Ontario College of Teachers v. Hethrington, 2011 ONOCT 19

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Date: 2011-11-22

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

John Douglas Hethrington, OCT, a member of the Ontario College of Teachers.

PANEL: Annilee Jarvis, OCT, Chair Mel Greif Robert Ryan, OCT

BETWEEN: ) Eli Mogil,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Jennifer Robinson,

) Law Clerk

• and – )

JOHN DOUGLAS HETHRINGTON ) Mandy Wojick,

(CERTIFICATE #190783) ) Sack Goldblatt Mitchell,

) for John Douglas Hethrington

) Julie Maciura,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: October 31, 2011

DECISION, REASONS FOR DECISION AND ORDERS

This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on October 31, 2011 at the Ontario College of Teachers (“the College”) at Toronto.

A Notice of Hearing, dated July 27, 2010 was served on John Douglas Hethrington, requesting his presence on August 31, 2010 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 31, 2011.

John Douglas Hethrington was in attendance.

THE ALLEGATIONS

The allegations against John Douglas Hethrington in the Notice of Hearing, (Exhibit 1) dated July 27, 2010 are as follows:

IT IS ALLEGED that John Douglas Hethrington is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”), in that:

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

(b) he abused a student or students psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);

(c) he failed to comply with the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, including section 264 (1) (c) or the regulations made thereunder, contrary to Ontario Regulation 437/97, subsection 1(15);

(d) he 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); and

(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).

At the hearing on October 31, 2011, College counsel sought to withdraw the allegations of professional misconduct in paragraphs (a), (b), (c) and (e) namely that the Member breached Ontario Regulation 437/97, subsections 1(5), 1(7.2), 1(15) and 1(19). 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 and Plea of No Contest (Exhibit 2), which provides as follows:

STATEMENT OF UNCONTESTED FACTS

1. John Douglas Hethrington (the “Member”) is a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.

2. At all material times, the Member was employed by the Toronto District School Board (the “Board”) and was a Grade [XXX] teacher at [XXX] School (the “School”), in Toronto, Ontario.

3. [XXX] and [XXX] were students at the School and classmates in the Member’s Grade [XXX].

4. On October 16, 2007, the Member asked a female student to deliver to [XXX], who had just been moved from the Member’s homeroom to another homeroom, some of [XXX]’s belongings which had been left behind in the Member’s homeroom. [XXX], on discovering that one of the items of clothing was soiled, became angry. [XXX] made two visits to the Member’s classroom in an attempt to find out how his item of clothing had been soiled, and on the second of these visits, in a display of rage, spilled the contents of a garbage can on the classroom floor.

5. On returning to his classroom and finding the garbage spill, the Member commented about [XXX]’s conduct to another teacher who was present in the classroom, which comment may have been overheard by one or more students who were present.

6. Some time later, [XXX] confronted the Member in the hallway, at which time [XXX], in the presence of [XXX], accused the Member of referring to him as a “nigger”. The Member denied having done so and sought immediate assistance from the office. The Member told [XXX] to come with him to the office. [XXX] followed.

7. If called to testify, the Member would state that upon their arrival at the School office, the Member in a loud voice demanded that the Vice Principal tell him what the administration would do to address [XXX]’s continued behaviour. The Member also demanded in a loud voice that [XXX] confirm to the Vice Principal what [XXX] had said to him in the hallway. During this exchange, the Member became upset and repeated [XXX]’s comment to the Vice Principal in the presence of [XXX] and [XXX], which was overheard by staff members in the office area.

8. The incident was reported by School administration to both Toronto Police and the Children’s Aid Society (“CAS”), both of which agencies conducted an investigation and determined that no further action was necessary on the basis that the Member’s behaviour was not criminal in nature and there had been no physical assault.

9. The Member was advised of the Board’s imposition of a five (5) day suspension, without pay, commencing December 7, 2007. The Member was also required to discontinue his Teacher-Mentor Coach position in the Family of Schools, and to attend anger management counselling and Equity training by March 2008.

10. The Member’s Union filed a grievance in respect of the discipline. An arbitration hearing began on February 17, 2010 and continued in early 2011. The grievance was settled on terms, including the reduction of a 5-day suspension to one (1) day.

11. The Member continued to teach at the School until June 2011. In September 2011, the Member began teaching Grade 4/5 at another school of the Board.

PLEA OF NO CONTEST

12. By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1 to 11 above (the “uncontested facts”).

13. The Member hereby acknowledges that the uncontested facts referred to in paragraph 7 above, constitute conduct that is unprofessional and pleads no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 1(18 - unprofessional).

14. By this document the Member states that:

(a) he understands fully the nature of the allegations against him;

(b) he understands that by signing this document he is consenting to the evidence as set out in the uncontested facts being presented to the Discipline Committee;

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

(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;

(e) he understands that any agreement between his counsel and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;

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

15. 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 Ontario 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.

16. 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

17. The Ontario College of Teachers and the Member jointly submit that the appropriate penalty to be imposed by the Discipline Committee in these matters would be that the Committee:

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

(b) directs the Registrar to impose the following term, condition or limitation on the Member’s certificate, the fact of such term, condition or limitation to be recorded on the Register of the College until such time as it is fulfilled:

(i) that the Member enrol in and successfully complete, at his own expense, a course in anger management, pre-approved by the Registrar, with a particular emphasis on positive discipline strategies and the defusing of aggressive and negative student behaviours and attitudes, and

(ii) within thirty (30) days of his completion of the course outlined in (i) above, the Member shall deliver directly to the Registrar a written Certificate from the Course Provider stating:

A. that he/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; and

B. that the Member has successfully completed the course;

(c) directs 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 is to be published and submissions will be made to the Committee on that issue.

DECISION

Having considered the evidence, onus and standard of proof, 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 John Douglas Hethrington committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97 subsection 1(18- unprofessional).

REASONS FOR DECISION

The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 11 (the “uncontested facts”) of the Statement of Uncontested Facts and Plea of No Contest (Exhibit 2). He acknowledged that the uncontested facts referred to in paragraph 7 above constitute conduct that is unprofessional and pleaded no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97 subsection (18- unprofessional). The Committee accepted the Member’s plea of no contest and the facts in the Statement of Uncontested Facts, and Plea of No Contest.

The Member’s behaviour in the school office, in the presence of others, was unprofessional. There had been previous instances of confrontation between the student ([XXX]) and the member. The student had been transferred to another class. Subsequently in the transfer of the student’s belongings there was a point of contention. There was an exchange of words between the student and the Member. This caused the Member to take another student, [XXX], who witnessed the exchange, to the office. Upon his arrival in the School office, the Member demanded in a loud voice that the Vice-Principal tell him what the administration would do to address [XXX]’s continued behaviour. The Member also demanded in a loud voice that [XXX] confirm to the Vice-Principal what [XXX] had said to him in the hallway. The Member became upset and repeated the comments made by [XXX] in the hallway. By expressing his concerns in a public place, with students and other staff present, the Member conducted himself in an unprofessional manner. The Member would have been well advised to have made his concerns known in private. By his actions the Member committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97, subsection 1(18- unprofessional).

SUBMISSIONS ON PUBLICATION

The Committee received submissions from Counsel for the College and Counsel for the Member with respect to publication of the Member’s name in Professionally Speaking/Pour parler profession.

College Counsel took the position that publication with name serves as both a specific and general deterrent. Publication, with name, makes the profession aware that there are consequences for misconduct of this nature and thereby discourages similar behaviour by other members of the profession. Publication, with name, serves as a specific deterrent in that it reminds the Member of the expected behaviour of persons in the profession. As well, in the interests of transparency, it is important to publish with name.

Counsel for the Member requested that the Member’s name not be published. Throughout his 21-year career the Member has taught in high needs schools and has taken leadership and mentoring roles within the school and the Board. He has supported students in many contexts, both in the classrooms and in extracurricular activities. The Member has also completed a variety of Additional Qualifications as well as completing his Principal’s Qualification Program. Member’s counsel further maintained that the Member had a successful teaching career, both before and since the incident.

Counsel for the Member also advised the Committee that the Member has pursued remedial courses designed to help him with situations such as the one described. The Member was given a suspension without pay by his employer and was required to discontinue many of his mentoring and coaching activities. Counsel argued that the Member had been sufficiently penalized for his behaviour and publication of his name would be unduly harsh.

PENALTY DECISION

The Committee makes the following order:

1. The Member is to appear before the Committee immediately following the hearing of this matter to be counselled, and the fact of such counselling is to be recorded on the Register of the Ontario College of Teachers;

2. The Registrar is directed to impose the following term, condition or limitation on the Member’s certificate, the fact of such term, condition or limitation to be recorded on the Register of the College until such time as it is fulfilled:

(i) the Member is to enrol in and successfully complete, at his own expense, a course in anger management, pre-approved by the Registrar, with a particular emphasis on positive discipline strategies and the defusing of aggressive and negative student behaviours and attitudes, and

(ii) within thirty (30) days of his completion of the course outlined in (i) above, the Member shall deliver directly to the Registrar a written Certificate from the Course Provider stating:

A. that he/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; and

B. that the Member has successfully completed the course;

3. The Committee directs that there be publication of the findings and Order of the Committee in summary form, without the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.

REASONS FOR PENALTY

Counselling serves to remind the Member of his duty to conduct himself in a professional manner at all times. The fact that the Member was counselled will be recorded on the Register. This serves as a specific deterrent.

The remedial course will assist the Member in developing additional coping strategies should he encounter similar situations.

Publication, without the name of the Member, will provide general deterrence in that members of the profession will be made aware of how an isolated event can affect a longstanding career. Members will also be reminded that there is a consequence for behaviours of this type.

The Committee accepted that publication with name would unduly punish the Member. The Member has had a long successful career and this incident was an isolated event. The behaviour was on the low end of the scale. The Committee also took into consideration that the incident took place in 2007 and the Member continued to teach in the School until the end of June 2011 without further incident. Therefore the penalties imposed are appropriate.

The Member’s conduct has been adequately dealt with by both the College and his employer. The fact of the penalty will remain on the Public Register for three years. Publication in summary form, without name, adequately informs the public and educates the profession. The Committee is satisfied that the penalty imposed is appropriate in the circumstances and serves to protect the public interest.

Date: November 22, 2011

Annilee Jarvis, OCT Chair, Discipline Panel

Mel Greif Member, Discipline Panel

Robert Ryan, OCT Member, Discipline Panel