Bhadauria v. College of Teachers, (2004) 187 O.A.C. 296 (DC)

• Judge: MacFarland, Swinton and Linhares de Sousa, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: May 31, 2004
• Jurisdiction: Ontario
• Citations: (2004), 187 O.A.C. 296 (DC)

Bhadauria v. College of Teachers (2004), 187 O.A.C. 296 (DC)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JN.038

Jagdish Bhadauria (defendant/appellant) v. Ontario College of Teachers (plaintiff/respondent) and The Attorney General of Ontario (intervenor)

(No. 377/03)

Indexed As: Bhadauria v. College of Teachers (Ont.) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

MacFarland, Swinton and Linhares de Sousa, JJ.

May 31, 2004 and June 9, 2004.

Summary:

A teacher appealed, pursuant to s. 35 of the Ontario College of Teachers Act, 1996, from a decision of the Discipline Committee of the Ontario College of Teachers made on March 5, 2003.

The Ontario Divisional Court dismissed the appeal, without costs. The court also ruled, in an oral decision issued at the hearing, that it would not hear Charter issues raised for the first time on appeal where the teacher failed to serve on time a Notice of Constitu­tional Question (see paragraphs 63 to 68).

Editor's note: For related decisions involving Bhadauria, see 54 O.A.C. 359 and 208 N.R. 245; 98 O.A.C. 241.

Education - Topic 6403

Teachers - Discipline of - Jurisdiction - In 1989, a teacher wrote threatening and extremely defamatory letters to his Direc­tor of Education - The Board of Education (Board) dismissed the teacher for profes­sional misconduct - The teacher filed a grievance which was ultimately dismissed as a result of a 1997 Supreme Court of Canada decision - In 1999, the Board filed a disciplinary complaint with the Ontario College of Teachers, under the provisions of new legislation, the Ontario College of Teachers Act, 1996 - In 2003, the Col­lege's Disciplinary Committee issued a decision unfavourable to the teacher - The teacher appealed - He argued that because the new legislation did not specifically authorize the College to deal with dis­cipline matters arising out of conduct which occurred before the College came into existence, it was without jurisdiction to deal with any such matters in cir­cumstances where the conduct in issue was known to the Board - The Ontario Divi­sional Court rejected the argument and dismissed the appeal - See paragraphs 8 to 25.

Education - Topic 6406

Teachers - Discipline of - Duty of fairness - In 1989, a teacher wrote threatening and extremely defamatory letters to his Direc­tor of Education - The Board of Education (Board) dismissed the teacher for profes­sional misconduct - The teacher filed a grievance which was ultimately dismissed as a result of a 1997 Supreme Court of Canada decision - In 1999, the Board filed a disciplinary complaint with the Ontario College of Teachers - In 2000, the Col­lege's Registrar made a request to initiate investigation - In 2002, the Investigation Committee referred the matter to the Dis­cipline Committee - In 2003, a hearing took place followed by the decision of the College's Disciplinary Committee, which was unfavourable to the teacher - The teacher appealed, arguing undue delay - The Ontario Divisional Court dismissed the appeal - Considering that the misconduct complained of was known, that the teacher provided "a very lengthy and thorough response to the complaint" and that the teacher did not suffer psychological or emotional harm as a result of the delay, the court was not satisfied that the delay here was such so as to impair the fairness of the hearing and impugn the disciplinary pro­cess - The delay did not amount to an abuse of process - See paragraphs 26 to 61.

Cases Noticed:

Henderson v. College of Physicians and Surgeons (Ont.) (2003), 172 O.A.C. 337 (C.A.), consd. [para. 42].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, consd. [para. 44].

Markson v. College of Teachers (Ont.) (2003), 168 O.A.C. 339 (Div. Ct.), consd. [para. 59].

Statutes Noticed:

Ontario College of Teachers Act, 1996, S.O. 1996, c. 12, sect. 3(1), sect. 3(2) [para. 13]; sect. 14(5) [para. 16]; sect. 26(9) [para. 38].

Counsel:

Jagdish Bhadauria, in person;

David E. Leonard, for the respondent;

Mark Crow, for the intervenor.

This appeal was heard on May 31, 2004, by MacFarland, Swinton and Linhares de Sousa, JJ., of the Ontario Divisional Court.

The decisions of the Divisional Court were delivered by MacFarland, J., as follows:

oral ruling on May 31, 2004, respecting the Charter issues - see paragraphs 63 to 68;

written decision on the other issues re­leased on June 9, 2004 - see para­graphs 1 to 67.