Ontario College of Teachers v. Welsh, 2009 ONOCT 54

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Welsh, 2009 ONOCT 54

Date: 2009-12-03

IN THE MATTER OF the Ontario College of Teachers Act, 1996, and the Regulation (Ontario Regulation 437/97) thereunder;

AND IN THE MATTER OF a discipline proceeding against

Leslie Ann Welsh, OCT, a member of the Ontario College of Teachers.

PANEL: Hanno Weinberger, OCT, Chair Danny Anckle

Darlene Mead, OCT

BETWEEN: ) ) David Leonard,

) McCarthy Tétrault LLP, ) for Ontario College of Teachers,

ONTARIO COLLEGE OF TEACHERS ) assisted by Trevor Evans,

) Senior Law Clerk

• and – )

) Howard Goldblatt

) Sack Goldbatt Mitchell LLP,

LESLIE ANN WELSH ) for Leslie Ann Welsh

(CERTIFICATE # 214106) )

) Bonni Ellis,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: November 9, 2009

REASONS FOR DECISION, DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on November 9, 2009 at the Ontario College of Teachers (“the College”) at Toronto.

A Notice of Hearing, dated January 5, 2009, was served on Leslie Ann Welsh, requesting her attendance before the Discipline Committee of the Ontario College of Teachers on January 28, 2009 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for November 9, 2009. Leslie Ann Welsh was in attendance.

PUBLICATION BAN

The Committee was made aware by counsel that there was a court ordered publication ban from a previous criminal proceeding that prohibited publication of any information that might tend to identify the student involved in this matter. Both counsel were asked to provide information to the Committee regarding the details of this publication ban. The Committee determined that it was bound by this publication ban and therefore ordered that there be no publication of any information that might tend to identify the student involved in this matter.

THE ALLEGATIONS

The allegations against Leslie Ann Welsh in the Notice of Hearing, (Exhibit 1) dated January 5, 2009 are as follows:

IT IS ALLEGED that Leslie Ann Welsh is guilty of professional misconduct as defined in section 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”), in that:

(a) she failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);

(b) she abused a student or students physically, sexually, verbally, psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7);

(c) she failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) thereof or the Regulations made under those Acts, contrary to Ontario Regulation 437/97, subsections 1(14) and (15);

(d) she contravened a law, the contravention of which is relevant to the Member’s suitability to hold a Certificate of Qualification and Registration, contrary to Ontario Regulation 437/97, subsection 1(16);

(e) she committed acts 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) she engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); and

(g) she failed to comply with the member’s duties under the Child and Family Services Act, contrary to Ontario Regulation 437/97, subsection 1(27).

At the conclusion of the hearing on November 5, 2009, College Counsel sought to withdraw the allegations of professional misconduct contained in part of paragraph (c) and paragraphs (d) and (g) above, being alleged breaches of Ontario Regulation 437/97, subsections 1(14), 1(16) and 1(27). The Committee agrees that these allegations shall be withdrawn.

Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts, Plea of No Contest and Joint Submission on Penalty (SUF– Exhibit 2) which provides as follows:

STATEMENT OF UNCONTESTED FACTS

1. Leslie Ann Welsh (the “Member”) is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of her Registered Member Information.

2. At all material times, the Member was employed by the Durham District School Board (the “Board”) as a teacher at a school (the “School”). The Member was also a coach at the School.

3. During the 2002-2003 academic year, the Student was a female student of the Member at the School.

4. During the 2003-2004 academic year, the Member was a [XXX] of the Student. The Student was also involved in various other school activities overseen by the Member. A female colleague of the Member was also a coach of the school’s team of which the Student was a member.

5. During the 2004-2005 academic year, the Student was a student of another school, which is located close to the School. During that academic year, the Student returned to the first School to do forty hours of community involvement, as part of her diploma requirements and, in so doing, assisted the Member in coaching sports teams.

6. During the 2003-2004 and 2004-2005 academic years, the Member engaged ininappropriate personal communications with the Student, by way of e-mails, cards and letters, which were outside the boundaries expected of communications between a teacher and a student. In some of these communications, the Member referred to the Student as, “my butterfly” or “my angel”, and ended with the phrase, “Always Always Promise Promise Forever Forever” or the initials, “AA PP FF”. Copies of some of these communications are attached as Exhibit “B”.

7. In the communications referred to above, the Member used several terms of endearment about the Student, expressed her admiration for the Student and told her that she was a special friend or her best friend. Further, when the Student was going on a school trip, the Member provided her with a series of envelopes which she was asked to open, when no one was around, so that the Student would know that the Member was missing her and thinking of her. A copy of instructions given to the Student is attached as Exhibit “C”.

8. Both in April and June 2005, the Member told the Student that they were kindred spirits and in e-mails dated 22 May 2005 and 13 June 2005, the Member expressed admiration and love for the Student. Copies of those e-mails are attached at Exhibit “D”.

9. Sometime thereafter, the Member sent an undated note to the Student suggesting that they slow down on the e-mails and the talking on MSN. A copy is attached at Exhibit “E”. The communications did, however, resume.

10. On or about 21 August 2005, the Member, along with a colleague, took the Student and another female student on a shopping trip and overnight hotel stay (“the trip”) to another city. The Student was then under 16 years of age.

11. The Member and her colleague were granted permission by the Student’s parents to take the Student on the trip. The parents may not have been specifically made aware that Mr. Welsh, the Member’s husband, would be staying overnight with Ms Welsh, her colleague and the students.

12. On the afternoon of 21 August 2005, the Member and her colleague, along with both students, checked into a two bedroom suite at a hotel (“the hotel”).

13. On the evening of 21 August 2005, the Member, her colleague and the two students were joined by Mr. Welsh, who accompanied them to dinner at a restaurant. Following dinner, the group returned to the hotel and, shortly thereafter, the Member’s colleague returned home, leaving the two students with the Member and Mr. Welsh in the suite.

14. During the course of the night of 21 August 2005, or in the early hours of 22 August 2005, the Student alleges that she was sexually touched by Mr. Welsh.

15. The Member and Mr. Welsh, accompanied by the two students, returned to their residence (“the Welsh home”) on 22 August 2005, and that afternoon, while at the Welsh home, the Student told the Member that she had been sexually touched by Mr. Welsh while they were staying at the hotel on the night of 21-22 August 2005 (the “sexual touching allegation”). The Member’s colleague was present during that conversation.

16. Having been present in the same hotel room as the Student and Mr. Welsh on the night of 21-22 August 2005, the Member did not believe the Student’s sexual touching allegation and therefore did not report it to the Board, the CAS or the student’s parents.

17. On or about 25 August 2005, 9 September 2005 and 12 September 2005, the Member sent further e-mails to the Student which alluded to her feelings for the Student [Exhibit “F”]. The Member also sent an undated hand-written card to the Student which stated, “Not laughing”, “Feel your pain”, Lets carry on as we always have …no changes”, No more tears…life is too short”, Deep Breath…Smile…Hug…”. [Exhibit “G”].

18. The charges which were brought against the Member for failing to report contrary to Section 72(3) in the Child and Family Services Act were dismissed by the Provincial Offences Court and that decision was upheld on appeal by the Ontario Court of Justice.

PLEA OF NO CONTEST

19. By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in paragraphs 1 to 18 above (the “Uncontested Facts”).

20. The Member hereby pleads no contest to the allegation that the Uncontested Facts referred to in paragraphs 6 – 9 and 17 above constitute professional misconduct being more particularly breaches of Ontario Regulation 437/97 1(5), 1(7), 1(15), 1(18 – unprofessional) and 1(19).

21. By this document the Member states that:

(a) she understands fully the nature of the allegations against her;

(b) she understands that by signing this document she is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;

(c) she understands that by pleading no contest to the allegations, she is waiving the right to require the College to prove the case against her and the right to have a hearing;

(d) she understands and acknowledges that she is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.

22. The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.

23. In light of the uncontested facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.

JOINT SUBMISSION ON PENALTY

24. The Ontario College of Teachers and the Member jointly submit that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee directs:

(a) that the Member appear before the Committee, immediately following the hearing of this matter, to receive a reprimand, and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers;

(b) the Registrar to suspend the Certificate of Qualification and Registration of the Member for a period of three months (3) months commencing on the date of the Order of the Discipline Committee relating to this matter, however, the imposition of the third month of the suspension is postponed for a period of two (2) months and will never be imposed if the Member completes the requirements set out in paragraph (c) below within the two (2) months of the commencement of the suspension;

(c) the Registrar impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms, conditions or limitations to be recorded on the Register of the College until such time as they are fulfilled:

(i) that within sixty (60) days of the date of the Order of the Discipline Committee, the Member shall enrol in, attend at and successfully complete, at her own expense, a course in professional ethics, pre-approved by the Registrar, and

(ii) within (30) days of her completion of the course outlined in (i) above, she shall provide a written Certificate from the Course Provider stating:

A. that he or she has reviewed a copy of the Statement of Uncontested Facts, Plea of No Contest and Joint Submission on Penalty document, made an exhibit at the hearing of this matter and the Decision and Reasons of the Discipline Committee.

(d) that there be publication of the findings and Order of the Committee in summary form in the official publication of the College, Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.

24. By this document, the Member acknowledges her understanding that any agreement between the College and the Member with respect to the penalty proposed in this document does not bind the Discipline Committee.

SUBMISSIONS WITH RESPECT TO PUBLICATION

College Counsel asked the Committee to consider the purpose of publication and argued that publication of the Member’s name ensures transparency to the public, serves as a general deterrent to the profession and as a specific deterrent to the Member. Counsel further stated that the severity and gravity of the misconduct warranted publication and that the publication ban related to the student, not the Member. Counsel indicated that there is no evidence that the outcome of the Member’s hearing will impact the trial of Mr. Welsh and therefore the Member’s name should be published.

Counsel for the Member submitted that publication of the Member’s name was unnecessary. He argued that the two to three month suspension is a very clear message to the public, the College and the Member. No additional interest is served by publishing the Member’s name. He cautioned the Committee with respect to identification of this Member, given the fact that there may be more criminal proceedings regarding the Member’s husband. Counsel for the Member warned the Committee that the issue of the court ordered publication ban must be taken into consideration with respect to any connection being made to the student as this would be a breach of that order.

DECISION

Having examined the Exhibits filed, and based on the plea of no contest, the Statement of Uncontested Facts, Plea of No Contest and Joint Submission on Penalty, and the submissions made by counsel for the College and counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Leslie Ann Welsh committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(15), 1(18 - unprofessional) and 1(19).

REASONS FOR DECISION

The Committee accepted the Member’s plea of no contest and the facts as outlined in the Statement of Uncontested Facts.

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 18 above and acknowledged that her conduct described in paragraphs 6 through 9 and 17 of the Uncontested Facts constitutes professional misconduct and pleaded no contest to the allegations of professional misconduct, being more particularly, breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), 1(15), 1(18 - unprofessional) and 1(19).

Over a period of two years, the Member engaged in extensive inappropriate and personal communication with a student by way of electronic messaging, cards and letters, which were outside the normal boundaries of expected communications between a teacher and a student. In some of these communications, the Member referred to the Student as, “my butterfly” or “my angel”, and ended with the phrase, “Always Always Promise Promise Forever Forever” or the initials, “AA PP FF” (Exhibit 2, Tab B). In the various communications, the Member used several terms of endearment about the Student. She told the student that they were kindred spirits, expressed her admiration for the Student and told her that she was a special friend or her best friend and that she loved her.

The Member was aware that her communications with the Student could be viewed as inappropriate as in one of these communications she states “I would instantly lose my job and my teaching credentials” (Exhibit 2, Tab E). However the communications continued.

Even after the Student’s disclosure to the Member of sexual touching by the Member’s husband, the Member continued communicating with the student and in one of these communications the Member wrote, “Not laughing”, “Feel your pain”, Lets carry on as we always have …no changes”, No more tears…life is too short”, Deep Breath…Smile…Hug…”. (Exhibit 2, Tab G).

Teachers are expected to protect students in their care at all times and maintain appropriate student/teacher boundaries. The improper nature and content, and the sheer volume of the communications by the Member, fostered and encouraged an inappropriate relationship with the Student. It is clear to the Committee from the tone of the extensive communications (Exhibit 2, Tabs B to G) that the Member was fulfilling her own needs, rather than looking out for the wellbeing of the Student.

By her conduct, the Member failed to maintain the standards of the profession and failed to comply with the Education Act. Her conduct was unprofessional and unbecoming a member.

PENALTY DECISION

The Committee makes the following order as to penalty:

1. The Member is required to appear before the Committee to be reprimanded, with the fact of the reprimand to be recorded on the Register of the College.

2. The Registrar is directed to suspend the Certificate of Qualification and Registration of the Member for a period of three (3) months commencing on the date of the Order of the Discipline Committee relating to this matter; however, the imposition of the third month of the suspension is postponed for a period of two (2) months and will never be imposed if the Member completes the requirements set out in paragraph 3 below within the two (2) months of the commencement of the suspension.

3. The Registrar is directed to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms to be recorded on the Register of the College until such time as they are fulfilled:

i. that within sixty (60) days of the date of the Order of the Discipline Committee, the Member shall enrol in, attend at and successfully complete, at her own expense, a course in professional ethics, pre-approved by the Registrar, and

ii. within (30) days of her completion of the course outlined in (i) above, the Member shall provide a written Certificate from the Course Provider stating that he or she has reviewed a copy of the Statement of Uncontested Facts, Plea of No Contest and Joint Submission on Penalty document made an exhibit at the hearing of this matter and the Decision and Reasons of the Discipline Committee.

4. Pursuant to Section 30 (5) (3) of the Ontario College of Teachers Act, the findings and order of the Committee shall be published in summary, with the name of the Member, but without any information that would identify the student in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY DECISION

The reprimand of the Member acts as a specific deterrent to the Member. The fact that the reprimand of the Member took place and will be recorded on the Register is both a specific and general deterrent and addresses the issue of transparency of the proceedings.

The Committee determined that the course of instruction in professional ethics is necessary to address the rehabilitation of the Member and to provide an opportunity for further education as to the inappropriateness of her conduct. It is hoped that the educative function of the reprimand and the course in ethics will minimize the likelihood of the Member repeating this type of conduct.

Suspension of the Member’s certificate for a period of at least two months sends a clear message to the Member, the profession and the public that this type of misconduct will not be tolerated and will be dealt with severely. The suspension serves as a specific deterrent to the Member, a general deterrent to the profession, and serves the public interest.

Parents place their trust in the profession and expect that students will be treated with respect. The Member abused her power, violated the trust placed in her and brought the profession into disrepute. The Member, over a lengthy period, transgressed the acceptable student/teacher boundaries. The Committee views this as an egregious violation of a teacher’s duty towards students, parents and the profession.

The Committee determined that publication of the name of the Member was appropriate in this case because of the very serious nature of the misconduct. Publication of the findings and order of the Committee, in summary, with the name of the Member, in Professionally Speaking/Pour parler profession provides a specific deterrent to the Member, a general deterrent to the profession, instructs the profession, and advises the public that this type of misconduct is taken very seriously.

The Committee is satisfied that the penalty is appropriate in the circumstances and serves and protects the public interest.

Date: December 3, 2009

______________________________ Hanno Weinberger, OCT

Chair, Discipline Panel

Danny Anckle

Member, Discipline Panel

Darlene Mead, OCT

Member, Discipline Panel