Kimberley Sautner Appellant v. Saskatchewan Teachers’ Federation, 2017 SKCA 65

Court of Appeal for Saskatchewan Docket: CACV2891 Citation: Sautner v Saskatchewan Teachers’ Federation , 2017 SKCA 65 Date: 2017-08-24 Between: Kimberley Sautner Appellant And Saskatchewan Teachers’ Federation Respondent Before: Caldwell, Herauf and Whitmore JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Herauf In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Whitmore On Appeal From: Saskatchewan Professional Teachers Regulatory Board (SPTRB), File Nos. 15-03-20 and 15-04-20, Saskatoon Appeal Heard: March 21, 2017 Counsel: Jay Watson for the Appellant Dennis Fisher for the Respondent Herauf J.A. I. Introduction [ 1 ] Kimberley Sautner, the appellant, was found guilty of professional misconduct by a Professional Ethics Committee (Committee) of the Saskatchewan Teachers’ Federation (STF).

The misconduct relates to altering two of her daughter’s grade 12 marks. [ 2 ] The Committee recommended a six-month suspension of the appellant’s teacher’s certificate as a result of the finding of guilt. The STF Executive accepted and endorsed the penalty recommendation. [ 3 ] The appellant appeals both the findings of professional misconduct and the penalty. She alleges a number of evidentiary errors in the Committee decision. With respect to the penalty imposed, the appellant alleges the six-month suspension is excessive. [ 4 ] For the reasons that follow, I would dismiss the appeal.

II. facts [ 5 ] The appellant was a teacher and principal of Wolseley High School from 2006–2014. She obtained her Bachelor of Education in 1994 from Brandon University, and her teaching career spanned over 20 years in various communities across Manitoba, Saskatchewan and Alberta. [ 6 ] The events leading to this appeal began with the Wolseley High School graduation, which took place on June 20, 2014. The appellant’s daughter, Tori, was a member of the 2014 graduating class and received her high school diploma and an honour roll certificate on that day.

She began studying at the University of Lethbridge in September 2014. [ 7 ] At the University of Lethbridge, Tori was at risk of failing her English class, which would have had negative implications on her future education plans. Tori discussed her issue with a faculty advisor, who advised her she would not have been required to take that first year university English course if she had achieved a combined average of 80% in her high school English Language Arts (ELA) A30 and B30 courses.

Tori shared this information with her mother, who undertook to see if she could work out a way to have Tori “upgrade” her high school English marks. [ 8 ] In January 2015, the appellant contacted Janine Godlien, an English teacher at Wolseley High School, about helping upgrade Tori’s high school English marks. Ms. Godlien was away on maternity leave at the time, and contacted the new school principal, Crystal Hrbachek, to advise her of the appellant’s request and that the appellant had indicated Tori received a mark of 80% in her ELA B30 class. The next day, Ms.

Hrbachek encountered Gayle Wheatley in the school hallway. Ms. Wheatley is a retired teacher who was covering for Ms. Godlien while she was away, and had taught Tori in ELA B30 in the previous year. Ms. Hrbachek asked Ms. Wheatley if she recalled Tori’s mark in ELA B30. When Ms. Wheatley advised that she thought it was 60%, Ms. Hrbachek and Ms. Wheatley began investigating the discrepancy. When comparing Grade Verification Reports with Tori’s grade 12 transcripts, three discrepancies were found: (

a) the Grade Verification Report for ELA B30 disclosed a mark of 60% when the transcript disclosed a mark of 80%; (

b) the Grade Verification Report for Theatre Arts 30 disclosed a grade of 81% when the transcript disclosed a mark of 90%; and

(

c) the Grade Verification Report for Social Studies 30 disclosed a grade of 80% when the transcript disclosed a mark of 85%. [ 9 ] On January 22, 2015, the appellant sent a text massage to Ms. Wheatley asking whether arrangements could be made to upgrade Tori’s ELA B30 mark. The nature of the request is illustrated by this excerpt from the message: … So my question for you is Tori ended with an 80 in your B30 – she needs 8% to achieve this overall average. What do you think you could arrange for her – please don’t make this a huge work project for yourself – and I want you to know that I plan to pay you $500 for doing this (that’s between you and

I) because I know it’s more work than having someone sit in your class. We can communicate through email if you’d like. Please think about this and let me know what we can arrange. I will get in touch with Crystal once we figure out a plan and have Tori enrolled so this change can happen. Thanks so much. [ 10 ] On the same day, the appellant sent the following text message to Ms. Hrbachek : Good morning – I figured I better give you the heads up that I’ve talked to my buddy Ben about having Tori upgrade her English from WHS.

I’ve sent an email to Gayle (I asked Janine initially but she didn’t think it would work) – Ben’s response was make it work. She has been screwed over by a communication error that she needed to have an overall 80 in her English’s [ sic ] or take a first year English in university and get a B+. That’s even tough for great English students. Anyway she meets the requirements for upgrading. Ben said that she can re-enrolled [ sic ] and the mark changed once it’s been completed. Gayle knows the details. I just wanted you to be in the loop no doubt. Thanks Crystal. [ 11 ] Ms.

Hrbachek contacted the Superintendent, Dale Reid, and the Director and Chief Executive Officer of the Prairie Valley School Division, Ben Grebinski, and raised her concerns relating to the appellant’s requests to upgrade Tori’s marks and identified the discrepancies in the marks. After making some inquiries, Mr. Grebinski decided that it was necessary to involve the IT Supervisor of the Prairie Valley School division, Ashton Calder, in the investigation. [ 12 ] Mr. Calder’s investigation involved a review of the grades recorded in the electronic grade book system used by Wolseley High School.

This system is called Teacher Logic, and contains a cumulative record of all the tasks and weightings assigned to the various tasks a student is required to complete in each class. At the end of each semester, the marks entered in Teacher Logic are transmitted electronically to a program called SIRS. The marks in SIRS are eventually uploaded to the Ministry of Education, which then prepares and issues student transcripts.

Classroom teachers have access to Teacher Logic; whereas only the principal, the school’s administrative assistant and a SIRS associate have access to SIRS, where grades can be changed. [ 13 ] After his investigation, Mr. Calder concluded that at some time between midnight on June 25, 2014, and midnight on June 26, 2014, Tori’s ELA B30 and Theatre Arts 30 marks had been changed through the SIRS program. Mr.

Calder also found that both the appellant and the administrative assistant, Marianne Greening, had logged into the program during this relevant timeframe. [ 14 ] A complaint was sent to the STF Executive alleging the appellant had contravened

Article 1 of the Code of Professional Ethics of the Saskatchewan Teachers’ Federation , as well as s. 209.4 of The Education Act, 1995 , SS 1995, c E-0.2 (as it was before the

section was repealed on October 19, 2015) [ Act ], and s. 59.1(2) of The Education Regulations, 1986 , RRS c E-0.1 Reg 1 [ Regulations ], and that such contravention constituted professional misconduct or conduct not becoming to a teacher. [ 15 ] The Executive investigated the complaint and determined a hearing was warranted. The matter was then referred to the Committee.

The particulars of the impugned conduct as described in the Form “A” Notice of Hearing were: THAT YOU DID in approximately June of 2014, while a member of the Saskatchewan Teachers’ Federation, change the final marks concerning one or more high school students at Wolseley High School without validation and contrary to proper procedure and protocol. AND THAT YOU DID in January of 2015, make inappropriate requests of two (2) teachers at Wolseley High School to increase the final mark of a former high school student. [ 16 ] On February 8 and 9, 2016, the Committee held a hearing into the allegations. III.

Conviction [ 17 ] Following the hearing, the Committee determined the appellant was guilty of the first charge in that she had increased Tori’s final grades in both ELA B30 and Theater Arts 30. The Committee found her not guilty on the second charge, concluding there was insufficient evidence to prove she had asked the two teachers at Wolseley High School to increase Tori’s grades. [ 18 ] The Committee held the appellant’s conduct in increasing Tori’s marks constituted professional misconduct, that “tends to harm the standing of the profession” pursuant to s. 209.4(

b) of the Act and constituted professional misconduct pursuant to s. 59.1(2) of the Regulations in that her actions “would reasonably be regarded by the profession as disgraceful, dishonorable or unprofessional”. The Committee further concluded her actions brought “dishonor” to both herself and the teaching profession generally pursuant to

Article 1 of the Code of Professional Ethics of the Saskatchewan Teachers’ Federation . IV. Penalty [ 19 ] The Committee considered a penalty to recommend to the Executive, pursuant to the requirements under s. 28(12) of The Teachers’ Federation Act, 2006 , SS 2006, c T-7.1 [ TFA ]. The Committee stated the penalty should reflect aspects of both specific and general deterrence, and should support and maintain public confidence and respect for the teaching profession. The Committee explained that in determining the appropriate penalty, these principles are to be applied “in a manner consistent with the overarching objective of acting in the public interest”.

[ 20 ] When determining the appropriate penalty for the appellant, the Committee considered her failure to acknowledge or take “responsibility for her actions” as the “single most significant aggravating factor”. As a mitigating factor, the Committee recognized that the appellant had no previous record of misconduct and noted the testimony of Mr. Grebinksi, who had said the appellant was “a good teacher”. The Committee stated the appellant had already “paid a significant price for her conduct, both financially and professionally” due to the negative publicity the case had attracted.

The Committee recognized how this might inhibit the appellant from securing future employment in the teaching profession. [ 21 ] The Committee determined the appropriate sentence was a suspension of the appellant’s teacher’s certificate for a period of six months. Its report and penalty recommendation were submitted to the Executive. Upon receiving the Committee’s report, the Executive was required to hold a penalty hearing pursuant to s. 33(1) of the TFA , which it did on April 11, 2016. At this hearing, the appellant’s counsel made further submissions on her behalf; the respondent made no further submissions.

Following the hearing, the Executive determined the Committee’s recommendation of a six-month suspension was appropriate. [ 22 ] In endorsing the Committee’s penalty recommendation, the Executive provided minimal explanation for its decision.

On April 12, 2016, the Executive sent the appellant a letter advising her that the Executive had “received the report of the Professional Ethics Committee” and that it had “considered the representation that [her counsel] made on [her] behalf at the penalty hearing” before it “moved that a recommendation be forwarded to the Minister of Education that [her] teacher’s certificate be suspended for a period of six months.” [ 23 ] In an excerpt from the April 11, 2016, STF Executive Meeting Minutes, the Executive indicated that “[a] penalty hearing open to the public was held.

Decision on this matter was made in an in camera session with only Executive members present.” The Minutes show that two motions were carried: (a) “That the Executive receive the report of the Professional Ethics Committee into the conduct of Kimberley Sautner”; and (b) “That the Executive uphold the recommendation of the Professional Ethics Committee: that the teacher’s certificate of Kimberley Sautner be suspended for a period of six months.” [ 24 ] The appellant appealed the conviction and the penalty to this Court. V. Issues (

a) Did the Committee err in law by interpreting and applying s. 28(2) of the Act without regard to, and in a manner inconsistent with, s. 28(4)(

a) of the Act , and by failing to allow cross-examination of Ms. Godlien? (

b) Did the Committee err in law by disregarding or failing to give proper weight to relevant evidence? (

c) Did the Committee err in law by allowing evidence to be introduced by STF’s counsel at the hearing, without him testifying and without allowing for cross-examination? (

d) Was the penalty imposed by the Committee inappropriate and unfit in the circumstances? VI. standard of review [ 25 ] The parties agree that the applicable standard of review of decisions by professional regulatory or administrative tribunals is reasonableness. They also agree that issues involving procedural fairness do not involve any deferential standard of review. VII. Analysis A. Did the Committee err in law by interpreting and applying s. 28(2) of the Act without regard to, and in a manner inconsistent with, s. 28(4)(

a) of the Act , and by failing to allow cross-examination of Ms. Godlien? [ 26 ] Sections 28(2) and 28(4) of the TFA read: Hearing procedure 28

(2) The ethics and practice committee may accept any evidence that it considers appropriate and is not bound by rules of law concerning evidence. …

(4) At a hearing, there is to be full right: (

a) to examine, cross-examine and re-examine all witnesses; and (

b) to present evidence in defence and reply.

[ 27 ] This issue stems from the admission into evidence of certain statements attributed to Ms. Godlien, who did not testify before the Committee. The evidence of Ms. Godlien’s statements was presented by Ms. Hrbachek on examination-in-chief. Ms. Hrbachek testified about a conversation she had had with Ms. Godlien via telephone. During this conversation, Ms. Godlien had told Ms. Hrbachek about a conversation she had had with the appellant regarding improving Tori’s English marks. [ 28 ] Counsel for the appellant objected to Ms.

Hrbachek’s testimony on this matter, claiming it was hearsay and taking issue with the fact that Ms. Godlien was not subject to cross-examination. After considering the objection, the Committee determined it would hear the evidence pursuant to its discretionary power under s. 28(2) of the Act , which permits the Committee to accept any evidence it considers appropriate without being bound by the rules of evidence.

The Committee explained it would hear the evidence, but understood the appellant’s natural justice concern and therefore would ensure the evidence was attributed the appropriate weight. [ 29 ] While s. 28(2) of the Act grants the Committee considerable discretion to accept any evidence it considers appropriate, including hearsay evidence, without being bound by the rules of evidence, this discretionary power is limited by the inclusion of s. 28(4) . Section 28(4) states that at a hearing, the parties have full right to cross-examine all witnesses.

This Court has explained that the discretion to admit hearsay evidence pursuant to a provision such as s. 28(2) of the Act must be interpreted alongside the statutory right to cross-examine under provisions like s. 28(4) (see Council of the Saskatchewan Veterinary Medical Association v Murray , 2011 SKCA 1 , 329 DLR (4th) 501 [ Murray ]). [ 30 ] There is a simple answer to this ground of appeal. First, the Committee opted to deal with this matter by stating it was not using or relying on this evidence in its report. The Committee explained how the evidence of Ms.

Godlien’s statements related to the second charge, which it found was not proved and, therefore, this evidence was irrelevant to its analysis and ultimate finding of guilt on count one. [ 31 ] Second, the Committee stated it was attributing no weight to this evidence, whether hearsay or not, in coming to its decision on the ultimate issue. By assigning no weight to this evidence, the Committee effectively cured any failure to consider the necessity of admitting the hearsay evidence because that evidence played no role in its decision-making. [ 32 ] I would not give effect to this ground of appeal. B.

Did the Committee err in law by disregarding or failing to give proper weight to relevant evidence? [ 33 ] The appellant submits the Committee erred in law by ignoring or failing to give proper weight to relevant evidence relating to the alternative theories of how Tori’s grades had been changed. The evidence the appellant is referring to is the evidence of Daylin Thomson’s student record and the appellant’s vice voce evidence of the methodology for the calculation of grades for the honour roll. [ 34 ] The appellant also submits that the Committee committed an error of law by disregarding relevant evidence.

The appellant has been unable to point to a circumstance where the Committee ignored, overlooked or disregarded evidence. In fact, the Committee’s report was thorough and detailed. The Committee dedicated most of the 31-page report to its review of the evidence and explained how it interpreted, weighed and used this evidence in reaching its decision. [ 35 ] If there was proof the Committee had disregarded relevant evidence, an error of law would be established and this Court would be permitted to interfere with the findings of fact.

However, the Committee’s determination of how much weight to allocate to diverse pieces of evidence does not equate to a disregard of evidence. In Fletcher Challenge Energy Canada Inc. v Sulz , 2001 SKCA 11 , [2001] 6 WWR 476, this Court discussed the distinction between disregarding evidence and giving limited weight to evidence: [122] Whether, in saying this, the Board disregarded this evidence, as distinct from giving it limited weight, is debatable.

But if it disregarded the evidence, it erred in law, for the Board is not free to ignore relevant evidence, either as a matter of policy or otherwise. ... [ 36 ] The Committee was the decision maker of first instance and had the benefit of hearing the witnesses and evidence firsthand.

The appeal process must not be used to redo the hearing in an attempt to establish a new perspective of the evidence that weighed in favor of the appellant. [ 37 ] The Committee’s ultimate determination that certain pieces of evidence were unhelpful in coming to its decision (Daylin Thomson’s student record and the appellant’s vice voce evidence on the honour roll calculation) does not amount to the Committee ignoring relevant evidence. The Committee was entitled to review all the evidence, and determine what evidence it deemed relevant, reliable and probative.

The Committee was therefore entitled to, after considering all the evidence, accept or reject it as useful in coming to its final decision. [ 38 ] In an attempt to convince this Court that the Committee had disregarded relevant evidence, the appellant cites Machisknic (Stonechild) v Chen , 2011 SKQB 39 , 368 Sask R 169 [ Machisknic ]. In Machisknic , Gunn J. allowed the appeal in part because the hearing officer had ignored relevant evidence regarding the respondent’s direct denial of guilt.

The appellant cites Gunn J.’s statement in Machisknic in which she reviewed whether the hearing officer had sufficiently considered the evidence: [42] The Hearing Officer reached these conclusions in the face of a clear denial by Ms. Stonechild and an explanation by her of the reasons for the short term visits by non-residents of 1216 Grey Street and the evidence from Mr. Fulcher that the tenants come and go frequently from this house. The Hearing Officer may have rejected this evidence, but he did not say so either explicitly or implicitly .

And as referenced above seemed to have some conflicting views on whether the visits had been explained or not. (Emphasis added) [ 39 ] The appellant omitted the following paragraph from Gunn J.’s reasons from her factum, which I find to be relevant to the analysis:

[43] The Hearing Officer is not required to refer to all of the evidence bearing upon facts in controversy and the fact that he did not refer to all the evidence does not lead inexorably to the conclusion that evidence was overlooked . (Emphasis added) [ 40 ] In Machisknic , Gunn J. reviewed the entire body of evidence that was before the hearing officer and the probative value of that evidence and, based on this review, determined the denial of guilt was a significant piece of evidence.

The significance of this evidence amongst the other circumstantial evidence led Gunn J. to believe the hearing officer had disregarded it, based on his failure to mention it in his decision. She wrote: [50] The only direct evidence before the Hearing Officer was the evidence of the surveillance. Some of the conclusions reached by the Hearing Officer in relation to that evidence had no factual foundation and he reached contradictory conclusions within the body of his decision with respect to the evidence presented by the tenant on that issue. He did not comment on Ms.

Stonechild’s direct denial that her house was being used for drug trafficking. Nor did he make findings of credibility. [51] The significance of Ms. Stonechild’s evidence in this respect, and the Hearing Officer’s failure to mention it leads me to believe that he failed to have regard for it. This constitutes a serious failing. [ 41 ] The same cannot be said of the Committee’s review of the evidence in this case.

The Committee was thorough in its review of all the evidence and specifically referenced findings of credibility in relation to the evidence. [ 42 ] The evidence the appellant submits the Committee ignored, including that of Daylin Thomson’s student record and the calculation of the honour roll, were canvassed and discussed explicitly by the Committee in its report.

At page 27 of its report, the Committee considered the evidence with respect to Daylin Thomson, concluding “the situation regarding Daylin Thomson was explained to the satisfaction of the Committee and the Committee is of the view that this evidence has no direct bearing on the specific charges against Ms. Sautner”. [ 43 ] Similarly, the Committee determined the calculation of honour roll eligibility was inconclusive and dismissed the evidence on the topic as unhelpful in determining the appellant’s guilt.

At pages 28–29 of its report, the Committee canvassed the evidence regarding the calculation of honour roll eligibility and explained it was unable to conclusively determine what methodology had been used to calculate Tori’s honour roll average. Due to the competing methodologies and conflicting evidence on this subject, the Committee determined it was not in a position to speculate what the proper calculation was and, therefore, this evidence did “not assist the Committee” in coming to its decision. [ 44 ] The Committee determined the clear, cogent and weighty evidence before it was that offered by Mr. Calder.

The Committee found Mr. Calder “to be creditable [ sic ], thorough and unbiased in his testimony”. Mr. Calder’s evidence underpinned the following findings of fact: (

a) Tori’s grades were changed on June 26, 2014; (

b) only the appellant and Ms. Greening had access to alter the marks in the system; and (

c) the appellant and Ms. Greening accessed the system on June 26, 2014. Ms. Greening testified she did not alter the marks and the appellant testified she did not believe Ms. Greening would alter marks without direction to do so. Based on this evidence, which the Committee found to be credible, the Committee concluded the appellant had altered the marks. [ 45 ] Although the Committee ultimately declared some evidence as unhelpful or unrelated to the question of the appellant’s guilt, it is clear the Committee considered all the evidence.

It cannot be said the Committee “disregarded relevant evidence” when it determined which evidence it deemed more reliable and probative. The Committee’s weighing of the evidence does not amount to an error of law reviewable by this Court. [ 46 ] I would dismiss this ground of appeal. C.

Did the Committee err in law by allowing evidence introduced by STF’s counsel at the hearing, without him testifying and without allowing for cross- examination? [ 47 ] It is a foundational rule that evidence must be tendered by witnesses and that counsel are not entitled to give evidence. [ 48 ] The appellant suggests that when counsel for the respondent, Mr. Fisher, presented her with a hypothetical calculation of Tori’s averages, this amounted to him introducing evidence. However, Mr.

Fisher’s conduct does not amount to introducing evidence as the document and grades he used in the hypothetical calculation were already in evidence and it was the appellant’s response to his questions that represents the evidence. The Committee was therefore entitled to use this evidence in coming to the determination there were multiple rational methodologies for calculating the honour roll. [ 49 ] During cross-examination, Mr. Fisher presented the appellant with a document summarizing Tori’s marks and proposed a calculation of the grades as adopted from the “Student Awards”

section of the Wolseley High School Parent/Student Handbook, which had been put into evidence by the appellant. When beginning his questioning, Mr. Fisher specifically stated he was “not intending on entering [the document] into evidence” but was using it for ease of reference in demonstrating that there was an alternative methodology to calculate whether Tori had achieved honour roll status beyond that suggested by the appellant in chief. [ 50 ] The calculation methodology presented by Mr. Fisher used different course averages to calculate an honour roll average than the methodology proposed by the appellant.

However, this did not amount to him improperly entering evidence. The numerical values of Tori’s grades were not in contention; the matter of contention was which grades were to be used to calculate the honour roll average. Mr. Fisher did not act improperly by presenting the appellant with a calculation including class grades that were different from those that the appellant had used in her calculation. What Mr. Fisher did was merely an exercise in arithmetic based on the inclusion or exclusion of certain agreed upon numerical values of Tori’s grades.

[51] It is worth mentioning that the appellant’s counsel engaged in the same manner of hypothetical arithmetic as did Mr. Fisher.During examination-in-chief, counsel presented the appellant with a document consisting of Tori’s grades. On this document, somegrades were highlighted and had check marks beside them.

Counsel asked the appellant to calculate the average of those marked grades.Later during the examination, counsel for the appellant had the appellant calculate a subsequent average based on different grades.Nowhere is it suggested the appellant’s counsel inappropriately adduced evidence during his examination on the averages andcalculation of the honour roll, even though he engaged in the same exercise of arithmetic as Mr. Fisher. [52] I see no issue with the questioning on the calculation of averages undergone by both appellant and respondent counsel.

Thetranscript showcases how both counsel properly elicited evidence from the witness. For example, when the appellant was presented withMr. Fisher’s hypothetical calculation, the appellant agreed that if the hypothetical calculation existed, it would have led to Tori receivinghonour roll status. It was this testimony that represents the evidence, not Mr. Fisher’s questioning. [53] The case of R v Myers, 2013 ONCA 716, raised by the appellant, is not analogous to this situation and I see no merit in thecomparison. The appellant’s argument that Mr.

Fisher’s questioning amounts to him improperly adducing evidence must fail. [54] I would also dismiss this ground of appeal. D. Was the penalty imposed by the Committee inappropriate and unfit in thecircumstances? 1. Lack of reasons [55] The appellant takes issue with the reasons provided by the Executive for its decision to uphold the Committee’srecommendation of a six-month suspension of the appellant’s teacher’s certificate. The appellant argues the Executive did not provideany reasons for its decision which precludes this Court from understanding why the Executive made its order.

For this reason, theappellant submits that this Court may quash the decision and undertake its own consideration of the circumstances and make adetermination as to an appropriate penalty. [56] This Court was faced with a similar argument in the context of an appeal under The Securities Act, 1988, SS 1988-89, c S-42.2. In Euston Capital Corp. v Saskatchewan Financial Services Commission, 2008 SKCA 22, 307 Sask R 100, the SaskatchewanFinancial Services Commission found the appellants to have contravened the prospectus requirements imposed by The Securities Act,1988.

The appellants argued on appeal that, inter alia, the Commission had failed to provide reasons for its decision to impose sanctionson them. This Court accepted this argument and the sanctions aspect of the Commission’s decision was quashed and remitted forreconsideration. The following comments of Richards J.A. (as he then was) are useful: [41] As is well known, the general historical position at common law was that a statutory tribunal had no obligation to give reasonsfor decision and a failure to give reasons was not considered to be a breach of the duty of procedural fairness.

However, this changedwith the Supreme Court of Canada’s decision in Baker v. Canada, (SCC), [1999] 2 S.C.R. 817. [42] In Baker, the Court canvassed the various advantages of written reasons and concluded the time had come to acknowledge thatthe duty of fairness would sometimes require that reasons be provided. L’Heureux-Dube J. said this at para. 43: In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provisionof a written explanation for a decision.

The strong arguments demonstrating the advantages of written reasons suggest that, in cases suchas this where the decision has important significance for the individual, when there is a statutory right of appeal, or in othercircumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere.... [43] Justice L’Heureux-Dube’s reference to some form of reasons being necessary where there is a statutory right of appeal reflectedthe decisions of various courts in cases such as Re R.D.R.

Construction Ltd. and Rent Review Commission (1982), (NS CA), 139 D.L.R. (3d) 168 (N.S.C.A.) and Boyle v. Workplace Health, Safety and Compensation Commission (N.B.) (1996), (NB CA), 179 N.B.R. (2d) 43 (C.A.). Since Baker, courts have continued to find a duty to provide reasons by the referenceto the existence of statutory rights of appeal. See, for example: Casavant v. S.T.F., 2005 SKCA 52, [2005] 6 W.W.R. 31 (Sask. C.A.) atpara 28; Creager v. Provincial Dental Board of Nova Scotia, 2005 NSCA 9, (2005), 230 N.S.R. (2d) 48; Gardner v.

Canada (AttorneyGeneral), 2005 FCA 284, 339 N.R. 91. … [44] In the present case, s. 11(5) of the Act provides an open-ended right of appeal from the Commission to this Court. Typically, thatright of appeal will be meaningful only if the Commission offers reasons for its decisions. This is so because a decision which does nomore than declare a bottom-line conclusion can easily obscure such things as an error of law or legal reasoning, a mishandling of theevidence or the consideration of improper or irrelevant factors.

In short, and speaking in general terms, the failure to provide reasons fordecision hollows out and defeats the right of appeal provided by s. 11(5). … [46] None of this is to say the obligation to give reasons means the Commission must always provide detailed and elaborateexplanations for its decisions. Requirements in this regard will depend on context.

The necessary content of any particular set of reasonswill be dictated by factors such as the significance of the issues under consideration, the complexity of those issues, the argumentsadvanced by the parties, the nature of the evidence, the significance of the decision to the parties and so forth. The business of providingreasons for decision is not a one size fits all operation. See: Casavant v. S.T.F., supra, at paras. 43-48; VIA Rail Canada Inc. v. Canada (National Transportation Agency) (2000), (FCA), 193 D.L.R. (4th) 357 (Fed.

C.A.) at paras. 21-22. [57] It follows that if the Executive does not set out its reasoning in such a way as to allow the Court to understand why the penaltywas imposed as it was and to assess whether there were grounds to challenge the decision, this Court does not owe deference to the

Executive. In other words, if this Court is left in the dark as to what the Executive made, or did not make, of the appellant’s submissions at the penalty hearing, how the Executive assessed the seriousness of the appellant’s actions, or the significance the Executive placed on factors such as the need for specific and general deterrence and maintaining public confidence in the system, it is very difficult to make a determination of the reasonableness of its decision. [ 58 ] The respondent submits it may be inferred the Executive adopted the reasons given by the Committee.

The respondent argues the Committee’s comprehensive report and its reasons remedy the lack of detailed reasons from the Executive. The respondent submits the Executive was entitled to, and in fact did, adopt the Committee’s reasons upon review of its report. [ 59 ] To put this into perspective, it is worthwhile to set out the reasons for the penalty given by the Committee (at A84 of the appeal book): The Teachers’ Federation Act, 2006 directs that this Committee make a penalty recommendation to the Executive of the Federation in the event that it finds a teacher guilty of professional misconduct.

The range of penalty recommendations is set out in

Section 33 of the Teachers’ Federation Act, 2006, and ranges from a reprimand to cancellation of a member’s teaching certificate. Although there is no prescribed list of sentencing principles to be applied by this committee with respect to the assessment of penalty, the Committee is of the view that the penalty should reflect aspects of both a specific deterrent in relation to Ms. Sautner as well as a general deterrent in relation to the teaching professional at large. Further, it should ultimately support and maintain public confidence and respect for the teaching profession.

These principles should be applied in a manner consistent with the overarching objective of acting in the public interest. While the Committee understands that every parent wants to support his or her children, this clearly cannot come at the expense of one’s professional responsibilities. In the view of the Committee, improper alteration of a student’s marks goes to the heart of a teacher’s professional obligations. Ms. Sautner denied altering Tori’s marks. The Committee does not believe or accept Ms. Sautner’s evidence in this regard.

In the view of the Committee the single most significant aggravating factor for Ms. Sautner lies in the fact that she has compounded the breach of her professional obligation by not acknowledging or taking responsibility for her actions. That said, there was no evidence presented to this Committee of other or past misconduct on the part of Ms. Sautner. On the contrary, Mr. Grebinski testified that he considered Ms. Sautner to be a good teacher. He had no cause for past discipline and indeed provided a supportive letter of reference. Ms.

Sautner has already paid a significant price for her conduct, both financially and professionally, particularly in light of the negative publicity which this case has attracted. It is unclear how the finding of this Committee will impact Ms. Sautner in relation to her employment and teaching certification in the Province of Alberta. It may well be that Ms.

Sautner’s future teaching opportunities will be significantly impacted by these precedings [ sic ]. [ 60 ] In support of its argument that the Executive adopted the reasons given by the Committee, the respondent points to the Executive Meeting Minutes from April 11, 2016, which indicate that the following motion was carried: That the Executive uphold the recommendation of the Professional Ethics Committee: that the teacher’s certificate of Kimberley Sautner be suspended for a period of six months. [ 61 ] The respondent also points to the letter mailed to the appellant on April 12, 2016, which states, in part, that: [T]he Saskatchewan Teachers’ Federation Executive has received the report of the Professional Ethics Committee hearing, held on February 8-9, 2016, into your professional conduct.

The Committee found that you were guilty of conduct which is not becoming to a teacher. The Executive also considered the representation that Mr. Jay Watson made on your behalf at the penalty hearing on April 11, 2016. The STF Executive, at its meeting on April 11, 2016, moved that a recommendation be forwarded to the Minister of Education that your teacher’s certificate be suspended for a period of six months.

Accordingly, upon expiration of the appeal period, the Federation will be formally requesting the Minister of Education to suspend your teacher’s certificate for a period of six months. [ 62 ] This Court can infer that the Executive adopted the reasons given by the Committee. In the letter sent to the appellant, the Executive stated it received the Committee’s report and moved that a recommendation be put forward that her teacher’s certificate be suspended for a period of six months; the same period recommended by the Committee.

Furthermore, the appellant was given a copy of the Committee’s report before the penalty hearing was commenced pursuant to s. 33(2)(

a) of the TFA and should have been fully aware of the Committee’s recommendation and reasoning throughout the proceedings in front of the Executive. It is also important to note that the Committee is specifically authorized to provide penalty recommendations in its report under s. 28(12) of the TFA , which should put the parties on notice that the Executive may choose to rely on it.

Thus, when the Executive referred to the report as it did, it is logical to conclude that it was adopting the report. [ 63 ] Nevertheless, I would note the Executive’s reasons are not ideal, particularly in light of the fact that it heard additional submissions at the penalty hearing from the appellant’s counsel. While the Executive states in the April 12, 2016, letter that it “considered the representation” made by counsel at the penalty hearing, the failure to say more leaves much to be desired.

By upholding the recommendation of a six-month suspension, the Executive obviously did not put much weight, if any, upon the submissions made by the appellant’s counsel at the penalty hearing. However, little is known about what the Executive specifically made, or did not make, of those submissions. This is somewhat unfortunate considering it would not have been a great burden for the Executive to add a few sentences indicating why it was adopting the Committee’s recommendation at the penalty hearing. 2.

Penalty Range [ 64 ] The appellant takes issue with the six-month suspension, stating the penalty is excessive in the circumstances. Curiously, on appeal, counsel for the appellant explained that the appellant is no longer teaching and does not plan to go back to teaching; therefore,

the penalty is not of concern to her. Despite this, counsel argued the penalty was excessive and asked this Court to alter it. [ 65 ] A review of similar cases suggests the six-month suspension is harsher than that which has been imposed in other grade alteration cases, however, it is not unreasonable. [ 66 ] The appellant cites Britton v STF (6 October 2015) Saskatoon, (Saskatchewan Teachers’ Federation) [ Britton ], as the most analogous case. Mr.

Britton was given a written reprimand after being found guilty of professional misconduct and conduct that is not becoming to a teacher for altering the grades of five students. Unfortunately, we have minimal access to the reasons behind this penalty as only the Executive’s

Summary Decision is available. [ 67 ] The respondent submits there are several distinguishing factors between this matter and the Britton matter: (

a) Mr. Britton co-operated fully by way of an Agreed Statement of Facts; (

b) Mr. Britton did not act out of any personal interest or motivation, whereas the appellant did; (

c) the evidence in the Britton matter indicated that Mr. Britton genuinely believed he was acting in the best interests of his students; (

d) Mr. Britton lost his employment and his home as a result of his actions; and (

e) Mr. Britton’s actions were ultimately ratified by the Ministry of Education. [ 68 ] The appellant also relies on School District No. 39 and Vancouver Teachers’ Federation, Re , 1996 CarswellBC 3536 (WL) (BC Arbitration) [ School District No. 39 ]. In that case, the teacher admitted to two instances in which he had forged his principal’s signature. The teacher had planned student educational tours to Greece. In order to gain free entry to museums and other historic sites, the teacher drafted letters to the Greek Consulate on school letterhead and forged the principal’s signature.

The teacher’s employer imposed a suspension of one term (approximately four months) and the teacher’s union filed a discipline grievance. The arbitrator allowed the grievance and stated that a two-week suspension was appropriate. [ 69 ] Although School District No. 39 and this case both contain circumstances involving dishonesty and a kind of forgery, there are several distinguishing factors. First, the arbitrator found the teacher was not motivated by a personal interest, but was dedicated to providing his students an affordable study tour.

Second, the arbitrator concluded the teacher himself thought he was serving the best interests of his students and that this gave him the liberty to bend the rules. Third, the arbitrator considered that the teacher was relatively youthful and reasoned that the teacher would likely learn from his mistake as a result of the proceedings and a shorter suspension, and would continue to develop into a dedicated and outstanding teacher. [ 70 ] In the case at hand, the appellant was the principal when the alleged conduct occurred. She was found guilty of changing only one student’s grades.

The Committee noted that she had no history of discipline and was a good teacher. The appellant did not enter a guilty plea nor express a sense of responsibility or remorse, which the Committee recognized as aggravating factors. [ 71 ] At the end of the day, the Committee and the Executive, through its endorsement of the Committee’s report, carefully considered all of the relevant factors and arrived at a conclusion that was reasonable. There is simply no error that would permit this Court to interfere. This ground of appeal fails. VIII.

Conclusion [ 72 ] In regard to the appellant’s first category of appeal that the conviction is unreasonable, the appellant is attempting to have this Court reconsider and reweigh the evidence in an attempt to reverse the Committee’s finding of guilt.

The appellant has failed to show the Committee committed an error of law or that the Committee’s treatment of the evidence was unreasonable. [ 73 ] As for the second category of appeal that the penalty imposed is unreasonable, while the reasons of the Executive are brief, they are sufficient in the circumstances, especially given the thorough recommendation prepared by the Committee.

Moreover, the six- month penalty is not unreasonable when considering the evidence in this case. [ 74 ] The appeal is dismissed with costs to the respondent to be assessed under Column II of the Tariff of Costs. “Herauf J.A.” Herauf J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Herauf J.A.” for Whitmore J.A.