Introduction

The majority of discipline cases settle. This is because a settlement benefits the registrant and the regulator. For registrants, a settlement generally results in a lesser penalty and costs order and the surety of outcome that comes with a negotiated resolution. For regulators, a settlement guarantees that findings of professional misconduct are made while avoiding a potentially lengthy and expensive hearing. Because of the universal importance of settlements, discipline tribunals are expected to accept joint submissions absent exceptional circumstances.

The high-bar for rejecting a joint submission was set forth by the Supreme Court of Canada in R v. Anthony-Cook, a criminal law case that has been widely adopted by discipline committees. Under the “public interest” test, a court or tribunal can only reject a joint submission where accepting it would bring the administration of justice into disrepute or is otherwise contrary to the public interest.[1] However, some tribunals have rejected joint submissions more liberally than Anthony-Cook would dictate, creating uncertainty for regulators and registrants. In response to one such case, the Divisional Court recently released its decision in Bradley v Ontario College of Teachers, which provides a firm reminder to discipline committees that rejecting a joint submission cannot be done lightly.

 

Facts

The registrant was a teacher subject to disciplinary proceedings. The registrant and the College entered into an Agreed Statement of Facts and a Joint Submission on Penalty (the “JSP”). The panel of the Discipline Committee hearing the matter expressed concern that the two-month suspension in the JSP would be served over the summer while the registrant would not be teaching, indicated that it was considering rejecting the joint submission, and provided a further opportunity for the parties to make submissions. The panel ultimately ordered that the registrant serve the suspension beginning in September, contrary to what was contained in the JSP.

 

Decision

The Divisional Court overturned the decision on the basis that the panel misunderstood and misapplied the stringent public interest test in Anthony-Cook. In particular, the panel did not articulate any reason why accepting the JSP would bring the administration of justice into disrepute. The court identified the following errors in the panel’s approach:

• The panel ignored and failed to distinguish decisions brought to their attention where a two-month suspension was served over the summer;
• The panel focused on the fitness of the sentence and whether it would sufficiently achieve deterrence when the Supreme Court of Canada explicitly rejected a fitness test in Anthony-Cook;
• The panel engaged in impermissible tinkering by moving the suspension from the summer to the early fall;
• The panel found that a suspension in the summer was symbolic without regard to submissions of the parties that the penalty would remain on the registrant’s record and be publicly available;
• The panel erroneously suggested that the parties should have shared more information about the circumstances leading to the JSP with the panel; and
• The panel had no regard to the benefits and importance of joint submissions.[2]

The Divisional Court also clearly and definitively held that “[t]he public interest test in Anthony-Cook applies to disciplinary bodies. Any disciplinary body that rejects a joint submission on penalty must apply the public interest test and must show why the proposed penalty is so “unhinged” from the circumstances of the case that it must be rejected.”[3]

 

Takeaways

To our knowledge, this is the first time the Divisional Court has explicitly stated that the Anthony-Cook public interest test applies to discipline hearings. While some tribunals have in the past applied a different test,[4] this case suggests that the test set forth in Anthony-Cook ought to be applied by all disciplinary tribunals going forward.

The decision also illustrates that where a panel wants to reject a joint submission, they must provide clear and cogent reasons explaining precisely why the joint submission would bring the administration of justice into disrepute. These reasons need to address the relevant case law and specifically respond to the submissions of the parties as to why the joint submission is appropriate. If the tribunal cannot articulate a firm and reasoned basis for rejecting the joint submission, their decision will be unlikely to withstand an appeal.

The decision also makes it extremely difficult for a panel to reject a joint submission that is supported by prior cases of the tribunal with similar facts. The court stated that the “parties’ joint submission could hardly be viewed as “unhinged” if the Discipline Committee imposed a similar penalty in similar cases.”[5] Thus, unless a panel can explain why past cases with similar penalties are distinguishable, a panel is unlikely to be able to reject a joint submission.

Finally, the decision reinforces that discipline committees cannot “tinker” with a joint submission. The question for the panel is whether to accept or reject the joint submission, not whether to accept part of the joint submission and reject another.

[1] R v Anthony-Cook, 2016 SCC 43 at paras 32 and 34.

[2] Bradley v Ontario College of Teachers, 2021 ONSC 2303 at para 13.

[3] Bradley, para 14.

[4] Law Society of Upper Canada v Archambault, 2017 ONLSTH 86 at para 13.

[5] Bradley, para 13.