One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.
Green v. Alberta Teachers’ Association, 2016 ABCA 237
AREAS OF LAW: Administrative law; Judicial review; Procedural fairness; Privative clause
~The presence of a strongly worded privative clause does not preclude most or all judicial review, but rather indicates that the court must adopt a deferential standard of review.~
BACKGROUND: The Appellant, Cynthia Green, was found guilty of unprofessional conduct by the Hearing Committee of the Respondent Alberta Teachers’ Association. The Appellant was a teacher at one school while her son was a fourth grade student at another school. In November 2010 the Appellant met with her son’s teacher to discuss certain concerns. The Hearing Committee found that only academic concerns were discussed at this time, while the Appellant maintained that the topic was her son’s relationship with the teacher. Further emails were exchanged regarding the son’s ongoing difficulties. In early 2011, the Appellant sent an email to the assistant principal at her son’s school, seeking a meeting. Her son had told her that a fellow student had been fooling around in class and that her son’s teacher had said “Jesus Christ, D.” The Appellant did not copy the teacher on the email. A week later the Appellant met with the acting principal and assistant principal at her son’s school, without prior notice to the son’s teacher. When the son’s teacher was subsequently informed of the meeting, she complained to the Respondent, which in turn charged the Appellant with unprofessional conduct pursuant to the Teaching Profession Act. The Respondent’s Code of Professional Conduct specifically requires a teacher to raise complaints about another teacher with that teacher before going above their head. The Hearing Committee found that the Appellant engaged in unprofessional conduct by excluding her son’s teacher from her communications with the school administrators, and by misrepresenting to the administration the nature of her correspondence with her son’s teacher. The Hearing Committee imposed a single penalty of a letter of severe reprimand to address both charges. The Appellant appealed to the Professional Conduct Appeal Committee, which sat a panel of four members to decide the appeal. Despite a tie vote, the Appeal Committee dismissed the appeal. It did this without seeking submissions on the issue of whether a decision to dismiss an appeal could be rendered on a tie vote. In the Court of Queen’s Bench, the reviewing judge acknowledged that it was troubling that the Appeal Committee allowed an appeal to be heard by an even number of members, but said that the role of the court on judicial review was to determine whether the process was unfair, not whether it was “distasteful”. The judge also found that even if the Appeal Committee erred in disposing of the appeal on a tie vote, he had no authority to intervene because s. 57 of the Teaching Profession Act contains a privative clause. This clause insulates all decisions from judicial review except on questions of jurisdiction.
APPELLATE DECISION: The appeal was allowed. The Court of Appeal noted that s.84(4) of the General Bylaws of the Alberta Teachers’ Association states, “unless otherwise specified the votes or decisions of any committee or panel shall be by majority of those participating in the vote or decision.” The Appeal Committee exceeded its jurisdiction in dismissing the appeal on a tie vote. Its decision was void. The imposition of a severe reprimand is a matter of critical importance to the professional reputation of the Appellant, and the Appellant had a legitimate expectation that a specific statutory procedure would be followed in her appeal. On the question of the privative clause, the Court held that the chambers judge erred in holding that the clause insulates all decisions of the Appeal Committee from judicial review except with respect to jurisdiction. The Court of Appeal relied on Dunsmuir v. New Brunswick for the principle that a “full” privative clause does not mean that judicial review is precluded. Rather, the presence of a strongly worded privative clause indicates that courts should adopt a deferential standard of review. The privative clause in this case did not preclude judicial review of the decision, which the Court of Appeal found exceeded the Appeal Committee’s jurisdiction in any event. The matter was remitted to the Appeal Committee to be reconsidered by a panel of five persons who have not previously pronounced upon the allegations in this case.
Counsel Comments Provided by Joe Miller, Q.C., Counsel for the Appellant
“The factual circumstances of this case are as follows. In January 2011 Ms. Green, a teacher, met with the principal and assistant principal at her child’s school to address what could be done to improve her child’s school experience. This meeting took place without prior notification to her son’s teacher. Ms. Green also sent an email to the assistant principal advising her of an incident that had occurred in the classroom. Ms. Green was charged with unprofessional conduct for both instances.
Ms. Green was found guilty by the hearing tribunal. The appeal to the ATA appeal tribunal was dismissed. The four person appeal tribunal split 2 to 2. The tie went to the ATA. On judicial review the chambers justice dismissed the application on the basis that he was bound by the Court of Appeal decision in Ostrensky v. Crowsnest Pass, 1996 ABCA 18 in regards to the effect of a tie vote and that the privative clause in the Teaching Profession Act “insulated all decisions from judicial review except on questions of jurisdiction”.
This appeal is of interest for three reasons. The first issue relates to the dismissal of the appeal of the decision of the hearing tribunal when the administrative appeal tribunal split evenly 2 to 2. The Court of Appeal determined that the wording of the ATA bylaws did not allow an appeal to be dismissed on the basis of a tie vote.
Although this decision was based on the wording of the ATA bylaws, it does send a clear message to administrative bodies that an administrative appeal tribunal should not be constituted of an even number of panel members.
The Court of Appeal cited the comments of the chambers justice who indicated “as well, one would have thought that in this day and age, care would have been taken to ensure that no appeal would be heard by an even number of persons.” The failure to do so has the potential to suggest that the association was “stacking the deck”.
The Court of Appeal also addressed the issue of whether a privative clause that on its face purports to insulate all aspects of an administrative decision from judicial review does, in fact, oust the jurisdiction of the court. The court cited Dunsmuir v. New Brunswick,  1 SCR 190 as concluding that a full privative clause does not mean what it says, i.e. that judicial review is precluded. Rather, the presence or absence of a privative clause is merely a factor that goes to determining the appropriate standard of review.
The final issue relates to the prosecution practices of administrative bodies. In 2002 the Court of Appeal in Eggertson v. Alberta Teachers’ Association, 2002 ABCA 262 ruled that a parent/teacher was not guilty of unprofessional conduct for criticizing her child’s teacher on the basis that to do so would be to deprive the teacher of her parental rights. The reason why Eggertson is important is not only that it would appear to provide a clear defence to these charges but also that the ATA has already received guidance from the courts on how situations like this should be analyzed and considered. While the issue of whether Eggertson could be distinguished in this case is an interesting intellectual exercise, the practical question that arises is why a relatively minor complaint such as this was not dealt with informally.
These proceedings pitted a teacher with limited resources against a large well-funded administrative body. This teacher has been forced to endure proceedings including an administrative hearing, an administrative appeal, judicial review in the Court of Queen’s Bench and an appeal to the Alberta Court of Appeal. The Court of Appeal has directed this back to the appeal tribunal for a further hearing, as yet unscheduled. The case is six years old. In addition to the obvious stress and burden on the teacher, the legal and other expenses of the ATA for such a minor infraction are enormous and has placed demands upon Alberta’s overburdened courts for judicial review and appeal. These considerations raise the issue of whether an alleged misdemeanor such as this should be dealt with informally without any charges being laid.”