[40] Bill 103 Original (PDF)
Bill 103 2013
An Act to amend the Ontario College of Teachers Act, 1996 with respect to discipline and other related matters
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
1. (1) Section 1 of the Ontario College of Teachers Act, 1996 is amended by adding the following definitions:
"disciplinary stage complaint resolution process" means a process provided for in section 30.1 that includes mediation, conciliation, negotiation, or any other means of facilitating the resolution of issues in dispute; ("processus de règlement des plaintes à l'étape disciplinaire")
"investigation stage complaint resolution process" means a process provided for in section 26.1 that includes mediation, conciliation, negotiation, or any other means of facilitating the resolution of issues in dispute; ("processus de règlement des plaintes à l'étape de l'enquête")
"professional misconduct" means,
(a) sexual abuse of a student,
(b) sexual misconduct,
(c) engaging in prohibited acts involving child pornography, or
(d) any other act or conduct prescribed by the regulations; ("faute professionnelle")
"prohibited act involving child pornography" means any act prohibited under section 163.1 of the Criminal Code (Canada); ("acte interdit impliquant de la pornographie juvénile")
"sexual misconduct" means inappropriate behaviour or remarks of a sexual nature by the member that is not sexual abuse of a student, where,
(a) one or more students are exposed to the behaviour or remarks, or the member knows or ought to know that one or more students are likely to be exposed to the behaviour or remarks, and
(b) a reasonable person would expect the behaviour or remarks to have the effect of,
(i) causing distress to a student exposed to the behaviour or remarks,
(ii) being detrimental to the physical or mental well-being of a student, or
(iii) creating a negative environment at a school for a student exposed to the behaviour or remarks. ("inconduite sexuelle")
(2) Section 1 of the Act is amended by adding the following subsections:
Interpretation, sexual abuse and sexual misconduct
(2) For the purposes of the definitions of "sexual abuse" and "sexual misconduct" in subsection (1), a reference to a student is a reference to either of the following:
1. A student who, at the time the behaviour, remarks or conduct occurred or were made, was enrolled in a school or private school in Ontario, within the meaning of the Education Act and was under 18 years old or, in the case of a student who had special needs, was under 22 years old.
2. A student of any age who, at the time the behaviour, remarks or conduct occurred or were made, was enrolled in a school or private school in Ontario, within the meaning of the Education Act if, at that time,
i. the member was one of the student's teachers,
ii. the member was the principal or vice-principal of the school in which the student was enrolled,
iii. the member assisted in extracurricular activities, including coaching in a sport, and the member and the student dealt with each other directly in the course of the extracurricular activities, or
iv. the member provided any other school-related service, including a support service directly to the student.
Same, spouse
(3) For the purposes of the definitions of "sexual abuse" and "sexual misconduct" in subsection (1), a reference to a student does not include the member's spouse.
Same, special needs
(4) For the purposes of paragraph 1 of subsection (2), a student had special needs if the member knew or, exercising reasonable diligence, ought to have known that the student, by reason of some mental or physical disability, was particularly vulnerable to being sexually abused or to the effects of sexual misconduct.
Same, electronic means
(5) For greater certainty, for the purposes of the definitions of "sexual abuse" and "sexual misconduct" in subsection (1), behaviour, remarks and conduct include acts or remarks that are done or made by electronic means.
2. Section 9 of the Act is amended by adding the following subsection:
Fluency in English and French
(4) The Council shall ensure that either the Registrar or a deputy registrar is fluent in English and French.
3. Section 17 of the Act is amended by adding the following subsections:
Same, principals and vice-principals
(2.1) The powers and duties of a committee mentioned in paragraph 2, 3 or 5 of subsection 15 (1) to hear or review a matter relating to the conduct or actions of a person who, at the time the conduct or actions occurred, was employed as a principal or vice-principal, may be exercised by a panel that satisfies the following rules:
1. The panel must satisfy the rules set out in subsection (2).
2. The panel must include at least one person who is employed as a principal or a vice-principal or who was previously employed as a principal or vice-principal and is still a member of the College.
Same, complaint resolution processes
(2.2) Subsections (2) and (2.1) apply for the purposes of sections 26.1 and 30.1 but, for greater certainty, do not apply if a single member of the Investigation Committee is acting on the Committee's behalf in accordance with subsection 26.1 (11).
. . . . .
Same, requirements and restrictions
(4.1) The inclusion of any person on a roster for a committee is subject to any requirements and restrictions that may be prescribed by the regulations or by-laws.
4. (1) Subsection 23 (2) of the Act is amended by striking out "Subject to any by-law respecting the removal of information from the register" at the beginning.
(2) Clause 23 (2) (b) of the Act is repealed and the following substituted:
(b) the terms, conditions and limitations imposed on each certificate of qualification and registration, including terms, conditions and limitations resulting from a written undertaking or other agreement between the College and the member;
(3) Subsection 23 (2) of the Act is amended by adding the following clauses:
(b.1) any restrictions imposed on a member's eligibility to teach by an order of a court or other lawful authority, including the name and location of the court or authority and the date the order was made;
(b.2) a notation of every matter that has been referred to the Discipline Committee under section 26, 29 or 33;
(b.3) any notice of the day and time of a hearing of the Discipline Committee, together with a link to the notice as published on the College's website;
(b.4) if a resolution adopted by the Investigation Committee under section 26.1 provides for a notation to be included in the register, a notation of the resolution, and, if the resolution provides for the resolution, a summary of the resolution or a part of the resolution to be published on the College's website, a link to that publication;
(b.5) a notation of every decision of the Discipline Committee following a proceeding, together with a link to the decision as published on the College's website;
(b.6) a notation of every resolution adopted by the Discipline Committee under section 30.1, together with a link to the resolution as published on the College's website;
. . . . .
(d.1) information respecting any current or previous criminal proceedings involving a member that are relevant to his or her membership, including any undertakings of the member in relation to the proceeding;
(4) Clause 23 (2) (e) of the Act is amended by adding "any other" at the beginning.
(5) Subsection 23 (2.1) of the Act is repealed and the following substituted:
New teacher program
(2.1) In the case of a member who has successfully completed the new teacher induction program under the Education Act, the Registrar shall, within 60 days of receiving notice that the member has done so, note that information on the register.
(6) Section 23 of the Act is amended by adding the following subsections:
Removal of specified information
(2.2) The Registrar shall remove from the register,
(a) any terms, conditions or limitations imposed on a certificate of qualification and registration, as referred to in clause (2) (b), that are no longer applicable; and
(b) any restrictions imposed on a member's eligibility to teach, as referred to in clause (2) (b.1), that are no longer applicable.
Day and time of hearing
(2.3) The Registrar shall post notice of the day and time of a hearing of the Discipline Committee on the register in accordance with clause (2) (b.3), and on the College's website, at the same time as the parties to the hearing are notified of this information, and may remove it from the register after the proceeding has concluded.
Same, by-laws
(2.4) Subject to subsection (2.5), the Council may not make by-laws authorizing the removal of any information set out in subsection (2) or (2.1) from the register.
Same
(2.5) The Council may make by-laws authorizing the removal of information described in clauses (2) (b.2), (b.3), (b.4), (b.5), (b.6) or (d.1) but only in accordance with the following:
1. Any notation of a decision or resolution that required a reprimand, an admonishment, counselling or a fine, and the link to the decision or resolution, may not be removed until three years after the day the committee decided the matter, or after more time if ordered by the Discipline Committee or prescribed by the by-laws.
2. The information must not relate to a matter that resulted in an order to revoke or suspend a certificate.
No publication of specified information
(2.6) Despite anything in this section, the register shall not contain any information that violates an order made under section 32.1 respecting the publication of information.
. . . . .
Posting on website
(5) The Registrar shall post the register on the College's website.
5. (1) Section 26 of the Act is amended by adding the following subsections:
Same
(1.1) As soon as reasonably possible after receiving a complaint, the Registrar shall,
(a) provide the complainant with confirmation that the complaint was received; and
(b) notify the member that a complaint regarding his or her actions was made and provide the member with a copy of the complaint or, if the Registrar considers it appropriate in the circumstances, a summary of the complaint.
Same
(1.2) In providing notice of a complaint under clause (1.1) (b), the identity of the individual who made the complaint shall not be disclosed if the Registrar believes, on reasonable and probable grounds, that doing so would expose or be likely to expose the complainant or another person to harm or injury.
Same
(1.3) Despite subsection (1), if the Registrar refers a complaint to an investigation stage complaint resolution process in accordance with section 26.1, the Investigation Committee shall cease its consideration and investigation of the complaint and this section ceases to apply, unless and until the complaint is referred back to the Committee in accordance with that section.
(2) Clause 26 (2) (b) of the Act is repealed and the following substituted:
(b) the complaint is frivolous, vexatious, an abuse of process, manifestly without substance or made for an improper purpose; or
(c) the complaint does not warrant further investigation or it is not in the public interest to investigate the complaint further, and that determination was made in accordance with the regulations.
(3) Section 26 of the Act is amended by adding the following subsection:
Same
(2.1) The following rules apply to a complaint made by a secretary of a school board under section 277.40 or 277.40.5 of the Education Act:
1. Despite subsection (1), the Investigation Committee is not required to consider and investigate the complaint if the Registrar determines in accordance with any regulations, and advises the Committee, that the complaint does not relate to professional misconduct, incompetence or incapacity on the part of a member.
2. The secretary shall,
i. at the same time as making the complaint, provide the member with a copy of the complaint, and
ii. within 30 days of making the complaint, provide the Registrar with any additional information that the school board has that relates to the complaint.
3. If, after receiving the information under subparagraph 2 ii, the Registrar requests that the school board provide the Registrar with more information that relates to the complaint, the board shall do so within 15 days of receiving the request.
4. The Registrar shall, as soon as is reasonably possible, provide a written report respecting the action, if any, taken by the Registrar in response to the complaint to the following:
i. An employer that employs the member, at the time the report is made, to teach or provide services as described in clause 43.1 (1) (a) or (b).
ii. The school board whose secretary made the complaint respecting the member.
(4) Clauses 26 (3) (a), (b) and (c) of the Act are repealed and the following substituted:
(a) a complaint in writing or in another form that is capable of being reproduced, such as a disc or tape, has been filed with the Registrar;
(b) the member whose conduct or actions are being investigated has been given 60 days, or a different time period if specified under subsection (4), in which to submit in writing to the Committee any explanations or representations the member may wish to make concerning the matter; and
(c) the Committee has examined or has made every reasonable effort to examine all the information and documents that the College has that are relevant to the complaint, including,
(i) any prior decisions of a committee established under this Act that relate to the member,
(ii) any information about or obtained in concurrent proceedings before a committee established under this Act that relates to the member,
(iii) any resolutions adopted by a committee established under this Act that were reached through a complaint resolution process and relate to the member.
(5) Subsection 26 (4) of the Act is repealed and the following substituted:
Same
(4) The Investigation Committee may specify a different time period for the purposes of clause (3) (b) in accordance with the following:
1. The Committee may specify a period of time of less than 60 days if the Committee is of the opinion, on reasonable and probable grounds, that the conduct of the member exposes or is likely to expose one or more students to harm or injury.
2. The Committee may specify a period of time that is more than 60 days in accordance with the regulations.
Same
(4.1) A copy of any explanations or representations submitted by the member under clause (3) (b) shall be provided as soon as reasonably possible to the complainant or, if the Registrar considers it appropriate in the circumstances, a summary of the explanations or representations.
Same
(4.2) In considering prior decisions in accordance with subclause (3) (c) (i), the Investigation Committee shall not consider any decision made by the Investigation Committee to refuse to consider and investigate a complaint under subsection (2).
Same
(4.3) If the Investigation Committee considers any information described in subclause (3) (c) (i), (ii) or (iii), the Committee shall notify the member as soon as reasonably possible and shall provide the member with a copy of that information or, if the Committee considers it appropriate in the circumstances, a summary of that information.
Same
(4.4) If the Investigation Committee receives additional information from any person relating to the complaint, the Committee shall notify the member as soon as reasonably possible and shall provide the member with a description of the additional information.
(6) Subsection 26 (8) of the Act is amended by adding "or under section 26.1" at the end.
(7) Subsection 26 (9) of the Act is repealed and the following substituted:
Application of section, related criminal conviction
(9) If a member has been convicted or found guilty of an offence under the Criminal Code (Canada) for the same conduct or action that is the subject matter of a complaint, the member and the Investigation Committee may agree in writing that the matter be referred, in whole or in part, to the Discipline Committee and, in that case, subsections (1) to (8) cease to apply and the Registrar shall notify the complainant of the agreement.
6. Part IV of the Act is amended by adding the following sections:
Investigation stage complaint resolution process
26.1 (1) The Registrar may refer the College and the member who is the subject of a complaint to an investigation stage complaint resolution process to which the College and the member have consented,
(a) if the Registrar determines, on reasonable and probable grounds and in accordance with any regulations, that the complaint, if proven, would likely result in the member receiving a caution or admonishment from the Investigation Committee under clause 26 (5) (c);
(b) if the Investigation Committee has not yet taken action under subsection 26 (5); and
(c) if the matter does not involve an allegation of sexual abuse of a student, sexual misconduct or a prohibited act involving child pornography.
Same
(2) The Registrar shall notify the complainant as soon as reasonably possible after referring a complaint to the complaint resolution process.
Same
(3) Before a resolution that will be proposed to the Investigation Committee under subsection (4) is reached,
(a) the Registrar shall consult, or make reasonable efforts to consult, with the complainant; and
(b) if the complainant is not the member's employer and the Registrar considers it appropriate in the circumstances, the Registrar may request that the employer provide the Registrar with information that relates to the complaint.
Same
(4) If the College and the member reach a resolution of a matter that has been referred to the complaint resolution process, they shall propose it to the Investigation Committee and the Committee may,
(a) adopt the proposed resolution;
(b) modify the proposed resolution; or
(c) reject the proposed resolution.
Same
(5) Before taking action under subsection (4), the Investigation Committee shall consider,
(a) any prior decisions of a committee established under this Act that relate to the member;
(b) any information about or obtained in concurrent proceedings before a committee established under this Act that relates to the member;
(c) any resolutions adopted by a committee established under this Act that were reached though a complaint resolution process and relate to the member.
Same
(6) If the Investigation Committee modifies the proposed resolution, the Committee shall notify the College and the member of the modifications and,
(a) if both the College and the member agree to the modifications, the proposed resolution shall be considered adopted, as modified, by the Committee; or
(b) if either the College or the member does not agree to the modifications, the proposed resolution shall be considered rejected by the Committee.
Same
(7) If the Investigation Committee rejects a proposed resolution, it shall be referred back to the Committee and section 26 shall continue to apply.
Same
(8) If there is a failure to resolve a matter that has been referred to the complaint resolution process, it shall be referred back to the Investigation Committee and section 26 shall continue to apply.
Notice, Registrar
(9) The Investigation Committee shall notify the Registrar of its decision made under subsection (4).
Same, complainant
(10) The Registrar shall notify the complainant of the outcome of the complaint resolution process.
Single member may act on Committee's behalf
(11) A single member of the Investigation Committee may act on the Committee's behalf for the purposes of subsection (4) and, in that case, references to the Investigation Committee in subsections (5), (6), (7) and (9) shall be references to the member acting on the Committee's behalf.
Matters referred back to the Investigation Committee
(12) If the Investigation Committee rejects a proposed resolution and the matter is referred back to the Committee, no person who made a decision for the purposes of subsection (4) shall make a decision in respect of the matter under section 26, except in accordance with any regulations.
Complainant not a party
(13) For greater certainty, the complainant is not a party to an investigation stage complaint resolution process.
Timely disposal
26.2 (1) Subject to subsection (2), the Investigation Committee shall use its best efforts to dispose of a complaint within 120 days after the complaint is filed as described in clause 26 (3) (a).
Investigation stage complaint resolution process
(2) If the Registrar refers a matter to an investigation stage complaint resolution process,
(a) that process must be carried out in accordance with any timelines prescribed by the regulations; and
(b) for the purposes of subsection (1), the time period beginning on the day the referral is made and ending on the day the matter is referred back to the Committee under subsection 26.1 (7) or (8) shall not be counted.
If complaint not disposed of
(3) If the Committee has not disposed of a complaint within 120 days after the complaint was filed, the Registrar shall provide the complainant and the member who is the subject of the complaint with written notice of that fact and an expected date of disposition which shall be no more than 90 days from the date of the written notice.
If further delay
(4) If the Committee has not disposed of the complaint by the expected date of disposition described in subsection (3), the Registrar shall provide the member and complainant with written notice and reasons for the delay and the new expected date of disposition which shall be no more than 30 days from the date of the revised notice or from the expected date of disposition described in subsection (3), whichever is sooner.
7. The Act is amended by adding the following section:
Complaint, report of child in need of protection, etc.
29.1 (1) This section applies with respect to a complaint if the Registrar believes, on reasonable grounds, that the complainant or any other person was likely required to make a report under section 72 of the Child and Family Services Act in relation to the conduct or actions of the member that are the subject of the complaint.
Exception, certain complaints
(2) This section does not apply to a complaint referred to in subsection 26 (2.1) or to a complaint that arises from a report under section 43.2 or 43.3.
Referral to Executive Committee
(3) The Registrar shall promptly refer a complaint described in subsection (1) to the Executive Committee.
Consideration by Executive Committee
(4) If a complaint is referred to the Executive Committee under subsection (3), the Executive Committee shall consider whether or not to make a direction under subsection 29 (1) and, if it makes such a direction, shall also consider whether or not to make an interim order under subsection 29 (3).
8. (1) Section 30 of the Act is amended by adding the following subsection:
Same, complaint resolution process
(1.1) Despite clause (1) (a), if a matter is referred to a disciplinary stage complaint resolution process in accordance with section 30.1, the Discipline Committee shall cease to hear the matter and this section ceases to apply, unless and until the matter is referred back to the Committee in accordance with that section.
(2) Subsection 30 (2) of the Act is amended by striking out "as defined in the regulations" at the end.
(3) Paragraph 1 of subsection 30 (5) of the Act is amended by striking out "a specified or unlimited period" at the end and substituting "a specified period of more than three years".
(4) Paragraph 3 of subsection 30 (5) of the Act is repealed.
(5) Subsection 30 (8) of the Act is repealed.
9. The Act is amended by adding the following sections:
Disciplinary stage complaint resolution process
30.1 (1) The Discipline Committee may refer the College and the member who is the subject of a matter to a disciplinary stage complaint resolution process to which the College and the member have consented,
(a) if the Committee considers it appropriate to do so;
(b) if the matter has not yet been determined by the Discipline Committee under section 30; and
(c) if the matter does not involve an allegation of sexual abuse of a student, sexual misconduct or a prohibited act involving child pornography.
Same
(2) If the College and the member reach a resolution of a matter that has been referred to the complaint resolution process, they shall propose it to the Discipline Committee and the Committee may,
(a) adopt the proposed resolution;
(b) modify the proposed resolution; or
(c) reject the proposed resolution.
Same
(3) If the Discipline Committee modifies the proposed resolution, the Committee shall notify the College and the member of the modifications and,
(a) if both the College and the member agree to the modifications, the proposed resolution shall be considered adopted, as modified, by the Committee; or
(b) if either the College or the member does not agree to the modifications, the proposed resolution shall be considered rejected by the Committee.
Same
(4) If the Discipline Committee rejects a proposed resolution, the Committee shall hear and determine the matter in accordance with section 30.
Same
(5) If there is a failure to resolve a matter that has been referred to the complaint resolution process, it shall be referred back to the Discipline Committee and the Committee shall hear and determine the matter in accordance with section 30.
Meetings of Discipline Committee to be public
(6) A meeting of the Discipline Committee to consider the action it will take under subsection (2) shall, subject to subsection (7), be open to the public.
Exclusion of public
(7) The Discipline Committee may make an order that the public be excluded from the meeting or any part of the meeting if, in the Committee's opinion, the possibility of serious harm or injustice to any person justifies a departure from the general principle that hearings should be open to the public.
Application of s. 32 (4) and (5)
(8) Subsections 32 (4) and (5) apply with necessary modifications to meetings of the Discipline Committee to consider actions that it will take under subsection (2).
No right to a hearing
(9) Nothing in this section shall be construed to require the Discipline Committee to hold a hearing within the meaning of the Statutory Powers Procedure Act before making a decision under subsection (2) and, for greater certainty, there is no right to appeal that decision.
Members disqualified from panel that hears matter
(10) The following persons may not participate in a panel of the Discipline Committee that hears and determines a matter in accordance with section 30:
1. The members of the panel of the Discipline Committee that referred the matter under subsection (1) or considered making such a referral.
2. The members of the panel of the Discipline Committee that rejected any proposed resolution.
No application to reinstatement and variation procedures
(11) For greater certainty, an application made under subsection 33 (1) or (2) may not be referred to a complaint resolution process.
Complainant not a party
(12) For greater certainty, the complainant is not a party to a disciplinary stage complaint resolution process.
Authorization for Registrar to make referrals
(13) The Discipline Committee may authorize the Registrar to make referrals under subsection (1) on behalf of the Discipline Committee and the following apply when the Registrar acts in accordance with such an authorization:
1. The reference to the Committee in clause (1) (a) is deemed to be a reference to the Registrar.
2. The Registrar is subject to,
i. the limitations the Discipline Committee is subject to under this section,
ii. any limitations in the authorization, and
iii. any limitations prescribed by the regulations.
3. The Registrar shall not refer a matter under subsection (1) if the Registrar had referred the matter to an investigation stage complaint resolution process.
Orders relating to sexual abuse and child pornography
30.2 (1) Where under section 30 the Discipline Committee finds a member guilty of committing an act of professional misconduct that is listed in subsection (2), the Committee shall, in addition to anything else the Committee may do under subsection 30 (5), make an order,
(a) requiring that the member be reprimanded by the Committee; and
(b) directing the Registrar to revoke any certificate held by the member under this Act.
Same
(2) The acts of professional misconduct referred to in subsection (1) are the following:
1. Sexual abuse of a student, if the sexual abuse consisted of, or included, any of the following:
i. Sexual intercourse.
ii. Genital to genital, genital to anal, oral to genital, or oral to anal contact.
iii. Masturbation of the member by, or in the presence of, the student.
iv. Masturbation of the student by the member.
v. Encouragement of the student by the member to masturbate in the presence of the member.
2. A prohibited act involving child pornography.
Interpretation
(3) For greater certainty, nothing in subsections (1) and (2) affects the power of the Discipline Committee to reprimand a member or revoke a member's certificate under section 30 for committing any other act of professional misconduct.
Statement re impact of sexual abuse
(4) Before making an order under subsection (1) in relation to a finding of sexual abuse, the Discipline Committee shall consider any written statement that has been filed, and any oral statement that has been made to the Committee, describing the impact of the sexual abuse on the student.
Same
(5) The statement may be made by the student or by his or her representative.
Same
(6) The Discipline Committee shall not consider the statement unless a finding of an act of professional misconduct that is listed in subsection (2) has been made.
Notice to member
(7) When a written statement is filed, the Discipline Committee shall, as soon as possible, have copies of it provided to the member, to his or her counsel and to the College.
10. Subsection 31 (6) of the Act is repealed.
11. Subsection 32 (7) of the Act is repealed and the following substituted:
Exclusion of public
(7) The Discipline Committee may make an order that the public be excluded from a hearing or any part of a hearing if, in the Committee's opinion, the possibility of serious harm or injustice to any person justifies a departure from the general principle that hearings should be open to the public.
12. Part V of the Act is amended by adding the following section:
Orders preventing public disclosure
32.1 (1) In situations under section 32 in which the Discipline Committee may make an order that the public be excluded from a hearing, the Committee may make orders it considers necessary to prevent the public disclosure of matters disclosed at the hearing, including orders banning the publication or broadcasting of those matters.
Same, complaint resolution process
(2) In situations under section 30.1 in which the Discipline Committee may make an order that the public be excluded from a meeting, the Committee may make orders it considers necessary to prevent the public disclosure of matters disclosed during the disciplinary stage complaint resolution process, including orders banning the publication or broadcasting of those matters.
Witnesses, under 18
(3) The Discipline Committee shall make an order that no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and,
(a) is a witness in a hearing;
(b) is the subject of evidence in a hearing; or
(c) is the subject of, or otherwise involved in, a matter referred to a disciplinary stage complaint resolution process.
Same, sexual abuse, sexual misconduct or child pornography
(4) If a matter disclosed at a hearing or during a disciplinary stage complaint resolution process involves an allegation of sexual abuse of a student, sexual misconduct or a prohibited act involving child pornography, the Discipline Committee shall make an order that no person shall publish the identity of, or any information that could disclose the identity of, the person who was allegedly sexually abused or the subject of the misconduct or prohibited act, on the request of that person.
13. (1) Subsection 33 (1) of the Act is amended by adding "or as a result of a resolution adopted by the Committee under section 30.1" after "Discipline Committee".
(2) Subsection 33 (2) of the Act is amended by adding "or as a result of a resolution adopted by the Committee under section 30.1" after Discipline Committee".
(3) Section 33 of the Act is amended by adding the following subsection:
Same, sexual abuse, etc.
(4.1) Despite subsections (3) and (4), if a person has had a certificate revoked for committing an act of professional misconduct that involved sexual abuse of a student, sexual misconduct or a prohibited act involving child pornography, an application under subsection (1) to have a new certificate issued shall not be made earlier than five years from the date of the order under section 30.
(4) Subsection 33 (9) of the Act is repealed and the following substituted:
Open or closed hearings
(9) A hearing of the Discipline Committee under this section shall be open to the public unless,
(a) the proceeding referred to in subsection (1) or (2) that resulted in the person's certificate being revoked, suspended or subject to terms, conditions or limitations was closed to the public; or
(b) the Committee makes an order under subsection (9.1).
Exclusion of public
(9.1) The Discipline Committee may make an order that the public be excluded from a hearing or any part of a hearing if, in the Committee's opinion, the possibility of serious harm or injustice to any person justifies a departure from the general principle that hearings should be open to the public.
Orders preventing public disclosure
(9.2) For greater certainty, the Discipline Committee may make an order described in section 32.1 in relation to a hearing under this Part.
(5) Subsection 33 (14) of the Act is amended by striking out "Subsections (1) to (13)" at the beginning and substituting "Subsections (1) to (8) and (10) to (13)".
(6) Section 33 of the Act is amended by adding the following section:
Same, closed hearings
(14.1) A hearing of the Fitness to Practise Committee under this section shall be closed to the public unless the applicant requests otherwise, in which case the hearing shall be open to the public and subsection (9.1) applies with necessary modifications.
14. Section 34 of the Act is amended by adding the following subsection:
Same, sexual abuse, etc.
(2) If a person has had a certificate revoked for committing an act of professional misconduct that involved sexual abuse of a student, sexual misconduct or a prohibited act involving child pornography, an order under paragraph 1 of subsection (1) shall not be made earlier than five years from the date of the order under section 30.
15. Section 35 of the Act is amended by adding the following subsections:
No stay of certain orders pending appeal
(5) The following orders directing the Registrar to revoke, suspend or impose terms, conditions or limitations on a member's certificate take effect immediately despite any appeal:
1. An order made by the Discipline Committee on the grounds of incompetence.
2. An order made by the Discipline Committee under subsection 30.2 (1).
3. An order made by the Fitness to Practise Committee on the grounds of incapacity.
Orders where public at risk
(6) If the conduct of the member exposes or is likely to expose one or more students to harm or injury and urgent intervention is needed, the College may apply to a judge of the Superior Court of Justice for an order declaring that an order that was made by the Discipline Committee on the grounds of professional misconduct and that directs the Registrar to revoke, suspend or impose terms, conditions or limitations on the member's certificate shall take effect immediately despite any appeal and any other Act.
16. Section 36 of the Act is amended by adding the following subsections:
Emergencies
(2.1) The Registrar may appoint an investigator if,
(a) the Registrar believes on reasonable and probable grounds that the conduct of the member exposes or is likely to expose one or more students to harm or injury, and that the investigator should be appointed immediately; and
(b) there is not time to seek approval from the Executive Committee.
Report
(2.2) Where an investigator has been appointed under subsection (2.1), the Registrar shall report the appointment of the investigator to the Executive Committee within five days.
17. (1) Paragraph 4.4 of subsection 40 (1) of the Act is amended by adding "and persons included on rosters for committees" after "committees".
(2) Paragraph 14.2 of subsection 40 (1) of the Act is repealed and the following substituted:
14.2 respecting the establishment of a roster under subsection 17 (3), including regulations prescribing requirements and restrictions that apply for the purpose of including persons on the roster, including,
i. prescribing qualifications of eligible panellists, and
ii. requiring persons on a roster to take an oath and prescribing the form of the oath, the manner in which it shall be made and the time period within which it shall be made;
14.3 governing a determination made by the Investigation Committee under clause 26 (2) (c) that a complaint does not warrant further investigation or it is not in the public interest to investigate a complaint further, including prescribing circumstances or conditions in which such a determination may be made;
14.4 governing a determination made by the Registrar under paragraph 1 of subsection 26 (2.1), including prescribing the factors that the Registrar shall consider and the factors that the Registrar shall not consider in making the determination;
14.5 governing the circumstances in which the committee may extend the time period for a member, and prescribing the maximum number of days by which that time period may be extended, for the purposes of subsection 26 (4);
14.6 setting out requirements respecting the investigation stage complaint resolution process or the disciplinary stage complaint resolution process and otherwise governing the processes, including,
i. governing a determination made by the Registrar under clause 26.1 (1) (a) or under an authorization under subsection 30.1 (13), including prescribing factors that the Registrar shall consider and factors that the Registrar shall not consider in making the determination,
ii. prescribing timelines for the complaint resolution processes,
iii. prescribing circumstances in which the resolution of a matter that has been referred to a complaint resolution process shall be considered to have failed for the purposes of subsections 26.1 (8) and 30.1 (5),
iv. governing the circumstances in which a person who made or participated in a decision or referral for the purposes of subsection 26.1 (4) or 30.1 (1) or (2) may be a member of a panel that makes a decision in respect of the matter under section 26 or subsection 30.1 (2), or hears and determines the matter under section 30, as the case may be,
v. prescribing limitations for the purposes of subparagraph 2 iii of subsection 30.1 (13);
14.7 prescribing restrictions on a member's duties for the purposes of clause 43.2 (6) (e);
14.8 governing the removal of decisions and resolutions that the College has published on a website under subsection 45.1 (4), for the purposes of clause 45.1 (7) (b);
(3) Paragraph 31 of subsection 40 (1) of the Act is repealed and the following substituted:
31. prescribing acts and conduct for the purposes of the definition of "professional misconduct" in subsection 1 (1).
(4) Subsection 40 (1.1) of the Act is repealed.
18. (1) Paragraph 27 of subsection 41 (1) of the Act is amended by striking out "and the information that may be removed from the register" at the end.
(2) Subsection 41 (1) of the Act is amended by adding the following paragraph:
27.1 subject to subsection 23 (2.5), authorizing the removal of information described in clauses 23 (2) (b.2), (b.3), (b.4), (b.5), (b.6) or (d.1) from the register;
(3) Section 41 of the Act is amended by adding the following subsection:
Conflict, qualifications of persons on roster
(2.1) For greater certainty, in the event of a conflict between a by-law made under paragraph 17.1 of subsection (1) and a regulation made under paragraph 14.2 of subsection 40 (1), the regulation prevails.
19. (1) Subsection 42 (1) of the Act is amended by adding the following clauses:
(0.a) defining "spouse" for the purposes of subsection 1 (3);
. . . . .
(c) respecting the appointment of persons to a roster of eligible panellists under subsection 17 (4), including but not limited to regulations prescribing requirements and restrictions that apply for that purpose, including,
(i) prescribing qualifications of eligible panellists, and
(ii) requiring persons on a roster to take an oath and prescribing the form of the oath, the manner in which it shall be made and the time period within which it shall be made;
(d) designating persons or bodies for the purposes of section 47.1;
(d.1) providing for any transitional matters the Lieutenant Governor in Council considers necessary or advisable in connection with the implementation of the amendments to this Act made by the Protecting Students Act, 2013;
(2) Section 42 of the Act is amended by adding the following subsection:
Regulations - transition
(2) A regulation made under clause (1) (d.1) may provide that it applies despite this Act.
20. (1) Clauses 43.1 (1) (a) and (b) of the Act are repealed and the following substituted:
(a) to teach a person who is under 18 years old or, in the case of a person who has special needs, is under 22 years old or to teach a person of any age if the person is a student enrolled in a school or private school in Ontario within the meaning of the Education Act; or
(b) to provide services, including support services, related to the education of a person who is under 18 years old or, in the case of a person who has special needs, is under 22 years old or to provide services, including support services, related to the education of a person of any age if the person is a student enrolled in a school or private school in Ontario within the meaning of the Education Act.
(2) Clauses 43.1 (2) (a) and (b) of the Act are repealed and the following substituted:
(a) in the opinion of the employer, the person, by reason of some mental or physical disability, is particularly vulnerable to being sexually abused or to the effects of sexual misconduct; or
(b) the employer, exercising reasonable diligence, should have formed the opinion that the person, by reason of some mental or physical disability, is particularly vulnerable to being sexually abused or to the effects of sexual misconduct.
21. (1) Subsection 43.2 (1) of the Act is amended by adding "suspends the member" after "employment" and by adding "suspension" after "termination".
(2) Subsection 43.2 (2) of the Act is amended by adding "to suspend the member" after "employment".
(3) Subsection 43.2 (3) of the Act is amended by adding "to suspend the member" after "employment".
(4) Section 43.2 of the Act is amended by adding the following subsections:
Same
(3.1) Where an employer files a report with the Registrar under subsection (1), (2) or (3), the employer shall,
(a) at the same time, provide the member with a copy of the report; and
(b) within 30 days of filing the report, provide the Registrar with any additional information that the employer has that relates to the member's professional misconduct.
Same
(3.2) If, after receiving the information under clause (3.1) (b), the Registrar requests that the employer provide the Registrar with more information that relates to the member's professional misconduct, the employer shall do so within 15 days of receiving the request.
. . . . .
Same
(5) The following are the employers who shall receive the report referred to in subsection (4):
1. An employer who employs the member at the time the report referred to in subsection (4) is made.
2. The employer who made the report respecting the member under subsection (1), (2) or (3).
Restrictions
(6) For the purposes of this section, restrictions on a member's duties include,
(a) restrictions on the age of students, grades or subjects that a member may teach or supervise;
(b) restrictions on a member's eligibility to teach without supervision;
(c) restrictions on a member's participation in or supervision of extracurricular activities;
(d) restrictions on a member's assignment to duties that relate to teaching or education, which may be done by reassigning the member to duties that are not related to teaching or to education; and
(e) any other restriction prescribed by the regulations.
Interpretation
(7) The requirement to report under subsections (1), (2) and (3) applies to all terminations, suspensions and restrictions imposed in the circumstances described in those subsections, regardless of the length or severity of the penalty.
Same
(8) For greater certainty, this section does not apply in the case of suspensions or restrictions imposed on a member's duties for reasons other than professional misconduct.
22. (1) Subsection 43.3 (1) of the Act is amended by striking out "promptly report to the College" in the portion before clause (a) and substituting "report to the Registrar".
(2) Section 43.3 of the Act is amended by adding the following subsections:
Timing of report
(1.1) The employer shall report to the Registrar within 30 days after becoming aware of the charge, conviction, conduct or action unless the employer has reasonable grounds to believe that the member will continue to sexually abuse a student, or that the misconduct, incompetence or incapacity of the member is likely to expose a student to harm or injury and there is urgent need for intervention, in which case the report must be filed forthwith.
Same
(1.2) Where an employer reports to the Registrar under subsection (1), the employer shall,
(a) at the same time, provide the member with a copy of the report; and
(b) within 30 days of making the report, provide the Registrar with any additional information that the employer has that relates to the charge, conviction, conduct or action.
Same
(1.3) If, after receiving the information under subsection (1.2), the Registrar requests that the employer provide the Registrar with more information that relates to the charge, conviction, conduct or action, the employer shall do so within 15 days of receiving the request.
. . . . .
Registrar to report back
(3) Where an employer makes a report to the Registrar under subsection (1), the Registrar shall, as soon as is reasonably possible, provide the employer with a written report respecting the action, if any, taken by the Registrar in response to the employer's report.
Same
(4) The following are the employers who shall receive the report referred to in subsection (3):
1. An employer who employs the member at the time the report referred to in subsection (3) is made.
2. The employer who made the report respecting the member under subsection (1).
23. Paragraph 2 of subsection 43.4 (2) of the Act is amended by striking out "section 43.3" and substituting "section 43.2 or 43.3".
24. Section 45 of the Act is amended by striking out "of the Council" at the end and substituting "of the College".
25. The Act is amended by adding the following section:
Publication requirements
Publication on website
45.1 (1) The College shall publish the following on its website:
1. Every decision of the Discipline Committee and its reasons.
2. Every resolution adopted by the Discipline Committee under section 30.1.
3. If a resolution adopted by the Investigation Committee under section 26.1 provides for publication of the resolution, a summary of the resolution, or a part of the resolution on the College's website, the resolution, summary or part.
Publication in official publication of the College
(2) The College shall publish the following in the official publication of the College:
1. A summary of every decision of the Discipline Committee and a summary of its reasons.
2. A summary of every resolution adopted by the Discipline Committee under section 30.1.
3. If a resolution adopted by the Investigation Committee under section 26.1 provides for publication of the resolution, a summary of the resolution, or a part of the resolution in the official publication of the College, the resolution, summary or part.
4. A determination by the Fitness to Practise Committee that an allegation of incapacity was unfounded, on the request of the member against whom the allegation was made.
Exception, unfounded allegations
(3) Despite paragraphs 1 and 2 of subsection (2), if the Discipline Committee determines, or adopts a resolution that provides, that an allegation of professional misconduct or incompetence was unfounded, the College shall only publish the summary described in paragraph 1 or 2 of subsection (2) in its official publication on the request of the member against whom the allegation was made.
Other publications
(4) The College may publish anything set out in subsection (1), in detail or in summary, in any manner or medium that the College considers appropriate, other than in its official publication.
Publication of member's name
(5) For greater certainty, for the purposes of paragraphs 1 and 2 of subsection (1) and paragraphs 1 and 2 of subsection (2), the College shall publish the name of the member who is the subject of the matter.
No publication of specified information
(6) Despite anything in this section, the College shall not publish any information that violates an order made under section 32.1 respecting the publication of information.
Removal of information
(7) If a notation of a decision or resolution is removed from the register, the College shall remove the decision or the resolution,
(a) from its website; and
(b) from any other website on which it has published the information under subsection (4), if required by and in accordance with the regulations.
26. Section 47 of the Act is amended by adding the following subsections:
Same
(2) If the College requires a person or body to provide information under subsection (1), the person or body shall do so within the time period specified in writing by the College or, if no time period is specified, within 30 days of receiving the request.
Same
(3) For greater certainty, a person or body may be designated by the regulations for the purposes of subsection (1) regardless of whether the person or body is engaged in the provision of education.
27. The Act is amended by adding the following section:
Duty to report person at risk
47.1 (1) If a person or body designated by the regulations suspects, on reasonable grounds, that there is a risk that a person is likely to suffer physical or emotional harm inflicted by a member and believes, on reasonable grounds, that urgent disclosure is needed, the person or body shall immediately report the suspicion and the information on which it is based to the College.
Disclosure of personal information
(2) A person or body may disclose such personal information, within the meaning of section 38 of the Freedom of Information and Protection of Privacy Act and section 28 of the Municipal Freedom of Information and Protection of Privacy Act, as is reasonably necessary for the purpose of complying with subsection (1).
28. (1) Subsection 48 (1) of the Act is repealed and the following substituted:
Confidentiality
(1) Every person employed, retained or appointed for the purposes of the administration of this Act and every member of a Council or committee of the College shall keep confidential all information that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person except,
(a) in connection with the administration of this Act, including, without limiting the generality of this, in connection with anything relating to the registration of members, complaints about members, allegations of members' incapacity, incompetence or acts of professional misconduct or the governing of the profession;
(b) to his or her counsel;
(c) with the consent of the person to whom the information relates;
(d) to the extent that the information is available to the public under this Act;
(e) to a police officer to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;
(f) to a body that governs a profession inside or outside of Ontario; or
(g) as otherwise required by law.
(2) Section 48 of the Act is amended by adding the following subsection:
Definition
(5) For the purposes of clause (1) (e),
"law enforcement proceeding" means a proceeding in a court or tribunal that could result in a penalty or sanction being imposed.
29. The Act is amended by adding the following section:
Transition: Protecting Students Act, 2013
Definition
63.1 (1) In this section,
"commencement date" means the day the Protecting Students Act, 2013 comes into force.
Matters begun before commencement date
(2) If, before the commencement date, a complaint was made under subsection 26 (1) or an application was made under subsection 33 (1) or (2), the following rules apply:
1. Subsection 17 (2.1) applies to the matter, except in the case of a committee to which the matter was referred before the commencement date.
2. The amendments made by the Protecting Students Act, 2013 to subsection 23 (2), and subsection 23 (2.5), apply to the matter, unless before the commencement date an order has been made in respect of the matter under subsection 30 (4), 31 (3) or 33 (6).
3. Unless before the commencement date an order has been made in respect of the matter under subsection 30 (4), 31 (3) or 33 (6), in dealing with the matter, the Registrar or a committee, as the case may be, shall apply the amendments made by the Protecting Students Act, 2013 to Parts IV, V and VI to the extent possible, but are not required to,
i. return to an earlier stage or repeat earlier steps in dealing with the matter, or
ii. change any determination or decision that was made before the commencement date.
4. Paragraph 3 does not apply for the purposes of section 30.2 and subsections 33 (4.1) and 34 (2).
5. Despite paragraph 3, subsection 26 (4.1) does not apply in the case of explanations or representations that were submitted under clause 26 (3) (b) before the commencement date.
6. Despite paragraph 3, section 26.2 does not apply to the matter.
7. Section 45.1 applies to the matter, unless before the commencement date an order has been made in respect of the matter under subsection 30 (4), 31 (3) or 33 (6).
Register
(3) For the purposes of clauses 23 (2) (b), (b.1) and (d.1), the register is not required to contain the following information, other than such information that the register was required to contain before the commencement date:
1. Terms, conditions or limitations imposed on a certificate before the commencement date.
2. Restrictions imposed on a member's eligibility to teach before the commencement date.
3. Information about criminal proceedings that was provided to the Registrar before the commencement date.
Same
(4) Clause 23 (2.2) (a) applies for the purposes of any terms, conditions or limitations imposed on a certificate that the register contained on the commencement date.
Section 30.2 re sexual abuse
(5) Section 30.2 applies to an act of professional misconduct that involved sexual abuse of a student, as described in paragraph 1 of subsection 30.2 (2), that occurred before the commencement date, if no order has been made in respect of the matter under subsection 30 (4) before the commencement date.
Subsections 33 (4.1) and 34 (2) re application for reinstatement and sexual abuse
(6) Subsections 33 (4.1) and 34 (2) apply to an act of professional misconduct that involved sexual abuse of a student that occurred before the commencement date, if no order has been made in respect of the matter under subsection 30 (4) before the commencement date.
Same
(7) Subsections (5) and (6) apply whether the complaint was made before or after the commencement date.
Same
(8) For the purposes of the meaning of sexual abuse of a student in subsections (5) and (6), subsections 1 (2) to (5) apply.
Subsection 35 (5) re stay of certain orders pending appeal
(9) Subsection 35 (5) does not apply to an order made before the commencement date.
Sections 43.2, 43.3 and 43.4 re employer reports
(10) The amendments made by the Protecting Students Act, 2013 to sections 43.2, 43.3 and 43.4 do not apply to a report made under those sections before the commencement date.
Subsection 47 (2) re provision of information
(11) For the purposes of subsection 47 (2), if before the commencement date the College required a person or body to provide information, and did not specify a time period within which the information must be provided, the person or body shall do so within 30 days of the commencement date.
Commencement
30. This Act comes into force on the day it receives Royal Assent.
Short title
31. The short title of this Act is the Protecting Students Act, 2013.
EXPLANATORY NOTE
The Bill amends the Ontario College of Teachers Act, 1996. The principal amendments made by the Bill include the following:
1. Amendments to section 1 include the addition of the definitions of "professional misconduct" and "sexual misconduct". The amendments also set out the meaning of "student" for the purposes of the definitions of "sexual abuse" and "sexual misconduct".
2. The new subsection 9 (4) requires the Council to ensure that either the Registrar or a deputy registrar is fluent in English and French.
3. The new subsection 17 (2.1) provides that a panel of a committee that hears or reviews a matter relating to a principal or vice-principal must include at least one person who is or was a principal or vice-principal.
4. Section 23 is amended to require that the register include additional information, including information about disciplinary matters, and sets out requirements and restrictions relating to the removal of information.
5. Various amendments are made to Part IV (Investigation Committee) of the Act, including the following:
i. Subsection 26 (2) is amended to provide for additional circumstances in which the Investigation Committee shall refuse to consider and investigate a complaint, including where a complaint is manifestly without substance or made for an improper purpose.
ii. The new subsection 26 (2.1) sets out the process that applies where a complaint is made by a secretary of a school board under section 277.40 or 277.40.5 of the Education Act.
iii. The new section 26.1 establishes an investigation stage complaint resolution process. The Registrar may refer the College and a member to that process in certain circumstances.
iv. The new section 26.2 sets out a timeline for the disposal of a complaint at the investigation stage.
6. Various amendments are made to Part V (Discipline and Fitness to Practise) of the Act, including the following:
i. The new section 29.1 requires the Registrar to refer a complaint to the Executive Committee if the Registrar believes that there was likely a duty on the complainant or any other person to report the matter under the Child and Family Services Act. The Executive Committee is required to consider whether or not to direct the Discipline Committee to hear and determine the matter. If the Executive Committee makes such a direction, it is also required to consider whether or not to make an interim order in relation to the member's certificate of qualification and registration.
ii. The new section 30.1 establishes a disciplinary stage complaint resolution process. The Discipline Committee or, if authorized by the Discipline Committee, the Registrar, may refer the College and a member to that process in certain circumstances.
iii. The new section 30.2 provides that where the Discipline Committee finds a member guilty of committing sexual abuse of a student that consisted of a specified act, or a prohibited act involving child pornography, the Committee is required to order that the member's certificate be revoked and that the member be reprimanded.
iv. The new section 32.1 sets out the circumstances in which the Discipline Committee is authorized to make an order banning the publication of information disclosed during a hearing, and the circumstances in which the Committee is required to make such an order.
7. Part VI (Reinstatement and Variation) of the Act is amended. The new subsections 33 (4.1) and 34 (2) provide that where a person's certificate was revoked based on a finding of sexual abuse of a student, sexual misconduct or a prohibited act involving child pornography, the person may not apply for a new certificate, and the Council or Executive Committee may not order that a new certificate be issued to the person, earlier than five years after the revocation.
8. Section 35 is amended to provide that where a member appeals an order directing the Registrar to revoke, suspend or impose terms, conditions or limitations on the member's certificate, in specified circumstances there is to be no stay of the order.
9. The new subsection 36 (2.1) authorizes the Registrar to appoint an investigator in emergency situations.
10. Sections 40, 41 and 42 are amended to provide new authority to make regulations and by-laws that relate to other amendments made to the Act by the Bill.
11. Sections 43.2 and 43.3 are amended to require an employer who makes a report about a member under those sections to provide the member with a copy of the report, and to provide the College with other related information.
12. The new section 45.1 requires the College to publish specified information on its website and in its official publication, including information about decisions of the Discipline Committee.
13. The new section 47.1 requires a designated person or body to report to the College if the person or body suspects that there is a risk that a person is likely to suffer harm inflicted by a member, and believes that urgent disclosure is needed.
14. The new section 63.1 deals with transitional matters that arise in relation to the Bill.