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Charter s.1 - Dore versus Oakes. Bujacz v. Ontario College of Teachers [Oakes v Dore-Loyola]
In Bujacz v. Ontario College of Teachers (Ont Div Ct, 2026) the Ontario Divisional Court dismissed appeals, here brought against "the decisions of the Ontario College of Teachers .... (the Discipline Decision), .... (the Penalty Decision) and .... (the Charter Decision)" - these respecting "remarks of a sexual nature to a student on Facebook" that invoked "mandatory revocation of the teacher’s certificate of qualification and registration".
Here the court considers 'alternative' Charter s.1 analyses - ie. the conventional court Oakes test, and the administrative Dore-Loyola test:[108] As the Supreme Court instructs in Doré at para. 36, the approach courts take when the source of a limitation on Charter rights is enshrined in law is different than when the source of the limitation is an individualized administrative decision. Hence, the uncontested use of the Oakes test to challenge the constitutionality of the mandatory revocation provision for making remarks of a sexual nature to a student.
[109] Also, unlike Gould, here the Discipline Panel did consider the relevant Charter values as part of the Oakes analysis regarding the mandatory revocation arising from remarks in the definition of “sexual abuse”. The appellant accepts that a Doré analysis “is a proportionality exercise, similar to the one performed under the Oakes test.”
[110] As set out in Doré, at para. 56, the decision-maker should “ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives.”
[111] The Oakes analysis in the Charter Decision includes relevant findings for a Doré analysis regarding the finding of sexual abuse. The Discipline Panel was alive to the values underlying free expression, as they relate to the specific statements the appellant made, when the Panel discussed the proportionality of the mandatory revocation provisions. This discussion “works the same justificatory muscles” as the Doré analysis and achieves the goal the Supreme Court articulated in in Doré, at paras. 5-6: “In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited.”
[112] Further, both Oakes and Doré contemplate giving a “margin of appreciation,” or deference, to administrative and legislative bodies in balancing Charter values against broader objectives”: Doré, at paras. 35, 57. In the professional regulatory context, this includes affording deference to regulators’ determinations of the harm to the public caused by the actions of regulated professionals: Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685, 167 O.R. (3d) 11 (Div. Ct.), at para. 45, leave to appeal to Ont. C.A. refused 2024 CarswellOnt 13873, leave to appeal to S.C.C. refused [2024] S.C.C.A. No. 78; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 38.
[113] In Doré, the court below had also done an Oakes analysis, and, after deciding on the Doré approach, the Supreme Court proceeded to apply it. We see no reason not to consider the impact of a Doré analysis here given the overlapping nature of the issues and the extensive reasons of the Discipline Panel on relevant Charter issues.
[114] As discussed above, the appellant submits that the Discipline Panel erred in not conducting a Doré analysis when it decided whether or not he had engaged in “sexual abuse” as defined in s. 1(1) of the Act. We find that analysis would not have yielded a different result.
[115] Under Doré, the first step is to consider the statutory objectives at issue. Here, the statutory objective of the definition of “sexual abuse” and related sections under which a finding of sexual abuse results in a finding of professional misconduct and mandatory revocation, are the same as discussed and elaborated on above. They need not be fully repeated here. The parties agree that there is a pressing and substantial objective here, specifically to protect students from all forms of sexual abuse, which applies under this analysis as well.
[116] Under Doré, the nature of the Charter right must be considered. Here, it is the same expression and the same impact as found under the Oakes test above – freedom of expression that is at the lowest end of the spectrum of interests protected by s. 2(b) of the Charter. The Discipline Panel found that the appellant’s Facebook messages to Student 1 were repugnant, yet they were protected by s. 2(b). We see no error in reaching that conclusion.
[117] In the Doré analysis, we then consider how to best protect the Charter rights in view of the statutory objectives. The appellant submits that having regard to his Charter rights, the remarks that fall within the definition of “sexual abuse” should be narrowly construed to exclude his remarks. He raises the definition of “sexual misconduct” in the Act in comparison, submitting that less problematic remarks would fall under that definition. A finding of sexual misconduct does not result in mandatory revocation.
[118] These submissions overlook an important distinction between sexual abuse and sexual misconduct under the Act. Sexual abuse typically involves targeted behaviour or remarks of a sexual nature toward a particular student. That is what happened here. The appellant used a social media route to communicate with Student 1 in particular. He sent her messages late at night and asked her personal questions. Student 1 understood the messages as attempts to probe her for her age, whether she had a boyfriend and as sexual innuendo and insinuations of wanting to pursue some type of sexual encounter with her. Student 1’s mother felt that the appellant was grooming and preying on Student 1. The appellant’s inappropriate communications with Student 1 have had a lasting impact on her well-being.
[119] The Panel found that the Facebook messages that were sent to Student 1 were personal, open to a sexually suggestive interpretation, and were inappropriate. The Panel applied the agreed objective test from Chase, concluding that they were of a sexual nature. Although the appellant submitted then and now that he did not have a sexual purpose, his credibility has been significantly undermined as set out in the Merits Decision.
[120] When considering how to best protect the Charter right in view of the statutory objectives, the analysis of the statutory objectives in the Charter Decision applies and need not be fully repeated here. It begins with the objective to protect students from all forms of sexual abuse. The prior legislation excluded remarks to a student of a sexual nature from mandatory revocation. The purpose of the legislative reform was to significantly increase that protection, given the harms of sexual abuse on students. Educators are in a position of trust and authority and work with a vulnerable sector of society. The protected speech in this case was shown to have caused harm to Student 1. A Doré analysis does not assist the appellant in this case given the nature of his speech and the importance of the statutory objectives.
[121] To the extent the Discipline Panel may have erred in not conducting a Doré analysis, the substance of the Doré analysis was done as part of the Oakes analysis in the Charter Decision, and confirmed by this Court. There is no substantial wrong or miscarriage of justice in this case. There need not be a new hearing: s. 134(6) of the Courts of Justice Act, R.S.O. 1990, c. C.43; Okafor v. Ontario College of Teachers, 2025 ONSC 6089 (Div. Ct.), at para. 86.
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