CONTENTS
Tuesday 30 April 1996
Ontario College of Teachers Act, 1995, Bill 31, Mr Snobelen / Loi de 1995 sur l'Ordre des enseignantes et des enseignants de l'Ontario, projet de loi 31, M. Snobelen
Education Quality and Accountability Office Act, 1995, Bill 30, Mr Snobelen / Loi de 1995 sur l'Office de la qualité et de la responsabilité en éducation, projet de loi 30, M. Snobelen
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
Chair / Président: Patten, Richard (Ottawa Centre / -Centre L)
Vice-Chair / Vice-Président: Gerretsen, John
(Kingston and The Islands / Kingston et Les Îles L)
*Agostino, Dominic (Hamilton East / -Est L)
*Ecker, Janet (Durham West / -Ouest PC)
*Gerretsen, John (Kingston and The Islands / Kingston et Les Îles L)
Gravelle, Michael (Port Arthur L)
Johns, Helen (Huron PC)
Jordan, Leo (Lanark-Renfrew PC)
*Laughren, Floyd (Nickel Belt ND)
Munro, Julia (Durham-York PC)
*Newman, Dan (Scarborough Centre / -Centre PC)
*Patten, Richard (Ottawa Centre / -Centre L)
*Pettit, Trevor (Hamilton Mountain PC)
*Preston, Peter L. (Brant-Haldimand PC)
*Smith, Bruce (Middlesex PC)
*Wildman, Bud (Algoma ND)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Miclash, Frank (Kenora L) for Mr Gravelle
Ross, Lillian (Hamilton West / -Ouest PC) for Mrs Johns
Skarica, Toni (Wentworth North / -Nord PC) for Mr Jordan
Clerk / Greffière: Lynn Mellor
Staff / Personnel: Marilyn Leitman, legislative counsel
The committee met at 1534 in room 151.
ONTARIO COLLEGE OF TEACHERS ACT, 1995 / LOI DE 1995 SUR L'ORDRE DES ENSEIGNANTES ET DES ENSEIGNANTS DE L'ONTARIO
Consideration of Bill 31, An Act to establish the Ontario College of Teachers and to make related amendments to certain statutes / Projet de loi 31, Loi créant l'Ordre des enseignantes et des enseignants de l'Ontario et apportant des modifications connexes à certaines lois.
EDUCATION QUALITY AND ACCOUNTABILITY OFFICE ACT, 1995 / LOI DE 1995 SUR L'OFFICE DE LA QUALITÉ ET DE LA RESPONSABILITÉ EN ÉDUCATION
Consideration of Bill 30, An Act to establish the Education Quality and Accountability Office and to amend the Education Act with respect to the Assessment of Academic Achievement / Projet de loi 30, Loi créant l'Office de la qualité et de la responsabilité en éducation et modifiant la Loi sur l'éducation en ce qui concerne l'évaluation du rendement scolaire.
The Vice-Chair (Mr John Gerretsen): I'd like to call the meeting to order.
Mr Bud Wildman (Algoma): First, I'd like to express our thanks, probably on behalf of all three caucuses, to legislative counsel for assistance in preparing amendments.
Having said that, we are sitting today and tomorrow morning. That's it, correct? What happens if we run out of time and we haven't dealt with all clauses?
The Vice-Chair: It's my understanding that there's no order as to what happens with the balance of the clauses that haven't been dealt with. There has not been any agreement reached in the subcommittee report.
Mr Wildman: I was raising that sincerely; I wasn't trying to start an argument here. I just wonder what happens if we don't deal with all the clauses.
The Vice-Chair: I asked the same question. We have four and a half hours.
Mr Wildman: There is the possibility that when it does go back to the House we could go to committee of the whole and deal with clauses in committee of the whole, I suppose.
The Vice-Chair: I suppose that's up to the House leaders, but why don't we go through the process first, see how far we get and deal with it at that time.
Mr Toni Skarica (Wentworth North): Before we start, there apparently was a government motion that was not included in your packages, so perhaps we could tender that right now to the clerk.
The Vice-Chair: Let's deal with the report of the subcommittee. I think it's been handed out to everyone. Are there any questions or comments on it? It's a two-page report, or one and a half pages. Oh, that deals with Bill 34. Where does this fit into Bills 30 and 31?
Clerk of the Committee (Ms Lynn Mellor): It doesn't; the subcommittee met on it this morning.
The Vice-Chair: Okay, well, it's the same subcommittee of this committee, so before we deal with 30 and 31, is there any question or comment with respect to the report from the subcommittee dealing with the Bill 34 report?
Mr Wildman: I just had one. We were asked to propose names of individuals or groups that might be invited to make appearances when the committee holds hearings. Are we assuming that representatives of public and separate boards and representatives of all of the affiliates of OTF will expect to have the opportunity to make presentations at each of the hearings, besides the other people we're proposing?
The Vice-Chair: There's no direction given with respect to that. It's my understanding that the subcommittee, during the week it travels, is going to be in the four cities as indicated for a maximum of one day, and if each presentation is going to be half an hour, there is a maximum number of groups that can be heard on that day.
Mr Wildman: That's why I raised it, because obviously we want to have representation from the community and from parents and so on, but the boards and the affiliates are also going to want to be heard, so I'm just wondering how we square this circle.
Mr Skarica: I was going to suggest we maybe discuss this at 6 o'clock, just the subcommittee members --
Mr Wildman: Sure.
Mr Skarica: -- because otherwise we won't get to 31. We could do it that way.
The Vice-Chair: Are there any further comments with respect to the report of the subcommittee on 34?
Mr Dominic Agostino (Hamilton East): The dates of the cities and that sort of thing will be available by the end of today?
The Vice-Chair: It will depend on travel arrangements, but it will be the four cities, Sault Ste Marie --
Mr Agostino: We don't know, for example, Tuesday we'll be in Sudbury or Sault Ste Marie or Wednesday we'll be in Thunder Bay.
The Vice-Chair: We don't know that today, but I imagine we'll know that by the end of the week, once the travel arrangements have been sorted out. Anyone else?
Could I have a motion, then, approving the report of the subcommittee? Would somebody like to move it? Mrs Ecker. No seconder needed.
All in favour of the report of the subcommittee? Opposed? Carried.
Mr Wildman: I have one other on Bill 31, which I expect we will deal with first, before Bill 30. Correct?
There are some substantive amendments that have been proposed that, if they carry, will be of significance. If they are defeated, then there will be other amendments that would be put instead by various members of various caucuses. I'm wondering, for instance, if we could deal with section 25 rather than going in sequence, because if the amendments for that section carry, then it has significant effects for a lot of other sections. If they don't carry, then there are backup amendments for other sections, and I'm just wondering how we would like to proceed on that.
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The Vice-Chair: If you want to proceed that way, I believe we need unanimous consent for that. Do you have a list of the major amendments that you wanted to look at first, Mr Wildman?
Mr Wildman: Obviously the amendments to section 25 are significant.
The Vice-Chair: Does the committee have any objection to dealing with the amendments under section 25 first?
Mr Skarica: My own preference is to go in order and to spend more time on the substantive amendments.
The Vice-Chair: Do we have unanimous consent? No. We'll deal with it on a clause-by-clause basis then.
Mr Richard Patten (Ottawa Centre): May I just comment? If we find we are running out of time, though, then I would ask the government side if they'd consider dealing with the more substantive issues that are remaining so that we might address those to take that under consideration.
Mr Skarica: Maybe we'll see where we're at at 6 o'clock, and we can discuss it.
The Vice-Chair: Is there agreement that we deal with Bill 31 first?
Clerk of the Committee: The motion of the subcommittee --
The Vice-Chair: The rules of the subcommittee, all right.
Dealing with Bill 31 then first, dealing with section 1, are there any comments? If not, shall section 1 carry? Carried.
Section 2, comments?
Mr Patten: Under subsection 3(1), under the college objects, I move that paragraph 1 of subsection 3 --
The Vice-Chair: This is section 2 we're dealing with.
Mr Patten: I'm ahead of myself. Go ahead.
The Vice-Chair: Any comments on section 2? Hearing none, shall section 2 carry? Carried.
Section 3, Mr Patten.
Mr Patten: Under subsection 3(1), paragraph 1, I move that paragraph 1 of subsection 3(1) of the bill be struck out and the following substituted:
"1. To regulate the profession of teaching, including the teaching of students who are deaf, hard of hearing or who have other special needs and to govern its members."
I think it's self-explanatory. The representations we had were taken into consideration, special needs and those who have hearing impediments. It makes it quite important that they be identified.
Mr Wildman: In the interest of time, we will say we agree to it as read.
Mr Skarica: I don't believe that amendment is necessary and the government is proposing to leave the section as is.
Mr Wildman: The question is, is it harmful?
The Vice-Chair: That will remain unanswered.
Mr Wildman: As far as the government is concerned. The government has said it's unnecessary; is it harmful?
Mr Agostino: Can I ask a question? What would be the nature of the opposition to including that in there?
Mr Skarica: From a drafting perspective, you're identifying some people with special needs but not all. We just don't think it's necessary, and it doesn't include all people who have special needs.
Mr Agostino: Oh, people who have other special needs, which is open-ended.
The Vice-Chair: Any further comment on Mr Patten's amendment? All those in favour of the amendment? Opposed? Lost.
Mr Patten: I move that section 3 of the bill be amended by adding the following subsection:
"Same
"(1.1) In carrying out its objects, the college shall have regard to the needs of Ontario's separate school system and the aboriginal community and its schools."
The Vice-Chair: Any comments?
Mr Wildman: Same vote.
The Vice-Chair: Same vote, or is the government going to agree with this? No? The amendment is lost.
Any further comments on section 3?
Mr Agostino: Are we still on the same amendment?
The Vice-Chair: No, we've dealt with the amendment.
Mr Agostino: Do we get to explain why we moved that? Mr Patten may have said it and I missed it.
The Vice-Chair: I'm sorry. I asked for comments and I didn't hear any, so I called the vote. Any further amendments to section 3?
Mr Skarica: Yes, to paragraph 5 of subsection 3(1).
I move that the English version of paragraph 5 of subsection 3(1) of the bill be amended by striking out "registration and qualification" at the end and substituting "qualification and registration."
Mr Agostino: Can I have an explanation of why that was done? What's the purpose?
Mr Skarica: It's just a housekeeping matter.
Mr Agostino: What was wrong with the way it was?
Mr Skarica: The term "qualification and registration" is consistent with other references in the bill and with the name of the certificate.
The Vice-Chair: Any further comments on that amendment? Shall the amendment carry? Carried.
Any further amendments to section 3?
Mr Skarica: The government has two more, dealing with paragraph 8 of subsection 3(1).
I move that paragraph 8 of subsection 3(1) of the bill be struck out and the following substituted:
"8. To receive and investigate complaints against members of the college and to deal with discipline and fitness to practise issues."
The Vice-Chair: Any comments? Is everyone agreed to that amendment? Agreed.
Mr Skarica: The government considers that paragraph 10 of subsection 3(1) is inconsistent with the purposes of the act to regulate.
I move that paragraph 10 of subsection 3(1) of the bill be amended by striking out "promote the profession of teaching and."
The Vice-Chair: Any comments?
Mr Wildman: You're saying that the purpose of the college is not to promote the profession of teaching, that it's simply to communicate with the public?
Mr Skarica: Yes, as requested by the teachers' federation, as a matter of fact.
Mrs Janet Ecker (Durham West): Just to address Mr Wildman's point, the purpose of the professional association or the union is to promote the interests of the profession. The purpose of the college is to speak out on behalf of the public interest. It was inconsistent, I believe, with the mandate of the college to have "promote the profession" in the objects.
The Vice-Chair: Any further comments? Shall the amendment carry? Carried.
Are there any further amendments to section 3? If not, shall section 3, as amended, carry? Carried.
Section 4.
Mr Wildman: I move that subsection 4(2) of the bill be struck out and the following substituted:
"Composition of council
"(2) The council shall be composed of,
"(a) 21 members who are members of the college and who are elected by the members of the college in accordance with the regulations; and
"(b) 18 persons who are appointed by the Lieutenant Government in Council in accordance with the regulations."
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The reason for this is that a number of representatives of teachers' federations appeared before the committee and pointed to the College of Nurses as an example that should be emulated in the bill. These are the numbers from the College of Nurses.
Mr Skarica: The proportion of college members to lay members is consistent with proportions found in each of the 24 colleges covered by Ontario's Regulated Health Professions Act. As examples, the nurses elected 21 and appointed 18; physicians and surgeons elected 19 and appointed 14. I have lots of other examples. The government feels that the current membership of 17 and 14 in 4(2) is consistent with the proportions of elected members to appointed members in the other colleges.
The Vice-Chair: Any further comments? All those in favour of the amendment? Opposed? The amendment is lost.
Any further amendments to section 4? No? Shall section 4 carry? Carried.
Mrs Ecker: Did the Liberals withdraw their motion?
Mr Patten: We withdrew it.
The Vice-Chair: Section 5.
Are there any amendments, any comments with respect to section 5, as written in the text of the bill? Shall section 5 carry? Carried.
Mr Miclash.
Mr Frank Miclash (Kenora): I move that the bill be amended by adding the following section:
"Quorum
"5.1 A majority of the members of the council constitutes a quorum."
The Vice-Chair: Any comments, Mr Miclash?
Mr Miclash: It's straightforward.
Mr Skarica: Apparently there's a provision in the bylaws dealing with that section. The government would propose to leave it in the bylaws.
Mr Floyd Laughren (Nickel Belt): I guess a majority of the members, if we don't put this in, would not constitute a quorum in the act itself.
Mr Skarica: Apparently that's addressed in the bylaws. I don't know what the numbers are.
Mr Laughren: I was referring to the legislation.
Mr Skarica: I've said my piece.
The Vice-Chair: Any further comments?
Mrs Ecker: I think issues like quorum are more properly addressed and frequently dealt with by a college within bylaws as opposed to putting them into legislation.
The Vice-Chair: Are there any further comments with respect to the addition of section 5.1? No. Shall section 5.1 carry?
All those in favour? Opposed? It's lost.
Section 6, any comments? Shall section 6 carry? Carried.
Any comments with respect to section 7? Shall section 7 carry? Carried.
Any comments with respect to section 8? Shall section 8 carry? Carried.
Any comments with respect to section 9? Shall section 9 carry? Carried.
Likewise for section 10, any comments? Shall section 10 carry? Carried.
Section 11, comments? Shall section 11 carry? Carried.
Section 12, any comments?
Mr Wildman: I move that clause 12(1)(c) of the bill be amended by striking out "or bylaw" at the end.
The amendment would strike out or change the possibility of a minister unduly using his or her power to change or revoke a bylaw of the college. A number of people have argued before the committee that this gives the minister too much control over a college which is supposed to be a self-regulating body, and we've just heard the argument vis-à-vis quorum that it should be left to the college to make its own bylaws because this is a self-regulating body, yet in this clause we would have the minister changing the bylaws. If you use the argument that we should leave it to bylaws for the college to be truly self-regulating, then it is a bit of a contradictory argument to say in another clause that the minister should be able to change the bylaws. You're either self-regulating with regard to bylaws or you're not.
Mr Skarica: It's a valid concern. The government would be content to vote for that change.
The Vice-Chair: Are there any further comments? If not, all those in favour of the amendment to 12(1)(c)?
Carried unanimously. Let the record show it.
There are further amendments with respect to section 12.
Mr Wildman: I move that subsection 12(4) of the bill be struck out.
The Vice-Chair: Agreed? Agreed. In light of the last amendment, it follows. How about subsection 12(5)?
Mr Wildman: I move that subsection 12(5) of the bill be amended by striking out "subsections (3) and (4) do" and substituting "subsection (3) does."
The Vice-Chair: In other words, you're taking out (4), which was just deleted.
Mr Wildman: Yes.
The Vice-Chair: Is that agreed? Agreed.
Next, subsection 12(6).
Mr Wildman: Again this follows the previous amendment to clean it up.
I move that subsection 12(6) of the bill be amended by striking out "and each order made under subsection (4)."
The Vice-Chair: Any comments? Agreed? Carried.
Mr Wildman: Subsection 12(7) is similar.
I move that subsection 12(7) of the bill be amended by striking out "or order made under subsection (4)."
The Vice-Chair: Any comments? Does everyone agree? Agreed.
Shall section 12, as amended, carry? Carried.
Section 13, any comments? Shall it carry? Carried.
Section 14.
Mr Skarica: The government moves that subsection 14(5) of the bill be amended by striking out "misconduct or incompetence" in the fourth and fifth lines and substituting "misconduct, incompetence or incapacity."
That is a housekeeping matter that is going to deal with fitness to practise later on.
Mr Wildman: We agree. We had exactly the same amendment.
The Vice-Chair: Any further comments with respect to the amendment to subsection 14(5)? Do all three carry? Carried.
Now the Liberal motion. Is it the same? They're all the same.
Shall section 14, as amended, carry? Carried.
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Mr Peter L. Preston (Brant-Haldimand): What happens to those motions that were made by the other parties? We haven't dealt with them. Have you withdrawn them? Is that in effect what happens?
Interjection: They're redundant. We all agreed.
Mr Preston: I know they're redundant, but you're just not putting them on the floor?
Interjection: That's right.
The Vice-Chair: They haven't been officially moved on the floor, so they don't become part of the process.
Section 15, any comments?
Mr Skarica: Yes. The government moves that subsection 15(1) of the bill be amended by adding the following paragraph:
"5. Fitness to practice committee"
The Liberals and the NDP have the same motion.
The Vice-Chair: Any comments? Shall the amendment carry? Carried. Shall the section, as amended, carry? Carried.
Interjection: Subsection 15(1).
The Vice-Chair: Okay, 15(1), paragraph 6.
Mr Preston: Can I suggest this particular motion be deferred until tomorrow?
Mr Skarica: We'd like to discuss it. We just got the amendments today, so we'd like to discuss it, if that's all right.
Mr Patten: Okay, we'll defer this one till tomorrow.
Mr Preston: Subsection 15(1), paragraph 6.
The Vice-Chair: So section 15 will be deferred until tomorrow.
Mr Skarica: Just that subsection, 15(1), paragraph 6.
The Vice-Chair: Any further amendments to 15?
Interjection: Subsection 15(2.1).
The Vice-Chair: Comments?
Mr Preston: Can we not leave all of 15 so we can pass 15 in total tomorrow?
Mr Skarica: We can deal with this.
The Vice-Chair: Are you moving 15(2.1)?
Mr Patten: Subsection 15(2.1):
"Quorum
"A majority of the members of a committee constitutes a quorum."
Simple and straightforward.
Mr Skarica: Again, we'd like the college to deal with this through their own bylaws.
The Vice-Chair: Any further comments? Shall the amendment, 15(2.1), carry? All those in favour raise your hands, please. Opposed? Lost.
Subsection 15(2.2).
Mr Preston: Can I ask that we defer that until tomorrow?
Interjection: Okay, what else have we got? Section 15.1?
Interjection: Same thing there.
The Vice-Chair: Okay. Any comments with respect to section 16?
Mr Skarica: The government wishes to make a motion to have the following section at the end of part II:
"Majority on committees
"16.1(1) A majority of the persons appointed or elected to a committee mentioned in subsection 15(1) shall be persons elected to the council under clause 4(2)(a).
"Panels
"(2) A panel of a committee mentioned in subsection 15(1) that consists of more than one person shall include at least one person elected to the council under clause 4(2)(a) and at least one person appointed to the council under clause 4(2)(b)."
This ensures that the majority of people elected to the executive committees are elected members of the college. It ensures that hearing panels contain at least one person elected by the members of the college and at least one person appointed by the Lieutenant Governor in Council.
Mr Wildman: I don't have any particular objection to this. I'm just curious as to why the government would think this kind of amendment is required to be incorporated in the body of the bill when they're arguing that questions of quorum should be matters of bylaws for a self-regulating college. It's passing strange.
Mrs Ecker: As I understand the section, subject to correction by the parliamentary assistant, what we are attempting to do is to ensure that teachers understand that there is a majority of their members on some of these very significant committees. It's an attempt to answer to some of the concerns we heard from some of the presenters at the hearings.
Mr Wildman: That's why I don't have any objection to it.
Mr Skarica: Basically, nothing can happen to any teacher unless a majority of their own elected members decide to do something to them.
The Vice-Chair: All right. Any further comments with respect to the addition of 16.1? All in favour? Carried.
Okay, then the section as amended, which includes --
Mrs Ecker: No, section 16.1 follows section 16.
The Vice-Chair: Yes, we haven't dealt with 16 yet. Any comments with respect to section 16 itself? If not, shall it carry? Carried.
Section 17.
Mr Patten: I move that subsection 17(3) of the bill be amended by adding "or the fitness to practise committee" at the end.
The Vice-Chair: Mr Patten, any comments?
Mr Patten: It's just to keep it compatible with the legislation.
Mr Wildman: We have a similar amendment to the Liberal amendment. We would support the Liberal amendment, since it's the same as ours, but I understand there is a government amendment that has just been tabled which is somewhat different, and I wonder if the government intends to accept the amendment as proposed by the opposition or if they would prefer to move with their own wording, and if so, what is the reason?
Mr Skarica: If I might just have a moment.
Mr Patten: Can I ask a question? The package is different from what we just received as we arrived, than what we got this morning. Is that correct?
Clerk of the Committee: What was copied this morning, there was one of the Liberal caucus amendments that was withdrawn. Are you working from the manila folder or from your binder?
Mr Patten: Now I'm working with both, because what's in my binder, I don't have what I'm finding in the manila folder.
Clerk of the Committee: The manila folder, the only addition is was what was handed out, the 17(3) of the government package. That's the only addition from what you received this morning, what each caucus received. If you copied them for your caucuses, the packages that you received this morning, there was one amendment that was withdrawn. There may be something out of order.
Mr Patten: It may have been our mistake. It's a different set, so --
Mr Skarica: The government has a similar amendment to 17(3), the same words, "or the fitness to practise committee," but we add, "and that was not reinstated under section 30 or 31." Legislative counsel has drafted it that way because 30 deals with discipline committees and we're trying to separate discipline committees and fitness to practise committees. So that basically gives the same intent but keeps that distinction that I think all parties want.
The Vice-Chair: Are you going to withdraw your amendment?
Mr Patten: Yes, I'm prepared to withdraw mine in favour of this amendment.
The Vice-Chair: Okay, so that amendment's withdrawn. Mr Wildman, you have a similar amendment as well. Are you withdrawing that one too?
Mr Wildman: I'm just looking at it. Just a moment.
Mr Skarica: I think, Mr Wildman, somebody who's been disciplined at a discipline committee, we don't want them to move into the fitness to practise committee, and that alleviates my concern.
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Mr Wildman: All right. I accept that.
The Vice-Chair: Are you then moving 17(3), Mr Skarica?
Mr Skarica: Yes.
The Vice-Chair: Which is the government amendment to 17(3) that includes the words "that was not reinstated under section 30 or 31."
Is there any further comment on that? If not, shall it carry? Carried.
Any further amendments or comments with respect to section 17? Shall section 17 carry, as amended? Carried.
Shall section 18 carry? Carried.
Any comments with respect to section 19? Shall section 19 carry? Carried.
Section 20.
Mr Skarica: The government moves that section 20 of the bill be amended by adding the following subsections:
"Same
"(4.1) Directions may be given under subsection (4) to the applicant, to the registrar or to both, either before or after the committee conducts the review.
"Same
"(4.2) Directions that may be given to the registrar under subsection (4) include but are not limited to directions to do one or more of the following:
"1. Remove specified terms, conditions or limitations on a certificate of qualification and registration issued under section 19.
"2. Impose specified terms, conditions or limitations on a certificate of qualification and registration issued under section 19.
"3. Revoke a certificate of qualification and registration issued under section 19.
"4. Vary or eliminate a period fixed under subsection 19(7)."
The explanation for this amendment is that it provides the registration appeals committee with the authority to undo an action of the registrar when the applicant appeals to the registration appeals committee after the 60-day appeal period.
The Vice-Chair: Any comments? Shall the government amendment to 20(4.1) and (4.2) carry? Carried.
Any further amendments to section 20?
Mr Wildman: Subsection 20(6). We're opposed to this subsection. I move that subsection 20(6) of the bill be struck out.
The Vice-Chair: Can you explain, Mr Wildman?
Mr Wildman: If you look at 20(6) as it is set out in the bill on page 8, it says:
"(6) Except as provided by section 19 and this section, the registration appeals committee need not hold a hearing or afford any person an opportunity for a hearing or an opportunity to make oral or written submissions before making a decision or giving a direction under this section."
In our view, that is a violation of the natural rules of justice. It violates also, as far as we're concerned, the principles of administrative law. It's denying a person the right to a written or oral hearing before making a decision or giving a direction. It just doesn't seem appropriate in our system. Surely if a person has been accused of something, that person should have the opportunity to make a presentation to defend herself or himself prior to a decision being made. For that reason, we're opposed to this and would want it to be removed from the bill.
The Vice-Chair: Any further comments?
Mr Laughren: It's more of a question. Maybe I'm missing something here because I haven't been at every committee hearing and so forth, but I'd sure like to know why the government feels this section needs to be in the bill. I need help and I look to the Tories for help.
Mr Skarica: I have statistics on the number of teaching applications received from outside Ontario and they're quite large: In 1993 there were over 6,700; before that, in 1992, 7,600; 8,100 in 1991; and 9,100 in 1990.
The appeals committee may, under subsection 20(6), hold a hearing if they wish, but it would be in the government's opinion unduly expensive to have a right of hearing there. There are other provisions in the act that provide procedural safeguards and appeals.
Mr Laughren: I'd be nervous if I was on the receiving end of that and felt that I had every right to an appeal and was told, "No, you don't, and we've got the bill to back us up on it." I'd be nervous.
I know what the parliamentary assistant is saying, but I think you're playing fast and loose, as my colleague from Algoma said, with both natural justice and administrative law. It really bothers me that you're doing this because of the numbers the parliamentary assistant just read out, as opposed to any principle involved or the right of someone to have a hearing. That makes me very nervous, so I don't like this section.
Mr Skarica: It shouldn't make you feel nervous. If you go to section 32, a party can then appeal to Divisional Court --
Mr Laughren: Section 32?
Mr Skarica: -- from any decision made by the registration appeals committee.
Mr Patten: That's even more expensive.
Mr Skarica: We're trying to minimize costs when you have those types of applications, and anybody who feels aggrieved can apply through section 32. Other acts have it; the Architects Act has a similar provision.
Mr Laughren: Turn it over to the lawyers.
Mr Patten: It seems to me there's due process and there's a procedure for administratively dealing with numerous applications, and I think we're mixing up the right of people who may challenge, for whatever reason, that they qualify to be licensed, let's say, in Ontario. I think we're mixing two different things. There's an administrative problem, granted, by an in-flow of a lot of applicants, I agree, but that should not in any way take away the right, and if that right of appeal spills over into other categories for an existing licensee, then it seems to me it's not worth the effort and it shouldn't be in here.
Mr Wildman: I have similar concerns. I understand what the parliamentary assistant has said, but essentially what he's saying is, because of the potential cost and time involved in affording individuals the right of a hearing, that will not necessarily be provided, and if the individual feels aggrieved, that individual then can appeal to the courts.
By appealing to the Divisional Court, that essentially is saying that the cost will be put on the individual. If they don't feel that they've been treated fairly, they then will have to hire a lawyer, or I suppose their federation could hire a lawyer on their behalf, and would have to go to court and pay the costs involved in that. I suppose it would be open if they won the case that the courts might award costs, but really it doesn't seem appropriate that we should be saying you shouldn't have a hearing here and if you're not happy with that, you can appeal to the courts.
Mr Skarica: I might add, Mr Wildman, this is not a new power. The minister right now has the same authority and we're just transferring it over to the teachers.
Mr Wildman: Exactly, but I think what we're attempting to do is serve the profession in setting up a self-regulating body here, and since many of the representatives of the profession who appeared before the committee raised objections to this provision, I think we should be responding. After all, we are interested in their self-regulation.
Mr Agostino: I just want some advice. The cost would be at both ends. If the appeal went forward to the court level, as the parliamentary assistant mentioned, there's a cost obviously at the federation of teachers' end; there's also a cost at the government end on the other side to defend that. When you compare the cost factor -- and Mr Skarica or a crown attorney would probably know better the costs involved, but I would think they'd be much more significant at that stage than they would be with the mechanism at this stage here. So if cost appears to be the driving concern here and there's no other principle involved, then I would suggest this option that the government is suggesting is a much more expensive option than just leaving it or having the appeal at that level there.
The Vice-Chair: Any further comments? Hearing none, I'm going to call the vote on the amendment. All in favour of the amendment? Opposed? The amendment is lost.
Any further amendments to section 20?
All those in favour of section 20, as amended? Opposed? Carried.
Section 21, any comments?
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Mr Wildman: It's exactly the same argument. We're opposed to 21(6) for exactly the same reasons we were opposed to 20(6), the lack of a provision for a hearing for an individual who may find action being taken against him or her. I don't think we need to go through the argument again. We've put it; it's the same issue.
The Vice-Chair: Any further comments?
Mrs Julia Munro (Durham-York): Perhaps we just need to look at "need not hold." It doesn't mean "can't."
Mr Wildman: I understand that, but the problem is, by saying "need not hold" you're leaving the option open that an individual who has had a complaint brought against him might not have the opportunity of a hearing. They might, but they might not. For that reason, we're opposed to it. We think it's only fair, it's basic to our democratic system that an individual should have the opportunity to defend herself or himself.
Mrs Munro: But this is referring to registration.
Mr Laughren: Yes.
The Vice-Chair: Any further comments? All those in favour of the amendment to 21(6)? Opposed? The amendment is lost.
Any further comments with respect to section 21? Shall section 21 carry? All in favour of section 21? Opposed? Carried.
Section 22, any comments?
Mr Patten: I move that clause 22(2)(c) be amended by striking out "revocation, cancellation and suspension" in the first and second lines and substituting "revocation and cancellation." In other words, take out "suspension."
The rationale for that is simply that when something is in suspension, it may be due to an investigation that is in progress or there may be a terminal period of time declared by the registrar, and suspension may show on the record when in fact the individual may have been cleared of some kind of allegation. Suspension is a temporary state and, as such, I believe it should not be there.
Mr Skarica: I don't really understand the argument but if the college feels that's appropriate, there's a proviso there, 22(2), "subject to any bylaw." They could make a bylaw for the rare circumstances where a suspension shouldn't be on the register.
The Vice-Chair: Any further comment? Shall the amendment carry? Opposed? The amendment is lost.
Any further amendments to 22?
Mr Patten: I move that clauses 22(2)(a) and (e) of the bill be struck out and the following substituted:
"(a) each member's name and the class of certificate of qualification and registration and any certificate of additional qualifications that the member holds;
"(e) the member's place of employment."
In other words, we limit the nature of the information that would be on the record.
Mr Skarica: Frankly, I don't have really that much of a problem with (a), but (e), "the member's place of employment," would replace "information that the bylaws prescribe as information to be kept in the register." Again, that leaves it up to the college or the teachers themselves to determine what information they want.
Mr Patten: Well, (e) goes much further. The recommendation is specific as to what information it is.
Mr Wildman: Can I make a suggestion, Mr Chairman?
The Vice-Chair: Yes, Mr Wildman.
Mr Wildman: That we split the vote on (a) and (e).
The Vice-Chair: Is it agreed that the vote be split? Shall we deal with clause (a) first?
Mr Skarica: Yes.
The Vice-Chair: Is there any further comment with respect to clause 22(2)(a)? Shall it carry? Carried.
Now we're dealing with clause (e). Any further comments on that? All those in favour of the amendment? Opposed? That amendment is lost. Clause 22(2)(a) has carried and (e) has lost.
Any further amendments to section 22? Seeing and hearing none, shall 22, as amended, carry? All those in favour of 22, as amended? Opposed? It's carried as amended.
Any comment with respect to section 23? Shall section 23 carry? Section 23 is carried.
Section 24.
Mr Skarica: The government moves that the current subsection 24(3) be struck out and be replaced by the following:
"No person who is a member of the discipline committee or the fitness to practise committee shall be a member of the investigation committee."
That's consistent with, I think, all three parties' desire to separate the discipline committee.
The Vice-Chair: Agreed? Agreed.
Any further comments with respect to 24? All agreed that it should carry, as amended? Carried.
Section 25.
Mr Wildman: I need your assistance, Chair. If you want me to read the whole thing into the record, I can do so. It's long, but --
The Vice-Chair: I'm informed that if it's not read into the record it's not part of the record, so if you want it to be part of the record, you have to read it in.
Mr Wildman: I'm sure it's going to carry, so it will be part of the bill.
I move that subsection 25(1) of the bill be struck out and the following substituted:
"Investigation of complaints
"25(1) The investigation committee shall consider and investigate a complaint regarding the conduct or actions of a member of the college if the complaint,
"(a) is made by five members of the college; or
"(b) is made by any person and the complaint involves an offence under the Criminal Code (Canada) for which the member of the college has been convicted.
"Investigation, disciplinary action
"(1.1) The investigation committee may commence an investigation of a report of disciplinary action by a school board made under subsection 44(3),
"(a) upon receiving a report from the school board under subsection 44(3.2) that the grievance, or any other procedure by which the disciplinary action may be challenged, has been completed;
"(b) upon receiving a report from the school board under subsection 44(3.3) that the time in which a grievance or any other procedure by which the disciplinary action may be challenged has expired and no grievance or other procedure has been commenced;
"(c) Upon the expiry of two years after the disciplinary action was reported to the college, if no report under subsection 44(3.2) or 44(3.3) has been received in that time.
"Investigation, resignations
"(1.2) The investigation committee may commence an investigation of a report of a resignation made by a school board made under subsection 44(3.1)."
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The reason for this amendment is essentially to follow the example of the British Columbia college, which we had described to us by members of that college at the beginning of our hearings and about which many members of the teachers' federations who appeared before the committee made comment. In other words, it follows the procedure there, in British Columbia, where school boards will deal with complaints first and they will inform the college. As is indicated, after the school board has finished the whole process, and grievances and so on are completed, then the college would determine whether or not to act with regard to the lifting of a certificate.
The exceptions in British Columbia are as set out in this proposed amendment: If there were complaints from five members of the college about a member of the college -- in other words, complaints from five other teachers about a teacher -- the college could act immediately; or in the case of a criminal conviction the college could act immediately -- or does act immediately, I understand, in British Columbia -- to lift a certificate. They wouldn't have to wait.
The one exception to the British Columbia model that is proposed in my amendment is the provision for a two-year time frame. The college could begin an investigation if it hasn't received any information about the completion of the matter by the school board within two years after the board has informed the college of the complaint. The reason for that difference is that there were objections raised before the committee that if you left it solely to the boards, it might drag out very long and it might take four or five years, which would seem unreasonable. For that reason, we have the provision for a two-year period.
Also, we have the additional provision which permits the college to investigate the resignation of a member of the college. The reason for this is that we had put before us in the hearings the suggestion that in some cases school boards don't take disciplinary action in response to a complaint against a teacher, that sometimes they simply persuade the teacher to resign rather than go through the whole difficult process of discipline. The problem with that is that if it were a serious matter, you then would still have a teacher who had no blemish on his or her record and would still have a certificate, who then could go to another board and apply for a position and get a job and perhaps repeat the misconduct that was alleged in the first case.
This would try to get around that problem of a school board that might try to sweep the matter under the rug and ask a member to resign rather than go through the disciplinary process. In this case, the college could investigate the circumstances around a resignation if the college suspected that it was not simply a voluntary resignation but one that was prompted by a board making a deal with a teacher to leave its employ rather than deal with discipline.
Mr Skarica: The government's response is that I'm informed that 75% of the complaints may well not be able to be investigated, given the proposed amendment. My impression from reading it is that it's unwieldy and unworkable. From my own experience as a crown attorney, section 25 really reads very similarly to sections of the Criminal Code where a criminal prosecution can be initiated by a single member of the public. In the Criminal Code, even though you can be arrested and lose your freedom in addition to your livelihood, there isn't the protection there is here, in subsection (2), where you can vet out frivolous and vexatious complaints. Also, section 25 is consistent with and virtually the same as the regulation in the current Teaching Profession Act. As well, subsection 25(1) of the duties investigation committee is consistent with section 20 of the British Columbia Teaching Profession Act. My response is that the proposed amendment is unwieldy and unworkable.
Mr Wildman: My only response to that is, if it's so unwieldy and unworkable, how come it works in British Columbia? Why would the government, and the implementation committee, for that matter, have pointed out to British Columbia, as well as Scotland, as one of the examples of a self-regulating college that they wanted to emulate?
Mr Preston: Everything could be improved.
Mr Wildman: Exactly. That's what we're attempting to do here by moving this amendment, to improve your bill.
The Vice-Chair: Any further comment? Shall the amendment carry? All those in favour? Opposed? The amendment's lost.
Mr Skarica: The government moves to amend clause 25(2)(a). I move that the bill be amended by striking out "misconduct or incompetence" in the second line and substituting "misconduct, incompetence or incapacity."
The Vice-Chair: I believe the Liberal and the NDP amendments are the same. Is that correct? The parties agree?
Mr Wildman: While I feel so aggrieved on the defeat of my previous amendment that I'm tempted to vote against this, I will support it.
The Vice-Chair: Does the amendment carry? Carried. The other two amendments won't be moved.
Mr Wildman: I have an amendment to subsections 25(3), (4) and (7).
I move that clause 25(3)(a) be struck out and the following substituted:
"(a) in the case of a complaint, the complaint has been filed with the registrar in a format prescribed by the bylaws."
I further move that section 25 be amended by,
(a) inserting "or report" after "complaint" in the third line of clause 25(3)(b);
(b) inserting "or report" after "complaint" in the last line of clause 25(3)(c);
(c) inserting "or report" after "complaint" in the first line of subsection 25(4) and in the last line of subsection 25(4).
I further move that subsection 25(7) be struck out and the following substituted:
"Notice
"(7) The registrar shall provide the complainant, if any, and the person who is complained against or who is the subject of the report with a copy of the written decision made by the investigation committee and its reasons for the decision, if any."
This amendment would follow the example as outlined in the BC model. Subsection (7) requires the registrar to provide a written copy of the investigation committee decision, which seems only fair.
The Vice-Chair: It's my information that in light of the fact that your amendment to subsections 25(1), (1.1) and (1.2) were defeated, subsections 25(3), (4) and (7), the amendments you want to make now, are out of order. They can't be supported because --
Mr Wildman: You're absolutely right. I just wanted to get it on the record.
The Vice-Chair: All right. I've ruled them out of order.
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Mr Skarica: Clause 25(5)(a): The government moves that this clause be amended by adding the phrase "or the fitness to practise committee" at the end of that clause, similar to the Liberal and NDP motions.
The Vice-Chair: Is there agreement to that? Agreed. That'll carry, and the other two similar amendments are not moved.
Mr Wildman: I move that clause 25(5(c) of the bill be struck out.
We're opposed to this clause because we don't believe the investigation committee should be able to take disciplinary action. In our view, that's not the role of the investigation committee; it's the role of the disciplinary committee.
Mr Laughren: I'm just wondering why it wouldn't read -- if the government doesn't buy into my colleague's argument, which is hard to believe, but it might not -- that they appear before the investigation committee to provide information or to aid the investigation committee in its investigation, but "to be cautioned or admonished" seems a bit strange to me for the investigation committee.
Mrs Ecker: One of the things it is doing is giving the committee some options, because there may well be circumstances that, in their view, do not merit a full discipline hearing and dragging a teacher or a complainant through that, but there may well be conduct that the professionals on that committee feel is worthy of some action on their part. It gives them flexibility without feeling that the only option they have is to dismiss or to drag it into the discipline process.
Mr Wildman: They don't necessarily have to have a hearing, do they?
Mr Patten: Clause (d), it seems to me, might take that into consideration, Janet: "take such actions as it considers appropriate." It seems to me that would cover your concern.
Mr Skarica: Yes. The reasoning I've been given as to why that is there is that it gives the latitude to the committee to caution or admonish a member if it felt that circumstances warranted a warning rather than a formal, costly tribunal, something that's beneficial to the person being looked at as opposed to harmful.
Mr Wildman: I think it should be read with 25(8) in mind as well. Again, we're finding a situation where this person could be admonished or cautioned without any hearing.
The Vice-Chair: Any further debate on this amendment? All those in favour of the amendment? Against? The amendment is lost.
Mr Wildman: For the same reasons we've said before, I move that subsection 25(8) of the bill be struck out.
Again, this says that there doesn't have to be a hearing, and in our view it violates the principles of natural justice and administrative law. I don't think we need to go into a long discussion on this. It just allows the investigation committee, as it's written now, to make decisions without allowing an individual who has been investigated even to make written or oral presentations.
Mr Skarica: Again, this is not inconsistent with any democratic principle. Under the Criminal Code, the police, when they're investigating, do not need to ever give you an opportunity for a hearing or an opportunity to make oral or written submissions before they lay a charge. It's consistent with the fact that this is just an investigation stage, not a hearing stage.
Mr Wildman: Without prolonging it, I purposely did not refer to the Criminal Code; I referred to administrative law. Surely, if we're talking about the establishment of a self-regulating college, we're not talking about a system which is being set up to police in the same sense as we would talk about suspected situations involving criminal activity. That is still subject to the Criminal Code and would be dealt with by the police.
Mr Skarica: Still, there is a disciplinary committee here, and if you require the investigating committee to hold hearings, you have a duplicated function.
The Vice-Chair: Any further comments? Shall the amendment to subsection 25(8) carry? Those in favour? Opposed? The amendment is lost.
Mr Wildman: Subsections 25(9) and (10) add two subsections.
I move that section 25 of the bill be amended by adding the following subsections:
"Timely disposal
"(9) The investigation committee shall use its best efforts to dispose of a complaint within 120 days of receiving it.
"Same
"(10) If a complaint has not been disposed of within the time specified in subsection (9), the investigation committee shall give a written estimate of the time required to dispose of the complaint to the registrar, the complainant and the person complained against."
This amendment requires the investigation committee to deal with issues in a timely fashion, within 120 days. This is similar to the Regulated Health Professions Act, and the government has repeatedly during our hearings referred to the Regulated Health Professions Act and said that this bill is patterned on it, so it is a glaring omission not to have this included in the bill. Subsection (10) permits the committee to take longer than 120 days if that's necessary, if they give a written estimate of the time required to dispose of the complaint to all parties.
We're trying to be reasonable here. There may be complex issues being investigated that will take longer than 120 days, but in that case the committee should be required to notify everybody and give some indication of how long it's going to take so that an individual member of the college who is being investigated doesn't have an investigation dragging on and on and not have any idea of when it might be completed.
Mr Skarica: I have a question, Mr Wildman. What happens if the committee doesn't comply with the 120-day limit?
Mr Wildman: And if they haven't given an indication of how much longer it might take.
Mr Skarica: Yes. What happens then?
Mr Wildman: Individuals being investigated would have a right to complain to the college, saying that they're not being treated fairly according to the law.
Mr Trevor Pettit (Hamilton Mountain): Are there other time frames with any other bodies that anyone could speak to?
Mr Wildman: The 120 days we got came out of the Regulated Health Professions Act.
Mrs Ecker: I suggest that subject to how fast legislative counsel can write, and I will speak slowly to give her more time, we propose an amendment to subsection (9) -- correct me if I'm doing an incorrect procedure here -- and we would not accept subsection (10).
"Timely disposal
"(9) The investigation committee shall use its best efforts to dispose of a complaint within 120 days of it being filed with the registrar."
That gives it a very clear starting date, that it's official or whatever, because "120 days of receiving it" is vague -- what do you mean by "receiving it" etc? I think the change of wording as legislative counsel has proposed would make it much crisper and very clear and would still capture the meaning of Mr Wildman's motion in subsection (9).
Mr Wildman: I would consider Mrs Ecker's proposed wording for subsection (9) a friendly amendment to that subsection.
The Vice-Chair: This is an amendment to the amendment. Is there any further comment on that?
Mrs Ecker: Is it clear that I'm also proposing to remove subsection (10)?
Mr Wildman: Yes, and for that reason I would ask if the committee would divide the vote on these two subsections.
The Vice-Chair: All right. Is it agreed that the vote be divided? There's agreement to that.
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Mr Bruce Smith (Middlesex): On Mrs Ecker's comment, I wonder whether there's a need at all to address the issue of format by bylaw in terms of the complaint and how it is received.
Mrs Ecker: I believe there is, if I recall. I would take advice from staff on this. There is something previously, in one of the other sections, about the complaint being in writing.
Ms Marilyn Leitman: Yes, it's clause 25(3)(a), "a complaint in a format prescribed by the bylaws."
Mrs Ecker: So there is a way in the bylaws to set the format for how the complaint would come in. That would be my understanding.
The Vice-Chair: Okay, we're dealing with (9) first because it's been agreed that we're going to divide it and that the amendment then reads that "the investigation committee shall use its best efforts to dispose of a complaint within 120 days of it being filed with the registrar."
Is there any further comment on that amendment? Shall it carry? Carried.
Mr Wildman: I want the vote split. I appreciate the suggestion made by Mrs Ecker and supported by the government party, but we still think that if, having used its best efforts, the committee can't meet that 120 days, it is only fair to all parties that the investigation committee be required to give some estimate of the length of time it's going to take beyond 120 days so it can't just sit there and go on and on forever.
The Vice-Chair: Any comments on that?
Mrs Ecker: I think it is asking the investigation committee to do something that may not be possible. I don't know how you would estimate the time required to dispose of a complaint.
There might well be circumstances where things will be delayed because of a particularly complicated case, for example, if you are dealing with some very sensitive issues where people acting as witnesses have some difficulty being there, whatever. There are all kinds of circumstances I could think of that might delay a case despite the best efforts of the investigation committee. There might be delays from the teachers who are alleged to have committed wrongdoing; there might be delays from the persons representing them that might be quite valid for representing the best interests of those teachers.
I think to try and say when it would be done is asking the investigation committee to do something that would be very difficult, if not impossible to do. In certain cases I don't think you would want to rush; you would want justice to pursue accordingly and appropriately as the facts and the circumstances of the case indicate.
Mr Wildman: I would go along with that but I just indicate that most investigative bodies of which I'm aware at the commencement of an investigation have at least a rough idea of how long they think it's going to take. It may end up taking somewhat longer, but in most cases they have some idea.
The Vice-Chair: Any further discussion? Dealing with subsection (10), shall it carry? All in favour? Opposed? That's lost.
Any further amendments to section 25?
Shall section 25, as amended, carry? Carried.
Next we deal with the government amendment with respect to the heading of part V.
Mr Skarica: The government moves that the heading to part V be struck out and the following substituted:
"Discipline and Fitness to Practise"
Mr Patten: I'd like to comment on this because I think throughout the legislation from here on in you'll see all kinds of adjustments. This has been built on the supposition of a discipline hearing, and adjustments go through. My preference would be to have a separate part for the other committee. I'm not so naïve as to think that would fly, but I believe it would be neater, cleaner to have a part for fitness to practise as well as its being a totally separate section.
I think we will be making these minor adjustments all the way through to accommodate something that's been based on one aspect, and in the minds of a lot of people, in the representations we had, this particular point was quite fervently represented. I just wanted to make that point.
The Vice-Chair: Any further comments? Shall the amendment to the title of part V carry? Carried.
Section 26.
Mr Skarica: The government moves that subsection 26(1) of the bill be amended by striking out "13" in the second line and substituting "11."
The amendment requires that the fitness to practise committee be composed of a minimum of five members and that at least one of those members be a public member appointed by the Lieutenant Governor in Council. I imagine it was felt to be unwieldy to have 13, and then five in the next subsection. The government is proposing to have it as 11 and four.
The Vice-Chair: Any comments? Hearing none, all those in favour of the amendment? Opposed? Carried.
Mr Wildman: Carried without enthusiasm.
The Vice-Chair: Any further amendments to section 26?
Mr Skarica: I'm proposing to move, with limited enthusiasm, subsection 26(2), that the bill be amended by striking out "five" in the first line and substituting "four."
Mr Miclash: Same vote.
The Vice-Chair: All right, same vote. Are we agreed on the amendment? Carried.
Mr Patten: I move that section 26 of the bill be amended by adding the following subsection:
"Same
"(3) At least five of the members of the discipline committee shall be elected members."
We're just going on one side of it, and I think it's important to illustrate that we're looking at a balance as we go through this and are identifying that where we number or name or allocate numbers to the appointed, we should also consider the other side.
Mr Skarica: With respect, it's not necessary, because with the number of 11 and with the other amendment, there has to be a majority of elected officials. We would require six on that committee as opposed to five.
The Vice-Chair: Is there any further comment on the amendment?
Mr Wildman: With about as much enthusiasm as the other vote, I agree with Mr Skarica.
The Vice-Chair: You're on the record on that now.
Mr Skarica: That's a first.
The Vice-Chair: Shall the amendment carry? All in favour of the amendment? Opposed? The amendment is lost.
Any further amendments?
Mr Patten: Yes. That would be subsection 26(3) now, wouldn't it?
The Vice-Chair: Don't worry about the numbers.
Mr Patten: All right. I move that section 26 of the bill be amended by adding the following subsection:
"Chair of committee
"The council shall appoint one of the members of the discipline committee as the chair."
The Vice-Chair: Comments?
Mr Patten: It's from within the committee and it just clarifies a procedure that I think is solid.
Mr Skarica: I need a minute to think.
The Vice-Chair: Now you're in trouble.
Mr Wildman: While Mr Skarica is thinking, we've thought and we agree with the amendment.
Mr Skarica: Does anybody have any objection? Does anybody care?
The Vice-Chair: All those in favour of the amendment? Shall the amendment carry? Carried.
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Shall section 26, as amended, carry? All in favour? Carried.
Mr Wildman: Have we dealt with 26.1?
The Vice-Chair: No, we haven't. If it's a new subsection then we deal with the old section first.
Mr Skarica: I move that the following be added to the bill:
"Composition of fitness to practise committee
"26.1(1) The council shall appoint at least five of its members to the fitness to practise committee.
"(2) At least one of the members of the fitness to practise committee shall be a person who is appointed to the council by the Lieutenant Governor in Council."
My understanding is, subsection 26.1(3), the government no longer needs that, so just (1) and (2).
The Vice-Chair: Only subsections (1) and (2) are being moved as an amendment. Any discussion? Any comments?
Mr Patten: Why did you withdraw (3)? Was it redundant?
Mr Skarica: I was told to.
The Vice-Chair: Do you have a comment on (3)?
Mr Wildman: We like (3). I'd like to know why the government has decided to withdraw it.
Mrs Ecker: Subject to any correction here, I believe the reason we have removed that is to give the council in terms of its members in trying to choose who would be on discipline and fitness to practise. A person would not be able to be on one or the other if they had sat in judgement on that same individual. They would have to legally excuse themselves anyway. So it would be redundant to put that in there. It gives them maximum flexibility to be able to have people on discipline or fitness to practise. You couldn't sit on fitness to practise, for example, for teacher A if you were also on a discipline panel and teacher A came before you. You wouldn't be able to sit on that discipline panel anyway but you could still be on the overall committee, if I have that correctly. I see some nods so I --
Mr Laughren: It doesn't deal with the principle of someone being on the discipline committee being a member of the fitness to practise committee, does it? It just says, if I understand it correctly --
Mrs Ecker: What would be the principle that you would be trying to honour?
Mr Laughren: Just that there's a complete separation in principle in my mind between discipline and fitness to practise. In my mind. I'm not suggesting everybody has to follow my mind.
Mrs Ecker: No comment.
Mr Laughren: I thought you were going to start out by saying that the only thing you were worried about was someone directly involved with an individual wouldn't be allowed to serve on the fitness to practise committee if they were a member of the discipline committee, but I see now that's not the case. You're only concerned about -- I'm not saying this very well.
Mrs Ecker: Neither was I.
Mr Laughren: The principle of anybody being on both committees is what was bothering me. And you are saying, "Oh, no, it's only a concern if they're directly involved with the hearing before the committee." That's what I think.
Mrs Ecker: Okay. Because the council of the college would probably wish -- I don't think we want to unduly tie their hands in terms of making decisions as to who can be on appropriate committees, and there may well be circumstances where if you have a restriction like this, especially if the committee assignments might change from time to time on a council, you might have some difficulty if you have in legislation that they can't be on discipline or they can't be on fitness.
I think the key concern here is that you do not wish someone who might know something about a teacher, because of their participation in the fitness to practise committee, that they would be then using that information to the detriment of that teacher if they were also on the actual discipline panel that was sitting in judgement of that teacher.
I think as long as the legal -- not precedent, but that legal restriction is there, and it is there because of -- and Mr Skarica would be able to explain this better than I -- that is already there, so you don't need to make separation for that reason. Having this in there would unduly, I think, tie the hands of the council perhaps if they're trying to make committee assignments.
Mr Skarica: That's exactly right, so I'm told.
The Vice-Chair: You're honest.
Mr Wildman: So this is for administrative convenience that the government is not putting in number (3).
Mr Skarica: Yes, and apparently with a number of francophones it may be a logistic problem there as well with the hearings with reference to that group. I'm not sure exactly how that works, but that may be a problem. So that's one of the reasons I think the government wants to delete that as well.
The Vice-Chair: In any event, only subsections 26.1(1) and (2) are being presented as amendments.
Mr Patten: I'd like to get a reading from counsel. Is there an overriding balance that goes through each committee in terms of elected and appointed? Because by identifying a minimum of one member, at least one member of this committee shall be a person who's appointed by the council, by the Lieutenant Governor -- in other words, the appointed member of the council -- why would that be put in there, and if it is put in there, why would it not also say at least, let's say, for example, two members who are elected from the council shall be on the committee?
Mr Skarica: We know that a majority has to be, so three to two is the most you could have. It would be three to two or four to one, one of those two numbers.
Mr Patten: Yes, but is there a guiding principle for any committees in terms of the balance of elected and appointed?
Mr Skarica: There are in some of the legislation for minimum numbers, but no. For example, if you go back to 26, you have at least 11 on the discipline committee are elected people and -- what do we have? -- four appointed people.
Anyway, so that would be three to two or four to one.
The Vice-Chair: Any further comments?
Mr Smith: I have a comment that will follow, I guess, (1) and (2). That comment -- I may as well put it on -- I guess is to the parliamentary assistant. Given Mr Patten's motion previously about the chair with respect to the discipline committee, is it appropriate that the same be considered for this?
Mr Skarica: Yes, that makes sense.
The Vice-Chair: Okay, we'll deal with that in a second, then.
Are there any further comments with respect to (1) and (2)?
Shall amendments (1) and (2) carry? That's carried.
Mr Wildman: In light of the previous discussion, which has failed to convince me, I would move (3).
The Vice-Chair: That, "No person who is a member of the discipline committee shall be a member of the fitness to practise committee."
Mr Wildman: That's right.
The Vice-Chair: Which was a government amendment to start off with, but which wasn't moved. I just wanted to get it on the record straight. Is there any discussion on that?
Mr Wildman: I think we've had the discussion.
The Vice-Chair: All those in favour of the amendment to add (3)? Opposed? That was two to seven, lost.
Mr Smith, did you want to make a further amendment at this time?
Mr Smith: I was simply raising the point with the parliamentary assistant as to whether or not a similar subsection be proposed with respect to this committee as was proposed by Mr Patten on the discipline committee.
Mr Skarica: That makes a good idea, so we have:
"Chair of committee
"(3) The council shall appoint one of the members of the fitness to practise committee as the chair."
Clerk of the Committee: Who's moving that one?
The Vice-Chair: Mr Skarica's moving that.
We need it in writing.
So (3) then will read:
"Chair of committee
"(3) The council shall appoint one of the members of the fitness to practise committee as the chair."
Any comment? Is it agreed that it carry? Carried.
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Any further amendments to section 26 then?
Shall section 26.1, as amended, carry? Carried.
Section 27, amendments?
Mr Skarica: I move that clause 27(2)(a) of the bill be amended by adding "or to the fitness to practise committee" after "discipline committee."
The Vice-Chair: You missed one, 27(1.1).
Mr Skarica: Okay, that's an addition. I'll do that after.
Interjection: No, that's a subsection.
Mr Skarica: Okay.
The Vice-Chair: Let's deal with that one first then, please.
Mr Skarica: I move that section 27 of the bill be amended by adding the following subsection:
"Same
"(1.1) The council or the executive committee may direct the fitness to practise committee to hold a hearing and determine any allegation of incapacity on the part of a member of the college."
The Vice-Chair: Comments? Shall it carry? Carried.
Mr Skarica: The government moves that 27(2)(a) of the bill be amended by adding "or to the fitness to practise committee" after "discipline committee."
The Vice-Chair: Any comments? Agreed? Carried.
Mr Skarica: I move that subsection 27(6) of the bill be amended by striking out "discipline committee" wherever it appears and substituting in each case "discipline committee or the fitness to practise committee."
The Vice-Chair: Agreed? Carried.
Mr Skarica: I move that subsection 27(7) of the bill be amended by adding "or the fitness to practise committee" at the end.
The Vice-Chair: Agreed? Carried.
Any further comments with respect to section 27, as amended? Shall it carry? All in favour? Anyone opposed? It's carried.
Section 28.
Mr Skarica: The government moves a long motion, so be patient.
I move that subsections 28(3) to (5) of the bill be struck out and the following substituted:
"Incompetence
"(3) The discipline committee may, after a hearing, find a member to be incompetent if, in its opinion, the member has displayed in his or her professional responsibilities a lack of knowledge, skill or judgement or disregard for the welfare of a student of a nature or extent that demonstrates that the member is unfit to continue to carry out his or her professional responsibilities or that a certificate held by the member under this act should be made subject to terms, conditions or limitations.
"Powers of discipline committee
"(4) Where the discipline committee finds a member guilty of professional misconduct or to be incompetent, it may make an order doing one or more of the following:
"1. Directing the registrar to revoke any certificate held by the member under this act.
"2. Directing the registrar to suspend any certificate held by the member under this act for a stated period, not exceeding 24 months.
"3. Directing the registrar to impose specified terms, conditions or limitations on any certificate held by the member under this act.
"4. Directing that the imposition of a penalty be postponed for a specified period and not be imposed if specified terms are met within that period.
"Same
"(5) Where the discipline committee finds a member guilty of professional misconduct, it may, in addition to exercising its powers under subsection (4), make an order doing one or more of the following:
"1. Requiring that the member be reprimanded, admonished or counselled by the committee or its delegate and, if considered warranted, directing that the fact of the reprimand, admonishment or counselling be recorded on the register for a specified or unlimited period.
"2. Imposing a fine in an amount that the committee considers appropriate, to a maximum of $5,000, to be paid by the member to the Minister of Finance for payment into the consolidated revenue fund.
"3. Directing that the finding and the order of the committee be published, in detail or in summary, with or without the name of the member, in the official publication of the college and in any other manner or medium that the committee considers appropriate in the particular case.
"4. Fixing costs to be paid by the member to the college.
"Same
"(5.1) In making an order under paragraph 4 of subsection (4), the committee may specify the terms that it considers appropriate, including but not limited to terms requiring the successful completion by the member of specified courses of study."
Obviously, that amendment is to take incapacity and incompetence into consideration. It again separates the discipline committee from the fitness to practise aspect, as was recommended by many groups.
The Vice-Chair: Any comments? Is it agreed then that the amendment carry? The amendment carries.
Next amendment, Mr Patten.
Mr Patten: Did you not have a section 28.1 to add?
Mr Skarica: We've already moved subsections 28(3) to (5).
The Vice-Chair: No, it's 28.1; that follows 28. The next one is a Liberal amendment.
Mr Patten: It's taken care of, I guess.
The Vice-Chair: You're not moving it?
Mr Patten: No, I withdraw it.
Mr Wildman: We had a similar amendment and it's now redundant as a result of the amendment that's just been passed.
Mr Patten: That's right. Yes, it's withdrawn.
Mr Skarica: I move that subsection 28(7) of the bill be struck out.
The Vice-Chair: Is everybody on line? We're dealing with the government motion that subsection 28(7) be struck out.
Mr Wildman: Just on a matter of order, Mr Chair: If the government wants to remove a subsection, shouldn't we just vote it out, vote it down, rather than moving a motion?
The Vice-Chair: With a whole section that's possible, but not with respect to a subsection.
Mr Wildman: Oh, I see. Okay.
The Vice-Chair: Is there any comment with respect to the amendment to delete 28(7), that it be struck out? Is it agreed that it be struck out? All those in favour? Opposed? Carried.
Any further amendments to section 28? If not, shall section 28, as amended, be carried? That's carried.
Mr Skarica: The government moves that the bill be amended by adding the following section:
"Duties of the fitness to practise committee
"28.1 (1) The fitness to practise committee shall,
"(a) hear and determine matters directed or referred to it under sections 25, 27 or 30; and
"(b) perform such other duties as are assigned to it by the council.
"Incapacity
"(2) The fitness to practise committee may, after a hearing, find a member to be incapacitated if, in its opinion, the member is suffering from a physical or mental condition or disorder such that the member is unfit to continue to carry out his or her professional responsibilities or that a certificate held by the member under this act should be made subject to terms, conditions or limitations.
"Powers of fitness to practise committee
"(3) Where the fitness to practise committee finds a member to be incapacitated, it may made an order doing one or more of the following:
"1. Directing the registrar to revoke any certificate held by the member under this act.
"2. Directing the registrar to suspend any certificate held by the member under this act for a stated period, not exceeding 24 months.
"3. Directing the registrar to impose specified terms, conditions or limitations on any certificate held by the member under this act.
"4. Directing that the imposition of a penalty be postponed for a specified period and not be imposed if specified terms are met within that period.
"Same
"(4) In making an order under paragraph 4 of subsection (3), the committee may specify the terms that it considers appropriate, including but not limited to terms requiring the production to the committee of evidence satisfactory to it that any physical or mental condition or disorder in respect of which the penalty was imposed has been resolved.
"Same
"(5) In making an order revoking or suspending a certificate or imposing terms, conditions or limitations on a certificate, the committee may fix a period during which the member may not apply under section 30.
"Publication on request
"(6) The fitness to practise committee shall cause a determination by the committee that an allegation of incapacity was unfounded to be published in the official publication of the college, on the request of the member against whom the allegation was made.
"Costs
"(7) Where the fitness to practise committee is of the opinion that the commencement of the proceeding was unwarranted, the committee may order that the college reimburse the member for his or her costs or such portion of them as the committee fixes."
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That subsection provides a separate process through which issues of incapacity may be reviewed in a more facilitative and supportive forum with a view to rehabilitation rather than punishment. Again, that's in accord with the testimony we heard from a number of groups.
Mr Wildman: I have a question. Perhaps counsel can be of assistance. How does this government amendment relate to the proposed amendment I had to section 29 on the fitness to practise?
Ms Leitman: You mean your section 29.1?
Mr Wildman: Yes.
Ms Leitman: It has the same effect.
Mr Wildman: That's what I was reading. I was trying to read the two of them together as Mr Skarica was putting it on the record and trying to ensure that it does have the same effect. Obviously there are differences in wording.
Ms Leitman: In terms of powers and sanctions and process, it's the same. Your section also deals with composition and reference by counsel and executive committee, which the government's set of motions deals with slightly differently. The differences are organizational more than anything else.
Mr Wildman: It's the right to counsel that I'm --
Ms Leitman: Your motion on right to counsel comes up around section 44 of the bill.
Mr Wildman: All right, fine. Thank you very much for that.
The Vice-Chair: Any further comments with respect to 28.1? Is it agreed then that section 28.1 carry?
Mr Wildman: Because of that, I will withdraw 29.1.
The Vice-Chair: Okay, when we get to it.
Section 29.
Mr Skarica: I have a few housekeeping motions.
First of all, subsection 29(1) of the bill is proposed to be amended by adding "and to hearings of the fitness to practise committee under section 28.1" at the end.
The Vice-Chair: Comments? Shall it carry? Carried.
Mr Skarica: Similarly, subsection 29(4) of the bill: The government proposes to amend it by striking out "discipline committee" in the first line and in the seventh line and substituting in each case "discipline committee or fitness to practise committee."
The Vice-Chair: Any comments? Shall it carry? Agreed.
Mr Skarica: The government moves that subsection 29(5) of the bill be amended by striking out "discipline committee" in the first and second lines and substituting "discipline committee or fitness to practise committee."
The Vice-Chair: Shall it carry? Carried.
Mr Skarica: The government moves that the current subsection 29(6) of the bill be struck out and the following substituted:
"Hearings of discipline committee to be public
"(6) A hearing of the discipline committee shall, subject to subsection (7), be open to the public."
Mr Wildman: I'm looking at page 17 of the bill. It says here: "(6) A hearing shall, subject to subsection (7), be open to the public." What's the difference?
Mr Skarica: This is dealing with the discipline committee.
Mr Wildman: But it's dealing with the discipline committee, is it not?
Mr Skarica: The reason that is in there is that it ensures that hearings concerning a physical or mental condition or disorder are held in camera and that hearings concerning a matter of professional misconduct or incompetence be open to the public subject to the discretion of the discipline committee.
Mr Wildman: Maybe I'm being obtuse here, but I don't see the difference.
Ms Leitman: The existing subsections (6) and (7) have as a basic rule that the hearings are open but can be closed at the discretion of the committee given certain factors. The amendment to (6) makes that only relevant to the discipline committee. Then later motions add subsections (7.1) and (7.2) for the fitness to practise committee, where the basic rule is closed unless --
Mr Wildman: All right, thank you.
The Vice-Chair: Any further comment? Shall it carry? Carried.
Mr Skarica: As alluded to just a moment ago by counsel, the government moves that section 29 of the bill be amended by adding the following subsections:
"Fitness to practise committee hearings to be closed
"(7.1) A hearing of the fitness to practise committee shall, subject to subsection (7.2), be closed to the public.
"Open on request of member in some cases
"(7.2) A hearing of the fitness to practise committee shall be open to the public if the person who is alleged to be incapacitated requests it in a written notice received by the registrar before the day the hearing commences, unless the fitness to practise committee is satisfied that,
"(a) matters involving public security may be disclosed;
"(b) financial or personal or other matters may be disclosed at the hearing of such a nature that the desirability of avoiding public disclosure of them in the interest of any person affected or in the public interest outweighs the desirability of acceding to the request of the person who is alleged to be incapacitated;
"(c) a person involved in a civil or criminal proceeding may be prejudiced;
"(d) the safety of a person may be jeopardized; or
"(e) the committee will deliberate whether to exclude the public from a hearing or a part of a hearing."
The Vice-Chair: Any comments? Agreed? Agreed.
Mr Skarica: The government moves that subsection 29(8) of the bill be amended by adding "or fitness to practise committee" after "discipline committee".
The Vice-Chair: Any comments? Agreed? Agreed.
Mr Skarica: Similarly, a housekeeping matter:
The government moves that subsection 29(9) of the bill be amended by adding "or fitness to practise committee" after "discipline committee".
The Vice-Chair: Comments? Agreed? Agreed.
Mr Skarica: A further housekeeping matter:
The government moves that subsection 29(10) of the bill be amended by striking out "committee" in the third and fourth lines and substituting "discipline committee or fitness to practise committee".
The Vice-Chair: Comments? Agreed? Agreed.
Mr Skarica: The government moves that subsections 29(11) and (12) of the bill be struck out and the following substituted:
"Service of decision, reasons
"(11) Subject to subsection (12), the discipline committee or fitness to practise committee shall serve its decision, with reasons,
"(a) on the parties; and
"(b) where the matter was referred to the discipline committee or fitness to practise committee as a result of a complaint under subsection 25(1), on the complainant.
"Same
"(12) Where the hearing was closed, the discipline committee or fitness to practise committee may, in its discretion, serve its decision on the complainant without reasons."
Mr Wildman: I have some problems. I don't understand why they would render a decision without reasons.
Ms Leitman: The decision would never be rendered without reasons. The question in subsection (12) is whether the complainant would receive the reasons.
Mr Wildman: My objection stands. If you've got reasons, tell them.
Ms Leitman: I'm not going to speak to the rationale.
Mr Wildman: I would think you should tell all parties what your reasons are.
Mr Patten: Likewise, I think if someone is going to be judged, they need to, as they would from a judge, hear the verdict and the reason for the sentence. It seems to me it's only fair that someone would hear the reason why they would be disciplined.
Mr Wildman: I understand you're talking about where the hearing is closed and the closure of the hearing may be done in such a way as to try to protect the person who has been complained about. I understand that, but surely the complainant should be given some indication as to -- I suppose you could just render a verdict or decision saying, "Your complaint was groundless." I could imagine that a complainant, keeping in mind that there are provisions against vexatious complaints, would be somewhat taken aback if they just simply said, "Your complaint is groundless," period, without giving any indication as to why.
Mr Skarica: The reason that's in there is that this deals with closed hearings. The complainant may not even be there, for whatever reasons. Accordingly, there would be no necessity in that case to give reasons. The giving of reasons may be harmful to the actual teacher who's being complained about. You can see that situation. That's why it's there.
Mr Wildman: Fine. I accept that.
The Vice-Chair: Any further comments? Is it agreed that the amendments to subsections (11) and (12) carry? Agreed.
Subsection 29(13).
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Mr Patten: I move that section 29 of the bill be amended by adding the following subsection:
"If heard by panel
"(13) A panel of the discipline committee that conducts a hearing shall be chaired by the chair of the discipline committee or a member of the discipline committee designated by the chair."
In other words, it's got to come from the committee.
Mrs Ecker: If the discipline committee is indeed sitting in panels, it may well be that the chair -- I mean, there may be several people within that committee who are capable and competent in terms of chairing.
Mr Patten: That's why it says "or...designated by the chair." It's either/or. The point is that it comes from the discipline committee, the chair of the committee.
Mrs Ecker: Why wouldn't it anyway? I'm curious about why we'd need this motion. Because you're afraid that perhaps someone else from the council who's not on the discipline committee is going to chair a discipline panel? I'm curious about why we need the motion.
Mr Patten: Just to make sure it's chaired from within the committee.
Mrs Ecker: But if only discipline committee people can be on discipline, why would you need something that says only people from the discipline committee could chair the discipline panel of the discipline committee? Am I missing something here? Why do we need something that strikes me as redundant?
Mr Patten: I wouldn't think so. I wouldn't think it would be necessary, but that's what we're proposing.
Mr Skarica: I wouldn't think so either.
Mrs Ecker: Ah, you don't trust the council.
Interjections.
The Vice-Chair: We'll have our people talk to your people. How's that?
Any further comments? All right, I'm going to call the question. All those in favour of adding this amendment? Opposed? Lost, two to eight.
Any further comments with respect to 29, as amended? Is it agreed that it carry? Carried.
Now we're dealing with the two amendments to add new sections 29.1. Mr Patten, you're withdrawing the Liberal motion?
Mr Patten: Yes.
Mr Wildman: I withdraw mine too. It's already covered under the previous amendment.
The Vice-Chair: Would you like some water, Mr Skarica? You have some? Okay. We just want to make sure your voice is in good shape.
Section 30.
Mr Skarica: The government moves that section 30 of the bill be amended by adding the following subsection:
"Fitness to practise committee
"(14) Subsections (1) to (13) apply with necessary modifications to the fitness to practise committee and, for the purpose,
"(a) a reference to the discipline committee shall be deemed to be a reference to the fitness to practise committee;
"(b) a reference to subsection 28(6) shall be deemed to be a reference to subsection 28.1(5);
"(c) a reference to section 28 shall be deemed to be a reference to section 28.1."
It's a housekeeping matter.
Mr Wildman: I think this is the same as the amendment we put forward, so I would accept this.
The Vice-Chair: Agreed? Agreed.
Any other amendments?
Mr Patten: It makes ours redundant as well.
The Vice-Chair: So the Liberal amendment to 30(14) is not presented, and the same thing with respect to the NDP. Thank you.
Any further comments with respect to section 30? Shall section 30, as amended, carry? Agreed.
Section 31. Any comments? Shall 31 carry? Agreed.
Section 32.
Mr Skarica: The government moves that subsection 32(1) of the bill be struck out and the following substituted:
"Appeal to Court
"(1) A party to a proceeding before the registration appeals committee, the discipline committee or the fitness to practise committee may appeal to the Divisional Court, in accordance with the rules of court, from the decision or order of the committee.
"Same
"(1.1) For the purposes of this section,
(a) a person who requests a review under section 20 is a party to the review under section 20 by the registration appeals committee; and
(b) a person who applies for an order under section 21 is a party to the proceeding under section 21 by the registration appeals committee."
Again a housekeeping matter.
Mr Wildman: I'd just like to point out for the benefit of all members in the committee that as a young member of this House many years ago I introduced a bill and then found it needed to be amended. I went to legislative counsel and was informed by a very learned counsel that it was not good form to amend one's own legislation.
Mrs Ecker: If we started applying that rule, we'd all be in big trouble, Mr Wildman.
Mr Wildman: I think it was simply that he did not want to draw up my amendments.
The Vice-Chair: Does the amendment carry? Carried.
Section 32, as amended. Any further comments? Does it carry? Carried.
Section 33.
Mr Skarica: The government moves that subsection 33(1) of the bill be amended as follows:
(a) by adding "or incapacitated" at the end of clause 33(1)(a); and
(b) by adding "or incapacity" after "incompetence" in the second to last line of the English version.
Again a housekeeping matter.
The Vice-Chair: Is that agreed to? Carried.
Does that make the Liberal and NDP amendments redundant? Okay, thank you. And likewise with respect to the second one for the Liberals, and the same for NDP? Okay.
Now we're down to 33(2.1), (2.2), (2.3).
Mr Patten: I move that section 33 of the bill be amended by adding the following subsections:
"Notice of investigation
"(2.1) The registrar shall give the member being investigated notice of the investigation within five days after the appointment under subsection (1) is made.
"Content of notice
"(2.2) The notice under subsection (2.1) shall include reasonable information about the grounds for the investigation.
"Further information
"(2.3) The registrar shall, on request, give the member being investigated all the information, and copies of all the documents, considered by the registrar in deciding to make the appointment under subsection (1).
It's fairly straightforward. The person being investigated has notification of it and the basis on which a review may be done.
Mr Skarica: In a complex investigation this would mean that when the investigation starts, the person would get notice of it and have lots of opportunity to destroy information and so on and so forth. The government opposes the amendment.
Mr Patten: It's related to the documentation for the registrar to make the decision to carry on, so it's not necessarily all the documentation of an investigation itself by an investigation committee, for example.
Mr Wildman: I'm tempted to quote the former Prime Minister of Canada in pointing out that it is not proper, at least in his view, apparently, to investigate an individual without giving them notice that they are being investigated.
Mr Agostino: Who said that?
Mr Wildman: I think Mr Mulroney said that as part of his claim for $50 million against the federal government. I just think it's such an eminent source for such an opinion, I could hardly disagree.
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Mr Agostino: I have concerns. If this is supposed to be something to help the teaching profession, to help students, to help restore confidence or maintain the confidence that is there, and not a witchhunt approach, why would we object to giving the individual the grounds the investigation is being carried out on, really the nature of the allegations and the type of information the registrar bases it on to forward a request? It's just boggling. If you're hitting on witchhunts, you don't want to do that, but if you're trying to do an aboveboard proper process -- you're saying, "We're not going to tell you why we're looking at you and why it's been put forward." It absolutely makes no sense.
Mrs Ecker: I can understand the concern, but the important point is to not confuse powers of investigation with the complaint. If there has been a complaint put forward, there's notification and opportunity and all that kind of stuff that was in the previous section, but there could well be matters where a college may wish to investigate, and calling up the person you're investigating, who may have committed serious misconduct, and saying, "Hi, we're coming to investigate you," is a good way to tell somebody: "Look out. We're coming. Hide all the evidence." I think it restricts your investigators.
The registrar cannot give powers of investigation unless there are reasonable and probable grounds, so first of all, there's a legal check right there. Second, the registrar has to have the approval of the executive committee, which is another check on the proposal. So I don't think we're talking here about witchhunts, and a college that wished to enter into witchhunts would be in court very quickly because that would be abuse of their power. There are appropriate checks here to make sure this power is not abused, and you have to read that in the context of what is happening with the investigations committee and a complaint.
Mr Patten: That opens it up even wider, I think. Surely we agree that if there's an investigation, someone has to be notified that they're under investigation. If there is some worry about the cumbersomeness of the documentation, I would entertain a friendly motion on that, or I would split the points. But surely we can't deny the notice of investigation or content of the notice.
You may have somewhat of an argument in terms of the volume of documentation. I think that's important, but surely the notice of investigation and the content would stand.
Mr Wildman: I agree with Mr Patten. In listening to Ms Ecker's rationale, to use the former example, it sounded to me like the RCMP explaining why they didn't notify Mr Mulroney, and indeed they are in court as a result and having to answer a claim for $50 million.
Mr Preston: They're not in court because of not notifying him; they're in court because of the statements that were made about him.
Mr Wildman: That's part of his claim.
Mr Preston: If he gets the $50 million, he can probably give it to Sheila to help pay the GST, but that's another thing.
Mr Wildman: I was saying this is in a completely non-partisan way. I'm not being partisan about this. It seems to me that if an individual is being investigated, that individual has the right to know. I think one of the arguments raised by Mr Mulroney in his argument before the court was that he compared the approach of not notifying and not letting him know about this until it went to the Swiss government as Fascist.
Mr Preston: A scenario: A person is being investigated for a pornographic situation and they consider he's got his house full of it. You call him and tell him, "We're investigating you for having pornographic material and for using children -- "
Mr Agostino: That's a police investigation, not a college investigation. I really think there's a difference.
Mr Preston: That was a scenario. What we're trying to say is, do you tell a person you're about to come and investigate them for something and have them get rid of it?
Mr Skarica: Addressing Mr Agostino's point about witchhunts, the Regulated Health Professions Act has very similar provisions. That was introduced by your government, by the way, and carried through to fruition by Mr Wildman's government. We had witnesses who indicated to us that they didn't see any abuse in that system at all. Similar provisions exist elsewhere and there have been no witchhunts and no abuse, according to the testimony we heard here.
Mr Agostino: The example -- are we clearly separating the investigation and the work done by this college and the investigation and work that would be done by a police force in allegations of criminal activity? If there were an allegation made of something by a teacher that was potential criminal activity of any type, would that not immediately be referred to the police and not be investigated by the College of Teachers? Can someone clarify that? If that's the case, that should be made clear. I think there's a clear difference between what this college would investigate and what the police would investigate, or the children's aid society or whoever else may be involved.
Mr Preston: The college may want to investigate a criminal act because it takes two, three, four years to get a criminal act settled. They may want to investigate in order to pull a certificate.
Mr Wildman: That's why you should have voted for my amendment to sub (25).
Mr Agostino: Maybe the parliamentary assistant can clarify that. Under this act, if there were an allegation of a criminal act, would the college have the power to investigate it or would their responsibility be to immediately refer that to the police for investigation?
Mr Skarica: It depends on what it was. If it is sexual misconduct, they're obligated under provincial law to notify --
Mr Agostino: But any type of alleged criminal activity?
Mr Skarica: They could, yes.
Mr Agostino: That's an important point. I think there's a world of difference between the college investigating teachers and their misconduct in relation to their teaching or the allegations of a criminal act by a teacher.
Mr Wildman: I think Mr Agostino raises a very interesting and important point which is central to some of the concerns that were raised by people who appeared before us in committee. Hypothetically, if it were an alleged misconduct involving sexual activity between a teacher and a student, if that student is under 16, automatically that should involve the police and/or the children's aid society. We all understand that.
Where it does become perhaps problematic -- and I've had some difficulty dealing with this, to be frank -- is where the student is 16 or over, yet still is in a position where the teacher is in a position of trust with that student. That trust may have been violated. It may not be a case of sexual assault or rape, but the position of trust may still be violated and may still be subject to a complaint by members of the public or other members of the profession that should be investigated. It does get complicated in that area. I just raise that to try to be helpful.
Mrs Ecker: Mr Wildman is quite correct that the issue is extremely complex but that there may well be circumstances -- I mean, a criminal investigation is a criminal investigation, and the police would be doing that. If there were evidence of criminal illegality, that would be referred to the police. But once that issue was dealt with, it may well be that the College of Teachers may consider that the teacher's conduct within that circumstance, if they've been found guilty of something or whatever -- there may well be some room for the college to say, "This is misconduct." Misconduct is not necessarily criminal illegality. There's a grey area in there, and I think that's why there are so many other checks and balances in the legislation to ensure that the teacher's rights are protected through the college process.
Mr Preston: Mine may have been a poor scenario. Let's just say the destruction of evidence in a non-criminal matter, all right? We're giving them advance warning if we don't have something like this in here.
The Vice-Chair: Any further comments?
Mr Agostino: Can we split that up and do (2.1), (2.2) and (2.3) for the vote?
The Vice-Chair: Is that agreed? Okay. All right, dealing with (2.1) first.
Mr Wildman: Chair, just before that, I want to make clear that the comments I made a moment ago, which I made to try to be of assistance, still do not alleviate my concern about not notifying a person who is subject to investigation.
1750
The Vice-Chair: Dealing with (2.1) first, all those in favour of (2.1)? Opposed? That's lost.
All those in favour of (2.2)? Opposed? That's lost.
All in favour of (2.3)? Opposed? That's lost too.
Section 33 as amended. Any further comments? Is it agreed that 33, as amended, carry? All those in favour? Opposed? Carried.
Section 34.
Mr Skarica: The government moves that clause 34(1)(a) of the bill be amended by adding "or incapacitated" after "incompetent" in the third line. A housekeeping matter.
The Vice-Chair: Agreed? Agreed.
Any further amendments? Mr Patten, yours would be withdrawn because it's the same, and the same thing with the NDP? All right.
Mr Agostino: That being the only amendment, that would mean that the search powers as outlined in the bill under section 34 would remain as they are? If there's no alteration to the search powers, of a warrant being given where an investigator will be able to walk into a home while investigating a case, assuming he gets that warrant, that would still be there in the bill?
Mrs Ecker: It's standard. It's in the RHPA legislation.
The Vice-Chair: Any further amendments to section 34? Shall section 34, as amended, be carried? All in favour? Opposed? Carried.
Section 35. Any comments on 35? Shall 35 carry? Carried.
Section 36.
Mr Skarica: The government moves that section 36 be amended by striking out "or the discipline committee" in the second to last line and substituting "the discipline committee or the fitness to practice committee." Again a housekeeping matter.
The Vice-Chair: Is that agreed? Agreed. That makes the next two redundant.
Any further amendments to 36? Mr Patten?
Mr Patten: No, I withdraw that.
The Vice-Chair: Any further amendments to 36? Shall section 36, as amended, carry? Carried.
Section 37. Mr Patten.
Mr Patten: There's a typographical error. It should read subsection 37(1), paragraph 9.1, not 7.1.
I move that subsection 37(1) of the bill be amended by adding the following paragraph:
"9.1 governing the filling of vacancies on the committees required by the act."
This is just added to deal with vacancies.
The Vice-Chair: Any comment?
Mr Skarica: I'm just going to consult with legislative counsel. The government doesn't want Mr Patten to be frustrated.
The Vice-Chair: You'd have to do a lot more than this.
Mr Skarica: Apparently it's covered in the bylaws, paragraph 20, section 38.
The Vice-Chair: Any further comment? Shall the amendment carry? Carried.
Mr Patten: The next one, paragraphs 8 and 12 of subsection 37(1), did we keep that in the act? Are quorums in the act or are they in the bylaws or regulations?
The Vice-Chair: They're in the bylaws now because we didn't pass the earlier ones.
Mr Patten: Then the next one wouldn't apply, I believe. If it's not in the act, it's not meaningful.
The Vice-Chair: So you're not moving that amendment?
Mr Patten: To counsel, the quorums are left in regulations and bylaws? They weren't moved into the act?
Ms Leitman: I don't think we've passed anything that's moved it into the act.
Mr Patten: This would suggest to move it into the act, so I'll withdraw it.
The Vice-Chair: Okay, that's withdrawn. Next? Mr Skarica.
Mr Skarica: The government moves that paragraph 9 of subsection 37(1) be struck out and the following substituted:
"9. respecting the composition and election or appointment of committees required by this act, other than the investigation committee, the discipline committee and the fitness to practise committee."
Again a housekeeping matter to add that.
The Vice-Chair: Agreed? Agreed.
Mr Patten: I move that section 37 be amended by adding the following subsection:
"Representation on council
"(4) The regulations under paragraphs 2, 3 and 4 of subsection (1) must ensure that after each election,
"(a) a majority of the members of the council are elected members who are employed as teachers by a board;
"(b) at least one of the elected members of the council is employed as a teacher in a private school as defined in subsection 1(1) of the Education Act; and
"(c) at least one of the elected members of the council has had their candidacy approved by the Aboriginal Education Council."
Mr Preston: Could I have this deferred until tomorrow, please?
Mr Patten: You don't want to have any discussion on this at all?
Mr Preston: I think we would like to talk about all four of them so far.
Mr Patten: I don't mind, as long as it's guaranteed that we will have the time to address this.
The Vice-Chair: We'll discuss them right at the beginning of the hearing. Is that agreed? Okay.
Next is subsection 37(5).
Mr Patten: I move that section 37 of the bill be amended by adding the following subsection:
"Filling of vacancies
"(5) The regulations under paragraphs 7 and 9.1 of subsection 37(1) must set out procedures for filling vacancies on the council and committees and must require that each procedure for filling a vacancy begin within 10 days of the vacancy arising."
It's straightforward.
The Vice-Chair: Any comments by anyone?
Mr Skarica: Maybe we could have legislative counsel -- because she was a little upset about the last one.
Ms Leitman: I'm not upset. Which last one?
The Vice-Chair: I don't remember seeing her upset at all.
Mr Skarica: The filling of vacancies: Do you have any comment?
Ms Leitman: Which one are you talking about?
The Vice-Chair: Subsection 37(5).
Ms Leitman: No. This links up with your amendment earlier, so the only thing I would suggest is that maybe you add the word "required" before "committees" in the third line if you're going ahead with it.
Mr Patten: I would accept that.
The Vice-Chair: Any further comments? Shall the amendment to 37(5) carry? Carried.
It's 6 of the clock. I've always wanted to say that.
We'll vote on section 37 tomorrow. We've sat past the time. The committee resumes at 10 o'clock tomorrow morning.
The committee adjourned at 1802.