March 31, 2023

Bill 35 – The Education Administration Amendment Act

What is Bill 35?

The government introduced Bill 35 – The Education Administration Amendment Act on March 13, 2023. This followed almost a year of media coverage of high-profile misconduct allegations and a report released by the Canadian Centre for Child Protection (CCCP), Child Sexual Abuse and Victimization by K-12 School Personnel in Canada. The report prompted swift and strong reactions from the public and the media.

Consultation with education partners, child protection advocacy groups and the public preceded tabling of Bill 35. The Bill redefines teacher misconduct, creates a teacher registry and outlines the structure, composition, and processes to investigate and adjudicate cases of misconduct and competency.

What is the Purpose of the Bill?

The government’s intent is to protect the safety of Manitoba students by:

• implementing a transparent and open process to address and prevent teacher misconduct (which has been redefined),
• establishing an independent commissioner to investigate and respond to complaints and reports of teacher misconduct, and
• establishing a registry to provide employers and the public with information on the status of a teacher’s certificate.

How has MTS Responded to Bill 35?

The Society responded by stating that: MTS unequivocally supports child protection as well as transparent, fair processes for managing teacher misconduct. However, the Society does have concerns about several aspects of the Bill, notably the inclusion of teacher competence in the legislation.

Specifically, our concern in this area is that investigating and adjudicating complaints related to competence (such as professional practices and the teacher’s knowledge, skills, and ability to deliver, instruct, and assess learning of the Manitoba curriculum) do not address the safety of children or enhance child protection laws.

This assertion in no way diminishes our fundamental commitment to teacher competence. Rather, it identifies our position that we view competency and conduct as two very separate issues requiring separate management processes with a clear locus of responsibility. It is our position that they are inappropriately conflated in the legislation.

On March 21, 2023, the MTS president and executive director met with Minister Ewasko to share the MTS positions and concerns and seek clarity on Bill 35. Officers also met with legal counsel multiple times to discuss proposed amendments that would be authored and advanced by the Society. A letter from the Minister was received on March 29, 2023, with further clarification about MTS concerns.

What are the Society’s Objections to Bill 35?

MTS has several. They are:

1. The inclusion of competence in a professional misconduct framework.

The Bill provides the commissioner with powers to address competency issues in accordance with professional standards. Our position is that this is the purview of the employer.

At no time has the purpose of professional standards been connected to child safety and suspension or cancellation of a teaching certificate. Introducing it as part of a misconduct framework is problematic because supervision and evaluation of teacher performance are the responsibility of the employer.

Teachers want the best teachers in classrooms, and pursuing professional excellence is how MTS safeguards the status of the profession and supports a robust public education system. The Society has promoted the development of teaching standards to foster a shared understanding of what it means to skillfully teach. Standards also support teacher education, career long learning and identification of professional development needs. In fact, our Code of Professional Practice obligates teachers to continuously improve professionally.

In the Excellence in Teaching and Leadership pillar of Manitoba’s K to 12 Education Action Plan (April 2022), the establishment of “professional standards that guide educator development, practice and evaluation” was identified as a future action to be initiated by April, 2024. Not only does MTS support this, but the Society also recommended it in its submission to the K-12 Education Review Commission.

2. Hearing panels composed of a majority of non-teachers.

Public representation is vital, however, the balance of individuals judging the conduct of a professional should hold that professional designation themselves. This is the case with disciplinary panels of other professional bodies, such as The Regulated Health Professions Act.

3. The unqualified inclusion of a teacher causing a student “significant emotional harm” in the definition of professional misconduct.

The broadness of this definition leaves teachers vulnerable to value-laden and biased perspectives which could prompt frivolous, vexatious, or trivial complaints. It is true that under the legislation a commissioner has the authority to take no further action on a complaint deemed to be frivolous, vexatious, or trivial. However, the impact on the teacher could nonetheless be significant, depending on whether—or how far—the review and/or investigation proceeds and if a summary to the public is provided, even if it is without identifying information.

4. Deficits in procedural fairness, such as:

• The acceptance of anonymous complaints.
• No requirement to provide a teacher with a copy of a complaint.
• No clear time limit for making a complaint.
• No expressed right for an investigated teacher to be represented by counsel.
• The obligation on employers to report any and all discipline for professional misconduct or incompetence as opposed to limiting reporting to suspensions and terminations.
• A lack of assurance that—given the commissioner will be governed by regulations, which are subject to change—investigations and hearings will be conducted fairly and under the principles of natural justice. We understand the perspective that the ability to appeal a decision to the Court of King’s Bench will safeguard due process and procedural fairness. However, the means, will and ability to appeal a decision may not be accessible to teachers whose certificate has been suspended or cancelled, so express rights within the legislation are critical.

Does MTS Support Anything in Bill 35?

Yes. Several aspects of the Bill have the full support of the Society. These include:

• The right of any person to make a written complaint that alleges sexual abuse or misconduct, or physical harm caused by a teacher to a pupil or other child under the teacher’s care or supervision.
• The obligation for all teacher employers in Manitoba to report, without delay, if a teacher they employ has been charged with or convicted of an offence under the Criminal Code relating to the physical or sexual abuse of children, or if the teacher has been suspended or dismissed for such professional misconduct.
• The requirement that teachers in Manitoba self-report if they have been charged with or convicted of a criminal offence relating to the sexual or physical abuse of a child.
• A fair and transparent process to deal with complaints including investigation and, if warranted, referral to a hearing panel for a determination on teacher professional misconduct.
• The authority of a hearing panel to make findings and orders, up to and including cancellation of the teacher’s teaching certificate, where professional misconduct has been proven against the teacher.

What is MTS Doing to Raise its Objections to the Bill?

The Society has conducted media interviews and submitted an op-ed to Manitoba’s two major daily newspapers and all rural weeklies. In addition, MTS has submitted to government the following proposed amendments:

• Remove competence from the Bill. This is a separate matter.
• Ensure hearing panels are composed of a majority of teachers, in line with the composition of disciplinary panels of other professional bodies.
• Include the expressed right to representation for a teacher being investigated.
• Limit reports by employers to suspensions and terminations, as opposed to any and all discipline for professional misconduct or incompetence.
• Define “significant emotional harm”. This requires specific language related to psychological harm to the pupil or child where the act is based on a characteristic protected by The Human Rights Code, repeated conduct that could reasonably cause a pupil or child to be humiliated or intimidated, or a single occurrence that could reasonably be expected to, and has a lasting harmful effect on, the pupil or child.
• Protect the privacy of teachers who are determined not to have the capacity to carry out the professional responsibilities of a teacher because of a physical or mental disability.

How Can I Help?

Legislative committee hearings are conducted on all proposed Bills. These hearings present our best opportunity to share concerns and support proposed amendments. We know that members of the public regard teachers as the most trusted source of information on public education. As an MTS member, your voice is essential. We are asking you to register to speak, for only a few minutes, on Bill 35.

We have speaking notes and key messages for you, to ensure consistency in messaging (though we do encourage members to include their personal experiences and voices in this process).

To register to present, click here. Staff from the Office of the Clerk will contact you by your preferred method of contact to advise of the meeting’s date, time, and location.

Can’t make an in-person presentation? You can present virtually or send a written submission.

Communication with you continues to be a priority, and we will keep the membership updated as this issue develops.

Click here to read Bill 35: What You Need to Know in French