Alberta Teachers: Navigate Regulatory Challenges with Legal Advice

The regulatory structure for the teaching profession in Alberta has undergone significant changes in the last few years. If you are an Alberta teacher or teacher leader facing a regulatory challenge, it is important that you are informed about your regulatory decision makers, the procedures involved and your rights when undergoing such procedures.

This article is intended to supply some of the most essential information to know if you are undergoing or expecting a disciplinary action by the Alberta Teaching Profession Commission (the “ATPC”), or if you have received an adverse certification decision by the Ministry of Education and Childcare.

As you read on, bear in mind that it is strongly advisable that you obtain legal advice early when navigating any regulatory challenges, as that is the preferred way to protect your career, reputation and professional standing.

Taylor Janis Workplace Law offers legal services to all professionals facing regulatory challenges throughout Alberta. For any questions, please contact our offices in Edmonton or Calgary to schedule a consultation.

The Regulatory Structure for the Teaching Profession

Who Are the Regulators for Teachers in Alberta?

In Alberta, all K-12 teachers must hold a Teaching Certificate issued by the Ministry of Education and Childcare (the “Ministry”), and teacher leaders or school superintendents must hold a Leadership Certificate or Superintendent Leadership Certificate, respectively. For brevity, these certificates will be collectively referred to as Certificates throughout this article.

The Alberta Education Act (the “Act“) created the Alberta Teaching Profession Commission (the “ATPC”), which has been operating as an arms-length regulatory body since January 2023. Under the Act, the ATPC is responsible for overseeing all disciplinary matters for teachers and teacher leaders.

Since 2023, the Alberta Teachers’ Association no longer has the regulatory power to process disciplinary matters related to teachers. Currently, its primary function is to act as the collective bargaining agent for teachers at publicly funded schools.

To summarize, the Ministry makes certification decisions, and the ATPC makes disciplinary decisions for the teaching profession.

What Attracts Discipline and What Are the Consequences

What May Attract Discipline?

Under the Act, the following types of conduct can attract discipline, and they will be collectively referred to as “disciplinable conduct” in the rest of this article for brevity.

• Unprofessional conduct, which includes:
  • conduct that is detrimental to the best interests of students, the public, or the teaching profession and its members;
  • non-compliance with the Code of Professional Conduct; and
  • conduct that is an indictable offence.
• Being professionally incompetent in carrying out duties as a teacher or teacher leader.
  • Depending on the role, applicable professional competence standards can be found in the Teaching Quality Standard, the Leadership Quality Standard or the Superintendent Leadership Quality Standard.

Hence, discipline can stem from can range from something egregious, such as physical abuse, to something that is comparatively minor, such as a poor exercise of judgment in managing the learning environment.

What Are the Consequences of Receiving Discipline?

Upon a finding of disciplinable conduct, the ATPC can recommend to the Minister of Education and Childcare (the “Minister”) to issue a legally binding disciplinary measure, including:

• A letter of reprimand;
• Suspension of Certificate, with or without condition;
• Cancellation of Certificate, with or without condition; and
• Making the disciplined person ineligible for a Certificate temporarily or indefinitely, with or without condition.

Hence, the disciplinary measures available to your regulators can have career-threatening consequences. Moreover, under the Act, final disciplinary findings and decisions must be published in the online registry of the Ministry, unless the publication would cause injury or undue hardship to someone other than the disciplined teacher. Hence, a disciplinary record can result in widespread, long-term and irrecoverable reputational damage, and may even prevent you from registering with other professional regulators in the future.

Engage Legal Representation

A disciplinary action can be highly consequential due to its potential for severe career and reputational impacts. A school or classroom is a delicate environment, and the regulatory framework sets very high standards for educators. A seemingly minor incident can potentially attract discipline. During a regulatory action, the perspectives of the parties involved often diverge.

Hence, when you are under the ATPC’s disciplinary scrutiny, you should act promptly to obtain legal advice, so that the risks can be properly assessed and mitigated, even if the accusation is seemingly trivial or unfounded.

Taylor Janis is committed to providing transparent and thorough legal advice: if the risk is significant, we can provide full representation; if the risk is minimal, our risk assessment will give you the peace of mind. Contact us today if you have any concerns about an impending or ongoing ATPC disciplinary action.

The Disciplinary Procedures

The public places a great trust and expectations in educators. Given that a classroom is a delicate environment and the high regulatory standards for a teacher’s professionalism and competence are high, it is not impossible for a teacher to attract a complaint or disparaging report even if they have always conducted themselves to high standards.

According to the ATPC’s statistics, a total of 259 complaints were referred to it during the 2023/24 fiscal year. This is a significant number, considering the total number of Alberta teachers was about 53,000 the year prior.

Receiving a complaint filed against you exposes you to serious risks, and the disciplinary procedures are complex and disruptive to professional and personal life. However, a complaint is not necessarily the end of the world, as how well you respond can critically affect the outcome. Hence, you should get informed and prepared for the impending procedures, and the preferred approach is to promptly seek legal advice at an early stage.

Complaints and Preliminary Inquiries

Under the Act, a complaint does not necessarily need to come from a student or parent, and it is not the only way to trigger a disciplinary process:

• Any person can file a complaint with the Ministry’s Registrar, alleging unprofessional conduct or professional incompetence.
• School administrators/ boards have a duty to report concerns about a teacher’s conduct under certain circumstances. Certain reports will have the same effects as a complaint.
• Without receiving a complaint, the Registrar may refer a matter of concern to the ATPC.

The ATPC will commence a preliminary inquiry upon receipt of a complaint, and it can also start this process on the commissioner’s own initiative. The teacher subjected to this process and their school administrators will be notified about the matter.

Upon the conclusion of a preliminary inquiry, the Commissioner can decide to do one of the following:

• Appoint an investigator to the matter to commence an investigation;
• Refer the matter to a mediation or dispute resolution process, subject to the Act; or
  • If these processes failed to resolve a matter, an investigation will commence.
• Take no further action, but only if the complaint is deemed frivolous, vexatious or frivolous. A complainant can appeal this decision.

Investigations

An investigation can severely interrupt a teacher’s professional and even personal life, as the investigatory measures can be highly disruptive, and the employer of the investigated teacher will be notified.

Under the Professional Conduct and Competency for Teachers and Teacher Leaders Regulation, an investigator can:

• Request the investigated teacher, their employer and colleagues to answer questions and to produce records and documents;
• Copy and keep the records and documents produced; and
• Investigate other matters related to the complaint that arise in the course of the investigation.

Upon the conclusion of an investigation, a written investigation report and all related materials will be sent to the commissioner, who can then do one of the following:

• Refer the matter for a hearing;
• Facilitate a dispute resolution process or consent resolution process, subject to the Act; and
• Take no further action, but only if the matter is deemed frivolous, vexatious or meritless, or lacks sufficient evidence to warrant further actions.

Moreover, if an investigation confirms that a teacher has been convicted of certain offences via indictment, the Commissioner can recommend the Minister to cancel their Certificate without a hearing. When such recommendation has been made, the investigated teacher’s Certificate will be automatically suspended.

An investigation can be highly consequential, and throughout it, you need to avoid inadvertently jeopardizing your case. Hence, legal advice is highly recommended when under investigation.

Hearings

A hearing is conducted by a Hearing Committee that consists of both members of the public and certificate-holding teachers or teacher leaders. Based on the findings and recommendations of the Hearing Committee, the Minister will decide whether to impose a disciplinary measure and, if so, what is appropriate.

A hearing is not only highly consequential but also intensely stressful and complex, because:

• A hearing is quasi-judicial and adversarial:
  • A hearing is a court-like adversarial procedure, where the parties (the Commissioner vs. the investigated teacher) both have a statutory right to counsel.
  • A matter is decided on the relative strength of the parties’ factual and legal positions; thus, extensive preparation is crucial for successfully defending against an allegation.
• The time for preparation is limited:
  • A hearing notice can be served as late as 15 days before the date set for the hearing.
• The investigated teacher may be compelled to testify under oath:
  • An investigated teacher who testifies may be subjected to cross-examination. When being intensely scrutinized with questions, preparedness and awareness of common pitfalls are key.
  • Failure to comply can result in severe legal consequences, including court-imposed sanctions.
• A hearing can have profound reputational effects:
  • Hearings must be open to the public, unless the complainant requests otherwise or a closed hearing is necessary to protect the interests of someone other than the investigated teacher.
  • Therefore, severe reputational harm may occur even before a decision is made, especially if the investigated teacher is underprepared or acts in ways that prejudice themselves during the hearing.

Legal advice and representation can be essential when navigating the stress and procedural complexity of a hearing. Moreover, having a lawyer as your advocate is instrumental in preparing a robust defence.

• A robust legal defence often requires extensive legal knowledge and thorough legal argumentation.
  • There are multiple sources of legal rules governing the teaching profession (including the Act, its accompanying regulations, the Code of Professional Conduct and the applicable Quality Standards).
  • A teacher is also required to act lawfully at all times, meaning observing the law in general. Correspondingly, the Hearing Committee may also need to take into consideration other sources of law in adjudicating a matter.
  • When rules interact with each other, things can get particularly intricate and nuanced. Hence, legal expertise can be indispensable in formulating a robust legal defence.
• Advocacy skills are instrumental to a robust factual defence. A finding of fact is based on the relative strength of conflicting evidence from both parties. A skilled counsel can highlight your key evidence’s factual relevance and legal materiality, as well as spot and flag admissibility issues of problematic competing evidence.
• A lawyer as your advocate also assists the Hearing Committee in making fairer decisions. Your lawyer pays undivided loyalty to you, but they also assist the Hearing Committee during a hearing, but also about directing the adjudicator’s attention to key issues and safeguarding the integrity of the adversarial procedure. Since the Commissioner is normally represented by the Discipline Counsel, you should also be represented to level the playing field.

Mediation, Dispute Resolution and Consent Resolution Agreements

There are alternative and voluntary ways to resolve a matter without going through a hearing:

• After the conclusion of a preliminary inquiry, the Commissioner may refer the matter to a mediation or dispute resolution process, subject to the Act. If the Commissioner deems that the matter is not properly resolved by one of these processes, an investigation or hearing will commence.
• After the conclusion of an investigation, a consent resolution agreement may be entered into between the Commissioner, the Registrar and the investigated teacher, which requires mutual agreement on the alleged facts and appropriate disciplinary measures.

These alternative and voluntary resolution processes can be advantageous in the right circumstances, but they should be approached carefully and strategically under legal advice. This is because:

• All of the above-mentioned alternative resolutions have legally binding effects. Therefore, you carefully consider all the relevant legal and factual factors and only agree to what is fair and reasonable.
• A consent resolution agreement can be seen as a form of admission of allegations, which will substantially foreclose an appeal on grounds of erroneous fact-finding.
• The current policy of the ATPC is that all consent resolution agreements must be published on the Teacher and Teacher Leader Registry, resulting in severe reputational damage.

Hence, you should not make a hasty decision to consent to an alternative resolution. Instead, you should retain a lawyer to comprehensively review your case and then make legally informed and strategically sound decisions.

Internal Appeals

Under the Act, a teacher subjected to a hearing can appeal the finding or recommendation of the Hearing Committee to the Chair of the Professional Conduct and Competency General Panel within 15 days after the receiving the hearing outcome.

An appeal hearing is then conducted by an Appeal Committee. Like the original hearing, it is a quasi-judicial process presumptively open to the public. It also presents distinct challenges, as it is based entirely on the decision and record of the original hearing. A successful appeal does not necessarily overturn the original decision, as it may result in the matter being sent back for a new hearing.

After receiving a decision by the Appeal Committee, the Minister will enter a final decision regarding a disciplinary matter. This decision can only be overturned through a judicial review by a court. More information about the judicial review standards is provided in a later section of this article.

The Importance of Early and Ongoing Legal Representation

Even early stages of the disciplinary process can be highly consequential and disruptive, and legal advice can be essential for navigating the procedural complexity while also avoiding legal pitfalls.

Hence, when undergoing a disciplinary process, you should not leave legal representation until the last minute before a hearing. Instead, you should engage early and throughout the entire process, so that you can make legally-informed decisions and have a robust defence. These are all instrumental in achieving a favourable outcome at an early stage of the disciplinary process.

If you have concerns about an ongoing or impending disciplinary procedure, you can contact Taylor Janis Workplace Law for practical legal guidance.

The Certification Appeal Procedures

In this section, a “certification decision” refers to a Registrar’s decision related to the issuance, reissuance, and extension of a permanent or interim Teaching, Leadership or Superintendent Leadership Certificate.

Appeal to Certification Appeal Committee

If you have concerns about the fairness of a certification decision, you may appeal it to the Certification Appeal Committee within 30 days of receiving it by providing a written notice of appeal, subject to the Certification of Teachers and Teacher Leaders Regulation (the “Regulation“).

When preparing a notice of appeal, legal advice can be essential to ensure that both the notice of appeal and its supporting materials meet all formal and substantive requirements under the Regulation. Failure to meet such requirements may prevent the appeal process from proceeding.

Proceedings before the Certification Appeal Committee

A hearing by the Certification Appeal Committee is a quasi-judicial process that shares certain similarities with a disciplinary hearing. Here are a few things to note about this process:

• Both parties (you vs. the Registrar) have a right to counsel;
• It is presumptively open to the public; and
• The decision is made on the relative strength of the parties’ positions.

Hence, to navigate the procedural and legal challenges of a Certification Appeal Committee, we strongly recommend that you consult a lawyer as early as possible.

Judicial Reviews

A Certification Appeal Committee decision is final and binding, and the only way to have it overturned is to petition for a judicial review. Please read on if you would like to know about the judicial review standards and procedure.

Your Rights & Judicial Reviews

Know Your Rights

When you are facing a regulatory challenge, whether it is related to discipline or certification, you have rights rooted in administrative law, common law, and even the Constitution. Such rights are embedded and engaged with the procedures provided under the Act, its accompanying regulations, as well as the rules made by regulators for the teaching profession. Hence, your exact entitlements can be a highly complex legal topic.

However, for informational purposes and to summarize it briefly, you have three broad and distinct rights:

• Right to procedural fairness:
  • This is about due process and whether the due process is conducted fairly to enable you to know your case and make a full answer.
  • An appropriately chosen process can be conducted unfairly in the circumstances. Hence, the ideal way to safeguard this right is to have legal counsel engaged with the procedures to flag procedural fairness issues as they arise.
• Right to unbiased decision makers:
  • The legal standard is that a decision and its making process should not give rise to a reasonable apprehension of bias to an informed third party observing the entire process.
  • Reasonable apprehension of bias is a high legal threshold, and a claim of bias must be substantiated with evidence and sound legal arguments.
• Right to substantive fairness.
  • After the landmark Supreme Court of Canada Decision Vavilov, the judicial review standard for upholding a regulatory decision is that it must be “Reasonable”, which, at its simplest, means its reasoning must be internally coherent and take into consideration all the relevant legal and factual factors.
  • Unreasonableness is a very high legal threshold that can only be established with strong legal and factual arguments. A question of substantive fairness is therefore preferably approached with legal advice.

When facing regulatory challenges, protecting your rights is integral to upholding fairness. It is strongly recommended that you engage legal representation early and throughout the entire process. This is because your rights are embedded in and engaged by every procedure, and your legal counsel can spot, flag and object to potential infringements when issues start to emerge.

Seeking Judicial Remedies through Judicial Reviews

If an infringement has resulted in an unfair final disciplinary or certification decision, you may seek judicial remedy by applying to the Court of King’s Bench of Alberta for a Judicial Review. But to overturn a decision is formidably challenging, this is because:

• Procedural complexity and time limits: Like any other proceedings before the Court of King’s Bench, a judicial review involves complex procedures. Moreover, under the Alberta Rules of Court, an originating application must be filed within 60 days after the date of the impugned decision, giving an applicant a limited time to prepare.
• High review standards and deference to regulatory decision makers: not only are the review standards high (as discussed above), but courts are also required to pay deference to regulators out of respect for legislative intent following Vavilov.
• A judicial review is not a “rehearing”: normally, the Court will not hear evidence about the facts underlying the original matter, only the decision and its making process will be reviewed for issues of fairness. This means a judicial review typically only considers highly “technical” issues and arguments.

It is also important to note that a judicial review does not automatically pause the enforcement of a disciplinary decision. Furthermore, even if you succeed at a judicial review, the remedy might be that the matter is sent back to be decided again. These mean that, as you navigate through the complexity of a judicial review, the damage of an adverse decision may continue to occur.

Early Legal Representation

It is important to know that a judicial review should be considered a last resort attempt to correct the wrongs that have already been done by an infringement. When you are facing regulatory challenges, the preferred approach is a proactive one: engage legal representation promptly and work towards a favourable decision at the early stages.

Whether you are facing an impending or ongoing regulatory challenge or if you have already received an unfair regulatory decision, you can rely on Taylor Janis for legal services tailored to your needs.

Independent Legal Advice and Representation

The majority of teachers in Alberta who work in publicly funded schools are members of local unions affiliated with the Alberta Teachers’ Association (the “ATA”). Even if you are a unionized teacher, obtaining independent legal advice or representation can be beneficial when facing regulatory challenges.

Your union is the exclusive bargaining agent with your employer school board and has the exclusive right to settle most workplace grievances with them. Your union counsel’s main duty is to represent the union in matters related to the collective agreement. Whereas your own lawyer has a duty to give undivided loyalty to you.

Independent legal advice or representation can be essential when:

• The legal matter concerns the regulators, but not your school board.
  • Such matters are typically not captured by a collective agreement and thus outside of your union counsel’s main duty. Although the ATA may advise its members facing regulatory challenges, this assistance is not available in all situations. This means your union or the ATA will not necessarily provide the thorough legal advice or full representation required to handle a disciplinary action or challenge an unfair certification decision.
• A complaint results in your school board inappropriately disciplining or dismissing you, but your union is slow to start a grievance procedure.
  • This can happen when your union does not fully understand your perspectives. Your union has a duty to fairly represent you, but it also has some discretion not to start a grievance procedure. In these circumstances, you should obtain independent legal counsel to highlight the factual and legal background of your grievance, as support from your legal counsel may be effective in persuading your union to put more resources and attention into resolving the matter.

Taylor Janis appreciates that your union and union counsel often play critical roles in representing you through workplace legal challenges, but at times, the value of independent legal advice is simply indispensable.

Contact Taylor Janis Workplace Law at our Edmonton or Calgary office if you have concerns about whether your union or the ATA will assist you adequately through a regulatory challenge.

Frequently Asked Questions

How Long Does an Entire Disciplinary Process Typically Take?

The time frame will vary greatly depending on many factors, including the factual and legal strength of the allegation, the gravity and the complexity of the matter, as well as how you respond during each procedure. If a matter is unfounded or made in bad faith, then it is likely going to be dismissed summarily. But if a matter escalates into an investigation or hearing, then the entire process can take months or even over a year to resolve. A legally informed and factually robust response can lead to a faster resolution, and it may even discourage frivolous or vexatious allegations. Moreover, your awareness and preparedness can reduce the disruptive effects when navigating the procedural complexities. Hence, you should obtain legal services when dealing with a disciplinary process.

I Think the Allegation against Me Is Completely Unfounded. Should I Be Concerned?

In a disciplinary action, the perspectives often diverge, and the facts are often intensely disputed. Moreover, a well-intentioned action may seem to fall below the conduct or competence standards in the eyes of a complainant or the regulator, especially if they have a different understanding of the circumstances than yours. Hence, even if you think a complaint is not likely to lead to disciplinary action, it is still a good idea to consult a lawyer so you can have a comprehensive risk assessment. If the risk is indeed minimal, you will get the peace of mind. If the risk turns out to be substantial, legal advice helps you get prepared.

I Am No Longer Teaching in Alberta. Should I Be Worried about an ATPC Disciplinary Action?

It is important to remember that you are regulated by the ATPC as long as you hold an Alberta teaching certificate. Even if you are no longer teaching in Alberta, a disciplinary record can carry severe reputational damage and may affect your standing or ability to register with out-of-province regulators. Hence, legal advice is highly advisable regardless of whether you have a plan to ever teach in Alberta again.

Can the ATPC Investigate Off-Duty Conduct Unrelated to Teaching?

Under the Act, conduct that is detrimental to the best interests of students, the public, or the teaching profession and its members is considered unprofessional conduct. This is not limited to conduct that occurs within a school setting. Hence, off-duty conduct can potentially attract investigation and discipline. We recommend that you promptly obtain legal advice if you are under the ATPC’s disciplinary scrutiny, regardless of the nature of the alleged matter.

Conclusion

If you are an Alberta teacher facing an ATPC regulatory challenge, you should obtain legal counsel early. The ATPC’s disciplinary measures have legally binding effects and can put a teacher’s career, finances and reputation in serious jeopardy. The disciplinary procedures are complex, consequential and often disruptive, and these procedures all engage an investigated teacher’s administrative law right to fairness. Having an experienced lawyer by your side is highly instrumental in navigating the procedural complexities, mounting an effective defence and safeguarding your rights and professional future. For tailored legal advice, you can contact Taylor Janis today to schedule a consultation.

References:

• Education Act, SA 2012, c E-0.3
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653
• Professional Conduct and Competency for Teachers and Teacher Leaders Regulation, Alta Reg 124/2022
• Certification of Teachers and Teacher Leaders Regulation, Alta Reg 123/2022
• Alberta Rules of Court, Alta Reg 124/2010
• Code of Professional Conduct for Teachers and Teacher Leaders

Resources for Readers:

• Superintendent Leadership Quality Standard
• Leadership Quality Standard
• Alberta Education Teaching Quality Standard
• Alberta Teaching Profession Commission – Making a complaint
• Alberta Teaching Profession Commission – Disciplinary process

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