A registered teacher's pre-registration conduct may, in some cases, be considered by the Ontario College of Teachers' (the "OCT") Discipline Committee in determining whether a Member is guilty of professional misconduct.
This was explicitly recognized in Ontario College of Teachers v Byam,1 where a Member was accused of physically, emotionally, or sexually abusing a student after the student turned 18 years old, and during a period where the Member was employed by the school board as an educational assistant at the school where the student attended, but was not yet a registered teacher. The Member was criminally charged with sexual exploitation and sexual assault of the student, but was found not guilty and acquitted of all charges. In the context of the discipline proceeding, the Member acknowledged that she had had sexual intercourse with the student on one occasion after he became 18 years old.
Subsequent to the time relevant to when the alleged misconduct occurred, the Member joined the OCT as a Certified Teacher. The key issue before the Discipline Committee was whether it had the jurisdiction to discipline a Member for conduct that occurred prior to her registration with the College.
Section 30(2) of the Ontario College of Teachers Act2 states:
A member may be found guilty of professional misconduct by the Discipline Committee, after a hearing, if the member has been guilty, in the opinion of the Committee, of professional misconduct.
The Discipline Committee Panel acknowledged that no higher court had specifically ruled on the issue of pre-registration conduct. However, the Panel found that the absence of a reference to a relevant time period in section 30(2) could allow the Discipline Committee to find a member guilty of professional misconduct prior to registration. The Panel noted that its registration process will not always reveal problematic pre-registration conduct. If the OCT were unable to discipline for pre-registration conduct, it could "...lead to an absurd result where certain members who have inflicted serious harm to others are shielded from scrutiny."3
In its reasons, the Panel weighed the fairness to the Member and the public interest. The nature of the allegations raised the concern about whether the Member should be able to continue holding a position of trust and authority over students. The Panel held that the relevance of pre-registration conduct in assessing a Member's suitability for the teaching profession should be considered on a case-by-case basis, taking into account the seriousness of the allegations.
Summary
Teachers may be disciplined for past, pre-registration behaviour where it impacts the member's suitability as a member of the teaching profession, even where the behaviour did not result in a criminal conviction.
We note that this decision was released shortly after the OCT's new sexual abuse prevention program for teachers came into effect. As of January 3, 2022, all Certified Teachers, College applicants, and re-applicants are required to complete an online sexual abuse prevention program.
Footnotes
1. 2022 ONOCT 20 [Byam].
2. SO 1996, c 12.
3. supra note 1 at para 79.
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