DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS
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
Geoffrey Todd Daye, a member of the Ontario College of Teachers.
PANEL: Robert Ryan, OCT, Chair Mel Greif
John Tucker
BETWEEN: ) David Leonard,
) McCarthy Tétrault LLP, ) for Ontario College of Teachers,
ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,
) Litigation Paraprofessional
- and – )
GEOFFREY TODD DAYE ) Bernard Hanson,
(CERTIFICATE #493655) ) Cavalluzzo Hayes Shilton McIntyre &
) Cornish LLP,
) on behalf of Geoffrey Todd Daye
) Julie Maciura,
) Steinecke Maciura LeBlanc, ) Independent Legal Counsel ) ) Heard: February 2, 2012
REASONS FOR DECISION, DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 2, 2012 at the Ontario College of Teachers (“the College”) at Toronto.
A Notice of Hearing, dated March 21, 2011 was served on Geoffrey Todd Daye, requesting his presence on May 3, 2011 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for February 2, 2012.
Geoffrey Todd Daye was in attendance.
THE ALLEGATIONS
The allegations against Geoffrey Todd Daye in the Notice of Hearing, (Exhibit 1) dated March 21, 2011 are as follows:
IT IS ALLEGED that Geoffrey Todd Daye is guilty of professional misconduct as defined in subsections 30(2) and 40(1.1) 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 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 specifically section 264(1)(c) thereof or the Regulations made under that Act, 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);
(e) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19); and
(f) he engaged in sexual abuse of a student or students of a nature defined in sections 1 and 40(1.1) of the Act.
At the hearing on February 2 2012, College counsel sought to withdraw the allegations of professional misconduct in paragraphs (c), (e) and (f), namely that the Member breached Ontario Regulation 437/97, subsections 1(15), 1(19) and that he engaged in sexual abuse of a student or students of a nature defined in sections 1 and 40(1.1) of the Act. 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
At all material times, the Member was 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.
The Member was employed by the Durham Catholic District School Board (the “Board”) at all material times hereto and was a music teacher at [XXX] School (the “School”) in Oshawa, Ontario.
During the 2007-2008 academic year, the Student was a female Grade [XXX] student at the School.
On or about April 21, 2008, the Member used a cellular phone of a male student that was confiscated by another teacher at the School and sent text messages to the Student from the cellular phone.
The Member sent the following text messages to the Student, Exhibit B:
(a) “I see you in the hallway;”
(b) “I think you are cute;”
(c) “What are you doing this weekend?”
If the Member were to testify, he would say that he intended to be humorous, but had no sexual intent. Nonetheless, the Member acknowledges that he did not think it through and did not consider how the text messages would be perceived by the Student or other readers.
On or about April 21, 2008, the Member saw the Student in between classes and told her that he was the one who sent the text messages.
On or about April 30, 2008, the School had a pyjama day where students came to school in their pyjamas.
On or about April 30, 2008, as the Student was standing by the vending machine at the School and the Member walked by and stated to the Student, “I like your pyjamas.”
PLEA OF NO CONTEST
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 9 above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts referred to in paragraphs 4, 5, and 9 above constitute conduct which is professional misconduct and pleads no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7), and 1(18 - unprofessional).
By this document the Member states that he:
(a) understands fully the nature of the allegations against him;
(b) 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) 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) 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) 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) understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Civil 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.
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.
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 that Geoffrey Todd Daye committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7) and 1(18 - unprofessional).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 9 above (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 paragraphs 4, 5 and 9 above constitute conduct which is professional misconduct and pleaded no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7) and 1(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.
During the month of April, 2008, the Member violated the standards of the profession in that he conducted himself in an unprofessional manner. The Member used a confiscated student cell phone to text inappropriate comments to a female student’s cell phone. In the same time period, the Member also made inappropriate “compliments” to the same student about the clothing she was wearing.
Both parties presented a Statement of Uncontested Facts and a Plea of No Contest. College counsel noted the compressed timeframe and the cell phone communications occurred on the same day. The Committee was informed by Member’s Counsel that the comments were meant to be humorous and were limited in scope and duration.
By his conduct, the Member abused a student and acted in an exploitive manner. The Member’s behaviour was fundamentally injudicious and unprofessional and reflects a failure of understanding about how a teacher’s behaviour can psychologically affect their students.
The Committee finds that based on the Member’s aforementioned inappropriate communication with a student, the Member committed acts of professional misconduct, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7) and 1(18 - unprofessional).
JOINT SUBMISSION ON PENALTY
Counsel for the College advised the Committee that an agreement had been reached on the appropriate penalty and introduced a Joint Submission on Penalty (Exhibit 3), which provides as follows:
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:
(a) directs the Member to 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 (the “Register”);
(b) directs the Registrar of the Ontario College of Teachers to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms and conditions and limitations to be recorded on the Register of the College until such time as they are fulfilled:
(i) that the Member shall enrol in and successfully complete, at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violations issues; and
(ii) within thirty (30) days of his completion of the course outlined in (i) above, shall provide to the Registrar a written certificate from the course provider stating:
A. that he or she has reviewed a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits 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 should be included and submissions will be made on that issue.
PENALTY
The Committee makes the following order as to penalty:
(a) the Member is directed to 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 (the “Register”);
(b) the Registrar of the Ontario College of Teachers is directed to impose the following terms, conditions or limitations on the Member’s Certificate of Qualification and Registration, the fact of such terms and conditions and limitations to be recorded on the Register of the College until such time as they are fulfilled:
(i) that the Member shall enrol in and successfully complete, at his own expense, a course of instruction pre-approved by the Registrar regarding appropriate boundaries and boundary violations issues; and
(ii) within thirty (30) days of his completion of the course outlined in (i) above, shall provide to the Registrar a written certificate from the course provider stating that he or she has reviewed a copy of the Statement of Uncontested Facts and Plea of No Contest and Joint Submission on Penalty documents made exhibits at the hearing of this matter, and the Decision and Reasons of the Discipline Committee; and that the Member has successfully completed the course; and
(c) 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
Both counsel argued that the reprimand was reasonable and appropriate to the circumstances. The terms, conditions and limitations of an appropriate boundaries and boundary violations issues course of instruction and its successful completion and notation on the Register is appropriate as a remedial penalty. The Committee concurred.
College Counsel submitted that there should be publication with name because the Member’s action had a sexual overtone and could have caused concern and upset to the student. Member’s Counsel argued the comments were not intended to be sexual, yet the impact might have been different in reality. The comments occurred over a short period of time and were an attempt to be humorous and the result was unintended by the Member.
Member’s Counsel further argued that publishing the Member’s name was disproportionate to the action as this was an isolated error in judgment. The Member has acknowledged his guilt, is prepared to meet the terms, conditions and limitations. Additionally, Member’s counsel argued that publication with name would destroy the Member’s reputation and prevent any return to teaching.
The Committee determined that the penalty with its terms, conditions and limitations and publication without name would serve the public interest in the following manner: a specific deterrent is achieved through a reprimand; a remedial effect is achieved through a boundaries and boundaries violation course. A general deterrent is achieved through publication without name. This informs the profession and ensures transparency and the protection of the public trust.
Date: February 6, 2012
______________________________ Robert Ryan, OCT
Chair, Discipline Panel
Mel Greif
Member, Discipline Panel
John Tucker
Member, Discipline Panel