DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF SOCIAL WORKERS AND SOCIAL SERVICE WORKERS

Indexed as:

Ontario College of Social Workers and Social Service Workers v DeJonge, 2024 ONCSWSSW 9

Date:

20240626

BETWEEN:

THE ONTARIO COLLEGE OF SOCIAL WORKERS AND SOCIAL SERVICE WORKERS

• and -

MICHAEL DEJONGE

PANEL:

Chair, Chisanga Chekwe, Public Member

Charlene Crews, Professional Member

Candice Snake, Professional Member

Appearances:

Debra McKenna, counsel for the College

Registrant, self-represented

Andrea Gonsalves, Independent Legal Counsel to the Panel

Heard:

April 29, 2024

DECISION AND REASONS FOR DECISION

1This matter came on for a hearing by videoconference on April 29, 2024, before a panel of the Discipline Committee (the “Panel”) of the Ontario College of Social Workers and Social Service Workers (the “College”). The Panel announced its decision on the misconduct allegations, penalty and costs orally at the hearing. These are our reasons for decision.

Publication ban

2The College requested an order banning publication of the name of the Client in this matter and of any information that would identify the Client. The College’s request was made under s. 28(7) of the Social Work and Social Service Work Act, 1998, SO 1998, c 31 (the “Act”), and was based on the fact that the allegations and evidence in this case involve sensitive personal information about the Client, and that the desirability of avoiding public disclosure about those matters in connection with the Client’s identity outweighs the desirability of giving the public access to that information. The Registrant did not oppose the order sought.

3The Panel agreed it was appropriate to order the publication ban as requested. The publication ban sought by the College allows for the hearing to remain open while protecting the Client’s privacy. The identity of the Client has no significant value to the public, whereas protecting the Client’s identity from disclosure will benefit the Client’s interests.

The allegations

4In the Notice of Hearing dated August 4, 2022, Michael DeJonge (the “Registrant”) is alleged to be guilty of professional misconduct pursuant to the Social Work and Social Service Work Act, 1998, SO 1998, c 31 (the “Act”) in that he is alleged to have engaged in conduct that contravenes the Act, Ontario Regulation 384/00 (the “Professional Misconduct Regulation”), Schedule “A” to By-law No. 66 of the Ontario College of Social Workers and Social Service Workers, being the Ontario College of Social Workers and Social Service Workers Code of Ethics (the “Code of Ethics”), and Schedule “B” to By-law No. 66 of the Ontario College of Social Workers and Social Service Workers, being the Ontario College of Social Workers and Social Service Workers Standards of Practice Handbook (the “Handbook”).

5The factual particulars of the allegations against the Registrant as set out in the Notice of Hearing are as follows:

1. You are, and were at all times relevant to these allegations, a registered social worker with the Ontario College of Social Workers and Social Service Workers (the “College”).

2. At all material times, you were practising in Huntsville, Ontario and worked as an addiction counsellor at [employment] (the “Centre”) – an inpatient alcohol and drug treatment facility.

3. During the period from approximately January 31, 2020 to March 6, 2020, [XX] (the “Client”) was admitted for inpatient treatment at the Centre.

4. During the Client’s stay at the Centre, you were one of their counsellors. You were aware that the Client was a vulnerable individual and had sought treatment at the Centre to deal with addiction and other health challenges.

5. Following the Client’s discharge from inpatient treatment at the Centre, you continued to have regular phone contact with the Client, including contacting the Client outside of working hours and while using your personal phone, contrary to the policies of the Centre.

6. In addition, from approximately June 1, 2020 to July 1, 2020, the Client lived with you at your residence at Huntsville, Ontario, during which time you purported to provide the Client with counselling.

7. You also encouraged the Client not to disclose to family or friends that the Client was in fact living with you.

8. During the time that the Client was living at your residence, you engaged in other boundary crossing behaviours and/or sexual abuse and/or sexual misconduct in relation to the Client, including:

(a) communicating via text and/or phone with the Client;

(b) communicating via text and/or phone with the Client’s mother;

(c) inviting the Client’s sister to live with you;

(d) inviting the Client to write a journal entry and/or note about how the Client felt about you;

(e) making negative comments about the Client’s family and encouraging the Client’s dependence on the Member;

(f) hugging the Client;

(g) massaging the Client’s feet;

(h) taking photos of the Client’s feet;

(i) smelling the Client’s feet; and/or

(j) placing the Client’s foot on your penis (over your pants).

6The Notice of Hearing alleges that by reason of engaging in some or all of the conduct outlined above, the Registrant is guilty of professional misconduct as set out in ss. 26(2)(a) and (c) of the Act:

(a) In that you violated Sections 2.2 and 2.5 of the Professional Misconduct Regulation and Principle VIII of the Handbook (as commented on in Interpretations 8.1, 8.2, 8.3, 8.4, 8.6, and 8.7) by failing to ensure that sexual misconduct did not occur; by engaging in sexual intercourse or another form of physical sexual relations with the Client, by engaging in touching, of a sexual nature, of the Client, and/or by engaging in behavior or remarks of a sexual nature towards the Client, other than behaviour or remarks of a clinical nature appropriate to the service provided; by developing sexual feelings towards the Client that could, in the Member's judgement, could put the Client at risk, and failing to seek consultation/supervision or develop an appropriate plan; and by engaging in sexual relations with the Client during and after the period in which you provided counselling services to the Client;

(b) in that you violated of Sections 2.2, 2.6 and 2.10 of the Professional Misconduct Regulation and Principle II of the Handbook (commented on in Interpretations 2.2, 2.2.1, 2.2.2, 2.2.3. and 2.2.8) by failing to establish and maintain clear and appropriate boundaries in the Member’s professional relationships for the protection of the Client; by engaging in professional relationships that constitute a conflict of interest or in situations in which the Member ought reasonably to have known that the Client would be at risk; by engaging in sexual relations with the Client; by using information obtained in the course of a professional relationship, and using the Member’s professional position of authority, to coerce, improperly influence, harass, abuse or exploit a client or a former client; and by failing to avoid conduct which could reasonably be perceived as reflecting negatively on the profession;

(c) in that you violated Sections 2.2 and 2.10 of the Professional Misconduct Regulation and Principle III of the Handbook (commented on in Interpretations 3. 7) by failing to assume full responsibility for demonstrating that the Client had not been exploited, coerced or manipulated intentionally or unintentionally where a personal relationship occurs with the Client;

(d) in that you violated of Sections 2.2 and 2.28 of the Professional Misconduct Regulation and Principle I of the Handbook (commented on in Interpretations 1.5, 1.6 and 1.7) by failing to maintain awareness of the Member’s own values, attitudes and needs and how these impact on the professional relationship with the Client; by failing to distinguish the Member’s needs and interests from those of the Client to ensure that the Client’s needs and interests remain paramount; and by failing to maintain an awareness and consideration of the purpose, mandate and function of the organization where the Member was employed and how these impact on and limit professional relationships with clients; and/or

(e) in that you violated Section 2.36 of the Professional Misconduct Regulation by engaging in conduct or performing an act relevant to the practice of the profession that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

Registrant’s position

7The Registrant admitted the allegations set out in the Notice of Hearing. The Panel conducted an oral plea inquiry at the hearing. In addition, in the Agreed Statement of Facts between the College and the Registrant (discussed below), the Registrant confirmed in writing his understanding of the nature of the allegations against him and of the consequences of admitting to the misconduct.

8The Panel was satisfied that the Registrant’s admission was voluntary, informed and unequivocal.

The evidence

9The evidence was tendered by way of an Agreed Statement of Facts, which provides in relevant part as follows.

1. The Registrant was first registered as a social worker on June 17, 2011.

2. Other than the allegations set out in the Notice of Hearing dated August 3, 2022 (attached as Exhibit “A” to the ASF), the Registrant has no prior discipline or complaint history with the College.

3. At all times material to the allegations in Exhibit “A”, the Registrant was practising as an addiction counsellor at [employment] (the “Centre”) – an inpatient alcohol and drug treatment facility located in Huntsville, Ontario.

4. During the period from approximately January 31, 2020 to March 6, 2020, [the Client] was admitted for inpatient treatment at the Centre.

5. During the Client’s stay at the Centre, the Registrant was one of their counsellors. The Registrant was aware that the Client was a vulnerable individual and had sought treatment at the Centre to deal with addiction and other health challenges.

6. Following the Client’s discharge from inpatient care at the Centre, the Registrant continued to have regular phone contact with the Client, including contacting the Client outside of working hours and while using the Registrant’s personal phone, contrary to the policies of the Centre.

7. In addition, from approximately June 1, 2020 to July 1, 2020, the Client lived with the Registrant at his residence in Huntsville, during which time the Registrant provided the Client with counselling.

8. During the Client’s stay at the Registrant’s home, the Registrant encouraged the Client not to disclose to family or friends that the Client was living with him.

9. In addition, while the Client was living with the Registrant, the Registrant admits that he engaged in other boundary crossing behaviours in respect of the Client, including sexual abuse and/or sexual misconduct, specifically:

(a) communicating via text and/or phone with the Client;

(b) communicating via text and/or phone with the Client’s mother;

(c) inviting the Client’s sister to live with the Registrant too;

(d) inviting the Client to write a journal entry and/or note about how the Client felt about the Registrant;

(e) making negative comments about the Client’s family and encouraging the Client’s dependence on the Registrant;

(f) hugging the Client;

(g) massaging the Client’s feet;

(h) taking photos of the Client’s feet;

(i) smelling the Client’s feet; and

(j) placing the Client’s foot or feet on the Registrant’s penis (over the pants).

10. Based on these facts, the Registrant admits that he engaged in and is guilty of professional misconduct, as described in paragraphs 1 to 9 above, and within the meaning of section 26(2)(a) and (c) of the Act, in that:

(a) the Registrant violated Sections 2.2 and 2.5 of the Professional Misconduct Regulation and Principle VIII of the Handbook (as commented on in Interpretations 8.1, 8.2, 8.3, 8.4, 8.6, and 8.7) by failing to ensure that sexual misconduct did not occur; by engaging in sexual intercourse or another form of physical sexual relations with the Client, by engaging in touching, of a sexual nature, of the Client, and/or by engaging in behavior or remarks of a sexual nature towards the Client, other than behaviour or remarks of a clinical nature appropriate to the service provided; by developing sexual feelings towards the Client that could, in the Member's judgement, could put the Client at risk, and failing to seek consultation/ supervision or develop an appropriate plan; and by engaging in sexual relations with the Client during and after the period in which you provided counselling services to the Client;

(b) the Registrant violated of Sections 2.2, 2.6 and 2.10 of the Professional Misconduct Regulation and Principle II of the Handbook (commented on in Interpretations 2.2, 2.2.1, 2.2.2, 2.2.3. and 2.2.8) by failing to establish and maintain clear and appropriate boundaries in the Registrant’s professional relationships for the protection of the Client; by engaging in professional relationships that constitute a conflict of interest or in situations in which the Registrant ought reasonably to have known that the Client would be at risk; by engaging in sexual relations with the Client; by using information obtained in the course of a professional relationship, and using the Registrant’s professional position of authority, to coerce, improperly influence, harass, abuse or exploit the Client; and by failing to avoid conduct which could reasonably be perceived as reflecting negatively on the profession;

(c) the Registrant violated Sections 2.2 and 2.10 of the Professional Misconduct Regulation and Principle III of the Handbook (commented on in Interpretations 3.7) by failing to assume full responsibility for demonstrating that the Client had not been exploited, coerced or manipulated intentionally or unintentionally where a personal relationship occurs with the Client;

(d) the Registrant violated of Sections 2.2 and 2.28 of the Professional Misconduct Regulation and Principle I of the Handbook (commented on in Interpretations 1.5, 1.6 and 1.7) by failing to maintain awareness of the Registrant’s own values, attitudes and needs and how these impact on the professional relationship with the Client; by failing to distinguish the Registrant’s needs and interests from those of the Client to ensure that the Client’s needs and interests remain paramount; and by failing to maintain an awareness and consideration of the purpose, mandate and function of the organization where the Registrant was employed and how these impact on and limit professional relationships with clients; and

(e) the Registrant violated Section 2.36 of the Professional Misconduct Regulation by engaging in conduct or performing an act relevant to the practice of the profession that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

Decision of the panel

10Having considered the admissions of the Registrant, the evidence contained in the Agreed Statement of Facts, and the submissions of counsel, the Panel found that the Registrant committed the acts of professional misconduct alleged in the Notice of Hearing.

Reasons for decision

11The Panel recognized that the burden of proof was on the College to prove, on a balance of probabilities, using clear, cogent and convincing evidence, that the Registrant committed the acts of professional misconduct alleged in the Notice of Hearing.

12As noted, the Panel conducted a plea inquiry and accepted that the Registrant’s admissions were voluntary, informed and unequivocal. These admissions warrant significant weight in the Panel’s assessment of whether the College has met its burden.

13In addition to the Registrant’s admissions, the evidence contained in the Agreed Statement of Facts proves that the Registrant engaged in the misconduct alleged in the Notice of Hearing.

14The Registrant was employed as an Addictions Counsellor at an inpatient treatment facility and provided counselling services to the Client between January 31 and March 6, 2020. By virtue of the Client’s inpatient admission, the Registrant knew the Client to be vulnerable and there was therefore an inherent power imbalance between the Registrant and the Client.

15Following the Client’s discharge from the treatment program, the Registrant violated multiple professional boundaries when he engaged in regular communications with the Client and the Client’s mother by telephone and text messages. This contact, which was outside of work hours and on the Registrant’s personal phone, was contrary to the policies of the Registrant’s employer. Further, for a one-month period from June 1-July 1, 2020, the Registrant had the Client reside with him, at his invitation. During this period, he continued to provide counselling to the Client; engaged in touching, including touching of sexual nature, with the Client; invited the Client’s sister to reside with him; encouraged the Client to journal about their feelings for the Registrant; and made disparaging remarks about the Client’s family, which heightened a vulnerable Client’s dependence on him.

16The Registrant demonstrated that he was aware that he was in a conflict of interest and was not adhering to the standards of the profession when he asked the Client to keep the fact that the Client was residing with him from friends and family.

17The Panel found that the Registrant’s actions in respect of the Client amounted to professional misconduct as alleged in allegations (a) through (d) of the Notice of Hearing. The Registrant used his professional position of authority to exploit his Client and abuse his Client sexually. He counselled the Client while in a conflict of interest and failed to ensure that the Client’s needs and interests remained paramount. Sexual abuse as defined in Principle VIII of the Handbook (Interpretation 8.2) and s. 43(4) of the Act does not require an act of sexual intercourse. Remarks, touching and behaviour of a sexual nature are enough to support a finding of sexual abuse.

18With respect to allegation (e), the Panel finds that the Registrant’s conduct would reasonably be regarded by other members of the profession as disgraceful, dishonourable or unprofessional. The Registrant’s conduct was unprofessional as it fell well below the standards expected of a College registrant. The Registrant’s conduct was dishonorable as it had an element of moral failing and the Registrant knew or ought to have know it was wrong. The Registrant’s conduct was disgraceful as it brought shame to the profession and to the Registrant.

Penalty submissions

19The parties were in agreement on the issue of penalty. They presented to the Panel a Joint Submission on Penalty and Costs (“Joint Submission”) asking this Panel make an order as follows.

1. The Registrant will be reprimanded orally by a panel of the Discipline Committee, via an electronic hearing on April 29, 2024 or on such date as directed by the panel, and the fact and nature of the reprimand shall be recorded on the College’s public register for an unlimited period of time.

2. The finding and penalty of the Discipline Committee shall be published, with the Registrant’s name, online and/or in print, including, but not limited to, in the official publications of the College, on the College’s public register, and posted to .

3. The Registrant shall pay costs to the College in the amount of five thousand dollars ($5,000.00), which amount shall be paid on a monthly basis to the College on the following timetable:

• $416.66 – April 29, 2024

• $416.66 – May 29, 2024

• $416.66 – June 28, 2024

• $416.66 – July 29, 2024

• $416.66 – August 29, 2024

• $416.66 – September 30, 2024

• $416.66 – October 29, 2024

• $416.66 – November 29, 2024

• $416.66 – December 30, 2024

• $416.66 – January 29, 2025

• $416.66 – February 28, 2025

• $416.74 – March 28, 2025

20The Joint Submission was presented to the Panel together with a written undertaking and acknowledgment signed by the Registrant and appended as a schedule to the Joint Submission (the “Registrant’s Undertaking”). The Registrant’s Undertaking confirmed that he had resigned his certificate of registration with the College on August 2, 2022, and further provided as follows:

1. I permanently surrender and resign my certificate of registration.

2. I will refrain from engaging in the practice of social work or social service work, as defined in the College’s Code of Ethics and Standards of Practice and/or use the restricted titles set out in sections 46 and/or 47 of the Social Work and Social Service Work Act, 1998, S.O. 1998, c. 31 (the “Act”), and/or hold myself out to the public as a registrant of the College and/or as qualified to practise as a social worker or social service worker.

3. I will permanently refrain from re-applying to the College to be registered and/or in any way seek the reinstatement of my certificate of registration.

4. I will not engage in the practice of social work or social service work in any jurisdiction.

5. I acknowledge that the Registrar will record on the public register the fact of my Undertaking and Acknowledgement to permanently resign from the College and to refrain from re-applying to the College and/or to seek reinstatement of my certificate and/or engage in the practice and/or use any of the restricted titles set out in section 46 or 47 of the Act.

6. I further acknowledge and agree that this Undertaking and Acknowledgment is legally binding on me, and that the College may take action against me to enforce it as the College deems appropriate.

21The College submitted that the Panel has jurisdiction to impose the terms proposed in the Joint Submission by way of s. 26.4 of the Act.

22In support of the Joint Submission, College counsel submitted that this case involves conflicts of interest, a number of serious boundary violations, and exploiting and abusing a Client, including touching of a sexual nature. The penalty imposed by the Panel must reflect the seriousness of the misconduct, including the impact on the Client and how the Registrant’s conduct reflects on the profession as a whole; uphold the public’s confidence in the College’s ability to regulate the profession; and meet the College’s mandate of public protection.

23College counsel argued that in light of the Registrant’s Undertaking, the components of the Joint Submission serve those objectives. The oral reprimand, which is recorded on the College’s Register, allows the Panel to express disapproval and intolerance for the Registrant’s conduct. Publication of the decision, including the Registrant’s name, meets the principles of specific and general deterrence, putting the profession at large on notice that this type of conduct will not be tolerated, and meets the public protection interest of the College.

24The Registrant’s Undertaking results in a more severe consequence than the Panel could have ordered under the Act, which allows for a maximum penalty of revocation and a period of five-years before the Registrant is eligible to reapply for registration.

25College counsel argued that an order for costs, although not punitive, allows the College to be indemnified for some of the costs it incurred to investigate and prosecute this matter, ensuring the full burden of those costs does fall solely on the general membership. The amount proposed is in line with other decisions of a similar nature issued by this College and other regulators in the health sector.

Penalty decision

26Having considered the findings of professional misconduct, the evidence, the submissions of the parties and the Registrant’s Undertaking, the Panel accepted the Joint Submission and made an order as follows, consistent with its terms.

1. The Registrant will be reprimanded orally by a panel of the Discipline Committee, via an electronic hearing on April 29, 2024 or on such date as directed by the Panel, and the fact and nature of the reprimand shall be recorded on the College’s public register for an unlimited period of time.

2. The finding and penalty of the Discipline Committee shall be published, with the Registrant’s name, online and/or in print, including, but not limited to, in the official publications of the College, on the College’s public register, and posted to .

3. The Registrant shall pay costs to the College in the amount of five thousand dollars ($5,000.00), which amount shall be paid on a monthly basis to the College on the following timetable:

• $416.66 – April 29, 2024

• $416.66 – May 29, 2024

• $416.66 – June 28, 2024

• $416.66 – July 29, 2024

• $416.66 – August 29, 2024

• $416.66 – September 30, 2024

• $416.66 – October 29, 2024

• $416.66 – November 29, 2024

• $416.66 – December 30, 2024

• $416.66 – January 29, 2025

• $416.66 – February 28, 2025

• $416.74 – March 28, 2025

27The Panel’s order was announced orally on the record at the hearing.

Reasons for penalty decision

28The Panel recognized that the penalty should maintain high professional standards, preserve public confidence in the ability of the College to regulate its Registrants, and, above all, protect the public. These goals are achieved through a penalty that considers the principles of general deterrence, specific deterrence and, where appropriate, rehabilitation and remediation of the Registrant’s practice. The Panel also considered the principle that the Panel should accept a joint submission on penalty unless it is contrary to the public interest and would bring the administration of justice into disrepute.

29The reprimand and publication of the Panel’s finding and penalty, in light of the Registrant’s Undertaking, serve as general and specific deterrents and meet the public interest. The Panel notes that the Registrant’s Undertaking never to return to the practice of social work or social service work would be beyond the Panel’s jurisdiction to order and provides strong public protection.

30In accepting the Joint Submission on Penalty and Costs the Panel considered both aggravating and mitigating factors.

31Aggravating factors included that the conduct was of a serious nature, involving sexual touching with a vulnerable client where an inherent power imbalance existed.

32Mitigating factors included the fact that the Registrant had no prior discipline history with the College and that the Registrant demonstrated insight into the misconduct, acknowledged his wrongdoing, was cooperative with the College investigation. He voluntarily entered into an Agreed Statement of Facts and Joint Submission, including the Registrant’s Undertaking, which spared the Client the burden of testifying and the costs of a contested discipline hearing.

33The Panel accepts that the penalty proposed poses no risk to the pubic and meets the College’s mandate of protecting the public interest.

34With respect to costs, the amount and payment schedule proposed in the Joint Submission are reasonable in the circumstances of this case.

I, Chisanga Chekwe, sign this decision as chairperson of the Panel and on behalf of the Panel members listed below.