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
Lance Mathew Moffat, OCT, a member of the Ontario College of Teachers.
PANEL: Annilee Jarvis, OCT, Chair Danny Anckle Irene Dembek, OCT
BETWEEN:
ONTARIO COLLEGE OF TEACHERS Lisa Filgiano, McCarthy Tétrault LLP, for Ontario College of Teachers, assisted by Daniela De Bartolo, Litigation Paraprofessional
- and –
LANCE MATHEW MOFFAT (CERTIFICATE #474428) Simon Blackstone, Ursel Phillips Fellows Hopkinson LLP, on behalf of Lance Mathew Moffat
Marc Spector, Steinecke Maciura LeBlanc, Independent Legal Counsel
Heard: February 22, 2012
REASONS FOR DECISION, DECISION AND ORDERS
This matter came on for hearing before a panel of the Discipline Committee (the “Committee”) on February 22, 2012 at the Ontario College of Teachers (“the College”) at Toronto.
A Notice of Hearing, dated June 1, 2011 was served on Lance Mathew Moffat, requesting his presence on June 9, 2011 to set a date for a hearing, and specifying the charges. The hearing was subsequently set for February 22, 2012.
Lance Mathew Moffat was not in attendance.
THE ALLEGATIONS
The allegations against Lance Mathew Moffat in the Notice of Hearing, (Exhibit 1) dated June 1, 2011 are as follows:
IT IS ALLEGED that Lance Mathew Moffat is guilty of professional misconduct as defined in subsection 30(2) of the Ontario College of Teachers Act, 1996 (the “Act”), in that:
(a) he failed to maintain the standards of the profession, contrary to Ontario Regulation 437/97, subsection 1(5);
(b) he failed to comply with the Act and Education Act, Revised Statutes of Ontario, 1990, chapter E.2, and specifically section 264(1)(c) thereof or the Regulations made under those Acts, contrary to Ontario Regulation 437/97, subsection 1(15);
(c) 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
(d) he engaged in conduct unbecoming a member, contrary to Ontario Regulation 437/97, subsection 1(19).
Counsel for the College advised the Committee that an agreement had been reached on the facts and introduced a Statement of Uncontested Facts and Plea of No Contest (Exhibit 2), which provides as follows:
STATEMENT OF UNCONTESTED FACTS
At all material times, the Member was a member of the Ontario College of Teachers. Attached hereto and marked as Exhibit “A” is a copy of the Ontario College of Teachers Registered Member Information respecting the Member.
The Member was employed by the Near North District School Board (the “Board”) at all material times hereto and was a technology and design teacher at West Ferris Secondary School (the “School”) in North Bay, Ontario.
During the 2007-2008 academic year, specifically about the approximate time of October 2007, the Member:
(a) removed an emergency generator belonging to the School without authorization;
(b) stored the emergency generator in his home garage for an extended period of time;
(c) failed to report the theft and/or loss of the emergency generator in a timely manner to the Principal of the School.
Attached as Exhibit “B” is the letter of discipline given to the Member by the Board.
PLEA OF NO CONTEST
By this document the Member admits, for the purposes of this proceeding only, the truth of the facts and exhibits referred to in paragraphs 1 to 3 above (the “Uncontested Facts”).
The Member hereby acknowledges that the Uncontested Facts referred to in paragraph 3 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(15), 1(18 - unprofessional), and 1(19).
By this document the Member states that he:
(a) understands fully the nature of the allegations against him;
(b) understands that by signing this document he is consenting to the evidence as set out in the Uncontested Facts being presented to the Discipline Committee;
(c) understands that by pleading no contest to the allegations, he is waiving the right to require the College to prove the case against him and the right to have a hearing;
(d) understands that depending on the penalty ordered by the Discipline Committee, the decision of the Committee and a summary of its reasons, including reference to his name, may be published in the official publication of the College;
(e) understands that any agreement between his counsel and counsel for the College with respect to the penalty proposed in this document does not bind the Discipline Committee;
(f) understands and acknowledges that he is executing this Agreement voluntarily, unequivocally, and with the advice of legal counsel.
The Member provides this plea of no contest pursuant to Rule 3.02 of the Rules of Civil Procedure of the Discipline Committee under protection of the Evidence Act, R.S.O. 1990, chapter E. 23, for the purpose of this proceeding under the Ontario College of Teachers Act 1996, chapter 12, and for no other purpose. The Member’s plea of no contest does not constitute an admission by the Member as to the facts or findings in any other civil, criminal or administrative proceeding.
In light of the uncontested facts and circumstances, the Ontario College of Teachers and the Member submit that the Discipline Committee find the Member guilty of professional misconduct.
DECISION
Having considered the evidence, onus and standard of proof, and the submissions made by Counsel for the College and Counsel for the Member, the Committee finds that the facts support a finding of professional misconduct. In particular, the Committee finds that Lance Mathew Moffat committed acts of professional misconduct, being more particularly breaches of Ontario Regulation 437/97 subsections 1(5), 1(15) 1(18 - unprofessional) and 1(19).
REASONS FOR DECISION
The Member admitted the truth of the facts and exhibits referred to in paragraphs 1 to 3 above (the “uncontested facts”) of the Statement of Uncontested Facts and Plea of No Contest (Exhibit 2). He acknowledged that the uncontested facts referred to in paragraph 3 above constitute conduct which is professional misconduct and pleaded no contest to the allegations of professional misconduct against him, being more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), 1(18 - unprofessional) and 1(19).
The Committee accepted the Member’s plea of no contest and the facts in the Statement of Uncontested Facts and Plea of No Contest.
During the month of October 2007, the Member removed an emergency generator belonging to the School without authorization, stored it in his home for an extended period of time and failed to report the theft and/or loss of the generator in a timely manner to the Principal of the School.
The Committee finds that based on the Member’s aforementioned conduct, he committed acts of professional misconduct, more particularly breaches of Ontario Regulation 437/97, subsections 1(5), 1(15), (18 - unprofessional) and 1(19).
JOINT SUBMISSION ON PENALTY
Counsel for the College advised the Committee that an agreement had been reached on the appropriate penalty and introduced a Joint Submission on Penalty (Exhibit 4), which provides as follows:
The Ontario College of Teachers and the Member jointly submit that the appropriate penalty to be imposed by the Discipline Committee in this matter would be that the Committee:
(a) directs the Member to appear before the Committee immediately following the hearing of this matter to receive a reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”);
(b) directs that there be publication of the findings and order of the Committee in summary form in the official publication of the College Professionally Speaking/Pour parler profession. The parties have not agreed on whether or not the Member’s name should be included and submissions will be made on that issue.
PENALTY
The Committee makes the following order as to penalty:
(a) the Member is directed to appear before the Committee no later than June 30, 2012 to receive a reprimand and the fact of the reprimand is to be recorded on the Register of the Ontario College of Teachers (the “Register”); and
(c) 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
Both counsel submitted that the reprimand was reasonable and appropriate to the circumstances. Counsel further agreed that a suspension was not warranted in this case. The Committee concurred.
Counsel agreed that there be publication of the findings and order of the Committee in summary form in the official publication of the College, Professionally Speaking/Pour parler profession, but did not agree on whether the Member’s name should be included.
College Counsel submitted that the name of the member should be published in the official publication of the College, Professionally Speaking/Pour parler profession. Counsel submitted that publication with name encourages public confidence in the discipline process, will serve as a specific deterrent and discourage the Member from similar activity in the future. The Member’s behaviour was unacceptable and publication with name will serve as a general deterrent to the profession.
Counsel for the Member requested that the Member’s name not be published. He suggested that the behaviour was at the lower/lowest end of the scale and there was no misconduct regarding the Member’s relationship with students. Counsel submitted that a specific penalty had already been meted out by the Board, and that there was no history before the Committee of any other misconduct throughout the Member’s career. Counsel stated that specific deterrence is achieved by the reprimand and disciplinary action taken by the Member’s employer. Counsel further stated that the recent practice of the College to publish full discipline decisions on the College’s website will allow for transparency and will make the general public aware of this proceeding. Counsel suggested it is not necessary to publish the Member’s name in order to deter the profession from engaging in similar behaviour.
In reply, College Counsel did not agree with the Member’s counsel that the misconduct was at the lowest range. College Counsel made reference to the letter of discipline from the Board (Exhibit 2, Tab B) which stated that the equipment removed was used as part of the school’s emergency plan and the fact that it was not in the school for a period of time put the entire school population at risk. College Counsel further stated that the public’s ease of access to full decisions on the College’s website and to discipline hearings supports transparency and is a reason to publish the Member’s name.
The Committee considered the submissions of Counsel with respect to publication and determined that the name of the Member will be published in Professionally Speaking/Pour parler profession. The Committee agreed with College Counsel’s submission with respect to the serious nature of the misconduct. By removing the emergency generator, the Member put the safety of the school and students at risk. The Committee further acknowledges that publication with name acts as a specific deterrent to this Member and serves to deter the profession from engaging in similar conduct. Publishing the Member’s name ensures transparency and informs the public that all levels of misconduct are treated seriously.
Date: February 22, 2012
Annilee Jarvis, OCT Chair, Discipline Panel
Danny Anckle Member, Discipline Panel
Irene Dembek, OCT Member, Discipline Panel