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Professionals - Complainants. Fuchigami v. Ontario College of Teachers
In Fuchigami v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered 3 related JRs where a teacher complainant challenged "three decisions of the Investigation Committee of the College of Teachers (the “Respondent”) not to refer complaints made by him about three of his colleagues (the “respondent Members”) to the Discipline Committee of the College of Teachers". The court addressed this primarily as a legal 'standing' issue, and engaged in a useful canvass of standing law in the professional discipline complainant context:Issue (a): Does the Applicant have standing to bring this application for judicial review?
[14] The Applicant was the Complainant. Unless a statute expressly provides otherwise, a complainant in a professional discipline case has no standing to challenge the substantive reasonableness of a decision not to refer a complaint to a discipline hearing. The Applicant does have limited standing to challenge this kind of discipline decision on grounds of procedural fairness:The Act makes it clear that the disciplinary process is a matter between the Association and the individual member whose conduct has been questioned. The Act is directed solely to the Association and its members; the rights, duties and responsibilities contained in the Act relate only to them. Under the investigative process contained in Part 5, a complainant is not made a party either to the investigation or the disciplinary process itself. The only parties are the Association and the member whose conduct is under investigation. Council's decision to terminate the investigation of the Engineers could have no detrimental impact on either FOR or Opron. It did not affect their personal or economic rights or obligations. They have no more interest in the conduct of the Engineers than any other member of the public. There is no lis inter partes between FOR and Opron, on the one hand, and the Association or the Engineers, on the other. Judicial review is not available in these circumstances. (Friends of the Old Man River Society v. Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2001 ABCA 107, para. 41; leave to appeal refused [2001] SCCA No 366). [15] As found by the Nova Scotia Court of Appeal, this principle has been widely recognized in Canadian jurisdictions:The issue of whether a complainant in a professional disciplinary matter has standing to apply for judicial review has been considered in a number of cases: Friends of the Old Man River Society v. Association of Professional Engineers, Geologists and Geophysicists of Alberta, 2001 ABCA 107, leave to appeal refused [2001] SCCA No 366; Berg v. British Columbia (Police Complaint Commissioner), [2006] B.C.J. No. 1027 (BCCA), leave to appeal refused [2006] SCCA No 300); M.H. v. College of Physicians and Surgeons of Alberta, 2006 ABQB 395; Pound v. Lunney, 2007 BCSC 85; Allen v. College of Dental Surgeons of British Columbia, 2007 BCCA 75; Metropolitan Centre Inc. v. Abugov Kaspar Architecture, Engineering, Interior Design, 2007 ABQB 419; Emerman v. Assn. of Professional Engineers and Geoscientists of British Columbia, 2008 BCSC 1186; Mitten v. College of Alberta Psychologists, 2010 ABCA 159; Robichaud v. College of Registered Nurses of Nova Scotia, 2011 NSSC 379. These authorities appear to be in agreement that a non‑party does not have standing to seek judicial review of the merits of a disciplinary body's decision. Where judicial review has been found to be available, it has been limited to issues relating to procedural fairness. (Tupper v. Nova Scotia Barristers’ Society, 2013 NSSC 290, para. 31) [16] This principle has long been the law of Ontario, has been followed consistently in this court and has been applied, in particular, in cases emanating from the Respondent: Cowan v. Canadian Broadcasting Corporation, 1966 CanLII 225 (ON CA), [1966] 2 OR 309 at 311 (CA); Pieters v. Ontario College of Teachers, 2008 CanLII 5113, para. 4 (Ont. Div. Ct.); Kipiniak v. Ontario Judicial Council, 2012 ONSC 5866 (Div. Ct.); Bouragba v. Ontario College of Teachers, 2018 ONCA 6940, para. 3 (Div. Ct.).
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