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 Jan Francis Matejovic, OCT, a member of the Ontario College of Teachers.
PANEL: John Tucker, Chair Louis Sloan, OCT Hanno Weinberger, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Shane D’Souza, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Annie Lacroix, Litigation Paraprofessional
-and-
JAN FRANCIS MATEJOVIC (CERTIFICATE #469523) Zailin Lakhoo, Neuberger Rose LLP, for Jan Francis Matejovic
Rebecca Durcan, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: December 13, 2012
DECISION, REASONS FOR DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on December 13, 2012 at the Ontario College of Teachers (the “College”) at Toronto.
A Notice of Hearing, dated January 10, 2012 was served on Jan Francis Matejovic (the “Member”), requesting his presence on February 15, 2012 to set a date for hearing, and specifying the charges. The hearing was subsequently set for December 13, 2012.
Jan Francis Matejovic was in attendance.
THE ALLEGATIONS
The allegations against Jan Francis Matejovic in the Notice of Hearing, (Exhibit 1) dated January 10, 2012 are as follows:
IT IS ALLEGED that Jan Francis Matejovic is guilty of professional misconduct as defined in subsections 30(2) and 40 (1.1) of the Ontario College of Teachers 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 psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2);
c) he abused a student sexually, contrary to Ontario Regulation 437/97, subsection 1(7.3) and/or engaged in sexual abuse of a student or students as defined in section 1 of the Act;
d) he failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof or the Regulations
e) he committed acts that having regard to all the circumstances would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to Ontario Regulation 437/97, subsection 1(18); and
f) he engaged in conduct unbecoming a Member, contrary to Ontario Regulation 437/97, subsection 1(19).
At the hearing on December 13, 2012, College Counsel sought to withdraw the allegations of professional misconduct in paragraphs (b) and (d) namely that the Member abused a student psychologically or emotionally, contrary to Ontario Regulation 437/97, subsection 1(7.2) and failed to comply with the Act and the Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically subsection 264(1)(c) thereof of the Regulations. The Committee agreed that these allegations 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, Jan Francis Matejovic (the “Member”) was a member of the Ontario College of Teachers. Attached to Exhibit 2 and located at Tab “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
At all material times, the Member was employed by [XXX] School (the “School”), an independent school in Toronto, Ontario, as [XXX] teacher.
From on or about March 2010 to on or about September 2010, the Member exchanged emails of a personal and/or sexual nature with a female student (“the Student”) of the School. Attached to Exhibit 2 and located at Tab “B” are copies of the email communications. Attached to Exhibit 2 and located at Tab “C” is an excerpt of the [XXX] Data Analysis Report dated February 24, 2011 which indicates that there were email communications up to October 19, 2010.
During the 2009-2010 academic year, the Student was a female student at the School. During the 2008-2009 academic year, the Student was enrolled in the [XXX].
On July 4, 2011, the Student advised the College Investigator that after she graduated from the School, a sexual relationship with the Member commenced and continued until in or around September 2010 when she went to university.
Attached to Exhibit 2 and located at Tab “D” is a copy of the College Investigator’s Memo to File of the telephone interview with the Student.
On or about November 26, 2010, the Member’s employment at the School was terminated. Attached to Exhibit 2 and located at Tab “E” is a copy of the letter dated November 26, 2010 from the School to the Member.
By a letter dated May 17, 2011, the Member, through his counsel, provided a response to the allegations and admitted that he engaged in:
a) inappropriate email communications of a personal and sexual nature with the Student while she was a Student at the School; and
b) a physical/sexual relationship with the Student commencing on or about August [XXX] and that ended about one month later.
In the same letter, the Member apologized and took full responsibility for what happened and acknowledged that it was his duty as a member of the teaching profession to set and respect proper boundaries. Attached to Exhibit 2 and located at Tab “F” is the letter dated May 17, 2011 from Member’s counsel to the College Investigator.
Following his termination, on his own initiative, the Member undertook counselling with David I. Feder, Social Worker. On or about July 28, 2011, Mr. Feder sent a report to Member’s counsel about that counselling. Attached as to Exhibit 2 and located at Tab “G” is a copy of the report dated July 28, 2011 from Mr. Feder to Member’s counsel.
On October 10, 2012, Mr. Feder sent another letter to Member’s counsel confirming that the Member had completed 26 sessions of counselling to date. Attached to Exhibit 2 and located at Tab “H” is a copy of the report dated October 10, 2012, from Mr. Feder to Member’s counsel.
On or about March 29, 2012, the Student sent a letter to Member’s counsel wherein she described the nature of her interactions with the Member. Attached to Exhibit 2 and located at Tab “I” is a copy of the letter dated March 9, 2012 from the Student to Member’s counsel.
PLEA OF NO CONTEST
By this document, the Member admits, for the purposes of this proceeding only, the truth of the facts and the exhibits referred to in paragraphs 1 to 11 above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts referred to in paragraphs 1 to 11 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(7.3), 1(18) and 1(19). The Member also acknowledges that by sending emails of a sexual nature to the Student, he engaged in sexual abuse of a student as defined in sections 1 and 40(1.1) of the Act.
By this document, the Member states that:
(a) he understands fully the nature of the allegations against him;
(b) he understands that by signing this document, he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) he understands that by pleading no contest to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;
(d) he understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;
(e) he understands that any agreement between Counsel for the College and himself with respect to the penalty proposed in this document does not bind the Discipline Committee; and
(f) he understands and acknowledges that he is executing this plea of no contest 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 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 Jan Francis Matejovic committed acts of professional misconduct as alleged, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(7.3), 1(18) and 1(19). The Committee further finds that the Member engaged in sexual abuse of a student as defined in sections 1 and 40(1.1) of the Act.
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 11 (the “Uncontested Facts”) of the Statement of Uncontested Facts, and Plea of No Contest (Exhibit 2). He acknowledged that the Uncontested Facts referred to in paragraphs 1 to 11 above, constitute conduct which is professional misconduct and pleaded no contest to the allegations of professional misconduct. The Member further acknowledged that by sending inappropriate emails of a personal and sexual nature to the Student, he engaged in sexual abuse of a student as defined in sections 1 and 40(1.1) of the Act. The Committee accepted the Member’s plea of no contest and the facts in the Statement of Uncontested Facts, and Plea of No Contest.
The Member exchanged inappropriate emails of a personal and sexual nature with the Student, as evidenced in Tab B of the Statement of Uncontested Facts, and Plea of No Contest (Exhibit 2). These emails were exchanged between March 11, 2010 and June 1, 2010 and the nature of the emails became more sexual in nature as time progressed. Following the Student’s graduation, a physical and sexual relationship commenced on or about August [XXX] and ended about one month later.
The Student indicated in a letter to the Member’s Counsel, dated March 29, 2012 at Tab I of the Statement of Uncontested Facts, and Plea of No Contest (Exhibit 2) that the Member had responded to her communication of sexual desires “in kind” by exchanging “fantasies and intimate and loving sentiments” while she was still a student. The Student also indicated in the same letter that “these same sentiments exist in any adult relationship”.
The Member contravened the standards of the profession by committing acts of a sexual nature through his emails and sexual relations with a student.
The Committee finds that the Member’s actions outlined herein, constitute acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(7.3), 1(18) and 1(19). The Committee further finds that the Member engaged in sexual abuse of a student as defined in sections 1 and 40(1.1) of the Act.
JOINT SUBMISSIONS ON PENALTY
Through a Joint Submission on Penalty (Exhibit 3), Counsel for the College and the Member jointly submitted that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee should order the immediate revocation of the Member’s Certificate of Qualification and Registration.
Counsel for the parties agreed that the findings and order of the Committee should be published in summary form in the official publication of the College Professionally Speaking/Pour parler profession.
The parties had not agreed on whether or not the Member’s name should be published and made submissions on that issue.
SUBMISSIONS RE: PUBLICATION
The Committee received submissions from Counsel for the College and Counsel for the Member with respect to publication of the Member’s name in Professionally Speaking/Pour parler profession.
Counsel for the College argued that the Member’s name should be published. Counsel argued that publication with name is appropriate as a general deterrent, especially in the cases of a more serious nature as in this case.
The public expects professional boundaries between teachers and students to be upheld and in this case, the boundaries were breached. The Member’s admission of a sexual relationship with the Student is a clear violation of professional boundaries.
Publication of the decision with the Member’s name clears up an important misconception of some members of the profession. Publication informs the profession that it is not sufficient to wait until a student has turned 18 or a student has graduated to commence a relationship of a personal or sexual nature. Teachers are required to maintain professional boundaries at all times and not respond “in kind” to student instigated expressions of interest or invitations. In this case the Member’s conduct was serious and should merit the most serious of consequences.
Counsel for the Member argued that specific deterrence has been met by the full acknowledgement by the Member of the inappropriateness of his conduct. He proceeded with a plea of no contest and agreed that his actions were inappropriate and that he breached his duties. He also took the initiative to undergo counselling to address the cause of his conduct. He acknowledged responsibility for his actions and expressed regret and remorse. Member’s Counsel submitted that the Member had already lost everything of significance in his life, including his wife, job, house and children. He was undergoing divorce and was under financial duress. This series of events has already had specific deterrence value. The specific deterrence burden has been met. Therefore publication with the Member’s name is no longer required to act as a specific deterrent.
As to general deterrence, Counsel for the Member submitted that this will be met by the publication of the summary without the Member’s name. The goal of general deterrence should be balanced by factors relevant to the public interest, which includes the interest of another member of the College. Member’s Counsel submitted that there was potential harm to another member of the College by publishing this decision with the Member’s name.
Counsel for the Member argued that this case is unique because the Member is married to another member of the profession who is employed and is well respected. Although many of her friends and colleagues know of the infidelity, in publishing this decision with the Member’s name, intimate details about the breakdown of the marriage will be available to members of the College in a forum that is familiar to them. Counsel submitted that this would be a re-victimization of the Member’s wife. Member’s Counsel argued that the Committee should consider the consequences to an innocent member of the College in its decision to publish with name.
College Counsel responded by saying that publication will not include the name of the Student and the Student will not be prejudiced by publication. Counsel did not agree that this was a unique case and Member’s counsel did not provide any evidence about victimization or embarrassment to the Member’s wife. Full publication will not impact the Member’s wife any more than the facts already had. The Member’s termination of employment and the allegations published in the Notice of Hearing have already made these details public.
College Counsel submitted that this case is about general deterrence and the Committee must reemphasize that it is not appropriate for a teacher to have a relationship with a student after the student has graduated or turned 18 years of age. In this case, a relationship had been cultivated through email while the Student was still a student at the Member’s school. This is a case of serious misconduct and therefore it merits publication with the Member’s name.
PENALTY
The Committee makes the following order as to penalty:
The Registrar of the Ontario College of Teachers is directed to revoke the Certificate and Qualification and Registration of the Member; and
The Committee directs that there be publication of the findings and Order of the Committee in summary form, with the name of the Member, in the official publication of the College, Professionally Speaking/Pour parler profession.
REASONS FOR PENALTY DECISION
The Committee carefully considered and accepted the joint submission on penalty. In the Committee’s view, the Member engaged in reprehensible conduct unbecoming a member of the teaching profession. He abused the authority and trust associated with his role as a teacher. This conduct is unacceptable and contravenes the teacher’s obligation to protect students. The Member has therefore forfeited the privilege of holding a Certificate of Qualification and Registration authorizing him to be a member of the teaching profession.
Revocation is an appropriate penalty for conduct of this gravity. Revocation will reinforce to the profession and the public the importance of maintaining appropriate student/teacher boundaries and that inappropriate conduct of this nature will not be tolerated.
The Committee finds there are compelling reasons to publish the Member’s name in Professionally Speaking/Pour parler profession. The Committee considered submissions made by Member’s Counsel as to the potential harm caused to the Member’s wife. However, the Committee was not presented with any evidence to demonstrate that the Member’s wife would be re-victimized or embarrassed.
In the Committee’s opinion, the details of this case and the Member’s penalty must serve as a deterrent to the other members of the teaching profession against this type of behavior. The Member’s actions are anathema to the duties and obligations of the profession. For these reasons, it is important to indicate to the profession that such behavior will result in the publication of a summary of the findings that includes the Member’s name.
For the Committee, it made no difference that the Student had graduated, was an adult or that she may have initiated the relationship. Given that the Member’s conduct was a very serious abuse of trust, the publication of his name is warranted and appropriate in the circumstances. Publication with the Member’s name reiterates the message to the profession and to the public that behavior of this nature will not be tolerated.
In conclusion, the Committee is confident that that the penalty is fitting in the circumstances and serves and protects the public interest.
Dated: December 13, 2012
John Tucker, Chair Chair, Discipline Panel
Louis Sloan, OCT Member, Discipline Panel
Hanno Weinberger, OCT Member, Discipline Panel