Green v. Alberta Teachers' Association, [2016] A.R. TBEd. AU.036

• Judge: Berger, McDonald and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 05, 2016
• Citations: [2016] A.R. TBEd. AU.036;2016 ABCA 237

Green v. Teachers Assoc., [2016] A.R. TBEd. AU.036

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. AU.036

Cynthia Green (appellant) v. The Alberta Teachers' Association (respondent)

(1503-0190-AC; 2016 ABCA 237)

Indexed As: Green v. Alberta Teachers' Association

Alberta Court of Appeal

Berger, McDonald and Wakeling, JJ.A.

August 11, 2016.

Summary:

The Hearing Committee of the Alberta Teachers' Association (ATA) found Green, a school teacher, guilty of unprofessional conduct. Green appealed to the Professional Conduct Appeal Committee. The Appeal Committee was made up of four members. Two members would have allowed the appeal; two would have dismissed it. Section 83(4) of the General Bylaws of the ATA stated: "Unless otherwise specified, the votes or decisions of any Committee or panel shall be by a majority of those participating in the vote or decision." The Appeal Committee issued its Reasons for Decision stating that the "appeal is dismissed on equal division of the appeal committee". Green applied for judicial review, arguing that the result was unfair. Green also argued that the appeal panel acted unreasonably in failing to find that the hearing committee acted unreasonably in the findings of fact it made.

The Alberta Court of Queen's Bench, in a decision reported at [2015] A.R. TBEd. JN.086, dismissed the application. With respect to the failure to reach a majority decision, the reviewing judge stated that the law on the subject had been settled in Ostrensky v. Crowsnest Pass (Municipality) Development Appeal Board (1996 Alta. C.A.). The reviewing judge further held that even if the Appeal Committee erred in disposing of the appeal on a tie vote, he had no authority to intervene given s. 57 of the Teaching Profession Act which included a privative clause to insulate all decisions from judicial review except on questions of jurisdiction. Green appealed.

The Alberta Court of Appeal allowed the appeal. The Appeal Committee exceeded its jurisdiction in dismissing the appeal on a tie vote. Its decision was void. The reviewing judge also erred in considering the privative clause in s. 57 of the Act and concluding that a judicial review assessing the reasonableness of the Appeal Committee's decision was unavailable. The privative clause did not preclude judicial review of the decision of the Appeal Committee which exceeded its jurisdiction. The matter was remitted to the Appeal Committee for reconsideration by a panel of five persons who had not previously pronounced upon the allegations of professional misconduct in this case.

Administrative Law - Topic 568

The hearing and decision - Decisions of the tribunal - Majority defined - The Hearing Committee of the Alberta Teachers' Association (ATA) found Green, a school teacher, guilty of unprofessional conduct - Green appealed to the Professional Conduct Appeal Committee - The Appeal Committee was made up of four members - Two members would have allowed the appeal; two would have dismissed it - Section 83(4) of the General Bylaws of the ATA stated: "Unless otherwise specified, the votes or decisions of any Committee or panel shall be by a majority of those participating in the vote or decision" - The Appeal Committee issued its Reasons for Decision stating that the "appeal is dismissed on equal division of the appeal committee" - Green applied for judicial review, arguing that the result was unfair - Green also argued that the appeal panel acted unreasonably in failing to find that the hearing committee acted unreasonably in the findings of fact it made - The application was dismissed - With respect to the failure to reach a majority decision, the reviewing judge stated that the law on the subject had been settled in Ostrensky v. Crowsnest Pass (Municipality) Development Appeal Board (1996 Alta. C.A.) - The reviewing judge further held that even if the Appeal Committee erred in disposing of the appeal on a tie vote, he had no authority to intervene given s. 57 of the Teaching Profession Act which included a privative clause to insulate all decisions from judicial review except on questions of jurisdiction - Green appealed - The Alberta Court of Appeal allowed the appeal - The Appeal Committee exceeded its jurisdiction in dismissing the appeal on a tie vote - Its decision was void - Green had a legitimate expectation that a certain specified statutory procedure would be followed, namely, that her appeal would be dismissed only by a majority of the panel members - The reviewing judge also erred in considering the privative clause in s. 57 of the Act and concluding that a judicial review assessing the reasonableness of the Appeal Committee's decision was unavailable - The privative clause did not preclude judicial review of the decision of the Appeal Committee which exceeded its jurisdiction - The matter was remitted to the Appeal Committee for reconsideration by a panel of five persons who had not previously pronounced upon the allegations of professional misconduct in this case.

Administrative Law - Topic 1420

Finality - Privative clauses - Effect of privative clauses (incl. absence of) - [See Administrative Law - Topic 568 ].

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See Administrative Law - Topic 568 ].

Education - Topic 6406

Teachers - Discipline of - Duty of fairness - [See Administrative Law - Topic 568 ].

Education - Topic 6525

Teachers (incl. principals and non-teaching professional employees) - Discipline - Judicial review - When available - [See Administrative Law - Topic 568 ].

Counsel:

J.V. Miller, Q.C., for the appellant;

W.W. Shores, Q.C., for the respondent.

This appeal was heard on May 5, 2016, before Berger, McDonald and Wakeling, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment on August 11, 2016.