Issues related to teacher misconduct in Manitoba are playing out on two fronts — in the courtroom in a high-profile sex abuse case and behind the scenes at the legislature where the union is pushing for a revamp of a new law that calls for greater transparency.
The Manitoba Teachers’ Society has been calling on the province to change aspects of the law on teacher discipline, effectively “watering down” the legislation, critics say. If successful, the changes would keep the public in the dark about wrongdoing, they warn.
At the same time, court documents reveal the union is paying the legal fees of a former Winnipeg high school football coach who has pleaded guilty to sexually abusing former students.
Critics say the competing interests — defending its members while influencing how discipline is adjudicated — underscore the need for an independent body to handle teacher misconduct cases in Manitoba.
To date, misconduct cases have been handled behind closed doors. They fall either to the teachers society, school divisions or the province depending on the severity, but at all levels, little to no information is made public. In 2022, the Free Press revealed the extent of the secrecy after it filed nearly 70 freedom of information requests with the province’s 37 school divisions and education department asking for information about teacher impropriety. Nearly all requests were rejected.
The new law is set to change that.
JESSICA LEE / FREE PRESS files
The union has called the legislation ‘open season’ on teachers.
The Education Administration Amendment Act (Teacher Certification and Professional Conduct) was introduced by the former Conservative government and passed unanimously in spring 2023. Among the changes it is expected to usher in include: a commissioner appointed to oversee misconduct and discipline issues; an independent panel to hear misconduct cases; public hearings; misconduct decisions made public; and an online registry of teachers, which includes discipline history.
The law was proposed at the time a spate of teachers faced criminal charges for allegedly sexually assaulting students. A report from the Canadian Centre for Child Protection had slammed the government for its secretive handling of teacher wrongdoing.
Although the legislation passed and the new NDP government has promised to see it implemented, details are still being hammered out and the union is pushing for significant revisions.
In a Q and A published on its website in May, the union laid out the changes it wants: the public registry limited to the teacher’s name and their teaching certificate status, excluding discipline history; a ban on anonymous complaints; a two-year time limit for complaints; teachers on paid leave pending the outcome of investigations; the majority of people on a hearing panel to be teachers (currently, proposed three-person panels are set to include one teacher, one person nominated by the Manitoba School Boards Association and one member of the public); members of the public on hearing panels “should be drawn from a pool of those who understand regulatory processes”; and closed hearings.
Experts in law and education say these requests raise red flags.
Cameron Hauseman, an assistant professor of educational administration at the University of Manitoba, said the union’s continued push for less transparency “shows a lack of understanding when it comes to the importance of public accountability regarding the teaching profession.”
“The fact that they have fought any sort of change in this legislation tooth and nail regardless of the government involved makes one wonder if the union is acting in the best interests of students,” he said.
MIKE DEAL / FREE PRESS files
U of M Prof. Cameron Hauseman says the lobbying efforts make one wonder if the union is acting in the best interest of students.
The public is left with the impression MTS is “upset part of their mandate has been taken away,” he said.
The union, which represents more than 16,000 educators, has been strongly opposed to key components of the law, calling it “open season” on teachers. At an April 2023 marathon committee hearing at the legislature, dozens of teachers spoke out against it.
Brandon Trask, an assistant professor of law at the University of Manitoba, said he would have “significant concerns” if many of the requested amendments are adopted.
“The emphasis really does need to be on transparency and accountability,” he said.
Specifically, regarding closed-door hearings, Trask said the new system should be based on the open courts principle. Hearings should be public with publication bans in place where appropriate, he said.
He also disagrees with school divisions continuing to pay teachers under investigation for misconduct, especially in serious cases such as those that may result in criminal charges or complex cases that could drag on for years.
“Part of this is the public optics perspective, ensuring that these processes are developed in order to build confidence in teaching profession,” he said. The public needs to see accountability and transparency, not secrecy and protection, he said.
Trask rejects the union’s proposal for a two-year time limit on complaints.
JESSICA LEE / FREE PRESS files
U of M law Prof. Brandon Trask warns there is a risk of ‘watering down’ the teacher oversight law.
“There is a massive power imbalance between a teacher and a student, especially if the student is still in that teacher’s class,” he said. “It may take quite some time for a student or former student to process what has happened to them before they are in a position to be able to report the misconduct.”
Trask takes less of an issue with having a majority of teachers on a panel, which is similar to the makeup of other panels that adjudicate professional misconduct, such as those involving doctors and lawyers. He thinks there is merit to banning anonymous complaints — an accuser’s name may not be made public but the accused has the right to know who made the claim, he said.
Paul Bennett, an education consultant in Nova Scotia who has researched teacher misconduct across Canada, disagrees with the Manitoba union’s position that only teachers can, or should, judge professional competence.
“I don’t buy that at all,” he said.
Bennett thinks public representatives play an important role on such panels and their inclusion bolsters confidence in the cases being handled impartially. He believes a panel with a majority of teachers may be more likely to side with the educator and notes that stacking a panel with teachers was part of what led to the downfall of a similar model in B.C.
However, Bennett is not opposed to paying teachers pending the outcome of a hearing or criminal proceeding, whichever comes first. Members should be presumed innocent, he said, adding hearings should occur in a timely manner and teachers who face serious allegations should be assigned administrative work outside of the classroom.
“There is a massive power imbalance between a teacher and a student, especially if the student is still in that teacher’s class.”–Brandon Trask
As for keeping hearings behind closed doors, that’s “quite acceptable as long as the result of adjudications are made public and there is full disclosure of how the cases are disposed of,” he said.
MTS said its May position on the law still stands.
Elaborating on its request for change in the composition of hearing panels, a spokesperson said the union wants a roster of 10 teachers, nine of whom are nominated by MTS and one from an independent school. Currently, the roster would have four teachers, including three nominated by MTS with one from an independent school. It wants five-person hearing panels, with three of the members being teachers, up from the expected three-person panel with one teacher on it.
“Public representation is vital, however, the balance of individuals judging the conduct of a professional should hold that professional designation themselves,” an MTS spokesperson said.
MTS president Nathan Martindale was unavailable for an interview.
Meanwhile, a pre-sentence report filed in provincial court says the union is footing the legal bill for Kelsey McKay, a former football coach at Vincent Massey Collegiate and Churchill High School, who pleaded guilty in July 2023 to nine counts of sexual assault and two counts of luring in relation to nine teenage victims — former players he coached.
“He indicated that, while he understands he will not be able to return to his job, it is best that he remains employed with the teacher’s union at this time as they continue to pay his legal fees,” the pre-sentence report states. A union representative has also accompanied McKay in court.
MIKAELA MACKENZIE / FREE PRESS
Kelsey McKay no longer has a teaching certificate, but the union is covering his legal fees.
In an email this week, an MTS spokesperson would not confirm the union is paying his legal fees, but said McKay is not “employed with the union.”
McKay is represented in court by Winnipeg defence lawyers Josh Weinstein and Lisa LaBossiere. Weinstein referred questions about fees to MTS.
The MTS member handbook states: “The society will provide its members with legal services chosen by the society in the following circumstances… a member has been charged with offences under federal or provincial legislation when those offences are directly related to the member’s professional duties.”
The MTS spokesperson said the union “is required to follow its bylaws.”
It works similarly with teachers unions in other provinces, though some allow for more discretion.
In New Brunswick, for instance, teachers are entitled to legal assistance “subject only to the approval of the executive director,” according to the New Brunswick Teachers’ Association’s member handbook. In cases where a member is found guilty of charges such as the sexual abuse of children, “representation will cease and the association may take steps to recover any legal expenses incurred by NBTA.”
The BC Teachers’ Federation advises its members it “may” provide legal aid in criminal matters relating to their professional work. If the member is found guilty or pleads guilty, it “may” deny subsequent funding.
“(The current situation) creates potential for conflict with what the role of union is – to advocate for members.”–Brandon Trask
It remains unclear how often MTS pays the legal fees for teachers who face criminal charges related to their employment. Asked whther this is standard practice and how many cases the union has paid for in the last 10 years, a spokesperson said MTS is “unable to share this information.”
Education and child protection experts say it is not surprising the union is paying for McKay’s lawyers, as the case relates to his employment. However, they say it’s another example that makes clear distance is needed between the union and the handling of teacher misconduct.
“(The current situation) creates potential for conflict with what the role of union is – to advocate for members,” said Trask. “How can it be in charge of dolling out discipline to its members in that context?”
Trask said the union can’t continue to “wear both hats,” serving as both defender of teachers and adjudicator of misconduct.
“This underscores the need to move to independent model,” he said.
Anne-Marie Robinson, a member of Stop Educator Child Exploitation, a Canadian advocacy group of survivors of sexual abuse perpetrated by schoolteachers, agrees.
“I believe the unions have no business in being involved in any way in a complaint against a teacher that has to do with sexual or physical harm against a child,” Robinson said. “It’s a massive conflict of interest.”
Robinson said the current system in Manitoba is “ridiculously secretive.” To date, no information about cases is made public by the union, despite being required by law to publish decisions related to misconduct involving members.
For now, implementation of the law remains a work in progress.
A provincial spokesperson said by early 2025, the government expects to have an independent commissioner established to start addressing matters of teacher misconduct and get the teacher discipline registry up and running.
The online registry will be implemented in two phases, with the first limited to current and historic cases of misconduct and the second inclusive of all Manitoba teachers certified since 1960. (Dating the registry to 1960 should capture most, if not all, teachers who are still teaching, the spokesperson said.)
Consultations on other aspects of the law continue.
Trask hopes any further changes are reasonable and minimal.
“Any watering down of what was in the legislation should raise questions.”–Brandon Trask
“Any watering down of what was in the legislation should raise questions,” he said. “The focus here needs to be prioritizing the safety of the public, of children. That shouldn’t involve partisan political calculations.”
A spokesperson for Education Minister Nello Altomare confirmed he met with MTS president Martindale in April for an “education stakeholder meeting” but it is not clear what was discussed.
As for McKay, he is no longer employed by the Pembina Trails School Division. His employment was terminated in September 2023, a year and a half after the division placed him on unpaid leave and two months after he pleaded guilty, a spokesperson confirmed.
McKay no longer holds a teaching certificate, MTS said, though the province wouldn’t confirm that detail.
The sentencing date for McKay’s case has not been set. The Crown has asked for 25 years in prison while defence counsel has argued just over 13 years. McKay remains free on bail.
— With files from Jeff Hamilton and Erik Pindera
katrina.clarke@freepress.mb.ca
Katrina Clarke
Investigative reporter
Katrina Clarke is an investigative reporter at the Winnipeg Free Press. Katrina holds a bachelor’s degree in politics from Queen’s University and a master’s degree in journalism from Western University. She has worked at newspapers across Canada, including the National Post and the Toronto Star. She joined the Free Press in 2022. Read more about Katrina.
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