Ontario College of Teachers v. Deans, 2012 ONOCT 11

DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF TEACHERS

Citation: Ontario College of Teachers v Deans, 2012 ONOCT 11

Date: 2012-06-21

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

Gilmore Alexander Deans, a member of the Ontario College of Teachers.

PANEL: Annilee Jarvis, OCT, Chair Mel Greif

Darlene Mead, OCT

BETWEEN: ) Christine Lonsdale and

) Lisa Filgiano,

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

ONTARIO COLLEGE OF TEACHERS ) assisted by Daniela De Bartolo,

) Litigation Paraprofessional

• and – )

GILMORE ALEXANDER DEANS ) Hugh Scher,

(CERTIFICATE #417242) ) Scher Law Professional Corporation,

) for Gilmore Alexander Deans

) Julie Maciura and

) Rebecca Durcan,

) Steinecke Maciura LeBlanc, ) Independent Legal Counsel

Heard: October 11, 2011, December 19 & 22, 2011, February 16 & 17, 2012

DECISION, REASONS FOR DECISION AND ORDERS

This matter began before a panel of the Discipline Committee (the “Committee”) on October 11, 2011, at the Ontario College of Teachers (“the College”) at Toronto.

A Notice of Hearing, dated November 19, 2009 was served on Gilmore Alexander Deans, requesting his presence on December 8, 2009 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for October 11, 2011.

Gilmore Alexander Deans (the “Member”) was in attendance for every hearing date listed above.

THE ALLEGATIONS

The allegations against Gilmore Alexander Deans in the Notice of Hearing, (Exhibit 1) dated November 19, 2009 are as follows:

IT IS ALLEGED that Gilmore Alexander Deans is guilty of professional misconduct as defined in subsection s 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 or 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 specifically section 264(1)(c) thereof 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);

(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.

PARTICULARS OF THESE ALLEGATIONS ARE AS FOLLOWS:

1. At all material times, the Member was employed by the [XXX] District School Board (the “Board”). During the 2002-2005 academic years, the Member was a [XXX] teacher at [XXX] School (the “School”).

2. During the 2002-2003 academic year, the Student was a female Grade [XXX] student of the Member at the School. At the commencement of the 2003-2004 academic year, the Student moved to [XXX] School [XXX] where she entered Grade [XXX].

3. During the 2003-2004 academic year, the Member engaged in inappropriate electronic communication with the Student, which included, but was not limited to, his:

(a) commenting about “blow jobs”;

(b) arranging to meet the Student outside of the School.

4. The Member persisted with the inappropriate relationship with the Student and between the approximate dates of May 2004 and October 2004, he met the Student alone on at least four occasions at different locations. He also continued to engage in electronic communication with the Student.

5. Between the approximate dates of May 2004 and October 2004, the Member:

a. met with the Student for pizza;

b. met with the Student outside of school;

c. told the Student that he loved her;

d. told the Student he wanted to be in bed with her;

e. engaged in hugging and kissing with the Student;

f. rubbed his body against the Student; and

g. touched or attempted to touch the Student’s breast.

MEMBER’S PLEA

The Member’s initial plea was to deny the allegations set out in the Notice of Hearing.

Later, during the hearing, Member’s counsel confirmed that the Member did not dispute allegations 1, 2, 3(a) (b), 4, 5(a) (b) (e).

The Member denies allegations and particulars 5(c) (d) (f) (g) and these are in dispute.

OVERVIEW

At all material times, the Member was employed by the [XXX] District School Board as a [XXX] teacher. The specific issues for the Committee to consider were whether the allegations against the Member have been proven on a balance of probabilities and if proven, whether they constitute professional misconduct.

Onus and Standard of Proof

The burden of proof lies with the College. The standard of proof in College hearings is one that is used in civil cases and that is accepted to be the balance of probabilities. The balance of probabilities standard is whether it is more likely than not that the events occurred. It is also acknowledged that the evidence must be sufficiently clear, cogent, and convincing to satisfy the balance of probabilities test. The Committee’s task was to determine if the College has satisfied the burden with clear, cogent and convincing evidence.

In fulfilling its task the Committee applied guidance from the courts in determining the credibility of witnesses. The Committee took into account the integrity and intelligence of the witness, the candidness of the witness, and the lack of evasion, degree of frankness and responsiveness. Considered also was any evidence of bias, memory and capacity to remember and any inconsistencies in testimony. The demeanour and manner of speech, consistency of retelling of the story or self-contradiction were also important in the assessment. It was always important to make sure that the testimony made sense and there was a consistency in the description of the events by witnesses. Timing and circumstances were also important considerations in assessing credibility. When faced with inconsistencies about timing and location of events, consideration was given to aspects of age, passage of time, and circumstance of the witnesses.

Further in determining the appropriate guidelines for assessing credibility, the Committee relied on Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services (1985), (52)O.R. (2d )302. The Committee accepts the importance of its duty to state clearly its grounds for supporting the evidence that is presented by witnesses and conversely for disbelieving evidence. All parties to a process should have the satisfaction of knowing that they have been fairly dealt with and understood. The Committee assessed the relative force of testimony. Discrepancies have been assessed. Common sense and knowledge of human nature were considered. The appearance and demeanour of witnesses were an important consideration. The relative powers of perception and ability to observe were also important factors. Self-interest in the litigation and partisanship were also considered. The Committee was also very much aware of the issues of probability and improbability. The Committee questioned any instances of contradiction and inconsistency and the general sense of truthfulness of witnesses.

The Evidence: Chronology, Witnesses and Exhibits

Chronology:

In 2002/2003, Student A was in grade [XXX] at [XXX]. The Member taught Student A when she was in grades [XXX], [XXX], & [XXX]. The Member taught her various subjects. The Member ran the school [XXX] program, in which Student A was a participant. In 2003/2004, Student A was in grade [XXX] at [XXX] School, while the Member remained at [XXX].

In February, 2004, there were e-mails exchanged between the Member and Student A. One e-mail which had as its topic a reference to a sexual act, was reported by Student A to another teacher. This report was followed by an investigation by CAS and a subsequent written reprimand of the Member, delivered April 29, 2004, by his Superintendent. The Member also was required to take sensitivity training arranged by his Federation. Student A alleged that there were many other e-mails between her and the Member but that most were lost due to a computer virus although some were subsequently retrieved by Student A [XXX].

Despite advice to the contrary, it is apparent that the Member continued to engage in e-mail/MSN communication with Student A. In addition, there were four meetings between the Member and Student A which occurred between June and October of 2004. These meetings occurred off-site and took place after the Member received a written reprimand.

In June, 2004, at the end of the school year, Meeting #1 occurred. Student A was [XXX]. She and Student B went to help the Member clean up his classroom. Afterwards, the Member took the girls for pizza. During lunch, the Member arranged to go with Student A to a nearby park to discuss the CAS investigation.

In late July or early August, Meeting #2 occurred. The Member and Student A attended the movie Spiderman, and returned to the park.

Continued e-mail exchanges led the Member to suggest Meeting #3 toward the end of the summer, at a different park identified as a [XXX].

In an e-mail dated August 30, 2004, which Student A sent to the Member, she informed him that she had found out that his wife was pregnant.

In a series of e-mails in October, initiated by Student A, the Member responded by asking “When would you like to talk?”

Subsequently, they arranged Meeting #4 at the same park as Meeting #3. Instead of meeting following a basketball game as planned, the Member picked up Student A at [XXX] School, a different school near her house, and drove them to the [XXX].

After each of these meetings, the Member dropped Student A off a block away from her home.

E-mail/MSN communication continued after this meeting until May, 2005, at which time Student A indicated that she felt she could not keep their secret much longer and wanted to speak to someone about it.

On June 10, 2005, Student A contacted the Member in a state of alarm as she had just learned that the Member would be teaching at her high school in September.

On July 4, 2005, Student A e-mailed Kids Help Phone seeking some comfort about the Member coming to her high school to teach. She was advised to speak to an adult she could trust. Student A allowed Ms. Muras, a teacher, to read these e-mails. Ms. Muras told Student A’s mother [XXX].

In September, 2005, [XXX] Student A wrote her “memory” notes.

[XXX]

Witnesses:

The College called three witnesses, Student A, Nancy Lester (Principal), former principal of [XXX] School, and Danuta Muras, a teacher at [XXX] School. The Member also testified before the Committee.

Testimony of Student A

Student A is a university student. She is providing testimony as an adult about events that took place eight years ago when she was [XXX] years old. She continues to be referred to as Student A.

A lengthy voir dire hearing was held prior to Student A giving her testimony in chief. Student A had by her side hand-written and typed notes that she had made [XXX] in 2005. According to Student A, she did this because she felt that the process could take a long time and she would not be able to refer to dates and events accurately without making notes. Student A claimed that although she had a good recollection of the events in question, she brought the notes along for the comfort of accuracy in aligning dates of events. It was the intention of Student A to refer to the notes, if required, to refresh her memory. Arguments were presented by both counsel as to the appropriate use of such notes during formal examination. References were made to precedent and to Sopinka on the Law of Evidence in Canada, the leading authority on evidentiary issues. The Committee determined that the notes could be at hand and used by Student A, if required, and that appropriate weight would be given to the testimony produced as a result of consulting such notes. Issues of credibility would be left to the Committee as they reviewed the information produced during examination.

The examination-in-chief of Student A continued. Student A responded to the question about MSN communications with the Member by saying that she kept in touch with the Member after she left her elementary school and while she was a student at a nearby secondary school. According to Student A, there was communication about meeting to fulfill [XXX] requirements and it was at this time that inappropriate e-mail exchanges took place. Student A maintains that these MSN and e-mail communications had specific sexualized content. For example, one question that she posed to the Member about “the wildest thing” that he had ever done produced a response about receiving a “blow job while driving.” She also asserts that another discussion about producing a story resulted in the Member developing a plot where the main characters engaged in sex. Student A says that in these exchanges, terms like “and then his third leg kicked in,” “doggie style” and “taking shots off a girl’s stomach” were used and the majority came from the Member. Although Student A testified that the MSN and e-mail interactions were frequent, a virus on her computer destroyed the e-mails. She [XXX] able to retrieve some. (These retrieved communications are shown in the “Exhibits” section.)

Student A testified that she shared some of her communications with another teacher, Ms. Muras, in the elementary school. Student A stated that she believed Ms. Muras reported this to the Principal and this led to the CAS investigation that followed. According to Student A, she contacted the Member about her interview with CAS and alerted the Member to the possibility of CAS contacting him.

Meeting #1

Student A testified that a meeting took place after a pizza lunch with another student, Student B, who was part of the clean-up crew at the Member’s classroom. She said this occurred in June, 2004 and that the private meeting between them took place at a nearby park. She claimed that she and the Member discussed the CAS investigation and the Member’s situation. During the ensuing conversation, according to Student A, the Member and Student A discussed their relationship and at one point, according to Student A, the Member stated that he was wondering what it would be like “to kiss you.” Student A testified the Member suggested that they meet again and then he drove her to within one block of her home. Student A said she believed that the Member knew where she lived because a previous drop-off had occurred at her home.

Meeting #2

That summer, according to Student A, the Member took her to see a movie after which the two went to the same park as the meeting in June, 2004. Student A claims that the two held hands and that the Member asked if the Student wanted to move closer. In her testimony, Student A stated that “it felt right even though I knew that it was wrong, and he agreed.” “I ended up sitting between his legs with my back to his chest.” “He had his arms around me.” “…And he was massaging my neck and back.” He asked about “what colour underwear I was wearing.” “He said that I had sexy legs.” “He asked what I wanted from him and I said to go all the way.” “He said that’s what he wanted, too.” “Eventually he said that basically we could not continue our relationship because he would go to jail and if anything happened he would lose his job.” Student A stated that at the end of the meeting she was dropped off a block from her house. At the time Student A was [XXX] years old.

Meeting #3

A third meeting, in August, 2004, was arranged by Student A and the Member. This meeting was set at the request of Student A. The meeting took place at a [XXX] [XXX]. She could not recall the name of the park. During this meeting, according to Student A, the Member said that they should not see each other anymore, but he also said “I would love to make love to you.” She stated that the two sat on top of a picnic bench and then stood up and hugged, and ultimately, they agreed to take a break. Once again there was a drop-off a block distant from Student A’s home.

Meeting #4

After Meeting #3, Student A testified, she learned that the Member was married and that his wife was pregnant. The Member responded by e-mail acknowledging the Student’s understanding of his personal situation. They agreed to meet once again. The meeting took place in October, 2004, in the same [XXX]. The Student was picked up at a different local school. According to Student A, at the park, because of the cold, there was an effort to warm her up. Student A said that the Member put his hands around her waist, and moved his hands to her bottom and legs. Student A stated that “at one point he moved his hands close to my breasts and I took them and moved his hands away.” “Later he kissed me.” She further stated that he also said “I’m picturing holding you like this in a bed.” “He put his tongue in my mouth.” “I kissed him back, then I was the one that eventually pulled away from him.” Again the drop-off was a block from the house.

Student A testified that the Member visited her current school for [XXX] activities three to four times a year and that she also attended a [XXX] where she saw the Member in his role as a teacher. She reflected on her relationship with the Member and realized that what had happened between them “was just very wrong.” Student A stated that in the spring of 2005, she learned that the Member was to be transferred to her high school which produced a great deal of anxiety in her. According to Student A, she decided that she needed help and contacted the Kids Help Phone by e-mail in July. Later, she allowed her [XXX], who was also a teacher at the elementary school, to read her e-mail exchange with Kids Help Phone. The teacher phoned Student A’s mother [XXX].

In cross-examination by Member’s counsel, Student A admitted to various aspects about the nature of the relationship with the Member. Student A agreed that she actively pursued a relationship with the Member. She was [XXX] years old at the time and conceded that her behaviour may have been inappropriate. “I was [XXX] years old and blinded by my own romantic notions.” Student A insisted that the Member initiated the stories that veered off into areas of sexual practice. She testified that the Member said to her “I would love to make love to you” and “I’m picturing holding you like this in a bed.” She insisted that the Member gave out “mixed messages” about the possibility of having sex.

In response to a question by Member’s counsel, “Mr. Deans indicated to you on numerous occasions that he was not prepared to engage further in a relationship with you, did he not?” Student A said “yes, but then he would continue to meet with me.” Student A admitted to pushing continuously for a stronger relationship. “We did meet again, but I knew that it was basically it.” In response to a question about breaking off the relationship, Student A maintained that the Member always gave mixed messages and was always prepared to meet with her.

Under cross-examination, Student A was directed to the argument that she turned against the Member and purposely revealed their relationship to others so as to punish the Member. Member’s Counsel stressed that Student A was the aggressor and instigator of the relationship. When questioned about motive, she responded to Counsel’s statement “He ended your relationship and that’s why you hated him and you were going to show him” with the comment “Well, I did not want him at my school, but it was not … an act of revenge.” “I did not want him there for my own sanity.”

Testimony of Nancy Lester

Nancy Lester became principal of the elementary school in 2000. She has thirty-five years of experience as an educator and principal. In 2003-2004, she was the principal of the School where the Member was a teacher of [XXX] and a [XXX]. Principal Lester stated that she knew Student A as a quiet, serious student, one who was actively involved in the [XXX] and “[XXX] activities” at the school.

In testimony, Ms. Lester conveyed the following preliminary account of her interaction with the Member. Principal Lester was informed about MSN and e-mail communication between the Member and Student A. Ms. Lester asked the Member about the situation and he informed her that he did conduct MSN communications with former [XXX] students. Ms. Lester asked to see the MSN and e-mail communications. She informed the Member that they were potentially unprofessional activity. The Member never produced the MSN and e-mail communications. After a number of days of non-compliance with the request, Ms. Lester suggested that the Member should call his union representative. Ms. Lester stated that she was told by the union that its position was that there was nothing there that should interest school administrators, the CAS [XXX]. Ms. Lester confirmed that she consulted with her superintendent.

According to Ms. Lester, a letter of reprimand dated April 29, 2004, was given to the Member. She averred that, at the meeting in which the letter was given, a review of the Ontario College of Teachers’ Professional Advisory: “Professional Misconduct Related to Sexual Abuse and Sexual Misconduct” was undertaken. She also affirmed that a special focus was made on the directive “professional misconduct includes but is not limited to any sexual relationship with a student regardless of the age of the student, a former student under the age of 18, a former student who suffers from a disability affecting his or her ability to consent to a relationship.” Further, Ms. Lester confirmed that the Member was informed that the advisory states “responsibility for ensuring that a member/student relationship is professional and appropriate rests with the member and not the student. This remains the case even if it is the student who attempts to initiate the inappropriate relationship. Any conduct directed to establishing such a relationship may constitute professional misconduct.” Ms. Lester stated that the Member received training in this directive.

In cross-examination, and in response to a question about student instigation of inappropriate behaviour and whether this should be a factor in mitigating potential remedial action assessed against a member, Ms. Lester stated that this would be wrong. The policy was clear. In the view of the Principal, the policy did not allow for the weighing of the amount of culpability, stating “professional misconduct is professional misconduct and most certainly as you go down the continuum, it will be regrettably more serious, but it’s still professional misconduct.” Ms. Lester maintained that the action of the Member and the nature of the communication were determined to be unprofessional conduct according to Board expectations. Ms. Lester confirmed that the Member was reprimanded, that he was required to take sensitivity training in the area of appropriate boundaries, and that the expectations of the advisory were made clear to him. She declared that at that time, the written reprimand was appropriate to the misconduct under review. Referral to the Ontario College of Teachers was not made. Ms. Lester stated that this was the decision of a supervisory officer of the Board.

Testimony of Danuta Muras

Danuta Muras was a thirty-one year veteran teacher at the School and also a [XXX] of Student A.

Ms. Muras said she was concerned about the nature of electronic communication between the Member and the Student. According to Ms. Muras, in one MSN exchange that she had with Student A, Student A made reference to an inappropriate clothing question posed by the Member to the Student. The next day, Ms. Muras spoke to the principal, Nancy Lester. In response to her expression of concern to Ms. Lester, Ms. Muras stated that the Principal said “Don’t worry; you’re not the only one who has mentioned anything like this.” She further testified that that night, Ms. Muras was informed by Ms. Lester that she had contacted the CAS.

Several months later, according to Ms. Muras, she was at a local mall with Student A who conveyed the impression that she wanted to talk. Ms. Muras stated that, in conversation and under questioning, Student A revealed to Ms. Muras an incident of kissing, and of touching of her breasts and buttocks by the Member.

Ms. Muras confirmed that she called the mother of Student A, and the mother went directly over to Ms. Muras’ home. [XXX]

Under cross-examination, Ms. Muras maintained her account about the inappropriate clothing request by the Member that prompted the reprimand process previously cited in testimony by the Principal.

Testimony of Gilmore Deans

Gilmore Alexander Deans is the Member whose conduct is under review. At the time of the allegations and particulars he was 41 years old and a teacher at the School.

In examination, the Member stated that any e-mails and MSN communications were developed at the instigation of Student A. The Member maintained that he did not seek out electronic communication with students in general. The Member asserted that Student A set up his MSN account and established a tag line and identifier.

When asked about electronic responses that may have been sexual in nature, his response was that he was just trying to be “factual.” He admitted that this may have been in poor judgement and as a result, he was subject to disciplinary action and reprimand. He confirmed that he took a sensitivity training course arranged by his union and then informed Student A that he would no longer be available online. This was in the spring of 2004.

The Member stated that, at the end of the 2004 school year, in June, several former students came to his classroom. Included in this group were Student A and Student B. He stated that the two students were treated to a pizza lunch after which Student A and the Member went to a nearby park to talk about her concerns. The Member said that he chose this location. At that meeting, the Member confirmed that he was a “close friend” of Student A but that there was no sexual overtone whatever. The Member testified that he told the Student that there would be no further meeting.

According to the Member, he agreed to a second meeting at the insistence of Student A who said that she wanted “closure.” The Member verified that this meeting was arranged through MSN and it was initiated by Student A. The Member admitted that he and Student A saw a movie together before going to a park to talk. The Member recalled that he chose the movie. The Member stated that there was no physical contact at the park but admitted that the two sat on the grass. During the meeting, according to the Member, the Student expressed “a desire to have sex.” The Member stated that his response was “that that could not happen.” He also said that “they should not meet again in any context.” The Member acknowledged that it was an understanding that the Student had developed “really strong, romantic feelings and that she wanted to have sex.” Initially, they sat side by side on the grass. When they changed location, the Member testified that “she sat in front of me and leaned back.” He claimed that he did not kiss her at any time during the course of this meeting.

The Member stated that Student A was very persistent and initiated another meeting. Again, this was arranged through MSN. The Member’s rationale for agreeing to the third meeting was that he believed that he could defuse the situation and that he could convince Student A that the relationship, such as it was, should end. The Member asserted that he realized that he had a “mess” on his hands and that he had made “several errors in judgement.” He believed that Student A would eventually come to the realization that the relationship was untenable.

The Member verified that the fourth meeting occurred because he “foolishly …agreed to meet with her.” Again, he stated, this meeting was arranged at the request of Student A. At this meeting, by his own admission, the Member kissed the student and there was a hug. The Member asserts that this was a “…simultaneous contact. We were just basically saying our goodbyes.”

It was the Member’s position that he was just trying to calm an overly enthusiastic student by talking to her, with a view to convincing her that her desire to be with him was inappropriate. He lamented that he was not successful in this action. [XXX]

Under cross-examination, the Member agreed with a number of propositions put to him by College Counsel. He agreed that he demonstrated bad judgement and used inappropriate language in his relations with this student. He agreed that when he was reprimanded in April, 2004, he reviewed the professional advisory on sexual misconduct with his superintendent. He agreed that he was made aware of all aspects of sexual misconduct including “sexual touching.” He agreed that he was made aware that the responsibility lay with the teacher in these matters. He agreed that the sensitivity training had a specific focus on recognizing boundaries. He said that he also understood that, even if initiated by a student, any sexual misconduct was the responsibility of the teacher. The Member made it clear that he did not agree the kiss was a sexual act. The Member did agree that he was 41 and that Student A was [XXX] and that he was the professional. He also agreed that he could have said no. He affirmed that he could have spoken to his principal. He agreed that, in hindsight, he could have done more to stop the interaction with Student A. He also agreed the drop-offs a block from the Student’s house were done because he did not want Student A’s father to see them together as it was inappropriate. He agreed that he knew that the meetings were unprofessional. He admitted to some details of the meetings including the hug and the kiss, but insisted that the kiss was never a romantic one and was unintended. He said “each time I met with her she promised me that this would be the last time and if I could just meet with her and hear her out, and then that would be it. And I believed her.” The Member testified that he met with Student A “to get her to basically leave me alone and to leave the situation alone.”

The Exhibits

Exhibit 1: Notice of Hearing dated November 19, 2009

Exhibit 2: E-mail from Student A to Deans dated February 19, 2004

Exhibit 2 is an e-mail from Student A to the Member informing him of the need to change the date on which she would be doing [XXX] in his classroom. Under cross-examination, Student A was asked by Member’s counsel about the ‘tone’ of the e-mail. Member’s counsel suggested that this was a very “flirtatious” communication. Student A did not accept this perspective.

Exhibit 3: E-mail from Student A to Deans dated February 24, 2004

Exhibits 2 and 3 work in tandem, and serve to demonstrate the familiar nature of the relationship and casual forms of address shared by the Member and Student A. When questioned by Member’s counsel to explain nicknames like “Dawg”, “Homie” and “Keys”, Student A agreed that she felt flattered that the Member would speak to her in this informal and “friendly” way. Student A testified that she also used these terms with one other teacher for whom she did [XXX] and babysat, but did not use these terms with any other teachers. Further, Student A agreed that she “felt a little honoured and excited” about being able to communicate with the Member in this informal manner.

Exhibit 4: E-mail from Student A to Deans dated March 2, 2004

Exhibit 4 is an e-mail from Student A to the Member alerting him that child services (CAS) had interviewed her at school regarding the Member’s response to the “wildest thing” question, and were making inquiries about her relationship with the Member. Student A informed the Member that child services would be coming to talk to him also, and she said “i’m sorry i got u into all this …” Student A also told the Member he would need to sign her [XXX], since she would no longer be working in his classroom. At the bottom of Exhibit 4, there is a handwritten note from the Member indicating that he had just received the e-mail and would not be responding to it. The Member testified that the handwritten note was written to his union representative with whom he shared the e-mail. Student A testified that the Member did not respond by e-mail, but did come on MSN later and asked questions about her e-mail.

Exhibit 5: Exchange (2 pages) dated August 12, 2004

Exhibit 5 is an e-mail communication between Student A and the Member, with the first message sent by Student A. The Member responded several hours later. Student A suggested a meeting stating “You say the only way you can really tell me what’s on your mind is if you’re talking to me face to face, but when I try to arrange something you find any reason … not to see me.” Student A testified that every time they met in person the Member would make efforts to try to end the relationship, but then he would continue to meet with her. Member’s counsel stated that the Member’s response to her e-mail was an indication of how he was trying to help Student A to cope with her feelings and self-esteem. In response to Student A’s e-mail of August 12, the Member suggested a meeting on the following Friday.

Exhibit 6: E-mail August 30, 2004 - Deans to Student A

Exhibit 6 is an e-mail from the Member to Student A referencing his wife’s pregnancy. This e-mail seems to be a response to comments previously made by Student A who had recently become aware of his marriage and the pregnancy. Student A testified about this exhibit, that she “felt like an idiot because he had deceived me so I felt I should have seen that.” She agreed with the suggestion from Member’s counsel that the Member was trying to make her feel better, by telling her not to be so hard on herself.

Exhibit 7: E-mail exchange (2 pages) October 1 & 2, 2004 – Student A to Deans

Exhibit 7 is an e-mail exchange in which Student A suggests a meeting, if the Member would still like to talk. The Member responded by asking “when would you like to talk?” Member’s counsel suggested to Student A that the meeting was to discuss “your concerns.” Student A testified that the meeting was “to discuss the relationship.” The Member later testified that “I felt again foolishly that I could convince her to give this up and I felt that, if I hear her out and reasoned with her, that perhaps she would come to the same conclusions that I did.”

Exhibit 8: E-mail October 12, 2004 – Student A to Deans

Exhibit 8 is an e-mail from Student A to the Member suggesting a meeting date.

Exhibit 9: E-mail October 14, 2004 – Deans to Student A

Exhibit 9 is an e-mail from the Member to Student A in response to her e-mail of October 12 (Exhibit 8). He offered reasons as to why he could not meet as agreed, and offered an alternate date with a request that she enter by the parking lot entrance of the school. He testified that using the parking lot entrance was to prevent students dragging snow through the office area as per the school protocol. He also testified that saying “Unless you have a better idea” was intended to turn the responsibility over to Student A “to come up with some idea of how we can resolve this.” He said he was “coming to his wit’s end.”

Exhibit 10: MSN chain (11 pages) – November 15, 2004

Exhibit 10 is an MSN communication exchange that begins at 9:21 p.m. and ends at 11:01 p.m. on November 15, 2004. Student A initiated the exchange prior to the first entry and persevered when the Member did not respond. The Member responded at 9:25 and subsequently apologized for not getting back to her sooner. Student A made reference to a kiss they had shared, and the Member did not respond to her comment. This MSN chain verifies that there had been a relationship earlier, but that it seems to have ended. The Member testified “again I was at wit’s end. No matter what I said, she would not accept.” Within the MSN chain, Student A stated that the Member should “Tell me you never want to see me again and I will listen.” The Member responded that she would not, as she had not up to this point. Student A further stated “you haven’t made me,” to which the Member replied “wut must i do to make u.” Student A then stated “Don’t try and act all innocent here. I know it makes you feel good when I say I don’t want to end this.”

The Member testified that he believed that Student A was “using whatever means that she can in terms of words to get a reaction from me, basically.” He further said that he believed that Student A thought that he shared her feelings and that if she could talk to him, she would convince him to have a relationship with her.

Exhibit 11: E-mail exchange May 11 & 14, 2005

Exhibit 11 is a series of e-mails between Student A and the Member occurring between May 11 and May 15, 2005. Student A comments that having seen the Member as “the teacher” made her realize that “what happened between us before was so wrong.” She further stated that “I shouldn’t be protecting you.” When asked by the Member what she wanted, Student A replied that she wanted “to tell someone the truth about what happened between us.”

Exhibit 12: E-mail exchange May 15 & 19, 2005

In this e-mail exchange, Student A reiterated her wish to tell someone about what had happened between them, because she felt guilty. The Member testified that he believed Student A was “trying to put weight and pressure” on him to meet with her. He did not believe that she really intended to tell a third party. He further stated that his tone in the e-mail was used because he did not see her as an enemy but as someone who was in over her head, and he was trying to “alleviate her concerns.”

Exhibit 13: E-mail exchange May 26 & 27, 2005

Exhibit 13 is an e-mail exchange between the Member and Student A in which Student A states that she wants “a proper ending.” The Member responds “Yes I would like to fix it once and for all. What do you think?” The Member testified that he was “longing to hear” these words from her about ending the relationship and moving on. Further he stated that he regretted the way he answered her because previous attempts at closure had not been successful. He believes he ceased to respond after that.

Exhibit 14: E-mail exchange June 10 & 11, 2005

Exhibit 14 is an e-mail exchange between Student A and the Member about the Member transferring, to become a teacher at her high school. Student A was incredulous and did not want to “relive the most painful experience of my life…” The Member told her not to panic and offered to “have that talk you have been wanting.”

Exhibit 15: Kids Helpline Posting – July 4 to 6, 2005

Exhibit 15 is Student A’s e-mail to Kids Help Phone in which she describes the events that occurred between her and the Member, and her feelings about them, now that he is to transfer to her school as a teacher. In her e-mail to her counsellor, Student A writes … “I am disgusted with myself for letting it happen and letting him take advantage of my trust. I knew it was wrong but I did it anyways …” “We did things I knew were wrong, they felt wrong … we went to the movies, talked for hours on MSN, met alone in person sometimes. Stuff like that.” “Every time we met things got worse, more wrong, he touched me a bit more.” Student A concludes her e-mail by recognizing that “she does not wanna ruin his family. I feel so messed up and I duno why I didn’t stop things before they began.” “Am I a terrible person now?”

In response, Kids Help Phone wrote “…He took advantage of your trust and used his power and authority over you.” “Even if you had completely consented to what happened and had no problems with it, he would still be held responsible for breaking the law.”

The Member testified that Student A had never expressed to him that she felt that “it was wrong.” “She never reflected this sentiment to me.” He did agree with Student A’s statement that things escalated and she couldn’t stop, because, he felt, she did get in over her head. Finally, he stated that Student A never expressed being scared of him, and in fact he said that one of the reasons why she wanted to talk with him was because “she felt most comfortable” talking and sharing “honestly” with him.

Exhibit 16: Letter from Robert Dunn, Superintendent, to Gilmore Deans dated April 29, 2004

Exhibit 16 is a letter of reprimand delivered in person, to the Member as a result of his

unprofessional conduct in an early e-mail communication with Student A. This incident was reported to the principal of the elementary school on February 25, 2004.

The letter reviewed the nature of the electronic communication with Student A, particularly an inappropriate sexual comment that was confirmed by the Member. The [XXX] Children’s Aid Society concluded that the Member “interacted inappropriately with a child” and advised him “to refrain from communicating in sexually provocative terminology with children as this places them at risk.” Furthermore, the Society indicated that it had no further role “at this time.”

The letter references a meeting on April 26, 2004 during which the Member reviewed the Professional Advisory: “Professional Misconduct Related to Sexual Abuse and Sexual Misconduct”, Ontario College of Teachers, September 27, 2002 with Superintendent Robert Dunn in the presence of his union representative, his principal and former principal. The Member also agreed to participate in sensitivity training on boundaries, and was made aware of his failure to exercise his responsibility of professionalism toward students. He was also advised that any repeat of this, or similar behaviour, would result in additional disciplinary action which may include termination. It was determined at that time that there would be no referral to the Ontario College of Teachers even though his actions were considered “unprofessional conduct” by the School Board.

When cross-examined, the Member agreed that he understood or was aware that: sexual relationships with a student included any form of sexual touching and remarks of a sexual nature; sexual relationships with former students under the age of 18 amounted to sexual misconduct and; it was his responsibility as the teacher to ensure that relationships with students remained professional.

Exhibit17: Ontario College of Teachers’ Professional Advisory: “Professional Misconduct Related to Sexual Abuse and Sexual Misconduct”

Exhibit 17 is the Professional Advisory referenced in the letter of reprimand dated April 29, 2004, which was given to the Member.

Exhibit 18: Memo to file by Daniela De Bartolo dated March 30, 2011

Exhibit 18 is a record of a telephone conversation between Danuta Muras who was a teacher of Student A at the elementary school and a family friend. This memo confirms that Ms. Muras contacted the principal after being told by Student A about one allegedly inappropriate MSN conversation between Student A and the Member. The memo also confirmed Student A confiding to Ms. Muras about meetings with the Member outside of school.

Exhibit 19: Handwritten Notes of Ms. Muras dated August 23, 2005

Exhibit 19 consists of two pages of notes outlining events of which the teacher had been made aware by Student A. In her testimony, Ms. Muras said that her purpose in drafting these notes was to provide a record of what Student A had said. She acknowledged it had to do with meeting in person when she and Student A went grocery shopping. Ms. Muras had thought that Student A seemed upset, and had invited her to go shopping as Ms. Muras “could see that she wanted to talk.”

Exhibit 20: E-mail [XXX]

Exhibit 21: Evaluation for Administrative Purposes dated May 30, 2001

Exhibit 21 outlines the evaluation undertaken of the Member in May 2001 and indicates that the Member “is a talented, hard-working teacher… He has earned the respect of students and parents alike. The good work that he has done outside the classroom and the positive relationships that he has built as a result of these efforts, have certainly spilled over into the classroom.” “Mr. Deans is providing an excellent level of service to his students at this time.”

Exhibit 22: Evaluation for Administrative Purposes dated June 12, 2002

Exhibit 22 outlines the evaluation, undertaken in June 2002, of the Member. It reinforces the comments made in Exhibit 21, and adds that “He has demonstrated leadership in our school by being one of our regular Principal Designates. Both the staff and students respond well to (the Member)’s leadership as the supervising Principal.”

Exhibit 23: Certificate of Qualification for the Member

Exhibit 23 confirms that the Member had suitable qualifications for his teaching assignment. He obtained Specialist Qualification in Honours [XXX] in September 2005.

Exhibit 24: Awards & Acknowledgements for the Member

Exhibit 24 is a collection of awards and acknowledgments given to the Member for his contribution to education, in the school and in the community. Included are two letters from parents complimenting him on his leadership in the [XXX] field at the school.

DECISION

On February 17, 2012, after hearing all the evidence, the Committee rendered the following oral 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 Gilmore Alexander Deans committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(15), 1(18), and 1(19). Further, the Committee finds that the Member engaged in sexual abuse of a student or students of a nature defined in sections 1 and 40(1.1) of the Act.

REASONS FOR DECISION

Credibility

Student A consistently told a credible story of her interactions with the Member in 2003-2005.

Her account is supported by copies of e-mail and MSN communications during that time. These messages document an ever intensifying relationship between Student A and the Member. From a review of these messages and testimony relevant to them, it is clear that the parties knew and understood the inappropriate nature of their relationship.

Student A is credible when she recounts that what started as a not quite innocent exchange with the Member – asking him about the “wildest thing” he had ever done - turned into a sexualized communication. His sexualized and graphic reply caught her quite off-guard, while the Member has stated “I answered it as a factual question.” But through his response, the Member turned the question, as well as his answer, into a sexual subject – very explicitly so.

Student A readily admitted that her communication style with the Member was too personal, intrusive and informal, but, she asserted, appropriate from the standpoint of a [XXX] -year-old student. Student A readily admitted to the use of colloquial expressions for sexual acts. This was done during the development of a “story line” on MSN initiated by the Member. Student A was surprised at how quickly the Member turned the story line into a sexually charged story about a sexual act. Student A admitted that she continued in the vein established by the Member in the development of the sexualized story line. Student A was very clear about her participation and who took ownership of particular phrases of plot line. The Member, according to Student A, was very proactive in the development of the story.

Student A was very clear about her memory of when and where meetings with the Member occurred. Student A was able to recount what was said at these meetings and who said it with detail and clarity. At the same time, she was clear about the choreography of interactions. Student A described hugging, kissing, holding, leaning and sitting against the Member on each of these occasions in great specificity.

Student A was confident in her responses about the clandestine nature of the meetings. She asked that she be dropped off a block from her home following each meeting. She accepted the secret nature of their relationship. She understood the professional danger to the Member. However, in her response during cross-examination, she asserted that she was [XXX] and the Member was the adult. Under cross-examination she stated “…but then he would continue to meet with me.” Student A admitted that she was not prepared to take rejection from the Member. She further admitted that she would have had sex with the Member early in their relationship, if given the opportunity. She was determined to pursue him, but it was always his option to refuse to see her.

Throughout her testimony, in chief and in cross-examination, Student A made some reference to her notes. These notes were the subject of a voir dire hearing at the outset of her testimony. The Committee reserved the right to apply weight appropriate to the use of the notes once they were better able to assess the reliance that Student A placed on them. The Committee is of the opinion that the notes did not play a significant part in assisting in the testimony of Student A. Whether referring to her notes or not, the testimony of Student A presented as clear and cogent recollection.

Student A was strong in her reaction to the suggestion of Member’s Counsel that she was the instigator and pursuer in her relationship with the Member. In response to questions about why she continued to pursue the Member, Student A replied, “…because I couldn’t see it at the time because I was [XXX] years old and blinded by my own romantic notions.” Student A was very ready to accept responsibility for her actions. There was no attempt to deny her part in this unfortunate relationship.

Regardless of the far from reasonable nature of her behaviour, the story told by Student A about her relationship with the Member remained plausible and credible. The account is substantiated by exhibit-based evidence. Her memory of the timing, sequence and places of the relationship was consistent. The delivery of testimony was strong and cogent. The demeanour of Student A was self-possessed, and it was clear that she was aware of the inappropriate nature of the relationship. The testimony did not show Student A in a favourable light but she was prepared to stand by it; under aggressive cross-examination, the story told by Student A remained strong and convincing. Every question designed to undermine her integrity as a witness and as a participant in the relationship was met with a clear and determined response. Student A was unwavering in her desire to demonstrate that the Member’s behaviour was inappropriate and wrong. Student A maintained consistently that she was the student and the Member was the teacher, and he owed her more due care. She continually maintained that although she was only [XXX] at the time, “he would continue to meet with me.”

The testimony of Student A was clear, cogent, consistent and credible. The Committee accepted it as essentially true and of integrity.

Nancy Lester was the principal of the School during the time of the first incident under review. As such, she was a useful witness in conveying to the Committee the nature of the discipline that ensued from the first inappropriate electronic communication. Principal Lester provided strong and clear testimony about her knowledge of the actions of the Member.

In examination-in-chief, Principal Lester was very specific about the steps taken to make the Member aware of his responsibilities as a teacher and the requirements of the Professional Advisory of the Ontario College of Teachers: Professional Misconduct Related to Sexual Abuse and Sexual Misconduct. Upon being advised that an incident of inappropriate communication had taken place, which had been instigated by the Member, Ms. Lester immediately put into place a process as set down by Board policy.

Ms. Lester was very firm in her assertion that the Member was taken through the requirements of the advisory, step by step, so that there could be no misunderstanding of his responsibility as a teacher.

Ms. Lester continued in her testimony and stated that after informing the CAS about the Member’s inappropriate communication with a student, Board officials met with the Member to make sure that he fully understood the requirements of the Professional Advisory. They advised him of the need to participate in sensitivity training. Once this was done, the expectation was that the matter had been adequately resolved. No referral was made to the Ontario College of Teachers since it was deemed to be a matter of poor professional judgement. As far as Ms. Lester was concerned, there should have been no more need to deal with this issue. A letter of reprimand, which had been read to the Member at this meeting, was placed in the Member’s file.

Under cross-examination, Ms. Lester was guided to accept the premise that since Student A was the instigator, then there should be some contextual consideration for the Member’s behaviour. Ms. Lester was adamant that this was not the case. The policy of the Board and the Advisory was that the teacher was always responsible for the relationship between a student and teacher. There was no room for consideration of student culpability. Her response was “professional misconduct is professional misconduct.” As far as Ms. Lester was concerned, the Member was reprimanded for “poor professional judgement” and that is where the matter was left. Ms. Lester would not be swayed to any other interpretation.

As far as the Board was concerned, at the time the intent was that the Member should move on with his career, and be more careful about his communication choices. There was no need for any more action against the Member. It was assumed that the letter of reprimand and sensitivity training had addressed the issue.

Ms. Lester’s testimony was credible, to the point, informed and useful. She was strong and forthright and helped to establish that, as far as the Board was concerned, the Member could proceed with his career.

Danuta Muras was a [XXX] of Student A, and a teacher at the same school as the Member. Her testimony at the hearing was significant since she was the conduit by which the Principal came to know about the sexually charged electronic communication in the first instance of poor professional judgement, when the Member responded in sexual terms to Student A’s question about the “wildest thing” he’d ever done. Ms. Muras also contacted Student A’s mother about the Kids Help Phone messages that Student A showed her, that led to the revelation of the later professional misconduct of the Member. [XXX]

Ms. Muras’ testimony was clarifying. Ms. Muras was not consistent in her recall of specific dates, but she was instrumental in assisting in the uncovering of the facts of the behaviour of the Member.

The notes that Ms. Muras made [XXX] were not very useful to the Committee as they were not sufficiently specific. The information that they contained was provided more clearly through oral testimony and Exhibits.

Ms. Muras, although somewhat unsure about dates and the sequence of events, did prove to be credible in her retelling of her involvement in the matter. She was trusted by Student A, and it was because of this trust that Ms. Muras was made aware of the details of the Member’s behaviour. This was the most important aspect of the credible testimony of Ms. Muras.

Gilmore Alexander Deans is the Member. He has admitted to a series of behaviours that, in themselves, amount to misconduct. The issue at hand is the assessment of the motivation and logic behind the Member’s actions after the initial reprimand by the Board in April, 2004. The Member stated over and over again that his goal was to “get her to basically leave me alone…” while supporting Student A’s emotional well-being. The Committee felt that the Member’s stated motivation and logic behind his behaviour lacked credibility.

In reference to the Member’s contention that MSN and electronic communication was instigated by students, the obvious question is why take this communication down an inappropriate path? The Member admitted to this. The Member admitted that he was exercising bad judgement. Unfortunately, this pattern of bad judgement continued. To respond to a student’s inquiry about bad behaviour with a “factual response” that is sexually charged seems to be naïve at best. The Member ultimately was disciplined by the Board for that conduct.

Even after taking sensitivity training and being made fully aware of the relevant information referenced in the Professional Advisory, the Member agreed to meet with the Student for work in his classroom, a pizza and then after that a private meeting set in a nearby park. The Member admits to this event and even admits to telling Student A that he was “a close friend” to her. The next meeting, according to the Member, was agreed to on the insistence of Student A. The Member selected a pre-meeting movie. The Member recounted the same story about what was said during the meeting. The stories of the two participants mesh very well. Even the Member’s description of the physical contact, when Student A sat between the Member’s legs with her back to him, closely parallels the account of Student. A fourth meeting took place and, once again, the Member responded to the invitation of Student A. The Member took an active role in arranging this meeting.

The Member confirms that there was a “kiss and a hug.”

From this point on, the assessment of the meetings begins to change. The Member does not accept Student A’s view that this was a relationship based on love. His view was that he was merely trying to “contain” the situation and placate Student A, who was insistent on having more out of the relationship than was “possible” or appropriate. The Member’s view was that the kiss and the hug were a form of saying good-bye. The Member did not deny that he kissed Student A on the lips. Student A described the contact in a very realistic manner and stated that the Member put his tongue in her mouth. The Committee gave weight to Student A’s testimony in her description of the nature of the “good-bye kiss.”

It is agreed that there was a kiss and a hug. The intention of each party to the act is not agreed upon but the meetings themselves were all highly inappropriate. The secretive nature of the meetings, the hidden location of the meetings and the fact that the Member always dropped Student A off away from her home indicate that the Member knew their meetings were wrong.. The Committee is prepared to accept Student A’s account where her description of events differs from that of the Member. The Member had many opportunities to not be in the position in which he found himself. He could have just said “no” or not responded at all to Student A’s overtures but he did not.

The Member consistently disregarded the advice and instruction he received during the formal disciplinary process undertaken by his school Board between January and April, 2004. His initial act of unprofessional conduct escalated, rather than ended.

Credibility: Exhibits

Credibility is further supported by a review of the Exhibits. Exhibits 2 and 3 support the increasingly personal tone of the communication between the Member and Student A. Further, while Exhibit 8 shows Student A trying to arrange a meeting, Exhibits 5 and 9 indicate clearly that the Member was an active participant in arranging the meetings that occurred. In Exhibit 10, the Member uses informal text-talk better suited to communication between youth, and shares information about his personal habits. This further supports the Committee’s assessment of the escalating personal tone of their communications.

In Exhibit 11, the Member did not dispute the language of Student A when she wrote that “what happened between us before was so wrong.” The Member had a clear opportunity to correct her view of their relationship. He did not. Having done so would have supported the Member’s credibility.

Nothing in the Exhibits supports the Member’s testimony that he made a concerted effort to end the relationship and extricate himself from the situation.

Counsel Closing Submissions

College Counsel opened her comments with the statement “… it is the teacher’s responsibility to ensure that a relationship with a student remains professional.” “An inappropriate relationship with a student, especially one that has a sexual connotation, amounts to professional and sexual misconduct.” Most of the allegations are not in dispute. Allegations 5(c) (d) (f) (g) are in dispute. College Counsel said that “…there is not any evidence before this Committee that was led on any of the four facts that were not admitted.” Student A was never cross-examined on these allegations by Member’s Counsel. It was the contention of College Counsel that Member’s Counsel had full opportunity to bring evidence forward to dispute these allegations and did not.

College Counsel reminded the Committee of the burden of proof that is the balance of probabilities and that there was no higher standard for the tribunal to consider. College Counsel reviewed the credibility of the four witnesses and stated “…Student A has been corroborated by Ms. Lester, Ms. Muras and by Mr. Deans himself.” “The only difference in Student A’s testimony is that she has added additional details to what occurred at those meetings.” “She has added that Mr. Deans did, in fact, tell her that he loved her. That he wanted to be in bed with her. That he did, in fact, rub his body against hers and touched or attempted to touch her breast.”

College Counsel did not accept that Student A was at fault as an instigator of the relationship. Student A may have admitted to the instigation, but that is not the issue. The behaviour of the Member is at issue.

College Counsel reviewed for the Committee the specifics of the four meetings that took place in two parks. Many of the activities that took place in the parks, and the manner in which the meetings were arranged, have been admitted by the Member. College Counsel states that Student A’s memory of these meetings, and what transpired during them, is detailed and describes behaviour that is sexual misconduct.

The secretive nature of the meetings speaks to their impropriety. Both the Member and Student A were very aware and gave evidence to the fact that they did not want Student A’s father to see them together. The Member gave evidence that he was aware that his meetings with Student A were inappropriate.

College Counsel also reminded the Committee of elements raised during the hearing which could be considered not relevant to the Committee’s decision. It was not relevant that Student A was no longer a student of the Member when the incidents occurred or that she initiated the meetings. The Professional Advisory clearly states “…that any sexual relationship with a student, whether it be even with a former student under the age of 18, amounts to professional misconduct.” “There is only one professional in such a relationship, and that is the teacher.”

College Counsel stressed that the meetings between the Member and Student A occurred within mere weeks of the Member having been reprimanded for inappropriate electronic communications with Student A, and after having completed sensitivity training. The reprimand was intended to reinforce for the Member the standards of the Ontario College of Teachers as outlined in the Professional Advisory and the expectations of the school Board.

College Counsel submitted that the tone of the meetings and the events that occurred amounted to professional misconduct and sexual misconduct.

Member’s Counsel opened his closing submission by replying to the issue raised by College Counsel of the failure to cross-examine Student A on four allegations. Member’s Counsel argued that simply because there was no recognition of the allegations through cross-examination, it does not make them true. In fact, “it would be a fundamental error of law” to think so.

Member’s Counsel submitted the Member was not challenged in cross-examination in respect of the four contested facts. He further submitted that the only issue before the Committe, therefore, is the issue of sexual misconduct as it is associated with the hug and the kiss during the fourth meeting.

College Counsel submitted that Student A was “a student” and that the Professional Advisory was very clear about the Member’s responsibility to her. Member’s Counsel suggested that since Student A was in a different school, that the Advisory applied in a different manner. It was his submission “…that this Tribunal must conduct a contextual analysis of alleged misconduct and that in the event of a finding of such misconduct, that that contextual analysis must be subject to a proportionality assessment in coming to or addressing any question in respect of sanction.” At this point, the Chair suggested that this would be an appropriate issue at the penalty phase of the hearing.

Member’s Counsel submitted that Student A was the initiator of all the communications: “…Student A was the one who initiated all of the communications that are the subject of this complaint” and “…that does, in fact, make her the aggressor.” “[The Member] was the one in a significant position of vulnerability relative to the student.” Member’s Counsel continued that the Member was at serious risk. He could be disciplined, [XXX] he was at the risk of investigation by CAS, he was at the risk of complaints to Student A’s parents and he also ran the risk of complaints to his school Board. He was even at the risk of complaint to his pregnant wife and the potential loss of his family.

Member’s Counsel suggested that “Despite these threats and acts of intimidation, [the Member] never took steps to preclude Student A from communicating with third parties or authorities. He never acted in reprisal or retaliation.” “If anything, the Member’s sensitivity to the student was his undoing.”

Member’s Counsel submitted that the majority of the allegations are relatively minor. There is no allegation of sexual intercourse. The majority of allegations relate to minor verbal communications between the parties. Even the good-bye kiss and hug which Student A initiated were done in an effort to end communications. From the Member’s perspective, any personal contact between the two was completely non-sexual.

Member’s Counsel submitted that his client was a responsible person. “If he truly wanted a sexual relationship with [Student A], he could have had it. It was offered to him on a platter. He didn’t want it. It’s not what he wanted. He consistently rejected it.” Student A never expressed any fear or apprehension in her relationship with the Member, despite her comments to the contrary in her e-mail communication with the Kids Help Phone.

Member’s Counsel contends that Student A had feelings for the Member and wanted to have sex with him. In spite of this assertion, which was acknowledged by Student A, the Member continually attempted to gently and responsibly break off the relationship. The Member was unsuccessful in his well-intentioned efforts. The Member’s effort at dealing with the situation and his failure is a reflection of bad judgment and, therefore, should not be considered “culpable conduct and particularly sexual misconduct...”

Member’s Counsel submitted that the Member had already been disciplined by his Board for inappropriate comments. It would be, therefore, inappropriate for the Member to be disciplined once again as it would amount to “double punishment” and would be disproportionate.

Summary

The Member was found to be guilty of professional misconduct, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7), 1(15), 1(18), and 1(19). Further, the Committee found that the Member engaged in sexual abuse of a student or students of a nature defined in sections 1 and 40(1.1) of the Act.

The Member has agreed to several of the particulars of the allegations in the Notice of Hearing, but has not accepted four key allegations: 5(c) (d) (f) (g). The Member did not agree with the ‘nature’ of the hug and kiss referenced in 5(e), but did concede that they had occurred. Taken together, the sum total of all the allegations, regardless of their ‘nature,’ indicates behaviour that is far beyond acceptable in any setting, particularly between teacher and student.

The Member consistently displayed bad judgment in many of his decisions and, most particularly, by putting himself in places where he should not have been. The Member was disciplined by his Board for the first round of inappropriate communication, that is, electronic contact with students. The Member was clearly told that this communication could be considered unprofessional and must stop. This matter was not referred to the Ontario College of Teachers. Yet, in spite of clear direction to end this behaviour, the Member persisted in responding to Student A’s attempts to re-establish the relationship. Even worse, it evolved into more than just electronic communication. This was most troubling to the Committee. At no time during the six month period following his reprimand was the Member able to terminate his ‘relationship’ with Student A. There can be no acceptable explanation for this failure to conduct himself appropriately as a professional.

The Member was fully aware of the Professional Advisory of the Ontario College of Teachers but, in spite of this, like a moth attracted to a flame, he persisted in actions that he knew were just plain wrong. No amount of self-serving explanation can justify his behaviour or make it appear to be right. His professed concern for Student A’s psychological well-being does not ring true with the Committee. The Committee believes that if this were the case, the Member would have made efforts to contact appropriate support personnel through his school Board or Student A’s parents.

The Committee gave careful consideration to all evidence and exhibits provided. The electronic evidence alone supports a finding of professional misconduct. The testimony provided during the hearing reinforces the sad story that unfolded. Time after time, the Member continued to respond to Student A when, by all logic, it was not required, was entirely inappropriate and would have seemed entirely inappropriate to any reasonable teacher. This continuation, following his formal reprimand, by itself, undermined his credibility.

The matter before the Committee hinges on the weight of credibility. The dissonance of opinion between Student A and the Member remained a key element of the hearing. The balance of probabilities was the guide for the Committee, and there is a clear statement of the operating principles of this approach to jurisprudence above. During the hearing, the Committee came to the conclusion that Student A was more credible than the Member. Much of the testimony of Student A put her in an unfavourable light, but she persisted in her clear, concise and cogent narrative. The Member, on the other hand, failed to properly account for his role in the matter. Much of what he provided in his testimony, and his professed motivation for his behaviour, did not convince the Committee to the point where it could accept his view over that of Student A.

The discussion by Counsel about issues not addressed during cross-examination was reviewed by the Committee through consideration of the principle established by Browne v. Dunn. The implication of this principle is that there must be an application of fairness. The Committee is satisfied, after considering the submissions of both Counsel, that it had proceeded with due consideration of fairness. The Committee determined that both Counsel had full and fair opportunity to present their evidence in examination-in-chief and under cross-examination earlier in the hearing, should they have chosen to do so.

PENALTY

“To ensure the integrity of this Tribunal, and its function, there must be a contextual analysis bearing in mind all of the circumstances including those that I have referred you to, and there must also be an assessment of proportionality relative to the nature of the offence, and the conduct, the background of the member, and the prospect of the re-occurrence, and other such considerations.” Member’s Counsel, February 17, 2012

“In our submission, students should be protected from members who engage in this form of misconduct. And it would be appropriate and important for this committee to advise the public of the seriousness of this misconduct and that such misconduct results in the loss of the privilege of being a teacher.” College Counsel, February 17, 2012

Penalty Decision

The Committee makes the following order as to penalty:

1. The Registrar of the Ontario College of Teachers is directed to revoke the Certificate of Qualification and Registration of the Member, which Certificate the Member is to surrender immediately to the Registrar; and

2. 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 without the Member’s name, in the official publication of the College, Professionally Speaking/Pour parler profession.

Submission of College Counsel

The College sought revocation of the Member’s Certificate of Qualification and Registration and publication of the findings with the Member’s name. [XXX]

College Counsel provided three Ontario College of Teachers Discipline Decisions in which revocation was the penalty. These cases were similar to the matter at hand. These cases share the following similarities: inappropriate electronic communication with explicit sexual overtones; sexual touching or attempted touching of the breast and leg, as well as massaging and kissing; and discussions of a sexual nature, meetings and movies outside of school hours.

College Counsel also addressed the issue of aggravating factors, the first being that the Member had been reprimanded by his school Board for unprofessional conduct. It was at this time that he was made fully aware of his responsibilities as an educator. He was required to complete sensitivity training. Nonetheless, according to College Counsel, the Member continued in his inappropriate behaviour, escalating to the point of kissing Student A, hugging Student A and attempting to touch Student A’s breast.

Second, College Counsel submitted that the Member admitted to the particulars of some of the allegations only after three days of hearings, thereby causing undue stress to the witnesses.

The third aggravating factor, according to College Counsel, is that the Member does not fully understand the seriousness of his misconduct and, through his Counsel, suggested that Student A was the aggressor and instigator and was the cause of his sexual misconduct. College Counsel further stated that to suggest that Student A was at fault, and that the Member was in a “vulnerable position,” indicates the absence of his understanding about his role as an educator in dealing with a [XXX] -year-old.

College Counsel concluded her submission to the Committee by stating “…students should be protected from members who engage in this form of misconduct. And it would be appropriate and important for this Committee to advise the public of the seriousness of this misconduct, and that such misconduct results in the loss of the privilege of being a teacher.”

Submission of Member’s Counsel

Member’s Counsel began his presentation by advising the Committee that it had a great deal of latitude in determining a suitable penalty. Member’s Counsel suggested that the Committee could consider: the nature and severity of the offence; the circumstances of the offence; the effect of the offence on the public; the character and conduct of the Member i.e. was there an exemplary professional record prior to the offence; the likelihood of re-offending; the issue of deterrence; whether the Member has been rehabilitated or can be rehabilitated; and the impact on the student. He also included whether the conduct was consensual and who initiated the conduct in question.

A Brief of Authorities was presented in support of his position. The list includes the following cases: College of Physicians and Surgeons (Ontario) v MacDiarmid; Mitchell v. British Columbia College of Teachers; Young v. British Columbia College of Teachers; David Michael Forsyth; and the following College decisions, David Russell Pratt; Frederick Brent Holden; Gregory Allan Miller; Richard Joseph Poremba; and Tony Mario Aquino.

Member’s Counsel guided the Committee through these cases and their penalties with a view to highlighting the principle of proportionality. He reinforced for the Committee that the penalty must fit the offence. In the Committee’s view not all of the examples were similar to the one at hand. Some were similar in that they dealt with professional misconduct of a sexual nature. Even in those cases, the degrees of similarity and applicability were, from the viewpoint of the Committee, insufficient.

Turning from the comments on the Brief of Authorities, Member’s Counsel commented favourably on the Member’s reputation as a “top-rate teacher” and contributor to school, students and community. He further stated that “this is not a situation of a teacher attempting to seduce and/or pursue a student. This is a situation of a teacher, against all odds, attempting to end the communications.” Member’s Counsel submitted that in regard to the potential danger to the Member of losing his job, family and reputation “…she was aware of and acknowledged but nevertheless intentionally and deliberately disregarded [these dangers] in her continued pursuit of [the Member].”

Member’s Counsel addressed the issue of the consensual nature of the relationship. Who initiated the relationship, student or teacher? “…there must be a contextual analysis bearing in mind all of the circumstances …” Proportionality examines the nature of the offence and the conduct, the background of the Member, and the prospect of re-occurrence. Member’s Counsel reminded the Committee that the Member has been punished extensively. He has been investigated. He has been disciplined.

Member’s Counsel also offered a caution to the Committee. He warned the Committee against having an “absolute liability offence” mentality. He advised that tribunals must resist the temptation to accept that if you have been found to have committed the act, you are automatically guilty and subject to a mandatory penalty. Member’s Counsel stipulated that the Committee has extensive discretion and it should exercise that discretion with a concern for public integrity and respect for the Member.

Member’s Counsel took the position that seeking disqualification is disproportional “by a long shot.” The Courts have advised against adopting such a “presumptive requirement.” In fact, the Member has contributed to the education system, has special talents and skills, and has been an exemplary teacher. According to Member’s Counsel, there have been no ill-effects on Student A. She has completed high school, attends university and appears to be well. Member’s Counsel asserted that the only harm appears to be “in the mind of the student and that was her concern...”

Member’s Counsel suggested some mitigating factors. The Member earnestly attempted to stop communication between himself and Student A. Student A was the instigator. The Member has expressed regret. He has taken responsibility for his conduct. He spoke the truth as he saw it, about what happened. Member’s Counsel reminded the Committee that Student A was a former student attending a different school during the events in question. Finally, in consideration of proportionality, Member’s Counsel suggested that a penalty of a suspension of six months, and certainly less than one year, would be sufficient.

Reasons for the Penalty Decision

With regard to the issue of publication, there will be publication in summary in the official publication of the College, Professionally Speaking/Pour parler profession, without the name of the Member. [XXX]

The Committee considered very carefully all of the submissions. Revocation is, in this situation, the only acceptable option. The Member demonstrated through his choices and subsequent path, that he was not only unable, but unwilling, to terminate his relationship with Student A.

The Committee strongly believes that the Member, when given such a clear message through a formal reprimand from his employer, should have ended all communication with Student A. When she attempted to renew communication with the Member, he responded affirmatively, when he knew that he should not, and knew that it was unprofessional to do so. In the view of the Committee, the Member disregarded very specific rules and some very good advice. He willfully chose to continue this inappropriate relationship. Not to revoke would deny the true nature of this matter. This is, after all, a case of sexual misconduct.

Revocation is a specific deterrent to the Member in that it will remind him of his obligation to conduct himself professionally at all times. By revocation he will realize that teachers are always in the public eye and are held to a high standard. Their behaviour must be beyond reproach in their relationships with persons in their care, and particularly their students.

Revocation is also a general deterrent to members of the profession. The profession benefits from reminders to be vigilant in their relationships with students. This includes all forms of communication and, increasingly, electronic communication. Interactions with students must always be open, respectful and beyond reproach. As a profession, teachers want to know that ethical standards are retained as a common professional touchstone. Revocation is the strongest penalty applicable to inappropriate behaviour by members of the profession.

Rehabilitation is always an important element of any penalty. It is up to the Member to decide on his future. The Committee is aware that the Member sees himself as an exemplary teacher. The Committee feels that the Member has some way to go. The Member might start with a proper review of the Ontario College of Teachers Professional Advisory: Professional Misconduct Related to Sexual Abuse and Sexual Misconduct and a thorough consideration of the details of his original letter of reprimand.

Public interest is served by revocation. Transparency is an expectation of the public. All stakeholders expect that the actions of teachers, good or bad, are held up to public admiration or scrutiny as needed. Parents, colleagues and the public in general need reassurance that there is a process of enforcement of the expectations of proper professional conduct and maintenance of educational ideals in Ontario.

The Member’s behaviour was beneath the standards of the profession, which is entrusted with the care and guidance of children and young people.

Date: June 21, 2012

______________________________ Annilee Jarvis, OCT

Chair, Discipline Panel

Mel Greif

Member, Discipline Panel

Darlene Mead, OCT

Member, Discipline Panel