctness. [43] Mr. Stuart argues that a finding of professional misconduct, or conduct unbecoming, requires a finding of moral turpitude. In his argument, he refers to the following: Lawyers and Ethics Professional Responsibility and Discipline 3rd Edition 201, Gabin MacKenzie at p. 26-22 comments as follows: Traditionally, professional misconduct has been defined as "conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency". Moral turpitude was an essential component. Mere negligence was not sufficient. [44] The authority cited by MacKenzie in the text is Myers v. Elman, [1940] A.C. 282 at 288-289, in which the House of Lords adopted the definition of professional misconduct enunciated by Mr. Justice Darling in Re A solicitor, [1912] 1 K.B. 302, and said: . a solicitor may be struck off the rolls or suspended on the ground of "professional misconduct," words which have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency .. Mere negligence, even of a serious character, will not suffice. [45] This test was adopted by the Supreme Court of Canada in Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869. Citing Monnin C.J. in the decision Re Law Society of Manitoba and Savino at pp. 292-93, the court said at p. 891: Professional misconduct is a wide and general term. It is conduct which would be reasonably regarded as disgraceful, dishonourable or unbecoming of a member of the profession by his well respected brethren in the group - persons of integrity and good reputation amongst the membership. [46] The College does not quarrel with the definitions of misconduct that the appellant's have argued. The College agrees that misconduct must be based on actions which would be regarded as disgraceful, dishonourable or unbecoming a member of the profession by that person's fellow members. [47] Mr. Stuart argues that the decision of the Supreme Court of Canada R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, provides useful direction. This approach was taken in the decision Re Ghilzon and Royal College of Dental Surgeons of Ontario (1979), 22 O.R. (2d) 756 (H.C.). This was an appeal from the decision of the Discipline Committee of the Royal College of Dental Surgeons. The decision dealt with a finding of professional misconduct. The three-judge court referred to the Supreme Court of Canada decision R v. Sault Ste. Marie (City) at pp. 1325 - 1326, where the court described three categories of offences: 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence. 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case. [R. v. Hickey (1976) 12 O.R. (2d) 578, 68 D.L.R. (3d) 88, 29 C.C.C. (2d) 23; R.E.V.D. 13 O.R. (2d) 228, 70 D.L.R. (3d) 689, 30 C.C.C. (2d) 416]. 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. [48] The Ontario High Court in Re Ghilzon went on to find the offence of professional misconduct under the Dental Surgeons Act was one of strict liability being in the second category. The court found the onus was then on the doctor to avoid liability by proving that he took all reasonable care in the circumstances. [49] The same approach was taken by the New Brunswick Court of Queen's Bench Re Mann and New Brunswick Pharmaceutical Society, 35 D.L.R. (4th) 426, where the court said: In my opinion the offence of professional misconduct in failing to maintain the professional standard set out in s.13.12 of the regulations, in the circumstances of this case, must be classified as a public welfare or strict liability offence with respect to which an accused person may rely on a defence of due diligence or reasonable care: R. v. City of Sault Ste. Marie (1978), 85 D.L.R. (3d) 161, 40 C.C.C. (2d) 353, [1978] 2 S.C.R. 1299. Two passages from the judgment delivered for the court by Dickson J. are particularly apt in the present case. I quote from pp. 1322 and 1331 of the report [pp. 179 and 185 D.L.R.]: [page429] The element of control, particularly by those in charge of business activities which may endanger the public, is vital to promote the observance of regulations designed to avoid that danger. This control may be exercised by "supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control": Lord Evershed in Lim Chin Aik v. The Queen, [1963] A.C. 160 at p. 174. The purpose, Dean Roscoe Pound has said (Spirit of the Common Law (1906)), is to "put pressure upon the thoughtless and inefficient to do their whole duty in the interest public health or safety or morale". As Devlin, J., noted in Reynolds v. G.H. Austin & Sons Ltd., [1951] 2 K.B. 135 at p. 149: "a man may be made responsible for the acts of his servants, or even for defects in his business arrangements, because it can fairly be said that by such sanctions citizens are induced to keep themselves and their organizations up to the mark". Devlin, J., added, however: "if a man is punished because of an act done by another, whom he cannot reasonably be expected to influence or control, the law is engaged, not in punishing thoughtlessness or inefficiency, and thereby promoting the welfare of the community, but in pouncing on the most convenient victim". [50] Mr. Stuart also referred to the decision Hanson v. College of Teachers, [1993] B.C.J. No. 2890 (C.A.). In the Hanson case, supra, the teacher had been cited for deliberately and inappropriately touching three students. The defence was one of accident. The court said that the finding of deliberate and improper touching was based on a finding of state of mind, and that the bare facts of the incidents were equally consistent with a guilty or an innocent mind. (25). [51] Mr. Stuart also argues that there is a generally held revulsion against punishment of the morally innocent. (R. v. Sault Ste. Marie (City)). [52] In the context of labour relations, there are a number of cases where it has been found to be inappropriate to discipline or dismiss somebody, except for reasonable cause, and that a medical condition may lead to a finding that the conduct in question was non-culpable and, therefore, should not be punished. The cases included: Re British Columbia, [2002] B.C.L.B.D. No. 210 said: 40 ".employers may not punish employees for non-culpable conduct. . It is obviously unfair to punish someone for conduct which is beyond his control and thus not his fault . Re Fraser Lake Sawmills Ltd., [2002] B.C.L.R.B.C. No. 390 said: 37 A basic premise of the culpable, non-culpable paradigm is that discipline has no place where there is no blameworthy conduct. The object of discipline is to bring inadequacies in work performance or conduct to an employee's attention so as to correct or prevent its recurrence. That object cannot be achieved, nor is it consistent with basic notions of justice, for discipline to be imposed when the conduct at issue is beyond or outside the control of the employee. Re Lear Seating Canada Ltd. and C.A.W. Loc. 1524 (1993), 31 L.A.C. (4th) 311 at 316 (Ontario). In this case, the arbitrator was dealing with an employee who had been fired for assaulting his supervisor. The employee in this case was suffering from bipolar effective disorder. The arbitrator found that a person's medical condition may be an explanation for an unprovoked assault, as occurred in this case, but that there must be compelling evidence to support that claim by the employee that there was a substantial onus on the union to establish that the assault resulted from a medical condition. The medical evidence in this case was that the assault resulted from the illness. The test applied was the balance of probabilities. [53] The College correctly argues that the labour relations decisions are of limited assistance because of the different purposes between the labour relations legislation, and something like the TPA. [54] Clearly, one of the purposes of the TPA is the protection of the public interest. See: Stolen v. B.C. College of Teachers (1995), 128 D.L.R. (4th) 453 (B.C.C.A.) at 28: Thus, the public interest underlies the mandate of the College to establish standard for the education, professional responsibility and competence of its members. This is hardly surprising given the fact that the public entrusts its children to members of the teaching profession from an early age and, in essence, leaves it to those professionals to shape their children's minds and, to some extent, their morals. See also: Pearlman, supra, at 39: The regulation of professional practice through the creation and the operation of a licensing system, then, if a matter of public policy: it emanates from the legislature; it involves the creation of valuable rights; and it is directed towards the protection of vulnerable interests. [55] The Supreme Court of Canada has recognized the importance of the public interest in legislation affecting School Boards. See those cases summarized in Young v. British Columbia of College of Teachers, [2001] B.C.J. No. 405. [56] Some of the important factors in industrial relations policies include resolution of disputes and management of peace in labour relations. A Labour Relations Code may establish what the principles are, rather than balancing public interest against the principles in the Code. (Re Fraser Lake Sawmills Ltd., supra at 66). [57] This is also made clear in the decision Fox v. British Columbia College of Teachers, [2004] B.C.J. No. 2322 at 26: The considerations which govern the outcome of labour arbitrations and grievances are not identical to the concerns of a body like the College of Teachers, which must consider the broader public interest on a province-wide basis: see Young v. British College of Teachers, [2001] B.C.J. No. 405, 2001 BCCA 164 at paras. 44 to 64. Given the important difference of focus for the grievance procedure between the teacher as employee and school board as employer on the one hand, and the disciplinary investigation process of the College of Teachers on the other, I conclude that the legislature had no intention of making the outcome of a grievance binding upon the College. [58] However, treating professional misconduct, or conduct unbecoming, under the TPA, as an offence similar to an absolute liability offence, would do nothing to promote the objects of that act. [59] I find that it is appropriate to treat issues of professional misconduct, and conduct unbecoming, under the TPA, as similar to strict liability offences. STANDARD AND BURDEN OF PROOF [60] The standard of proof in the professional misconduct setting is that established by British Columbia Court of Appeal in Jory v. The College of Physicians and Surgeons of British Columbia, [1985] B.C.J. No. 320, and said: The standard of proof required in cases such as this is high. It is not the criminal standard of proof beyond a reasonable doubt. But it is something more than a bare balance of probabilities. The authorities establish that the case against a professional person on a disciplinary hearing must be proved by a fair and reasonable preponderance of credible evidence: Regina v. Discipline Committee of the College of Physicians and Surgeons of the Province of Saskatchewan, Ex parte sen (1969), 6 D.L.R. (3d) 520 (C.A.). The evidence must be sufficiently cogent to make it safe to uphold the findings with all the consequences for the professional person's career and status in the community: Hirt v. College of Physicians and Surgeons of B.C., supra at p. 206. [61] Mr. Stuart argues that the College bears the burden of proving at least some element of moral culpability on his part. However, I think the approach taken in the arbitration decision referred to by Mr. Stuart in Re Lear Seating Canada Ltd., supra, is instructive, where the arbitrator said that it was the union's, or in that case, the grievor's, who was represented by the union, burden or responsibility to establish the assault complained of resulted from a medical condition. This approach is also consistent with treating issues of professional misconduct as strict liability offences. [62] I find that is particularly appropriate in this case where the actions complained of are admitted, and Mr. Stuart acknowledges that, if there was no issue of culpability, they would amount to professional misconduct, or conduct unbecoming. [63] Mr. Stuart argued that treating professional misconduct, or conduct unbecoming, as an absolute liability offence, was inconsistent with the Human Rights Code and the Charter of Rights and Freedoms. He argued that it would be the equivalent of punishing somebody because they have a mental illness, or discriminating against them on that basis. I have concluded that professional misconduct, or conduct unbecoming, is similar to a strict liability offence, not an absolute liability offence. Therefore, I do not find it necessary to deal with the appellant's arguments regarding the Human Rights Code or the Charter. IS THE DECISION OF THE COLLEGE REASONABLE? [64] The College argues that even if they erred in failing to consider the mental element in the issue of professional misconduct, and conduct unbecoming, that in this case, the evidence would still support the findings of professional misconduct, or conduct unbecoming. The College argues that Mr. Stuart has not established that his actions were beyond his control, or that he was incapable of forming the necessary intent. The College argues that the fact Mr. Stuart pled guilty to causing a disturbance by shouting is an admission that he had the necessary mens rea, or mental capacity. The College argues that it would be an abuse to allow Mr. Stuart to now take a position which was inconsistent with that plea. The College also argues that a conviction can amount to professional misconduct (Qureshi v. Provincial Medical Board (1983), 4 D.L.R. (4th) 326). In Qureshi, a doctor had been convicted of offences under the Income Tax Act. [65] Mr. Stuart argues that although he had entered a plea of guilty, the court ordered a conditional discharge, and pursuant to s.730 of the Criminal Code of Canada, therefore, he is deemed not to have been convicted of the charge. Mr. Stuart also argues that he has not admitted the mental elements of the other matters with which he was charged, and it is clear that those were the factors that the College was considering, and not simply professional misconduct because he was shouting in a school yard. [66] Mr. Stuart argues that the medical evidence, and the conclusions of the provincial court judge in sentencing Mr. Stuart, makes it clear that the "primary cause of the disturbance" was a medical condition referred to as bipolar disorder. The provincial court found that the "bizarre behaviour that is contained in the particulars that that behaviour is consistent with the medical problem ." [67] The College, in response, argues that there is really no evidence regarding Mr. Stuart's state of mind, or his ability to control his behaviour, and that the psychiatrist's report does not establish that he was incapable of forming the necessary intent to act in the way in which he did. The College argues that if he was capable of forming that intent, then his actions were morally culpable. The College argues that really this is a case where his anger overcame his better judgment. In these circumstances, as well, the College argues that there is no discrimination within the meaning of the Charter or the Human Rights Code. The College argues that the medical evidence does not establish that his medical condition renders him incapable of complying with the standards expected of members of the profession. WAS THE COLLEGE REQUIRED TO ADVANCE A CLAIM OF INCOMPETENCE AGAINST THE APPELLANT? [68] Mr. Stuart argues that this matter could have been dealt with simply by a finding of incompetence and imposition of exactly the same terms, which counsel had agreed upon. The College argues that incompetence must be established by a pattern of carelessness and neglect, but not a single incident. (Re Mason and Registered Nurses Association of BC (1979), 102 D.L.R. (3d) 225 and Reddy v. Association of Professional Engineers, [2000] B.C.J. 538). [69] The College also argues that a high degree of deference should be given to the College in its role in determining what amounts to misconduct. (See Pearlman, supra). The College argues that on the facts, it was not unreasonable for the College to conclude that Mr. Stuart was guilty of professional misconduct, and conduct unbecoming a member. Therefore, there was no compelling reason for the College to proceed by way of an incompetency hearing. [70] I agree that it was up to the College to determine how they wished to proceed, and which citation to issue. However, I am satisfied that it was also within their discretion to accept Mr. Stuart's admission of incompetence, and impose the same terms on his return to employment. However, they were not bound to do so. [71] Mr. Stuart argued that the TPA gave the College the authority to deal with issues of competence which are caused by or related to physical or mental disabilities, or addictions to alcohol or drugs. He argued that because professional misconduct and competence are not defined in the TPA, that non-culpable misconduct is to be dealt with as a competence issue. [72] This does not mean that every time the impact of a mental disorder is in issue, that the matter must be dealt with as an issue of competence. One of the issues to be resolved at the discipline hearing is the effect or role of the mental disability in the conduct at issue. This is a question of fact to be determined on the evidence in the particular case. Whether, on consideration of that evidence, the conduct does amount to professional misconduct, or conduct unbecoming, would be a question of mixed fact and law. The College could determine that in the circumstances of a particular case, after considering the mental element, that the conduct did not amount to professional misconduct, or conduct unbecoming, but could raise an issue of competence. The College could then take the necessary steps to deal with that issue. CONCLUSION [73] I find that the College erred in concluding that Mr. Stuart's mental condition, or state of mind, was irrelevant to a determination of whether his conduct amounted to professional misconduct. It is not clear what decision the College may have reached, had they properly considered his mental condition. The College may have concluded that in the circumstances, including the impact of Mr. Stuart's mental condition, that he was not guilty of professional misconduct, or conduct unbecoming. It is possible they would have exercised their discretion to treat the matter as one of competency, rather than professional misconduct, or conduct unbecoming. [74] Counsel have suggested that rather than referring this matter back to the College for a rehearing, that I decide whether Mr. Stuart is guilty of professional misconduct, or conduct unbecoming, based on the agreed facts. If the College had applied the correct standard, and reached a decision based on that standard, the only question on appeal would be whether or not their conclusion was reasonable. The court would defer to the college in determining whether conduct in a particular case did amount to professional misconduct, unless the decision was unreasonable. [75] If I decide the issue, it will save the parties the cost, the uncertainty and delay of having the matter referred back to the College. However, that would require me to determine the issue within the expertise of the College. My decision might be reasonable, but could also be entirely inconsistent with the decision that might be reached by the College. Their decision, although different from one that I might reach, could also be reasonable. [76] Although the College is the proper body to balance the competing interests and multiple policy objectives, like the protection of the public education and qualification of members and the settings of standards, ethics and practice for school teachers, dealing with issues of professional misconduct, or conduct unbecoming, I appreciate counsels' request that I deal with the matter in this particular case. I have decided to do so, but wish to make it clear that my decision as to whether or not, in these particular circumstances, the conduct is professional misconduct, or conduct unbecoming, should carry no precedential value in any future hearings before the College. [77] I have considered the circumstances of each of the complaints against Mr. Stuart. I have also considered the medical evidence, and the conclusions reached by the provincial court judge at sentencing. [78] Mr. Stuart is a 39 year old teacher who was diagnosed with bipolar disorder when he was 21 years of age. He was able to manage this disorder with relapses from time to time. [79] The primary cause of his behaviour in both instances was his medical condition. This is a condition that is beyond his control. The exacerbation of his condition was caused by the transition in medication. The provincial court found that the public interest would not be affected by imposing a conditional discharge for the offence Mr. Stuart pled guilty to. [80] Mr. Stuart's doctor confirms the difficulty Mr. Stuart had with his medication. His medication was being changed in February, when the first incident occurred, and by May 24, 2002, Mr. Stuart was still having difficulties. He was found to be angry, agitated and irritable. He had signs of pressured speech and flights of ideas. He was described as being grandiose and paranoid. Shortly after the incident on June 20, 2002, he was still found to be very angry, irritable and agitated. The doctor continued to adjust his medication, and by the time the doctor's report was written on April 8, 2003, Mr. Stuart was making gradual improvement. [81] I am satisfied that the evidence demonstrates that Mr. Stuart's behaviour was caused by the difficulties with his medication and his bipolar disorder, and that his actions were not simply a loss of c | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||