Robert John Robertson Court of Appeal Case 2014bcca331

COURT OF APPEAL FOR BRITISH COLUMBIA
Citation: Robertson v. British Columbia (Teachers

Act, Commissioner),
2014 BCCA 331
2014 BCCA 331 (CanLII)

Date: 20140821
Docket: CA041261
Between:
Robert John Robertson
Respondent
(Petitioner)
And
The Commissioner Appointed Under The Teachers Act, S.B.C. 2011, c. 19
Appellant
(Respondent)
Before: The Honourable Madam Justice Garson

The Honourable Mr. Justice Willcock
The Honourable Mr. Justice Goepel
On appeal from: An order of the Supreme Court of British Columbia, dated

September 16, 2013 (Robertson v. British Columbia (Teachers Act, Commissioner),
2013 BCSC 1699, Vancouver Docket S132270).
Counsel for the Appellant: K. Horsman

E. Ross
Counsel for the Respondent: J.M.S. Woolley
Place and Date of Hearing: Vancouver, British Columbia

April 3, 2014
Place and Date of Judgment: Vancouver, British Columbia
August 21, 2014
Written Reasons by:

The Honourable Madam Justice Garson
Concurred in by:
Dissenting Reasons by:
The Honourable Mr. Justice Willcock (P. 31, para. 85)
Robertson v. British Columbia (Teachers Act, Commissioner) Page 2
Summary:
In 2007, the British Columbia College of Teachers commenced an investigation into

allegations of historic sexual misconduct on the part of the respondent, Mr. Robert
John Robertson, a teacher. In 2011, following the investigation, the Colleges
Discipline Hearing Sub-Committee issued a citation notifying Mr. Robertson that a

hearing would be held to inquire into his conduct.
Mr. Robertson applied to have the proceeding stayed on several grounds, including
abuse of process by delay. The allegations of sexual misconduct had been reported
in 1976 to the body that then had the authority to cancel a teachers certificate of
qualification; however, for unknown reasons, the complaint was not adjudicated.
Mr. Robertson argued that allowing the hearing to proceed was an abuse of process
on account of the prejudice attendant to the thirty-five year delay between the time
the allegations were first made and the citation being issued. The panel did not
agree and dismissed his application. Mr. Robertson applied for judicial review.
The judge hearing the judicial review decided that the panel erred in its abuse of
process by delay analysis in regards to the sexual misconduct allegations. She
remitted the application to the panel for reconsideration in accordance with her
reasons for judgment.
Held: Appeal allowed. The majority held, (per Garson J.A., Goepel J.A. concurring)
that the decision of the panel be restored, and the application to strike the citation be
dismissed. The cross-appeal is dismissed.
The majority decided that the standard of review was governed by the Administrative
Tribunal Act, S.B.C. 2004, c. 45, (ATA). The question that was before the panel
was a question falling under s. 58(2)(b) of the ATA : a question about the
application of common law rules of natural justice and procedural fairness [that] must
be decided having regard to whether, in all of the circumstances, the tribunal acted
fairly. This question requires a correct response.
Applying the principles set out in Blencoe v. British Columbia (Human Rights
Commission), 2000 SCC 44, the court considered if Mr. Robertson had suffered
individual prejudice or hearing prejudice, and agreed with the panel that he had not
established such prejudice despite the 35-year delay in proceeding. As for the
question of public prejudice, the court agreed with the panel holding that permitting
Mr. Robertson to avoid facing a disciplinary hearing in these circumstances would
carry with it a serious risk of bringing the regulatory process into disrepute.
Willcock J.A. dissented and would have dismissed the appeal.

Reasons for Judgment of the Honourable Madam Justice Garson:
Introduction
[1] In 2007, the British Columbia College of Teachers commenced an

investigation into allegations of historic misconduct on the part of the respondent,
Mr. Robert John Robertson, a teacher. In 2011, following the investigation, the
Colleges Discipline Hearing Sub-Committee issued a citation notifying
Mr. Robertson that a hearing would be held to inquire into his conduct. The hearing
was to address two separate but related allegations: first, that Mr. Robertson had
sexual relations with three teenage students in 1976 when he was a teacher in
Richmond; and, second, that Mr. Robertson misled the Vancouver School Board
(the VSB) about why he resigned his position in Richmond when he was hired
immediately thereafter by the VSB.
[2] Mr. Robertson applied to have the proceeding stayed on several grounds,
including abuse of process by delay. The allegations of sexual misconduct had been
reported in 1976 to the body that then had the authority to cancel a teachers
certificate of qualification; however, for unknown reasons, the complaint was not
adjudicated. Mr. Robertson argued that allowing the hearing to proceed was an
abuse of process on account of the prejudice attendant to the thirty-five year delay
between the time the allegations were first made and the citation being issued. The
panel did not agree and dismissed his application. Mr. Robertson applied for judicial
review.
[3] The judge hearing the judicial review decided that the panel erred in its abuse
of process by delay analysis in regards to the sexual misconduct allegations. She
remitted the application to the panel for reconsideration in accordance with her
reasons for judgment. The judge also found that the hearing into the
misrepresentation allegations could go forward and the panel had not erred in its
delay analysis on that issue. The appellant, the Commissioner for Teacher
Regulation, says on appeal that the judge erred in interfering with the panels
decision because the judge either: (a) failed to apply the deferential standard of
review applicable by virtue of the Administrative Tribunals Act, S.B.C. 2004, c. 45,
s. 58 [the ATA]; or, (b) by improperly applying the reasonableness standard of
review to the tribunals findings of fact and substituting her own view for that of the
panel.

[4] Mr. Robertson cross-appeals. First, he argues that the judicial review judge
ought not to have remitted the question regarding the sexual misconduct allegations
and abuse of process to the panel for reconsideration but rather dismissed the
complaint herself. Second, he submits that the judge erred in upholding the panels
decision in respect of the misrepresentation allegations.
Background
[5] The factual background to this appeal is concisely described by the chambers
judge. I quote in part from her reasons for judgment, Robertson v. British Columbia
(Teachers Act, Commissioner), 2013 BCSC 1699 at paras. 3-12:
The petitioner, Robert John Robertson, is a 62 year-old teacher who is

currently the subject of certain disciplinary proceedings before the Teacher
Regulation Branch of the Ministry of Education. The complaints against him
stem from matters that arose in 1976, when he was a teacher employed by
the Richmond School Board (RSB), and shortly thereafter when he applied
for and was then hired by the Vancouver School Board (VSB).
In August 1976, the RSB investigated allegations that Mr. Robertson had
engaged in inappropriate sexual relationships with three students.
Mr. Robertson was suspended from his employment and, several days later,
he resigned his position. He understood that the Department of Education
might deal with the matter and he was advised by his lawyer that there could
be several outcomes with the Department, including suspension or
cancellation of his teaching certificate, or no action at all. He was also
advised by his lawyer that the process could take a year and if he had not
heard from the Department after that length of time, this would mean that it
had decided to take no action.
Within days of his resignation, Mr. Robertson applied for a teaching position
with the VSB and was hired the following month, in September 1976, as a
substitute teacher. It is alleged that Mr. Robertson failed to disclose to the
VSB that he was under investigation for sexual misconduct at the time he
resigned from his position with the RSB.
Mr. Robertson worked for the VSB from that time until 2006. From 1979 to
1995, he also held a second job as a sales and service agent with Canadian
Pacific Airlines. He married in 1984 and has since raised three children.
Mr. Robertson never heard from the Department of Education. After a year,
he concluded that the Department had decided to take no action against him
and he moved on with his teaching career. There were no other complaints
against him throughout his career and his performance reviews were positive.
However, in 2005, one of the students involved in the original allegations of
sexual misconduct complained to the VSB after she learned that
Mr. Robertson was still teaching. The VSB conducted an investigation, and in

December 2006, Mr. Robertson resigned his position. He now teaches at a
high school in China.
In 2006, the College of Teachers was the body responsible for the
professional regulation of teachers. In December 2006, after the VSB had
completed its investigation and after Mr. Robertson had resigned, the Board
reported the matter to the College. In February 2007, the College
commenced an investigation of its own. In September 2010, three and a half
years later, it issued a preliminary investigation report, and in November 2011
it issued a citation against Mr. Robertson. The citation made two allegations:
(1) that Mr. Robertson had inappropriate sexual relationships with three
students in 1976, and (2) that he made misrepresentations to the VSB during
his employment interview in 1976.
In December 2011, Mr. Robertson sought disclosure of records relating to the
events of 1976 under the Freedom of Information and Protection of Privacy
Act, R.S.B.C. 1996, c. 165. Records from the Department of Education that
pertained to Mr. Robertson were subsequently located at the Colleges
offices. These records disclosed that in late August 1976, the RSB notified
the Deputy Minister of Education and the BC Teachers Federation of the
circumstances surrounding Mr. Robertsons resignation. The BC Teachers
Federation did not consider that it could invoke its disciplinary authority since
Mr. Robertson had resigned and suggested the more direct route of
proceeding directly to the Lieutenant Governor in Council (LGIC). In
September 1976, the Department of Education obtained a legal opinion from
the Attorney Generals office advising that the LGIC had the jurisdiction to
cancel Mr. Robertsons teaching certificate and of the process to put the
matter before the LGIC. No other records were found. Some of these
documents were also in the VSBs 2006 investigation file.
In January 2012, the College was dissolved and the Commissioner assumed
jurisdiction over the disciplinary proceedings involving Mr. Robertson. Where
a citation is issued, the Commissioner is required to establish a Panel of
three members to conduct the hearing.
Mr. Robertson then commenced a petition for judicial review, seeking a stay
of the proceedings before the Commissioner on the grounds of res judicata,
abuse of process and delay. When the Commissioner raised concerns that
Mr. Robertson had not exhausted his available remedies, that petition was
adjourned and in January 2013, Mr. Robertson made the same application to
the Panel appointed by the Commissioner. On March 18, 2013, the Panel
dismissed the application.
On April 2, 2013, Mr. Robertson commenced this petition, seeking orders in
the nature of certiorari, prohibition and mandamus. On April 17, 2013,
Fitzpatrick J. of this court granted a stay of the proceedings before the

Commissioner pending this judicial review.
[6] I note that the citation was initially issued by the College of Teachers pursuant
to the Teaching Profession Act, R.S.B.C. 1996, c.449, ss. 28 and 30. The discipline

hearing was continued by the Teacher Regulation Branch (TRB) under the
Teachers Act, S.B.C. 2011, c.19, s.88 (TA) when the TA replaced the Teaching
Profession Act as the statute governing teacher regulation.
[7] The College of Teachers prepared a Report of Preliminary Investigation (the

Report) dated June 30, 2011. The investigator conducted numerous interviews but
relied extensively on the VSBs 1976 investigation of Mr. Robertson to complete the
Report. The investigators conclusions and the evidence available to him are
pertinent to Mr. Robertsons claim to be prejudiced by the delay in proceedings. I
shall therefore refer to parts of the Report, though I note that none of these
allegations have ever been adjudicated.
[8] The Report indicates that in 2005 Complainant A saw Mr. Robertsons picture
in the newspaper associated with a teachers strike. She wrote to the school district
indicating her shock that he was still teaching as she believed he had left teaching
after the investigation in Richmond, many years ago. It was Complainant As letter
that prompted the school division and then the College to re-open the investigation
into Mr. Robertsons conduct.
[9] The investigator for the College did not locate Complainant A for an interview.
Instead he relied on the report of a Labour Relations Officer with the school district
who had interviewed Complainant A after her 2005 complaint. Complainant A told
the school divisions investigator that she had an intimate relationship with
Mr. Robertson that began on a school cruise when she was 15 years old. He was a
teacher supervisor on that cruise. The report also includes an account that on June
20, 1976, the RCMP found Mr. Robertson and Complainant A having sexual
relations in a car in a parking lot. In his interview with the Colleges investigator,
Mr. Robertson admitted having a boyfriend/girlfriend relationship with Complainant
A. According to both Mr. Robertson and Complainant A this relationship continued

after Mr. Robertson left Richmond and began teaching in Vancouver.
[10] Mr. Robertson also admitted to a sexual relationship with Student A but
denied it involved intercourse. Mr. Robertson said this student was 16 years old

when the relationship began. She was a student at the school where he taught in
Richmond and played on the softball team he coached. Student A was not located or
interviewed by either the school division or College investigators but gi ven
Mr. Robertsons admission she was not thought to be a crucial witness.
[11] Another student, Student B, was interviewed by the investigator for the
College and alleged a sexual relationship with Mr. Robertson. Mr. Robertson denies
her accusation.
[12] The Report also details police involvement in 1976 but notes no charges were
pursued. The school divisions investigator interviewed the investigating officer who
was able to locate his original notes. The officers notes indicate that Mr. Robertson
admitted to the officer in 1976 that he had sexual relationships with Complainant A,
Student A and Student B.
The Decision of the Panel
[13] In its decision to dismiss Mr. Robertsons application for a stay of the
Disciplinary Hearing, the Panel addressed three issues:
1. Does the doctrine of res judicata preclude the TRB from proceeding
against Mr. Robertson in relation to the 1976 sexual misconduct
allegations on the basis that those allegations were previously
reported to, considered, and decided by the Department of Education
and/or the LGIC?
2. Does the doctrine of abuse of process by re-litigation apply to
preclude the TRB from proceeding with the 1976 sexual misconduct
allegations?
3. Does the delay in commencing proceedings respecting the Citation
allegations and in producing its report of preliminary investigation
amount to a denial of natural justice and an abuse of process?
[14] The Panel dismissed Mr. Robertsons res judicata argument on the basis that
no court of competent jurisdiction had ever made a final decision as to the substance
of the 1976 sexual misconduct allegations. The Panel dismissed his abuse of
process by re-litigation argument on similar grounds, saying there was no evidence

that the sexual misconduct allegations had been litigated. Finally, the Panel rejected
Mr. Robertsons argument on delay on the grounds that he had not established
sufficient prejudice as required by the leading case on abuse of process in the
administrative context, Blencoe v. British Columbia (Human Rights Commission),
2000 SCC 44. The res judicata issue and abuse of process by re-litigation issues are
not under appeal. I refer to them here only for context.
[15] Mr. Robertson argued two stages of delay: (1) the delay between when the
sexual misconduct allegations were first reported to the Department of Education in
1976 to when the investigation was reactivated by the College of Teachers in 2006;
and (2) from 2006 to 2010, the time between when the College re-activated its
investigation and when it issued the Report of Preliminary Investigation.
[16] The Panel concluded that regardless of whether the delay was characterized
as 30 years or 45 months, Mr. Robertsons argument could not succeed. In so
concluding, the Panel rejected Mr. Robertsons submission that the College should
be deemed to have knowledge of the prior proceedings as the successor body
responsible for teacher regulation. Instead, it accepted that the College had no
knowledge of the allegations until the VSB brought them to its attention in 2006.
[17] The panel then reasoned that Mr. Robertson failed to establish that he
suffered prejudice of such a magnitude that a finding of abuse of process is
warranted. In terms of prejudice to hearing fairness, it found Mr. Robertsons
submissions too speculative to warrant a finding of significant prejudice at this stage
of the proceedings. Further, it considered that the evidence tended to suggest that
any personal or psychological harm he was experiencing arose from the allegations
themselves, not the delay in hearing the matter. After expressly considering the
numerous contextual factors Mr. Robertson argued amounted to prejudice, the panel
decided that, in the face of the very serious allegations against him, a decision to
grant him a stay would negatively affect the publics sense of decency and fairness
and bring the TRBs regulation of teachers in this province into disrepute. The panel
dismissed Mr. Robertsons application.

Chambers Judges Decision: 2013 BCSC 1699
[18] The chambers judge identified the issues before her at para. 26 of her
reasons for judgment:
1. Is the petition premature?

2. What standard of review applies to the panels preliminary decision
refusing to order a stay of the disciplinary proceedings against
Mr. Robertson?
3. Does the Panels decision meet the applicable standard of review?
4. If the petition is allowed, what is the appropriate order?
Prematurity
[19] Before the chambers judge the Commissioner argued that the petition for
judicial review ought not to be heard on the grounds that it was premature. He
argued that the tribunal ought to be able to complete its process prior to any judicial
review. The chambers judge concluded that the circumstances of this case did not
support a prematurity argument. This finding is not under appeal.
Standard of Review
[20] The chambers judge concluded that the Administrative Tribunals Act, S.B.C.
2004, c. 45, s. 1 [ATA], was not applicable to determining the standard of review in
this case because the TA does not contain a privative clause as defined in in the
ATA. She therefore moved to common law principles in order to determine what
standard of review she should apply to the panels decision.
[21] At para. 63 the chambers judge concluded that the panels determination and
application of the common law principles of abuse of process should be reviewed on
a correctness standard but discrete factual issues which could be extracted from the
legal principles should be reviewed on a reasonableness standard.
The Chambers Judges Review of the Panels Decision
[22] The judge discussed the relevance of the incomplete or concluded 1976
investigation to the question of abuse of process by delay. Her concern focused on
the implications of the regulatory bodys failure to pursue the investigation for 30

years. She said at paras. 100-101:
The fact that no action was taken in 1976 or within some reasonable period of
time after that by those responsible for teacher regulation, caused
Mr. Robertson to reasonably conclude, based on advice from his lawyer, that
the matter had been dealt with. While it had not been dealt with on the merits,
the matter was dealt with to the extent that Mr. Robertson was not prohibited
from continuing with his teaching career. It is questionable whether any
penalty imposed over 30 years after the event will serve a useful purpose,
particularly considering the fact that Mr. Robertson was permitted to and did
continue to teach during that entire period with apparent success and he has
now left the profession in this jurisdiction.
When all of these criteria are considered, it is quite clear, in my view, that the
policy of upholding the integrity of the adjudicative functions of the
professional regulator of teachers is engaged to some extent in the
circumstances here and cannot be ignored in the delay analysis.
[23] She then turned to the question of the effect of the delay on Mr. Robertson
personally and on hearing fairness. That is whether the delay constituted an abuse
of process.
[24] The judge accepted that there were two stages of delay: the first from
September 1976 to December 2006 when the matter was reactivated; and the
second period being December 2006 to September 2010, the time between when
the VSB reported the allegations to the College and when the College issued its
preliminary investigation report. She also noted the two distinct charges levelled
against Mr. Robertson: the allegations of sexual misconduct and the alleged
misrepresentation to VSB when he applied for a teaching position there in 1976.
Only the second aspect of delay relates to the second charge.
[25] The judge first examined the charge of sexual misconduct. Relying principally
on Blencoe, she concluded that the panel erred in the manner in which it assessed
the delay though it correctly identified the law. She reasoned that the panel had
failed to take into account a number of contextual factors related to the 30-year gap
in adjudicating this matter; notably, that this is not a case of delayed reporting; those
responsible for teacher regulation at the time the allegations were reported; and,
there is a possibility that any penalty imposed would serve little purpose due to the
lengthy passage of time: Robertson at para. 130.

[26] The judge further found that the panel placed too high a burden on
Mr. Robertson to prove specific prejudice in regards to hearing fairness and that it
failed to properly consider evidence of personal or psychological prejudice related to
the delay. The judge acknowledged the seriousness of the complaints, but
nevertheless found that the panel had erred in its assessment of whether there had
been inordinate delay given what she saw as the panels failure to properly analyze
both hearing and personal prejudice in this case.
[27] The judge noted that the panel was not satisfied that Mr. Robertson had
suffered prejudice of such a magnitude that a finding of abuse of process is
warranted. In terms of hearing prejudice she said at para. 133:
It can hardly be speculative to conclude that the hearing process will not be
affected by a 35 year delay. Details of events fade with time and evidence
about matters that are so dated is very difficult to assess. The panel erred in
failing to consider that such prejudice can be inferred in such an extreme
case of delay, and it erred in failing to consider evidence which suggested
that some witnesses may not be available; the Colleges Report of
Preliminary Investigation indicated that two of the three student complainants
had not been located.
[28] As to the effect of such a delay on the hearing and the right to a stay of
proceedings, she held at para. 134:
The Commissioner says that this kind of prejudice is better assessed by the
panel either during or at the conclusion of the hearing. That may be so, but
this cannot remove the right to a stay of proceedings before the hearing
commences. Otherwise, it would be impossible to meet the burden of proving
that the right to a fair hearing has been compromised.
[29] The judge then considered the panels analysis of personal or psychological
prejudice experienced by Mr. Robertson. She found that the panel had failed to
appreciate Mr. Robertsons evidence on the impact of the delay as opposed to the
impact of the allegations themselves. She noted that he had deposed the following:
The allegations against me arose during a very different time in my life. I

worked hard to change my life after the mid-1970s. I have lived my life, and
pursued my career, in the belief that that phase of my life was behind me.
Believing that this matter was behind me, I threw my energies and efforts into
my teaching career. If I had known, earlier on in my career, that the provincial
teaching regulator might, at some unknown date in the future, initiate

disciplinary proceedings against me that would put my teaching certificate in
jeopardy and force me to go through a disciplinary hearing, I would have
shifted the focus of my career to my work with Canadian Pacific Airlines, [with
whom he had had part-time employment].
The disciplinary proceedings against me have caused me significant
psychological stress, as I have been required to answer to, and defend
myself in respect of, matters that I thought had been dealt with long ago and
were behind me.
[30] The judge concluded that Mr. Robertson had reasonably relied on his
counsels advice and moved on with his life only to have it disrupted 30 years later
when the allegations resurfaced. This despite the fact that the governing body had
all the information it required to pursue disciplinary proceedings against him in the
1970s. She further found the panel failed to consider Mr. Robertsons evidence that
he would have changed the course of his professional life had he been aware the
allegations could be brought forward in the future. In the judges view the panel erred
in failing to consider this a form of personal prejudice related to the delay itself.
[31] She concluded at para. 151 that the panel erred in its consideration of the
delay:
While the Panels findings of fact are entitled to deference, I have concluded
that it erred in several respects, resulting in unreasonable findings on the
issue of prejudice. The Panel erred in failing to consider (a) the issue of
prejudice in the context of an institutional delay of over 30 years; and (b)
evidence that was relevant to the issue of prejudice, both procedural and
personal or psychological. There is evidence of significant prejudice both to
the fairness of the hearing process itself and to Mr. Robertson personally in
having to address matters now that he reasonably concluded had been put
behind him over 30 years ago.
[32] Finally, the judge concluded that re-activating the proceedings would lead to a
perception of unfairness (at para. 154):
In my opinion, the Commissioners wish to re-activate the matter after so

long has damaged the public interest in the fairness of the professional
disciplinary process. The practices and procedures in 1976 may have been
different than they are now, but that does not permit a professional regulatory
body, in its various iterations, to allow a serious matter to lie dormant for 30
years and then seek to institute fresh proceedings that ought to have been
properly addressed at the time.
[33] The judge then considered delay as it pertained to Mr. Robertsons alleged

misrepresentation to the VSB about why he resigned from his position in Richmond.
The judge noted that the panel devoted little attention to this aspect of
Mr. Robertsons stay application despite its seriousness. However, the panel did not
accede to Mr. Robertsons delay argument on this issue and the chambers judge
was of the view that there was no basis to disturb the panels conclusion in this
regard.
The Chambers Judges Conclusion on the Appropriate Order
[34] The judge decided that Mr. Robertson was entitled to an order quashing the
panels decision denying the stay of proceedings in respect of the sexual misconduct
complaint, but she did not dismiss the petition. Rather, she remitted the matter back
to the panel for reconsideration in accordance with her judgment. In doing so, she
acknowledged that she had jurisdiction to make that decision herself but only in
exceptional circumstances. The judges refusal to dismiss the complaint is the
subject of Mr. Robertsons cross-appeal.
[35] The judges reasons for declining to exercise her jurisdiction to dismiss the
complaint herself are captured at para. 165:
I do not consider it appropriate to grant an order of prohibition in this case.

My reasons for this stem from the basis on which I have found the Panels
decision on this aspect unreasonable. While it appreciated the correct legal
principles, it failed to apply them correctly as a result of the errors I have
identified. My view is that the Panel is better equipped to balance the public
interest as it pertains to its own disciplinary process. Whether the damage to
the public interest in the fairness of the professional disciplinary process
exceeds the harm to the public interest if the proceedings were halted is a
decision for the Panel to make.
[36] Importantly, the judge did not disturb the Panels decision to proceed with the
misrepresentation complaint.
Issues Raised on the Appeal and Cross-Appeal
[37] The Commissioner argues on appeal that the chambers judge erred:
a) in concluding that the patent unreasonableness standard of review in

s. 58 of the ATA was inapplicable to decisions of the Panel, or;

b) alternatively, the chambers judge failed to properly apply a
reasonableness standard of review (assuming that to be the correct
standard), and substituted her view for that of the Panel on issues of
fact and discretion.
[38] Mr. Robertson submits in reply that the chambers judge correctly concluded
that the ATA was inapplicable to decisions of a panel acting pursuant to the TA.
Mr. Robertson agrees with the judges choice of the correctness standard but argues
that in some respects she applied an overly deferential standard. Finally, he argues
that if this Court determines that the appropriate standard of review to be applied to
the panels decision was reasonableness, the chambers judge correctly applied that
standard.
[39] On the cross-appeal, Mr. Robertson argues that the chambers judge erred on
two grounds. First, he says she erred by remitting the case to the Panel for
reconsideration in light of her reasons. He says she ought to have made a final
decision that allowing the hearing would be an abuse of process and prohibiting its
continuation on both the misconduct and the misrepresentation issues. Second, he
argues that the chambers judge erred by upholding the Panels decision not to grant
a stay of proceedings, on account of abuse of process by delay, in respect of the
allegation that the respondent made misrepresentations in his application for
employment with the Vancouver School Board.
[40] The Commissioner says if Mr. Robertsons arguments on cross-appeal were

accepted there would be no room left for deference to be accorded to a tribunal
required to consider the public interest. He argues that Mr. Robertsons approach is
contrary to the well-established principles of judicial review in cases where the
legislature has expressly granted the power to protect the public interest to a
professional regulator. The Commissioner says there is a presumption that remittal
is the appropriate remedy following a successful judicial review and the judge did not
err in so ordering in this case. The Commissioner says the judges analysis on
misrepresentation was flawed in that it was not her role to substitute her view for the
panels: the misrepresentation and the misconduct allegations are interrelated and
must be heard together to prevent a fettering of the Panels discretion.

Discussion
[41] In order to resolve this appeal it is first necessary to determine whether the
chambers judge properly identified and applied the appropriate standard of review to
the panels decision. The first step in this analysis is to determine whether the ATA
applies. Sections 58 and 59 of that Act provide the standard of review to apply to
statutes that, respectively, have a privative clause and those that do not. It will be
recalled that the chambers judge decided that the ATA did not apply to determining
the standard of review in this case.
[42] In Lavender Co-Operative Housing Assn. v. Ford, 2011 BCCA 114, at

para. 42, this Court found, per. Finch C.J.B.C. and Frankel J.A. that the ATA
provides a complete code of standards of review for tribunals to which it applies.
Finch C.J.B.C. and Frankel J.A. outlined the straightforward process on which a
reviewing court must embark to determine the appropriate standard of review (at
paras. 39-40 and 43):
In every case, the first step is to determine whether there are any applicable
legislative provisions: Khosa at para. 18. The legislation to be examined
includes both the ATA, and the enabling legislation of the administrative
tribunal whose decision is being reviewed.
Under the ATA, tribunal is defined as a tribunal to which some or all of the
provisions of this Act are made applicable under the tribunals enabling Act.
Thus, the ATA only applies to the extent an enabling act provides. Sections
58 and 59 of the ATA deal with standards of review. If by the enabling
legislation one of these sections is said to apply, then that section governs
standard of review rather than the common law. In this case, s. 32 of the
Human Rights Code, provides that s. 59 of the ATA applies to the Tribunal.
Section 59 is comprehensive and describes the standard of review for all
questions that may arise. The exercise of discretion, findings of fact and
applications of the rules of natural justice and procedural fairness have
specifically stated standards of review. Sub-section (1) provides a catch-all
standard of correctness for all other questions.
Section 58 of the ATA similarly provides a complete code of standards of

review for tribunals to which it applies. It also includes, in s. 58(2)(c), a catch-
all standard of correctness for all matters not identified in s. 58(2)(a) and (b).
Thus the process for determining the appropriate standard of review under
the ATA should be straightforward. The reviewing judge must:
1. determine which legislative provisions, if any, apply;

2. if s. 58 or 59 of the ATA apply, determine which type of question is
at issue; and
3. apply the mandated standard of review.
[Emphasis added.]
[43] Only in contexts where ss. 58 and 59 have not been made applicable does
the common law analysis become relevant: Lavender at para. 44.
[44] On its face, s. 58 of the ATA applies to the TA by the express words of
s. 41(3)(b) of the TA. It reads:
41 (3) The following sections of the Administrative Tribunals Act apply to

decisions of the commissioner and of a panel:

(b) section 58 [standard of review if tribunals enabling Act has privative
clause].
[45] Section 42(1) is the privative clause referred to in s. 41(3)(b). It provides:
42(1) Subject to subsection (2), decisions of the commissioner and of a panel

are final and binding.
(2) The commissioner, within 30 days of the date of a decision by the

commissioner or by a panel, may amend a final decision to
(a) correct a typographical, an arithmetical or another similar error in

the decision, and
(b) correct an obvious error or omission in the decision.
[46] Following the direction in Lavender, this would seem to satisfy the first step in
the statutory standard of review process. The above noted provisions of the TA and
ATA are clearly meant to be applicable to the panels decision. Nonetheless, the
judge concluded the ATA did not apply or, perhaps more accurately, could not apply
because of the ATAs definition of privative clause in s. 1 of that statute. It reads:
privative clause means provisions in the tribunals enabling Act that give the
tribunal exclusive and final jurisdiction to inquire into, hear and decide certain
matters and questions and provide that a decision of the tribunal in respect of

the matters within its jurisdiction is final and binding and not open to review in
any court;
In my opinion, the judge was lead to error in this regard by Mr. Robertsons
submissions concerning the sufficiency of the TAs privative clause. It seems to me
that the analysis a reviewing court must engage in at this point in a judicial review is
whether the legislature intended for the home statute, or specific provisions therein,
to be governed by the ATA. That analysis does not appear to require consideration
of how the home Acts privative clause compares to the ATAs definition.
[47] There are no gaps in s. 58 of the ATA and there is no need to resort to the
common law standard of review analysis. Analyzing the strength of a privative
clause to determine legislative intent is a standard part of that common law analysis:
Dunsmuir v. New Brunswick, 2008 SCC 9. Following this Courts direction in
Lavender, however, it seems misguided in the circumstances of this case to resort to
analyzing the strength of the privative clause in the TA to determine whether the
ATA applies.
[48] Read through the lens of a complete code, it becomes clear that the task of
a reviewing court is to first determine if s. 58 or s. 59 is intended to apply and then
rely on the principles of statutory interpretation to characterize the questions the
court is tasked with deciding. This second step will enable a court to determine the
applicable subsection of s. 58 or s. 59 of the ATA and the consequent standard of
review as set out therein. It simply does not seem to me to be open to a court to
conclude that though the legislature intended for the ATA to apply, the difficulty in
doing so precludes the court from following through on the legislatures direction.
The chambers judge in this case did not cite authority to support her contrary
conclusion.
[49] Moreover, as argued by the Commissioner, the chambers judges

interpretation of s. 41(3)(b) of the TA would rob it of all meaning. This is contrary to
the accepted principle of statutory interpretation that says no legislative provision
should be interpreted to render it mere surplusage. Every word in a statute is

presumed to make sense and to have a specific role to play in advancing the
legislative purpose: Ruth Sullivan, Sullivan on the Construction of Statues, 5th ed.
(Markham: LexisNexis Canada, 2008), at 210213. The chambers judges
conclusion renders s. 41(3)(b) mere surplusage and cannot stand.
[50] The chambers judge was troubled by the absence of express statutory
language in the TA granting exclusive jurisdiction over specific matters to the
Commissioner and panels convened under the TA. According to the Commissioner,
this absence may be explained by the fact that in British Columbia courts have never
exercised original jurisdiction over the professional regulation of teachers conduct.
Since at least 1865, according to the Commissioner, authority over such questions
has been vested in statutory decision makers. Thus, there was no particular need for
the TA to expressly provide that panels convened pursuant to that Act, not the
courts, have exclusive jurisdiction over teacher regulation under the Act. The
absence of such an express grant of jurisdiction is not a basis for failing to give
effect to the express legislative intent seen in s. 41(3)(b) of the TA that says s. 58 of
the ATA should apply .
[51] It may well be that difficulties arise in determining which subsection of the
ATAs applicable provision apply in circumstances, like here, where a privative
clause does not appear to conform to the ATAs definition or where the legislatures
intent is not made clear by how a statute is drafted. However, it is an error in
reasoning to allow such a difficulty to derail the inquiry into the legislative intent on
the applicability issue.
[52] In this case, focusing on the nature of the privative clause within the TA, its
relative weakness and lack of specificity, served to distract the judge from the
required inquiry at the initial stage of judicial review. The question was, did the
legislature intend for the ATA to determine standard of review in relation to the TA?
In my view, the judge erred in concluding that the ATA could not apply despite the
legislatures intention.
[53] The next question is what standard of review applies to the question of

whether the panel erred in finding there was no abuse of process by delay? The first
step in this inquiry is to determine the type of question at issue in order to determine
what standard of review applies per the appropriate subsection: Lavender at
para. 43. Section 58 of the ATA reads:
58 (1) If the tribunals enabling Act contains a privative clause, relative to the
courts the tribunal must be considered to be an expert tribunal in relation to
all matters over which it has exclusive jurisdiction.
(2) In a judicial review proceeding relating to expert tribunals under
subsection (1)
(a) a finding of fact or law or an exercise of discretion by the tribunal in
respect of a matter over which it has exclusive jurisdiction under a
privative clause must not be interfered with unless it is patently
unreasonable,
(b) questions about the application of common law rules of natural
justice and procedural fairness must be decided having regard to
whether, in all of the circumstances, the tribunal acted fairly, and
(c) for all matters other than those identified in paragraphs (a) and (b),
the standard of review to be applied to the tribunals decision is
correctness.
(3) For the purposes of subsection (2)(a), a discretionary decision is patently
unreasonable if the discretion
(a) is exercised arbitrarily or in bad faith,
(b) is exercised for an improper purpose,
(c) is based entirely or predominantly on irrelevant factors, or
(d) fails to take statutory requirements into account.
[54] The Commissioner argues that the standard of patent unreasonableness

found in s. 58(2)(a) should apply because the panel was engaged in an exercise of
discretion. He submits that the question at issue whether the panel erred in
refusing to grant Mr. Robertson a stay of proceedings occurred within an on-going
inquiry into allegations of teacher misconduct, where questions of law and fact were
inextricably linked, and the panel was called upon to exercise its discretion over
whether to proceed with a disciplinary hearing. In short, he says the decision was a
discretionary one that must be found to be patently unreasonable to justify
interference by a reviewing court. The Commissioner adds that no other court or
tribunal has the power to decide this preliminary application. Such an application

falls within the exclusive jurisdiction of the panel.
[55] In his oral submissions, Mr. Robertson argued that if the chambers judge was
wrong about the applicability of the ATA, the standard of review would still be
correctness because ss. (b) would apply.
[56] I cannot agree with the Commissioner on this point. As I will more fully explain
below, it is my opinion that the overarching question at issue is one of natural justice
and procedural fairness. Section 58(2)(b) would therefore apply and the proper
inquiry for the reviewing court is whether the panel acted fairly in all the
circumstances. I rely primarily on Blencoe, the governing authority on delay in the
administrative context, to support my conclusion that abuse of process by delay is a
question of natural justice and must therefore be evaluated on the standard set out
in s. 58(2)(b).
[57] I turn to Blencoe at this time in order to characterize the question that was
before the panel. That is, was the question one of discretion, governed by
s. 58(1)(a), or was it a question of natural justice and procedural fairness, governed
by s. 58(2)(b)?
[58] Blencoe involved a 30-month delay between when two complaints were
lodged against Mr. Blencoe with the British Columbia Human Rights Commission,
and the time when those complaints moved from the investigation to the hearing
stage. Mr. Blencoe had been a cabinet minister in the British Columbia government
when the sexual harassment claims were lodged: he was removed from Cabinet and
dismissed from his partys caucus in light of the allegations. Mr. Blencoe and his
family were the subject of relentless and intense media attention during the 30
months when the Human Rights Commission was investigating the complaints. He
did not run for re-election and fell into a depression. He sought a stay of proceedings
arguing that the delay in the investigation and hearing amounted to an abuse of
process and a denial of natural justice. In denying Mr. Blencoes application the
Supreme Court of Canada laid out the test for when delay amounts to an abuse of
process.

[59] At paras. 101 and 102 of Blencoe, Bastarache J. commenting on what
evidentiary requirements would lead to a stay, characterized the nature of an
application to stay administrative proceedings on account of delay as a question of
natural justice and procedural fairness:
In my view, there are appropriate remedies available in the administrative law

context to deal with state-caused delay in human rights proceedings.
However, delay, without more, will not warrant a stay of proceedings as an
abuse of process at common law. Staying proceedings for the mere passage
of time would be tantamount to imposing a judicially created limitation period
(see: R. v. L. (W.K.), [1991] 1 S.C.R. 1091, at p. 1100; Akthar v. Canada
(Minister of Employment and Immigration), [1991] 3 F.C. 32 (C.A.). In the
administrative law context, there must be proof of significant prejudice which
results from an unacceptable delay.
There is no doubt that the principles of natural justice and the duty of fairness
are part of every administrative proceeding. Where delay impairs a partys
ability to answer the complaint against him or her, because, for example,
memories have faded, essential witnesses have died or are unavailable, or
evidence has been lost, then administrative delay may be invoked to impugn
the validity of the administrative proceedings and provide a remedy (D. J. M.
Brown and J. M. Evans, Judicial Review of Administrative Action in Canada
(loose-leaf), at p. 9-67; W. Wade and C. Forsyth, Administrative Law (7th ed.
1994), at pp. 435-36). It is thus accepted that the principles of natural justice
and the duty of fairness include the right to a fair hearing and that undue
delay in the processing of an administrative proceeding that impairs the
fairness of the hearing can be remedied (see, for example, J. M. Evans, H. N.
Janisch and D. J. Mullan, Administrative Law: Cases, Text, and Materials (4th
ed. 1995), at p. 256; Wade and Forsyth, supra, at pp. 435-36; Nisbett, supra,
at p. 756; Canadian Airlines, supra; Ford Motor Co. of Canada v. Ontario
(Human Rights Commission) (1995), 24 C.H.R.R. D/464 (Ont. Div. Ct.);
Freedman v. College of Physicians & Surgeons (New Brunswick) (1996), 41
Admin. L.R. (2d) 196 (N.B.Q.B.)).
[Emphasis added.]
[60] In a similar vein, Bastarache J. continued at para. 106 to describe the content
of the concepts of natural justice and procedural fairness:
Throughout the authorities in this area, terms such as natural justice,

procedural fairness, abuse of process, and abuse of discretion are
employed. In Martineau, at p. 629, Dickson J. (writing for three judges, while

all nine concurred in the result), stated that the drawing of a distinction
between a duty to act fairly, and a duty to act in accordance with the rules of
natural justice, yields an unwieldy conceptual framework. With regard to
these terms, I would adopt the following words of Sherstobitoff J.A. of the
Saskatchewan Court of Appeal in Misra v. College of Physicians & Surgeons
of Saskatchewan (1988), 52 D.L.R. (4th) 477, at p. 490:

There are two common denominators in each of the terms. The first is the
impossibility of precise definition because of their breadth and the wide
array of circumstances which may bring them into play. The other is the
concept of fairness or fair play. They clearly overlap. Unreasonable
delay is a possible basis upon which to raise any of them.
[61] The characterization of abuse of process in Blencoe accords with Madam

Justice Arbours comments, for the majority, in Toronto (City) v. Canadian Union of
Public Employees, Local 79, 2003 SCC 63 at para. 35. Arbour J. concluded that
judges have an inherent and residual discretion to prevent an abuse of the courts
process that must be acted upon when proceedings are found to be so unfair as to
be contrary to the interests of justice. Citing Blencoe and other case law where
abuse of process is defined, Arbour J. observed at para. 43:
In all of its applications, the primary focus of the doctrine of abuse of process
is the integrity of the adjudicative functions of courts[T]he focus is less on
the interest of parties and more on the integrity of judicial decision making as
a branch of the administration of justice.
[62] I conclude from these authorities that properly characterized the question that
was before the panel in this case, was a question falling under s. 58(2)(b)s ambit: a
question about the application of common law rules of natural justice and
procedural fairness [that] must be decided having regard to whether, in all of the
circumstances, the tribunal acted fairly. It is true that the type of decision the Panel
made could be described as a discretionary one, nonetheless, in my view, the more
specific subsection, ss. (b), is applicable as it best addresses the nature of the
question the panel was required to answer. A discretionary decision is generally one
requiring the application of judgment in choosing among a range of acceptable
alternatives. Here the real question to be decided is whether the delay constituted an
abuse of process. This question requires a correct response. Whether to accede to
an interlocutory application to quash a citation may on its face appear to seek a
discretionary remedy but the core question to be determined is one that must be
answered correctly, not one that is a choice between a range of acceptable
outcomes. This leads me to the conclusion that ss. (a) could not be the right
standard of review. It is overly deferential and would not accord with Blencoe.

[63] I turn now to what standard of review is encompassed by ss. (b). Or, put
another way, is the panel owed deference? That question is easily answered: on
questions of procedural fairness, courts owe no deference to administrative decision
makers but must ensure that a decision was made, in the words of 58(2)(b), fairly:
See Dunsmuir at para. 129 and BC Administrative Law Practice Manual, (The
Continuing Legal Education Society of British Columbia: Vancouver, 2013) at
11.40.
[64] Next is the question of whether the chambers judge applied the correct
standard of review to the Panels decision. My review of the chambers judges
choice of standard of review is done on a correctness standard: Communications,
Energy and Paperworkers Union of Canada, Local 298 v. British Columbia (Labour
Relations Board), 2012 BCCA 354 at para. 21.
[65] The chambers judge concluded that there were two different types of
questions before her; one of which required review on a standard of reasonableness
and the other on a standard of correctness. First, the judge found that the
determination and application of the common law principles of abuse of process
were to be reviewed on a standard of correctness: Robertson at para. 63. Although
in my respectful view she reached this conclusion by an erroneous path, I agree with
her that the standard of review on this question is not a deferential one.
[66] In my opinion, the fairness analysis does not differ markedly from the
application of a correctness standard. In both instances, the authorities suggest that
no deference is owed and that the task of the reviewing court is to assess whether
the impugned decision maker correctly applied the principles of natural justice and
procedural fairness: See, for example, Construction & Specialized Workers Union,
Local 1611 v. SELI Canada Inc., 2010 BCCA 335; Seaspan Ferries Corporation v.
British Columbia Ferry Services Inc., 2013 BCCA 55; Compass Group Canada
(Health Services) Ltd. v. Hospital Employees Union, 2007 BCCA 237; Taiga Works
Wilderness Equipment Ltd. v. British Columbia (Director of Employment Standards),
2010 BCCA 97. Under s. 58(2)(b) of the ATA the question on judicial review should

be whether in all the circumstances the panel acted fairly in dismissing
Mr. Robertsons application for a stay of proceedings.
[67] The chambers judge found that certain factual findings of the panel were
extricable from the legal questions and should thus be reviewed for reasonableness:
Robertson at para. 65. Included in the findings of fact the chambers judge found
were discrete from the legal principles at issue was whether Mr. Robertson had
established prejudice due to delay. Mr. Robertson argued before the chambers
judge that the panel failed to properly consider the evidence of prejudice which
amounted to a factual error in the panels ultimate determination. It is not obvious to
me that this is an extricable factual issue given how it relates to the requirements
involved in an abuse of process by delay analysis.
[68] I am not convinced that determining whether Mr. Robertson experienced

prejudice due to delay is a true finding of fact given its central importance to the test
for abuse of process in this context. While I would agree that a true finding of fact
would attract the deferential standard of review of patent unreasonableness found in
s. 58(2)(a), it does not seem like the questions here at issue are such questions.
[69] What must be determined in order to reach a conclusion on the panels order
is whether it was fair in all the circumstances. Mr. Robertson argued before the
chambers judge that the panel failed to consider evidence of prejudice and the judge
below agreed with him that the panel had so erred. In my view, this is closer to a
question of law or mixed fact and law than one of fact that can be separated from the
ultimate conclusion on abuse of process.
[70] In effect, I agree with the Commissioner that the issues of fact and law under
consideration cannot be extricated one from the other. However, in doing so I
conclude that no deference is owed to the panel on its application of the facts to the
law because I have disagreed with the Commissioners submission that the question
at issue is one that attracts the patent unreasonableness standard of review under
s. 58(2)(a).
[71] Did the chambers judge properly apply the fairness standard of review?

Since, in effect, the judge identified the correct standard this Court will consider
whether it was properly applied. Essentially, this Court stands in the shoes of the
chambers judge in reviewing the panels decision for fairness: Communications,
Energy and Paperworkers Union of Canada at para. 21.
[72] Was the panels decision fair in all the circumstances? That is the next
question for consideration.
[73] The chambers judge found that the panel correctly referred to the principles in
Blencoe. However, she went on to find at para. 113:
[T]he panel erred in how it assessed the period of delay and this error
permeated its application of the principles in Blencoe. Further, given the
magnitude of the delay, I agree with Mr. Robertson that the panel placed too
high a burden on him to prove specific hearing prejudice and failed to
properly consider evidence of personal or psychological prejudice related to
the delay.
[74] She further found that the panels refusal to treat the College as a successor
to the body who originally received the complaint was unreasonable. In addition, she
found that the panel failed to consider whether the delay was unacceptable or
inordinate and instead focused exclusively on prejudice while considering the delay
to have commenced when the College had actual knowledge of the alleged
misconduct in 2006. For the chambers judge, the panel next erred by failing to
consider that it could infer that trial fairness would be prejudiced by such an obvious
delay and, in addition, failing to consider evidence before it that suggested key
witnesses would not be available.
[75] Blencoe decided that there are twin aspects to the application of the
principles of natural justice. The first relates to personal or hearing prejudice, the
second relates to the communitys sense of fairness. Delay may impact a persons
ability to answer the complaint, or put another way the delay may prejudice the
persons ability to have a fair hearing. The other type of personal prejudice is
prejudice that delay may cause the individual in the way he goes about his life. I
would call that kind of delay, hearing and individual prejudice. The second type of

prejudice is one that embraces the concept of a communitys sense of fair play as
described in Blencoe at paras. 118 - 120.
In R. v. Jewitt, [1985] 2 S.C.R. 128, this Court unanimously affirmed that the
doctrine of abuse of process was available in criminal proceedings. In so
doing, and as professed by L'Heureux-Dub J. in R. v. Power, [1994] 1
S.C.R. 601, at p. 613, the Court borrowed the comments of Dubin J.A. in R.
v. Young (1984), 40 C.R. (3d) 289 (Ont. C.A.), in describing the abuse of
process doctrine, stating that a stay of proceedings should be granted where
"compelling an accused to stand trial would violate those fundamental
principles of justice which underlie the community's sense of fair play and
decency" or where the proceedings are "oppressive or vexatious". The Court
also adopted the Ontario Court of Appeal's warning in Young that this is a
power which can be exercised only in the "clearest of cases" (p. 614). This
was reiterated on many occasions by this Court (see, for example, R. v.
Potvin, [1993] 2 S.C.R. 880; R. v. Scott, [1990] 3 S.C.R. 979; Power, supra).
119 In R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667, L'Heureux-Dub J.
explained the underlying purpose of the doctrine of abuse of process as
follows:
Under the doctrine of abuse of process, the unfair or oppressive
treatment of an appellant disentitles the Crown to carry on with the
prosecution of the charge. The prosecution is set aside, not on the
merits (see Jewitt, supra, at p. 148), but because it is tainted to such a
degree that to allow it to proceed would tarnish the integrity of the
court. The doctrine is one of the safeguards designed to ensure "that
the repression of crime through the conviction of the guilty is done in a
way which reflects our fundamental values as a society" (Rothman v.
The Queen, [1981] 1 S.C.R. 640, at p. 689, per Lamer J.) It
acknowledges that courts must have the respect and support of the
community in order that the administration of criminal justice may
properly fulfil its function. Consequently, where the affront to fair play
and decency is disproportionate to the societal interest in the effective
prosecution of criminal cases, then the administration of justice is best
served by staying the proceedings. [Emphasis added.]
120 In order to find an abuse of process, the court must be satisfied that, "the
damage to the public interest in the fairness of the administrative process
should the proceeding go ahead would exceed the harm to the public interest
in the enforcement of the legislation if the proceedings were halted" (Brown
and Evans, supra, at p. 9-68). According to L'Heureux-Dub J. in Power,
supra, at p. 616, "abuse of process" has been characterized in the
jurisprudence as a process tainted to such a degree that it amounts to one of
the clearest of cases. In my opinion, this would apply equally to abuse of
process in administrative proceedings. For there to be abuse of process, the

proceedings must, in the words of L'Heureux-Dub J., be "unfair to the point
that they are contrary to the interests of justice" (p. 616). "Cases of this
nature will be extremely rare" (Power, supra, at p. 616). In the administrative
context, there may be abuse of process where conduct is equally oppressive.
[My emphasis added to the quotation from Conway and to para 120.]

[76] In its consideration of the individual prejudice and hearing prejudice, the panel
carefully weighed Mr. Robertsons arguments as to his own prejudice but concluded
that he could have a fair hearing notwithstanding the delay. Indeed the evidentiary
record is remarkably intact given the length of time since the complaints first came to
light. I agree with the panels conclusion that, whatever stress and stigma
Mr. Robertson is facing arises from the fact of the allegations against him, not the
delay in bringing the matter forward. As the panel notes, the fact that Mr. Robertson
moved on with his life assuming the 1976 allegations were behind him was in part
attributable to his own failure to disclose to the Vancouver School Board the reason
behind his resignation from the Richmond School Board. The panel also took into
account that Mr. Robertson did not deny the allegations in respect to two of the three
complainants. The fact that one or two of the complainants might not be available is
unlikely to prejudice Mr. Robertson given his various statements voluntarily admitting
most of the allegations. The absence of the complainants could possibly be to his
advantage. If that proves not to be the case but rather does prejudice him, he may
renew his abuse of process application.
[77] What distinguishes this case from Blencoe, (quite apart from the obvious
difference between three and 35 years of delay) is the fact that the investigation was
actually begun in 1976, and then remained dormant over 30 years. The chambers
judge found this aspect particularly important in her decision. The 1976 investigation
included extensive interviews of Mr. Robertson and the complainants and revealed
serious allegations based on strong evidence. The investigation was not pursued for
reasons that are not entirely clear. As I have said, it is possible that Mr. Robertsons
resignation did play a role in any decision not to pursue the investigation. I agree
with the panels assessment that Mr. Robertson had not established at least on a
preliminary application before a hearing, individual or hearing prejudice.
[78] The second question to be decided is whether the panel correctly assessed
the public interest prejudice as a component of Mr. Robertsons abuse of process
application, not just arising from the delay, but also taking into account that the
investigation lay dormant for 30 years. Would that kind of process negatively affect

the publics sense of decency and fairness?
[79] On this question the panel weighed the seriousness of the charges against its
view of public perception if the complaint did not go forward. The panel decided that
the public perception favoured proceeding. At para. 109 and 110 the panel said this:
In assessing whether the circumstances of this case can be said to constitute

an abuse of process by reason of delay, all of the evidence put before us
must be considered. The panel recognizes that the span of 35 years from the
time the allegations initially arose in 1976 until the Citation was issued in
2011 is lengthy. However, while the allegations against Mr. Robertson are
historic, they are extremely serious - they involve alleged sexual relationships
between a teacher and students who were 15 or 16 years old at the time, as
well as an alleged misrepresentation for the purposes of subsequently
obtaining employment as a teacher. The trigger for the investigation by the
VSB in 2006 which eventually resulted in the Citation was a report by a
former student who alleged that Mr. Robertson had left teaching many years
earlier due to sexual misconduct with two female students at Cambie
Secondary School in the RSB. Following its investigation, a recommendation
was made to the VSB Board of Trustees that Mr. Robertsons employment be
terminated. Mr. Robertson resigned before this recommendation was acted
on. Excerpts from that report are as follows:
While his sexual involvement with female students began while he
was in the employ of the Richmond School Board, it is significant that
it continued when he was in the employ of the Vancouver School
Board. Despite having been caught by the police with a student in his
car (in the midst of a sexual encounter), having been investigated by
the police in relation to his involvement with other students, and
subsequently having being brought before the Richmond School
Board on the basis of his sexual involvement with three female
students, Mr. Robertson continued his relationship with [Complainant
A], who was then 15 years old. ... immediately after resigning from the
Richmond School Board, he sought and obtained employment with
the Vancouver School Board by intentionally misrepresenting the
reasons he left the Richmond School Board.
...
It is significant that at the time he was sexually involved with these
students it was a criminal offence to have sexual relations with a 15
year old of previous chaste character. At least two of the students
were 15 years old at the time of the sexual relationships.
What this extract points out is that the allegations against Mr. Robertson are,
as noted, extremely serious and have never been adjudicated. It includes
allegations that Mr. Robertsons sexual misconduct continued after he was
hired by the VSB which, according to the Citation, was unaware of the RSBs
prior investigation and was unaware of the circumstances surrounding his
resignation from that school district. While there has been lengthy delay by
the College in moving the matter forward, there were communications by the

College with Mr. Robertson throughout its investigation. Given all of the
contextual factors, the panel does not agree with Mr. Robertson that the type
of delay here is properly characterized as clearly unacceptable or inordinate,
or that proceeding with the Citation at this juncture would be unfair,
oppressive and prejudicial to the point of constituting an abuse of process.
Rather, the panel finds that to not proceed would negatively affect the publics
sense of decency and fairness and bring the TRBs regulation of teachers in
this province into disrepute.
[80] In my view the panels failure to impute knowledge of the complaints to the
College prior to 2006 is erroneous. After all the College is the successor to the
previous regulatory bodies. However, I am not convinced that this erroneous
conclusion played a significant role in the panels decision. The panels decision
was based upon its conclusions about the absence of either hearing or individual
prejudice as well as its view that the publics sense of decency and fair play would
not be offended in a general sense by a delay of 35 years. Its decision was
consistent with the judgment in Blencoe. Blencoe decided that, (at para. 101)
staying proceedings for the mere passage of time would be tantamount to imposing
a judicially created limitation period In the administrative law context. there must
be proof of significant prejudice which results from an unacceptable delay. As I
have already said, Mr. Robertson failed to establish the kind of hearing or individual
prejudice that would make this case one of the rare exceptions in which the
proceeding should be stayed on the basis set out in Blencoe. Rather than
establishing individual prejudice, the delay permitted Mr. Robertson to pursue his
profession as a teacher for 30 years. As for the public prejudice, it must be
remembered that the Commissioner holds the very public responsibility of
determining fitness for teaching in public schools. Although the standard of review is
not a deferential one, the panel in its specialized role is in a good position to
appreciate the public impact of its decisions. I agree with the panel. In my opinion
permitting Mr. Robertson to avoid facing a disciplinary hearing in these
circumstances would carry with it a serious risk of bringing the regulatory process
into disrepute.
[81] For these reasons, I would allow the appeal, and restore the decision of the
panel dismissing Mr. Robertsons preliminary application to have the Citation

allegations against him dismissed or stayed.
[82] The chambers judge did not, and I would not, interfere with the panels
decision to proceed on the misrepresentation charge.
Cross-Appeal
[83] It follows from these reasons that I would dismiss Mr. Robertsons cross-
appeal.
Disposition
[84] I would allow the appeal and dismiss the cross-appeal.
The Honourable Madam Justice Garson
I Agree:

Reasons for Judgment of the Honourable Mr. Justice Willcock:
Introduction
[85] I have had the opportunity to review in draft the reasons for judgment of my

colleague, Madam Justice Garson. I am grateful to her for her concise description of
the events leading to this appeal. I adopt her description of the factual background
and the issue before us. With respect, I do not agree with her conclusion that the
appeal should be allowed. I agree, for substantially the reasons she has expressed,
that the cross-appeal should be dismissed.
Standard of Review
[86] On this appeal, we are required to consider whether the chambers judge
correctly selected the mandated standard of review applicable to the panels
decision and properly applied that standard.
[87] I agree with my colleague that the chambers judge erred in concluding that
the relevant standard of review is that established by the common law. The judicial
review ought to have been heard on the footing that the standard of review was
mandated by s. 41(3) of the panels enabling act, the Teachers Act, S.B.C. 2011,
c. 19. That provision could only have been incorporated in the enabling legislation
with a view toward settling questions with respect to the standard of review from
panel decisions. In my view, it ought to be given its obvious intended effect: Jestadt
v. Performing Arts Lodge Vancouver, 2013 BCCA 183.
[88] Where an enabling Act expressly describes the applicable standard of review
of a tribunals decisions, to read down that provision and fall back upon a common
law standard of review can only contribute to what Rothstein J. referred to in Alberta
(Information and Privacy Commissioner) v. Alberta Teachers Association, 2011
SCC 61 at para. 61 as the uncertainty and confusion that has plagued standard of
review analysis for many years.
[89] The only argument made against the application of s. 41(3) was that the
privative clause in the Teachers Act did not sufficiently oust the jurisdiction of the
courts. I agree with submissions of counsel for the Commissioner that it was not
necessary to expressly grant exclusive jurisdiction to the College, the Commissioner
or panels appointed by the Commissioner because the courts have never exercised
original jurisdiction over the licensing of teachers. The legislative history canvassed

before the panel, on judicial review and on this appeal clearly establishes that the
power to cancel or suspend teaching certificates rested with the Provincial Cabinet,
the Board of Education, or the Council of Public Instruction from 1872 through to
1987 (pursuant to the provisions of the School Act, R.S.B.C. 1979, c. 375); with the
College of Teachers from 1987 to 2012 (pursuant to the provisions of the Teaching
Profession Act, R.S.B.C. 1996, c. 449); and with the Commissioner and designated
panels from 2012 to date (pursuant to the provisions of the Teachers Act).
[90] I part ways with my colleague in relation to the identification of the mandated
standard of review from those described in the Administrative Tribunals Act, S.B.C.
2004, c. 45 [ATA]. I would classify the central decision from which the judicial review
application was brought in this case as a determination by the panel that permitting
the sexual misconduct complaints against Mr. Robertson to proceed to a hearing
would not amount to an abuse of process by the regulator. That decision required
the panel to make findings of fact (whether there would be procedural prejudice, for
example) findings of law (such as whether responsibility for delay before the
establishment of the current or most recent regulatory regime should be attributed to
the Commissioner) and the exercise of a discretion (weighing in the balance the
public interest in addressing the complaints on their merits against the public and
private interest in fair adjudication). Such decisions, according to the mandated
standard of review in s. 58(2)(a), must not be interfered with unless patently
unreasonable.
[91] In weighing the evidence of prejudice in that exercise of its discretion, the
panel must consider natural justice and procedural fairness. However, when it
dismissed the respondents application for a stay of proceedings, the panel was not,
in my view, addressing a question about the application of common law rules of
natural justice and procedural fairness so as to attract the standard of review
described in s. 58(2)(b) of the ATA. The fact that principles of natural justice must be
weighed in making a decision does not determine the selection of the standard of
review from that decision.
[92] This Courts consideration of s. 59(5) of the ATA (identical in wording to

s. 58(2)(b)) in Gichuru v. Law Society of BC, 2010 BCCA 543, reflects the view that
the standard of review described in the provision is intended to address what this
Court considered to be procedural questions:
[29] s. 59(5) of the Administrative Tribunals Act describes [the

standard of review] as acting fairly rather than correctness. In some ways,
the statutory description of this standard is better. The use of the term
correctness to describe this non-deferential standard can be problematic,
because it might be taken (wrongly) to suggest that there is a single
procedure that tribunals must adopt. Procedural fairness requirements are
functional rather that technical, so there will most often be a range of different
procedures that meet the requirements.
[93] Certain types of decisions are amenable to review by the exceptional

standard of fairness. That should be borne in mind in considering whether the
standard of review prescribed by s. 58(2)(b) should apply to the impugned decision.
Here, in my view, the panel was not addressing a question about the application of
rules of natural justice or fairness. Rather, it was addressing the substantive
question whether the proceedings amounted to an abuse of process, considering
both procedural and other prejudice and the public interest in this specific
disciplinary process, which is a matter closely connected to its function. In my view,
the presumptive standard of review, reasonableness (more precisely whether there
is patent unreasonableness) is applicable. The standard of review prescribed by
s. 58(2)(b), fairness, applies only in relation to a narrow category of procedural
questions.
[94] The standard of review from substantive decisions should be what the Court
in Gichuru, referring to the task of the reviewing judge, described as the more
exacting standard of patent unreasonableness. The chambers judge ought to have
asked the questions mandated by s. 58(3) of the ATA in considering whether the
decision was patently unreasonable: whether the discretion was exercised arbitrarily
or in bad faith or for an improper purpose, whether it was based entirely or

predominantly on irrelevant factors, or whether the panel failed to take statutory
requirements into account.
Res Judicata

[95] At para. 63 of her reasons for judgment, the chambers judge held:
[63] The panels determination and application of the common law

principles of res judicata and abuse of process must be reviewed on the
standard of correctness.
[96] Despite the fact she afforded the panel less deference than the statutory
standard of review mandates, the chambers judge saw no reason to interfere with
the panels decision to permit the complaint arising out of the allegation of
misrepresentation on Mr. Robertsons application for employment with the
Vancouver School Board to proceed to a hearing. I agree with my colleagues that
there is no basis for interference with that decision.
[97] Similarly, the chambers judge, applying a standard of correctness, found no

fault in the panels analysis of the argument that the proceedings in relation to the
1976 sexual misconduct allegations should be stayed as complaints previously
adjudicated upon or as an abuse of process by re-litigation. It is clear, in my view,
there has never been adjudication upon the 1976 complaints; there is no basis for
these arguments and I would not accede to the cross-appeal.
Delay Amounting to Abuse of Process
[98] The significant and troubling question on this appeal is whether the judge was
right to find fault in the panels consideration of whether delay was such as to make
the proceeding oppressive and an abuse of process. That question called for
consideration of the principles described in Blencoe v. British Columbia (Human
Rights Commission), 2000 SCC 44.
[99] It is clear, in my view, that the panel erred in one significant respect: holding
that imputing the Department of Educations knowledge about the 1976 sexual
misconduct allegations and Mr. Robertsons resignation from the Richmond School
Board to the College of Teachers for the purposes of calculating delay would not be
reasonable or principled (at para. 96 of its decision).
[100] I am of the view that conclusion was wrong. It set the parameters of the

panels examination of the circumstances and in my view led to a decision based
predominantly on irrelevant factors, namely the consideration of the short, rather
than the long delay in proceedings. While I am of the view the correct standard of
review was not applied by the chambers judge, I would not accede to the appeal,
because I am of the view that the panels decision to dismiss the preliminary
application to stay the sexual misconduct allegations was founded upon the
mistaken view that, for some purposes, only the 2006-2010 delay ought to be
considered.
[101] Changes in the constitution of the regulator should not set the clock back for
the purposes of calculating delay in initiating disciplinary proceedings. The process
initiated by the College following notice to it of the complaints against the respondent
was a process that might have been initiated by the Attorney General on review of
the sexual misconduct complaints in September 1976. At that time, the Attorney
Generals legal officer expressed the view that there was cause to seek to have the
Lieutenant Governor in Council cancel the respondents teaching certificate. In my
opinion, the person subject to the disciplinary proceedings and the public (for the
purposes of considering the public perception of the administrative process) could
fairly regard the regulation of the issuance and cancellation of teaching certificates
as a matter in the hands of the provincial government, and delay throughout as
delay on the part of the statutory regulator. Responsibility for the whole of that delay
rests now with the Commissioner.
[102] The panel ought to have considered the prejudice that might have been
suffered by Mr. Robertson over the entire period of delay in excess of 30 years and
whether the publics respect for the administrative process would have been
diminished by proceeding after such delay.
[103] Despite its express conclusion that it would not be reasonable or principled to
consider the entire delay in addressing the abuse of process argument, the panel did
appear to weigh, and dismiss, the argument that the respondent suffered evidentiary
or procedural prejudice as a result of a 30 year delay. That is the apparent basis for

my colleagues view that the panel concluded that the publics sense of decency and
fair play would not be offended in a general sense by a delay of 35 years. In its
decision, the panel says:
101. Regardless of how one characterizes the length of the delay (30 years
or 45 months), the panel sees a pivotal issue here to be whether
Mr. Robertson has suffered prejudice of such a magnitude that a finding of
abuse of process is warranted. It is the prejudice which largely informs the
question of whether such delay, even lengthy delay, is unacceptable.
The panel considered, and discounted, Mr. Robertsons evidence that he had made
life-changing decisions since 1976 in anticipation that the sexual misconduct
complaints would not proceed to a hearing and that he has suffered psychological
stress as a result of the renewal of the disciplinary process. The panel concluded, at
para. 107, that [i]t is not apparent how this delay could conceivably have caused
him any psychological harm in the circumstances here.
[104] It is also clear, however, that, for some purposes, the panel was of the view
that it should consider only the delay accruing between the dates when complaints
were brought to the attention of the College in 2006 and when the College issued its
preliminary investigation report in September 2010.
[105] In the concluding paragraph of its reasons, the panel says:
110. While there has been lengthy delay by the College in moving the
matter forward, there were communications by the College with
Mr. Robertson throughout its investigation. Given all of the contextual factors,
the panel does not agree with Mr. Robertson that the type of delay here is
properly characterized as clearly unacceptable or inordinate, or that
proceeding with the Citation at this juncture would be unfair, oppressive and
prejudicial to the point of constituting an abuse of process. Rather, the panel
finds that to not proceed would negatively affect the publics sense of
decency and fairness and bring the TRBs regulation of teachers in this
province into disrepute.
[106] This passage appears to refer to the period of delay after notice of the
respondents history came to the attention of the College in 2006. The panel refers
to the communication between the College and Mr. Robertson during the period of
delay but prior to 2006, there was no communication with Mr. Robertson for almost

three decades. Common sense suggests that in concluding the delay was not
unreasonable or inordinate, the panel must have been referring to the 2006-2010
delay. A 30-year delay in initiating disciplinary proceedings arising out of a sexual
misconduct by a teacher would certainly, otherwise, have been characterized as
unacceptable and inordinate.
[107] In considering the publics sense of decency, fairness and respect for the
administrative process in light of all of the contextual factors, the panel does not
appear to have considered the full 30-year delay from 1976 to 2006 in pursuing the
sexual misconduct allegations.
[108] The appellant says the panel conducted precisely the inquiry mandated by
Blencoe and that the chambers judge erred in intervening on the basis of her
conflicting view of the evidence and public interest in a disciplinary hearing. In my
opinion, she did not do so but, rather, found the panel had erred in determining what
period of delay should be imputed to the Commissioner. In her view, that error
pervaded, and thereby undermined the panels analysis of the case. Given that the
panels assessment was founded on the proposition it would be wrong in principle to
consider the whole 30-year delay in dealing with the abuse of process by delay
argument, the chambers judge was right to say the panels analysis was flawed.
Despite the fact she reviewed the panels decision on a standard of
reasonableness rather than patent unreasonableness, I am of the view that she
came to the correct result.
[109] In relation to the panels examination of prejudice, the chambers judge found
at para. 133:
[133] In my view, the issue of prejudice should be considered in the context

of the length of the delay. It can hardly be speculative to conclude that the
hearing process will not [sic] be affected by a 35 year delay. Details of events
fade with time and evidence about matters that are so dated is very difficult to
assess. The panel erred in failing to consider that such prejudice can be
inferred in such an extreme case of delay, and it erred in failing to consider
evidence which suggested that some witnesses may not be available; the
Colleges Report of Preliminary Investigation indicated that two of the three
student complainants had not been located.

[110] The conclusion drawn by the chambers judge was not that significant
prejudice had been suffered but that evidence that it had been suffered or was an
inevitable consequence of the long delay ought to have been more carefully
considered or weighed by the panel. I agree with the chambers judge that the panel
placed an inappropriate burden upon the respondent to establish prejudice by
describing the procedural prejudice that might arise from a 30-year delay as
speculative and requiring the respondent to adduce actual evidence of prejudice.
[111] Further, in light of this Courts decision in Ratzlaff v. British Columbia (Medical
Services Commission) (1996), 17 B.C.L.R. (3d) 336, I do not consider the chambers
judge to have erred in concluding that the re-institution of disciplinary proceedings
after long quiescence might have occasioned prejudice if the respondent had
organized his affairs over a long period of time on the assumption that the
complaints of sexual impropriety had been settled.
[112] The appellant says the remedy granted by the chambers judge reflects some
restraint in remitting the question whether the sexual misconduct complaints are an
abuse of process to the panel for consideration, but that the order inappropriately
fetters the panel. The appellant says the reasons compel the panel to find that delay
has resulted in significant prejudice to the respondent in the hearing process. I would
not accede to that submission. In my view, the chambers judge recognized the rule
enunciated in Workers Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 that
only in exceptional cases should a judge engaged in judicial review make the
decision assigned to the administrative body. The order remits the application for
reconsideration, in accordance with the reasons. The reasons require the panel to
re-assess the application in light of the delay subsequent to 1976, to reconsider the
burden placed upon the respondent in light of that delay, and to reconsider the
prejudice directly related to the delay. The panel is not compelled by the reasons to
stay the complaints against the respondents, nor is it compelled to find there has
been significant prejudice. It is compelled to consider the questions posed in
Blencoe: whether the hearing can proceed in a manner that is not unfair, oppressive
or prejudicial; and whether the public interest in the administration of justice calls for

a hearing, on the one hand, or a stay or some other relief, on the other. These
questions must be addressed in the light of the contextual factors identified in
Blencoe, including specifically, in this case, the delay from 1976 to 2010 in the
initiation of disciplinary proceedings in relation to the allegations of sexual
misconduct.
[113] In accord with the judgment in Hill, I am of the opinion we ought not to make
the decision assigned to the administrative body. I would dismiss the appeal and
would not disturb the order remitting the application to stay the citations in relation to
sexual misconduct to a panel for reconsideration.
The Honourable Mr. Justice Willcock

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COURT OF APPEAL FOR BRITISH COLUMBIA

Citation: Robertson v. British Columbia (Teachers

2014 BCCA 331 (CanLII)

Before: The Honourable Madam Justice Garson

On appeal from: An order of the Supreme Court of British Columbia, dated

Counsel for the Appellant: K. Horsman

Counsel for the Respondent: J.M.S. Woolley

Place and Date of Hearing: Vancouver, British Columbia

Written Reasons by:

In 2007, the British Columbia College of Teachers commenced an investigation into

2014 BCCA 331 (CanLII)

Willcock J.A. dissented and would have dismissed the appeal.

Reasons for Judgment of the Honourable Madam Justice Garson:

[1] In 2007, the British Columbia College of Teachers commenced an

2014 BCCA 331 (CanLII)

2014 BCCA 331 (CanLII)

The petitioner, Robert John Robertson, is a 62 year-old teacher who is

2014 BCCA 331 (CanLII)

Fitzpatrick J. of this court granted a stay of the proceedings before the

2014 BCCA 331 (CanLII)

[7] The College of Teachers prepared a Report of Preliminary Investigation (the

A. According to both Mr. Robertson and Complainant A this relationship continued

2014 BCCA 331 (CanLII)

The Decision of the Panel

2014 BCCA 331 (CanLII)

2014 BCCA 331 (CanLII)

1. Is the petition premature?

The Chambers Judges Review of the Panels Decision

2014 BCCA 331 (CanLII)

2014 BCCA 331 (CanLII)

The allegations against me arose during a very different time in my life. I

2014 BCCA 331 (CanLII)

In my opinion, the Commissioners wish to re-activate the matter after so

2014 BCCA 331 (CanLII)

The Chambers Judges Conclusion on the Appropriate Order

I do not consider it appropriate to grant an order of prohibition in this case.

Issues Raised on the Appeal and Cross-Appeal

a) in concluding that the patent unreasonableness standard of review in

2014 BCCA 331 (CanLII)

[40] The Commissioner says if Mr. Robertsons arguments on cross-appeal were

2014 BCCA 331 (CanLII)

[42] In Lavender Co-Operative Housing Assn. v. Ford, 2011 BCCA 114, at

Section 58 of the ATA similarly provides a complete code of standards of

2014 BCCA 331 (CanLII)

41 (3) The following sections of the Administrative Tribunals Act apply to

[45] Section 42(1) is the privative clause referred to in s. 41(3)(b). It provides:

42(1) Subject to subsection (2), decisions of the commissioner and of a panel

(2) The commissioner, within 30 days of the date of a decision by the

(a) correct a typographical, an arithmetical or another similar error in

(b) correct an obvious error or omission in the decision.

2014 BCCA 331 (CanLII)

[49] Moreover, as argued by the Commissioner, the chambers judges

2014 BCCA 331 (CanLII)

2014 BCCA 331 (CanLII)

[54] The Commissioner argues that the standard of patent unreasonableness

2014 BCCA 331 (CanLII)

2014 BCCA 331 (CanLII)

In my view, there are appropriate remedies available in the administrative law

Throughout the authorities in this area, terms such as natural justice,

employed. In Martineau, at p. 629, Dickson J. (writing for three judges, while

2014 BCCA 331 (CanLII)

[61] The characterization of abuse of process in Blencoe accords with Madam

2014 BCCA 331 (CanLII)

2014 BCCA 331 (CanLII)