BC Teachers: Survive Regulatory Challenges with Legal Representation

If you are a British Columbia teacher who has received a complaint or disparaging report filed with the Teacher Regulation Branch (The” TRB”), you should act promptly to protect your reputation and teaching career. It is important to be informed about the regulatory structure, the potential risks, and the disciplinary process.

Similarly, if you have concerns about the fairness of a certification decision, you likely want to have your questions about the certification appeal procedures answered.

This article provides some essential information you should know when navigating the testing waters of a complaint or a certification appeal. However, it is not a substitute for legal advice tailored to your case. Skilled legal support is highly valuable for navigating regulatory challenges with confidence, minimizing unnecessary risks and achieving a fair outcome.

Taylor Janis Workplace Law offers legal services to all professionals facing regulatory actions throughout BC. For any questions regarding a TRB complaint, contact our office in Vancouver or Kamloops to schedule a consultation.

Who Makes Regulatory Decisions?

The regulatory structure for teachers in BC is a particularly complex one. Under the Teachers Act (the “Act”), there are five regulatory bodies/ decision-makers, each exercising different regulatory functions and powers related to the teaching profession, which are:

• British Columbia Teachers’ Council (the “BCTC”): 
  • Sets the standards for certification, competence and conduct for holders of Certificates of Qualification or Letters of Permission.
  • Also oversees the approval of post-secondary teacher education programs offered in BC.
• Independent School Teaching Certificate Standards Committee (ISTCSC): 
  • Sets the certification, conduct and competence standards for holders of Independent School Teaching Certificates.
• Director of Certification: 
  • Issues, suspends, and cancels Teaching Certificates* according to the standards set by the BCTC and the ISTCSC.
  • Also maintains an online registry to inform the public about the status of a person’s teaching credential and record of disciplinary actions.
• Commissioner for Teacher Regulation: 
  • An independent statutory decision-maker overseeing all disciplinary processes for educators in BC’s K-12 school systems, including reviewing reports and complaints about educator conduct or competence.
• Disciplinary and Professional Conduct Board: 
  • Comprised of BCTC members appointed by the Minister of Education and Child Care.
  • The Commissioner for Teacher Regulation selects its members to form Hearing Panels for disciplinary hearings.

Collectively, these regulatory bodies/decision-makers are assisted by the Teacher Regulation Branch, which is the operational and administrative arm of the regulatory structure and a part of the BC Ministry of Education and Child Care (the “Ministry”).

The regulatory bodies/ decision-makers are conferred by the Act with statutory powers and varying degrees of discretion to make decisions with legally binding effects on teachers and the teaching profession.

* Here and throughout this article, the Certificate of Qualification, Independent School Teaching Certificate and Letter of Permission (as the case may be) are collectively referred to as the “Teaching Certificate” for brevity.

What is Disciplinable and What Are the Consequences?

What Attracts Disciplinary Scrutiny

Under the Act, the following can subject a teacher to regulatory scrutiny:

• Professional misconduct or conduct unbecoming a teacher;
  • Professional misconduct includes conduct that is inconsistent with the Professional Standards for BC Educators. It can be conduct that is egregious (e.g. physical abuse) or comparatively minor (e.g. an inappropriate classroom remark). For independent school teachers, the Professional Standards for Independent School Teaching Certificate Holders also apply.
  • Conduct unbecoming a teacher means off-duty conduct that undermines the reputation and integrity of the teaching profession
• Displaying incompetence when carrying out the professional duties and responsibilities of a teacher; and
• Lacking the capacity to carry out professional duties and responsibilities of a teacher.

In addition, if a criminal record check determines that a teacher presents a risk of abuse to children or vulnerable adults, their Teaching Certificate will be cancelled.

What Are the Consequences

If an allegation of one or more of the above-mentioned is determined to be true, a teacher may be subjected to one or more of the following:

• A reprimand;
• Conditions imposed on their Teaching Certificate;
  • A teacher may be required to fulfill certain conditions by a fixed date or otherwise face suspension or cancellation of their Teaching Certificate.
• A suspension of their Teaching Certificate for a fixed period, until certain conditions are met, or until they can satisfy the Director of Certification of their competence; and
• Cancellation of their Teaching Certificate, following which they may be barred from receiving a Teaching Certificate for a fixed period of time.

In addition, a teacher may be ordered to pay all or part of the costs of a disciplinary hearing if the Hearing Panel considers their conduct during the hearing to be improper, vexatious, frivolous or abusive.

A severe disciplinary measure can take away your Teaching Certificate and threaten your teaching career. This is not to say a seemingly “lesser” disciplinary measure should not raise your concern, however. For example, a condition requiring you to receive specific training or to self-report can be highly onerous and disruptive to your professional or even your personal life.

Reputational Damage

As a teacher, your professional reputation is of paramount importance to your long-term career, and a disciplinary record can seriously compromise it.

Under the Act, disciplinary findings and decisions by a Hearing Panel must be published with identifying information, unless for the protection of the harmed person. The current policy is that the publication is done on the TRB’s website. Moreover, a suspension or cancellation of a Teaching Certificate must be recorded in the register of certificate holders and be notified to each board of education and independent school authority in BC. A disciplinary order may also affect your ability to register with a regulator in other jurisdictions.

Thus, being disciplined can cause irreparable reputational harm, not only resulting in the loss of trust from your colleagues, students and their parents, but also severely impacting your long-term career prospects.

Consider Legal Representation

The regulators for teachers have statutory regulatory powers to discipline teachers, and their disciplinary measures have legally binding effects. Considering the reputational and career-threatening consequences, you should obtain legal advice when you are under regulatory scrutiny, instead of risking it alone.

Taylor Janis offers legal services to professionals facing regulatory actions across all areas of BC. If you have any concerns about an impending or ongoing disciplinary action, you should contact our office in Vancouver or Kamloops to schedule a consultation.

The Disciplinary Process

This section provides baseline information on what to expect in terms of procedures when you are under the regulatory scrutiny of the regulators. If you have concerns about an unfair certification decision and would like to know about the certification appeal procedure, please skip to the next section.

Given that the public places great trust in educators, that a classroom is a delicate environment and that the requirements of competence and professionalism are understandably 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 Commissioner’s Annual Report 2023-2024, a total of 279 disciplinary actions were initiated that year. This is not an insignificant number, considering the number of full-time equivalent teachers in BC was about 37,000 the year prior.

Being under the regulators’ disciplinary scrutiny is not the end of the world, but how you respond to it can critically shape the outcome. When undergoing disciplinary procedures, awareness and preparedness are key. Given these, and that all disciplinary procedures can be highly disruptive to your professional and personal life, our strong recommendation is to retain legal counsel early and have them engaged with the entire disciplinary process.

Complaints/ Reports

Under the Act and the Commissioner’s Rules for Disciplinary and Professional Conduct Inquiries, a disciplinary process can be triggered by a complaint, a report or a commissioner-initiated investigation. Here are a few things you should know about how these are processed.

• Complaints: Any person can file a complaint, meaning they do not need to come from a student or their parent.
• Reports: A report can be made by a fellow teacher, a school superintendent, an independent school principal, a board of education, or an independent school authority. Notably, the Act places a positive duty on teachers to report if they have a reasonable concern that the conduct of another teacher may cause certain types of harm to a student.
• Commissioner-initiated investigation: the Commissioner for Teacher Regulation (the “Commissioner”) may start investigating a teacher on their own initiative if it is in the public interest. Potentially, any source of information may trigger an investigation, such as media reports, a teacher’s self-report or notification from other authorities.

The commissioner is responsible for conducting a preliminary review of the matter raised in a complaint or report. After the conclusion of a preliminary review, the commissioner must initiate further disciplinary action (an investigation or a consent resolution process) unless the matter is dismissed for one of the limited reasons provided under the Act, such as being vexatious or outside the the Commissioner’s jurisdiction.

Investigations

An investigation can severely interrupt a teacher’s professional and even personal life, as the investigative measures can be highly intrusive. When under investigation, you have to fully cooperate but also avoid inadvertently jeopardizing your case.

The Commissioner has broad investigatory powers. For the purpose of investigation, they or their delegates may:

• Require a person to give evidence on oath or affirmation;
• Require a person to produce a document or other thing in their possession or control;
• Enter school buildings;
• Inspect records of a board of education or an independent school authority; and
• Interview the investigated teacher and other persons who may have relevant information.

Moreover, court orders may be obtained to enforce certain investigative measures. During an investigation, a Teaching Certificate may be suspended if the commissioner considers that there is a risk of certain types of harm to a student.

Upon concluding an investigation, the Commissioner must either issue a citation for a disciplinary hearing or conduct a consent resolution process, unless one of the limited exceptions under the Act applies—for example, that the matter gives rise to an abuse of process or that there is no reasonable prospect of an adverse finding.

Consent Resolution

A significant number of disciplinary actions against teachers are ultimately resolved through a consent resolution, which is an alternative to going through an entire hearing process and may prove to be advantageous for an investigated teacher in the right circumstances. However, to enter into a consent resolution agreement is a serious decision that should only be made with careful consideration and legal advice.

At any time between the commencement and the conclusion of a disciplinary action, the Commissioner or the teacher who is the subject of the disciplinary action can propose a consent resolution. If there is mutual consent, the matter will be concluded with a consent resolution agreement, which has the same effects as a disciplinary order. A consent resolution agreement is presumed to be made public and necessarily contains:

1. Admission to the parts or the whole of the allegations; and
   • This entails that a consent resolution will likely have severe reputational consequences and that it will substantially foreclose an appeal on the grounds of unreasonable fact-finding.
2. Disciplinary consequences as if they were ordered by a Hearing Panel.
   • Hence, a consent resolution can be career-altering just like a disciplinary order.

The key takeaway here is, a consent resolution should not be entered hastily. You should only propose or accept what is fair and reasonable, taking into account all the legal and factual factors. During a consent resolution process, legal advice is often indispensable, and you should have your lawyer comprehensively review your case.

Disciplinary Hearings

After an investigation, an unresolved matter will result in a Disciplinary Hearing, and this process starts with the Commissioner issuing a citation and establishing a Hearing Panel (the “Panel”). A hearing is not only highly consequential but also intensely stressful and complicated, because:

• A hearing is quasi-judicial and adversarial:
  • A hearing employs a court-like adversarial system (the Commissioner vs. you), where the Commissioner is normally represented by counsel (the “Discipline Counsel”).
  • Moreover, successfully defending against an allegation often requires extensive legal knowledge and research as well as evidence preparation, as a hearing decision is based on the relative strength of the parties’ factual and legal positions.
• A hearing can have profound reputational effects:
  • The Commissioner has the discretion to publish hearing citations with a summary of the allegations.
  • Oral hearings are presumptively open to the public. Therefore, severe reputational harm may occur even before a decision is made, and you should take extra care not to prejudice yourself during a hearing.
• You may be ordered by the Panel to testify under oath:
  • If you testify, you may be subject to cross-examination. When being intensely scrutinized with questions, preparedness and awareness of common pitfalls are key.
  • A court order may be obtained to compel you to testify, and non-compliance can result in severe legal consequences.
• The pre-hearing procedures are complex and may be subject to strict deadlines:
  • For example, under the Commissioner’s Rules for Disciplinary and Professional Conduct Inquiries, hearing citations can be issued as late as 28 days before the scheduled hearing date, and you may be required to attend a pre-hearing conference on as little as 14 days’ notice.
  • Moreover, different types of evidence have various deadlines for disclosure.

If you are facing an impending hearing, given its intensity and procedural complexity, the benefit of having legal counsel is eminently clear. Moreover, having a lawyer as your advocate can be indispensable for a strategic defence, which needs to be legally and factually robust. This is because:

• Extensive legal knowledge and research can be key to a robust legal defence. This is because when facing a legal question, a Hearing Panel will consider not only laws specifically applicable to teachers (such as the Teachers Act and its accompanying regulations), but also other legal authorities, such as common law cases and prior regulatory decisions. For example, in this recent Hearing Panel decision, the panel referenced common law cases, R v. Khan and F.H. v. McDougall, to answer questions about evidence admissibility and standard of proof.
• 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 Panel in making fairer decisions. Advocacy is not just about presenting legal and factual positions, 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.

Judicial Reviews

By the function of the Act and the Administrative Tribunal Act, a disciplinary decision by a Hearing Panel is considered final and binding. The only way to address concerns about the fairness of such a decision is to petition the BC Supreme Court for a judicial review, which is a highly complex and challenging task. More information about the judicial review standards is provided in a later section of this article.

The Importance of Early and Ongoing Legal Representation

When undergoing a disciplinary process, you should not leave legal representation until the last minute before a hearing.

Instead, you should act promptly in obtaining legal advice early and have your counsel remain engaged throughout the entire process. Even early stages of the disciplinary process can be highly consequential and disruptive

Legal advice can be a great asset when navigating the procedural complexity while also avoiding legal pitfalls. It is also highly valuable for building a robust defence, and having a strong response early on may lead to an expedited resolution and minimize the disruptive effects.

The Certification Appeal Procedures

In this section, “certification decision” specifically refers to a Director of Certification’s decision related to issuing or reviewing a Certificate of Qualification or an independent School Teaching Certificate under SS.30 and 31 of the Act. The information provided in this section does not apply to other licensing decisions or decisions related to Letters of Permission; for guidance on these matters, feel free to schedule a consultation with Taylor Janis’s Vancouver or Kamloops office.

Certification Reconsideration

If you have concerns about the fairness of a certification decision, you can apply to the Director of Certification (the “Director”) within 30 days of its making. For most types of certification decisions, a reconsideration decision is final; that is, there is no way to further appeal internally to a regulatory decision maker. Therefore, your submission for reconsideration needs to be robust and ideally prepared under legal advice.

Certification Appeals

However, if the original certification decision comes from a review of certificate under S.31 of the Act (the Director reviews a teacher’s pre-certification conduct based on newly-available information) and resulted in the recission of a certificate, the reconsideration decision can be appealed in writing to the Commissioner within 30 days of its making.

When appealing a reconsideration decision, legal advice can be highly beneficial, as you have to ensure that your submission and grounds for appeal are robust and legally informed. This is because the Commissioner can summarily dismiss an appeal if it is frivolous, trivial or has no reasonable prospect of success.

Certification Appeal Hearings

A certification appeal that is not dismissed will require a certification appeal hearing, which is a quasi-judicial process that shares certain similarities with a disciplinary hearing. Hence, an appellant teacher should expect the hearing to be a challenging and complicated procedure.

A certification appeal hearing can be particularly challenging because of one unique rule: the panel must not consider additional evidence that was not available to the Director when making the original certification decision, unless the appellant teacher convinces the panel that the evidence meets the specific exceptional admissibility rule provided under the Act. This requirement introduces additional procedural and legal complexity.

If you have a need to appeal a certification decision, our strong recommendation is to consult a lawyer as early as possible.

Judicial Reviews

Similar to a disciplinary decision, a certification appeal 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 & Seeking Judicial Remedies

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 complicated 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.
  • Under the Act and the Administrative Tribunals Act, the standard for the Court to judicially intervene is that the decision was “patently unreasonable” in its finding of fact or law
  • Patent unreasonableness is a very high legal threshold. A question of substantive fairness is preferably approached with legal advice.

Safeguarding your rights can be integeral to ensuring a fair outcome, and the ideal way to do so is to engage legal representation early and throughout an entire regulatory action. This is because your rights are embedded in and engaged by every procedure, and your 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 petitioning the BC Supreme Court for a Judicial Review. But to overturn a decision is a monumentally challenging task, this is because:

• Procedural complexity and time limits: Like any other Supreme Court procedure, a judicial review is complex and necessarily so. under the Judicial Review Procedures Act, a petition must be filed within 60 days of the issuance of the impugned decision.
• 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 the Supreme Court of Canada decision 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 fairness-related issues. This means a judicial review can be highly “technical”

A judicial review does not automatically pause the enforcement of a disciplinary decision. Furthermore, if you succeed at a judicial review, the decision might be sent back to the regulator to be reconsidered rather than quashed outright. These mean that, as you navigate through the complexity of a judicial review, the damage of an adverse decision may continue to radiate.

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 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 tailored legal services.

Independent Legal Advice and Representation

The majority of teachers in BC work in public schools and are members of local unions affiliated with the BC Teachers’ Federation (the “BCTF”). Even for a unionized teacher, obtaining independent legal advice or representation can be highly valuable when you are facing disciplinary or certification 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, and 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 is greatly beneficial when:

• The legal matter concerns the regulators, but not your school board.
  • Such matters are typically not captured by a collective agreement and are thus outside of your union counsel’s main duty. Although the BCTF’s staff lawyers may assist its members in disciplinary actions, this assistance is subject to the BCTF’s policies and is not available in many situations. This means your union or the BCTF will not necessarily provide sufficient legal support for navigating a disciplinary action or challenging an unfair certification decision.
  • On the other hand, the BCTF does provide legal aid (funding for outside legal counsel) to its members. You should apply for this when undergoing a disciplinary process.

• 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 through 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 BC offices in Vancouver or Kamloops if you are unsure about whether your union or the BCTF will assist you adequately in a legal matter.

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 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, if not 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 Am No Longer Teaching in BC. Should I Be Worried about a BC Disciplinary Action?

For disciplinary purposes, the Act applies equally to former BC teachers as if they were current ones. If you are no longer teaching in BC, you should be aware that a disciplinary record can carry severe reputational damage and may affect your standing with out-of-province regulators. Hence, even if you are no longer in BC, you should obtain legal advice.

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, reporter or the regulator, especially if they have a different understanding of the circumstances than yours. Hence, even if you think a complaint or report 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.

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

Under the Act, conduct unbecoming of a teacher can attract discipline, meaning potentially off-duty conduct that reflects poorly on the teaching profession can be the subject of an investigation. Therefore, if an accusation has been levied against you in relation to your off-duty conduct, you should treat it seriously and obtain legal advice promptly.

Conclusion

British Columbia has a particularly complex regulatory structure for the teaching profession. The regulators have statutory powers to make disciplinary and certification decisions with legally binding effects on teachers. Facing a disciplinary action alone can be a challenging experience, as it involves complex and disruptive procedures, and its outcome can be career-threatening and devastating to a teacher’s professional reputation. Appealing an unfair certification decision can be an equally daunting task, and both of these regulatory challenges engage a teacher’s administrative law rights. Moreover, a union does not necessarily provide legal assistance to members facing legal challenges that are not captured under the collective agreement. Hence, when facing regulatory challenges, a teacher should take a proactive approach and retain legal counsel early.

References:

• Teachers Act [SBC 2011] CHAPTER 19
• Administrative Tribunals Act [SBC 2004] CHAPTER 45
• Judicial Review Procedure Act [RSBC 1996] CHAPTER 241
• Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653
• Commissioner’s Rules for Certification Appeals
• Commissioner’s Rules for Disciplinary and Professional Conduct Inquiries
• Commissioner for Teacher Regulation Annual Report 2023/2024
• In the Matter of the Teacher’s Act and Mooney 2024 TAHP 01

Resources for Readers:

• Apply for BC Teachers’ Federation Legal Aid
• BCTF Legal Assistance and Legal Aid Policies
• Recent discipline outcomes published by the TRB
• The discipline process published by the BC government
• Professional Standards for BC Educators

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