ONTARIO COLLEGE OF TEACHERS
DISCIPLINE COMMITTEE
Citation: Ontario College of Teachers v Dunning, 2000 ONOCT 4
Date: 2000-10-13
REASONS FOR DECISIONS AND ORDERS
in the matter of ontario college of teachers act, 1996, and the Regulation (Ontario Regulation 437/97) thereunder:
and in the matter of discipline proceedings against James Herbert Dunning,
The Discipline Committee held a hearing on July 21, 2000 with a continuation on September 20, 2000,
BETWEEN:
ONTARIO COLLEGE OF TEACHERS
- and -
JAMES HERBERT DUNNING
CERTIFICATE # 160964
PRESENT:
Members of the Panel
Solette N. Gelberg (Chair)
Larry Capstick
George Merrett
The Honourable Lloyd Houlden, retired judge, Independent Counsel to the Panel
Caroline Zayid, McCarthy Tétrault, Counsel for the Prosecution assisted by Chris Sach Anderson, Senior Law Clerk
Maurice Green, Green & Chercover, Counsel for the Defense, assisted by David Wright
James Herbert Dunning was not present
A Notice of Hearing was served on James Herbert Dunning requesting attendance before the Discipline Committee of the Ontario College of Teachers and specifying the charges.
It is alleged that James Herbert Dunning is guilty of professional misconduct in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he abused students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7);
(c) he failed to comply with the Education Act Revised Statutes of Ontario, 1990, chapter E.2, and particularly section 264(1)(c) thereof or the Regulations made under that Act, contrary to Ontario Regulation 437/97, subsection 1(15);
(d) he failed to comply with instruction from supervisors contained in a memorandum titled “Philosophy and Policy re Discipline and Corporal Punishment” dated September 13, 1974 regarding the use of physical punishment as a form of discipline;
(e) he performed acts or omissions that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional contrary to Ontario Regulation 437/97, subsection 1(18);
(f) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); and
(g) he displayed a lack of knowledge, skill or judgement and/or a disregard for the welfare of his student or students of a nature or extent that demonstrates that the member is either unfit to carry out his professional responsibilities or that the member’s certificate should be made subject to terms, conditions or limitations.
The Notice of Hearing states that James Herbert Dunning is a member of the Ontario College of Teachers and therefore comes under the jurisdiction of the Ontario College of Teachers (Exhibit #1).
On July 21, 2000, the Discipline Committee of the Ontario College of Teachers conducted a hearing into Defense Counsel’s motion to stay the hearing.
EVIDENCE:
Defense Counsel argued that there are two main issues to be determined on this motion:
Has the delay by the Public Schools Authority (PSA) led to procedural unfairness and abuse or process?
In the alternative, did the failure of the Registrar and/or the Investigation Committee to consider or approve the terms of settlement between James Herbert Dunning and the PSA constitute an impermissible failure to exercise discretion or an improper exercise of that discretion?
Prosecution Counsel opposed the motion and asked the Discipline Committee to dismiss the same.
THE EVIDENCE:
The Committee learned that James Herbert Dunning taught in both the elementary and secondary sections of the Sir James Whitney School for the Deaf in Belleville from 1973 until September 1997 when he was dismissed. James Herbert Dunning’s dismissal arose from findings by the PSA, arising out of allegations against the member, that he physically abused deaf students and otherwise acted inappropriately during his time as a teacher at the Sir James Whitney School. On November 18, 1997, the PSA requested a review of the member’s conduct by the College and the College then informed the member of the complaint and requested details and documentation.
The College commenced its own investigation into the matter and identified some 46 persons as potential witnesses. There followed extensive correspondence between the College and the solicitors for the member. In March, 1999, the College wrote to the
member’s counsel with redrafted and more specific allegations and a response was received from the member on June 10, 1999.
On August 17, 1999, James Herbert Dunning’s Counsel advised the College of a settlement reached between the PSA, the member and his federation in respect to the outstanding employment contract grievances, and requesting the College’s ratification of such agreement. The College responded confirming that it does not have jurisdiction to ratify agreements between members and third parties.
The matter was considered by the College’s Investigation Committee on November 18, 1999 and was referred for consideration by the Discipline Committee. The member was notified of that decision on December 1, 1999.
A Notice of Hearing was issued on February 23, 2000. At the request of James Herbert Dunning’s Counsel and with the consent of Counsel for the College, a date was scheduled for July 21, 2000 to hearing the member’s motion requesting a stay of the proceedings.
On September 20, 2000, when the Hearing reconvened, the Discipline Committee was presented with an agreement between James Herbert Dunning and the Ontario College of Teachers.
REASONS:
The Committee, on the basis of its findings, agrees that the Ontario College of Teachers has no jurisdiction to be part of an agreement between an employee, his federation and his employer regarding conditions around termination of employment.
However, the Committee is in agreement that given the complicated circumstances surrounding this matter, the public interest is best served by the agreement reached between the member and the College.
DECISIONS AND ORDERS:
The Committee orders that the matter be stayed on the following conditions:
James Herbert Dunning shall immediately provide to the Ontario College of Teachers a letter resigning his membership in the College effective forthwith upon his receiving his first payment of pension monies from the Ontario Teachers Pension Plan Board in May, June or July, 2006 (whichever occurs first). Upon receipt of the letter of resignation, James Herbert Dunning’s membership in the College shall be cancelled and he shall cease to be a member on that date.
James Herbert Dunning shall immediately surrender his Ontario Teacher’s Certificate and Certificate of Qualification and Registration to the custody of the Registrar.
James Herbert Dunning shall provide to the Ontario College of Teachers, upon the signing of this agreement, an Undertaking that he will not teach nor seek employment as a teacher, in the public or private educational system within Ontario.
An entry shall be made on the Register maintained by the Registrar pursuant to Section 23 of the Ontario College of Teachers Act, 1996 (the “Act”) indicating the contents of the undertaking referred to in the above paragraph.
The hearing in this matter shall be adjourned and the Ontario College of Teachers shall discontinue its active investigation of the matters alleged in the Notice of Hearing.
The charges contained in the Notice of Hearing herein shall be withdrawn on the date that James Herbert Dunning’s Certificate is cancelled, unless the member breaches his Undertaking to the Ontario College of Teachers, in which case the College reserves the right to proceed with the charges contained in the Notice of Hearing herein upon reasonable notice to James Herbert Dunning, and in addition to any other recourse it may have available with respect to the breach of the Undertaking.
Pursuant to Section 30(8) of the Ontario College of Teachers Act, 1996 the Committee orders that the allegation of professional misconduct and the agreement reached between the parties be published in the official publication of the College.
DATED AT TORONTO, THIS 13th DAY OF OCTOBER, 2000
BY ORDER OF THE DISCIPLINE COMMITTEE
_____________________________
Solette N. Gelberg, Chair
_____________________________
George Merrett
_____________________________
Larry Capstick